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Cursing at officer on side of road is not disorderly conduct here

Facts

In 2013, Kim Collins was stopped for speeding by Mississippi State Highway Patrol Trooper Matthew Hood in Monroe County, Mississippi. According to the testimony at trial, throughout the traffic stop, Hood and Collins exchanged comments about the stop, and Collins expressed her disagreement with being stopped. At what appeared to be the conclusion of the stop, Hood issued Collins a citation for speeding and having no insurance, informed her of her court date, and told her “to slow down and be careful.”

He then turned and began walking to his patrol car. Hood stated that as he reached the front-bumper area of his patrol car, Collins called him a “racist motherf—-r.” However, Collins disputes this allegation and asserts that she only expressed her intent to contact Hood’s superior officer.

After the alleged remark by Collins while she was driving off, Hood yelled to her that “you had better go head.” With almost no hesitation after he told her that she “had better go head,” he began approaching the vehicle again and yelled out to Collins to stop her vehicle and to put it in park. Collins complied.

Upon reaching the vehicle, he instructed her to step out of her vehicle, without informing her as to why she was being ordered out. Upon her refusal, Hood opened her door, removed her seatbelt, and physically pulled her from her vehicle. He then attempted to place handcuffs on her by forcefully restraining her against her vehicle, but she resisted; he eventually handcuffed her after forcing her to the ground.

After being handcuffed, Collins lay near the roadway until the arrival of a backup trooper. Eventually, an ambulance arrived and transported Collins to the hospital for treatment of what she was describing as a broken leg. (Collins did not suffer a broken leg, as, according to her trial testimony, she suffered a torn ACL, a torn meniscus, and “a lot of just torn ligaments in her knee.”)

According to Hood’s testimony, he charged Collins with (1) disturbing the peace for calling him a “racist motherf– –r,” (2) disorderly conduct for Collins’s failure to comply with his command to get out of her car, (3) public profanity for cussing in the presence of Trooper Tucker, the EMTs, and “other motorists,” (4) resisting arrest for refusing to allow him to handcuff her, and (5) speeding for driving eighty miles per hour in a sixty-five-mile-per-hour zone.

Collins was convicted of all charges and sentenced to 90 days. On appeal, MCOA affirmed the speeding and reversed on all of the other charges.

Analysis

It is clear to us, based on Hood’s testimony, that the traffic stop had ended before Collins was arrested for disturbing the peace by allegedly calling Trooper Hood a “racist motherf—-r.” Hood had given Collins the speeding ticket and had walked away from her vehicle. He did not give any indication that the traffic stop had not been completed.

Although he testified that his traffic stops do not end until he returns to his car and drives off, when asked if he would have stopped Collins had she simply driven away as he returned to his car, he replied that he would not have. Therefore, as stated, the initial traffic stop for speeding had been completed, as Hood had not only given Collins the speeding ticket and had walked away, he had also given her what can only be described as parting instructions: he had told her where to pay the ticket, to have a nice day, to slow down, and to be careful. And even after Collins was leaving while allegedly calling him a “racist motherf—-r,” he even told her she had “better go head.”

We find that the circuit court erred, and Hood’s arrest of Collins for disturbing the peace was illegal, as she had not committed the offense of disturbing the peace when he ordered her out of her car for calling him a “racist motherf—-r.” Taking Hood’s statement as true, as we must, not only had Collins not committed the offense of disturbing the peace, she had not committed any of the other offenses that Hood later charged her with.

As we said in Odem, the United States Supreme Court has held that there are definite and narrowly limited classes of speech which may be constitutionally punished. These include the lewd and obscene, the profane, the libelous and insulting, or fighting words which tend to incite an immediate breach of the peace.

However, the Supreme Court has also held that profane words alone, unaccompanied by any evidence of violent arousal, are not fighting words, and are therefore protected speech. The court went on to state that, unfortunately, law enforcement officers must endure verbal abuse. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.

Hood testified that the probable cause to arrest Collins was based on her calling him a “racist motherf—-r.” He also testified that the words she used did not incite him to fight and that he did not consider them to be fighting words. Collins asserts that nothing said rose to the level required for probable cause to arrest her for disturbing the peace.

Our disturbance-of-the-peace statute, Mississippi Code Annotated section 97-35-15(1) (Rev. 2014), provides:
Any person who disturbs the public peace, or the peace of others, by violent, or loud, or insulting, or profane, or indecent, or offensive, or boisterous conduct or language, or by intimidation, or seeking to intimidate any other person or persons, or by conduct either calculated to provoke a breach of the peace, or by conduct which may lead to a breach of the peace, or by any other act, shall be guilty of a misdemeanor.

It is clear from even a casual reading of the above statute that the statute only prohibits disturbing the public peace or the peace of others. The record is clear that when Hood ordered Collins to stop her car and get out, only she and he were there on the side of the road. Therefore, when she said what Hood accused her of saying, she could not have disturbed the public peace, nor could she have disturbed the peace of others, and the statute does not prohibit disturbing the peace of another.

Based on Hood’s testimony, and the recording of the traffic stop, Collins was argumentative and insulting throughout the stop, asserting that Hood had pulled her over because it was Martin Luther King Jr. Day and Trooper Hood wanted to “harass black people.” The State further argues that after Collins called Hood a “racist motherf—-r,” Hood was justified, upon observing what he perceived was a breach of the peace, or conduct calculated to provoke a breach of the peace, in detaining Collins a second time.

It is sufficient to say, as we already have, Hood himself did not consider the insult to be fighting words. Therefore, it cannot be legitimately argued that Collins’s words to Hood were likely to cause a breach of the peace.

 

https://courts.ms.gov/Images/Opinions/CO122992.pdf