Facts
In 1996, Herbert Miller sought the assistance of Houston Police Officer Trances Ford. Miller had a business dispute with Chickasaw Mechanic, Inc. owner William Brendle and believed that discussions with Brendle might lead to an altercation or disturbance. Officer Ford informed Miller that he would only accompany Miller as an observer. Ford, however, allowed Miller to travel to Brendle’s mechanic shop with him in his police vehicle.
Once at Chickasaw Mechanic, both Miller and Ford entered the Chickasaw Mechanic, Inc. office. Brendle entered the office and the two men discussed Miller’s problem. According to Ford, it was during this discussion that Brendle used profanity. Ford testified that, to the best of his recollection, Brendle said (to him), “I’m tired of this God d— police sticking their nose in s— that doesn’t even involve them.”
Ford testified that after Brendle initially used the profane language he issued a warning to him not to do so again or he would arrest Brendle. Despite Ford’s admonition, Brendle voiced additional profane remarks towards Ford.
Brendle’s recollection of the discussion differed. He testified that he questioned Ford about the City of Houston’s ethics policies regarding police officers transporting civilians. Brendle claims the profanities he expressed were in response to the profane language used by Ford in response to the question.
Ford then informed Brendle that he was under arrest. According to Ford, Brendle did not cooperate and “snatched himself away” from Ford’s grip. Ford testified that he wrestled with Brendle to the ground before handcuffing him. Consequently, Ford charged Brendle with public profanity and resisting arrest.
Brendle was convicted of public profanity and resisting arrest and sentenced to fines and fees. On appeal, he argued his language was protected speech. MCOA agreed with Brendle and reversed.
Analysis
Section 97-29-47 provides:
Public profanity or drunkenness
If any person shall profanely swear or curse, or use vulgar and indecent language, or be drunk in any public place, in the presence of two (2) or more persons, he shall, on conviction thereof, be fined not more than one hundred dollars ($100.00) or be imprisoned in the county jail not more than thirty (30) days or both.
Brendle contends that even if it is assumed that he actually spoke the words as attested to by Officer Ford, that such speech was “pure speech” protected by the First Amendment to the U.S. Constitution.
A. U.S. Supreme Court history on words and first amendment
The first amendment freedom of speech is not absolute. In Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942), the U.S. Supreme Court articulated that fighting words, obscene words, and libelous words are not protected under the first amendment. In Cohen v. California, 403 U.S. 15 (1971), the U.S. Supreme Court added that the fighting words must be directed to the person of the hearer. Then, in Gooding v Wilson, 405 U.S. 518 (1972), the U.S. Supreme Court said the fighting words would need to be said with the intent to incite a breach of peace.
In Lewis v. City of New Orleans, 415 U.S. 130 (1974), the U.S. Supreme Court said that even fighting words may have a more limited application in cases involving speech to a police officer, as a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to fighting words. In City of Houston v. Hill, 482 U.S. 451 (1987), the U.S. Supreme Court said that 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.
B. This case
In this case we are not, obviously, dealing with libelous words. Additionally, we are not dealing with “obscene words.” Obscene expressions are defined as those that appeal to prurient interests and are in some way erotic. There is nothing to indicate that such is the case here. Thus, the question is whether Brendle’s language constituted fighting words.
Even assuming that Brendle used the “f” word in his speech, Brendle’s language while vulgar, indecent, and arguably profane, did not rise to the level of “fighting words.” His language was not “by its very utterance” sufficient to incite an immediate breach of the peace.
This is not to say that shouting profanities at a police officer is appropriate or proper behavior in any circumstance. In fact, such conduct may give rise to a situation where an immediate breach of the peace may occur. However, the facts in this case do not support such a situation. Rather the testimony shows that some of the vulgarities used by Brendle were spoken as he turned away from Ford attempting to return to his office.
Even further, there was no evidence that Brendle’s epithets sought to incite others to prevent his arrest. As such, we find that the circuit court committed manifest error in determining that Brendle’s conduct gave rise to probable cause for his arrest for a violation of Mississippi’s statute against public profanity. Accordingly, we vacate Brendle’s conviction for public profanity.
Because we find that Brendle’s arrest for public profanity was unlawful, the charges of resisting arrest are thereby undergirded. The offense of resisting arrest presupposes a lawful arrest. A person has a right to use reasonable force to resist an unlawful arrest. Therefore, we also vacate the charges against Brendle for resisting arrest.