Holding a baseball bat and refusing to leave resulted in disorderly conduct conviction


Erwin J. Smith is the owner of an arcade in Picayune, Mississippi. In 1993, Smith learned of a disturbance in his adjoining parking lot, and upon discovering that a small crowd had gathered there, he exited his arcade building and walked onto his lot carrying a baseball bat. Two police officers from the City of Picayune arrived at approximately the same time, and one of the officers ordered Smith to leave the parking lot and to go back inside the building.

When Smith refused to leave the parking lot, the officer placed him under arrest. The violation consisted of Smith’s refusal to “promptly comply with the command of a law enforcement officer.” Smith was convicted of disorderly conduct. On appeal, he argued the statute is over broad. MSC affirmed.


Section 97-35-7 of Mississippi Code Annotated (1972) is entitled “Disorderly conduct; failure to comply with the requests or commands of law enforcement officers; penalties.” Smith complains principally that the language within this statute makes it possible for a police officer to arrest anyone who “fails or refuses to promptly comply with or obey a request, command or order of a law enforcement officer . . . to: (i) [a]ct or do or refrain from acting or doing as ordered . . . .” Smith maintains that the language of this statute could be allowed to prevent peaceful public protest or the exercise of any number of fundamental rights, including freedom of speech, freedom of assembly, and the right to move freely.

We point out that in this case the statute was applied to conduct, not speech. The presence of the baseball bat, regardless of whether Smith was cursing or threatening the officer, greatly enhanced the possibility of grievous injury to the police officers or others if the disturbance escalated. In light of the facts, it seems imminently reasonable for the officer to have attempted to distance a potentially lethal weapon from a crowd of people.

Therefore, we hold that the statute is constitutional as applied to the facts of this case. This case does not concern the right of Smith to remain upon the part of his property of his choosing, but rather concerns the right of the officer to control conduct on that property which greatly increased the potential for sudden violence. As the police officers arrived on the scene, it must have quickly become apparent that it was imperative to remove the greatest danger by immediately dealing with the threat of a person approaching an ongoing fight carrying a baseball bat.

The conviction at issue resulted from prosecution for the failure to obey a reasonable request of a police officer which merely asked that Smith remove himself and his baseball bat from the immediate area of the disturbance and to return inside his building. Smith cannot reasonably assert that the statute, as written, does not provide adequate notice that the failure to obey an order under such circumstances could result in arrest. Thus, we determine that the statute is constitutional as applied to the facts of this case.