Facts
In 2000, Larod Odem loaned his vehicle to his friend Christopher Harris. Harris was parked at a Canton car wash when officers from the Madison County Sheriff’s narcotics unit approached Harris and others. Harris was arrested and charged with loitering and possession of a concealed weapon. Odem’s vehicle was impounded.
Later that evening, Odem went to the Madison County Sheriff’s Office to claim his vehicle. Deputy Sheriff Mark O’Cain responded to a dispatcher’s call to come to the lobby of the sheriff’s department to deal with an “irate” person in the lobby. O’Cain contacted Lieutenant James R. Marlett, the supervisor of the narcotics unit, to resolve Odem’s concerns. Marlett instructed him to tell Odem to come to the sheriff’s department on Monday morning with proof of ownership of the vehicle. Odem then left.
On Monday morning, as instructed, Odem returned to the sheriff’s department. Marlett advised Odem that he would have to provide “proof of ownership, a title, registration, something showing ownership of the vehicle before we can release this vehicle to you.” Odem told Marlett that the ownership papers were in the glove compartment of his vehicle and that the people at the impound lot would not let him retrieve them. Marlett offered to call the impound lot to allow Odem access to the vehicle to retrieve the ownership papers.
Upon learning that he would have to go back to the impound lot to retrieve the papers, Odem became agitated. Marlett provided the following testimony about the incident:
He became a little bit louder and a little more irate. He said, I have already been there. I tried to get the proper paperwork for this vehicle. They wouldn’t let me get the paperwork. This is a bunch of…. This is a s***. He said, I’ve already been there to get this paperwork. They refused to let me get the paperwork out of my own vehicle. I said, well, I’ll call. He said this is just a bunch of MF s***. I’ve already been up there one time to get the paperwork. He said, do you mean that I’ve got to go back up there, get the paperwork, bring it back to your office, show you the paperwork and then go back up there to get my vehicle? I said, yes, that’s exactly what you’ll need to do.
He said this is a bunch of F’ing s*** that it seems like that I’m having to run back and forth. This is a bunch of sick s*** that seemed like I am just harassed become of the paperwork or the vehicle. I said, no, we cannot release the vehicle without the proper paperwork.
And he became more agitated, and he started shouting…. And with all the swear words and loudness, he kept getting louder and louder, and I told him, I said, there’s no need of this language. I will call Mr. Cannon [the owner of the towing company where the vehicle was located]. You can get your paperwork. But the next time that you utter cuss words like you’re doing now, I’m going to place you under arrest for disorderly conduct.
He said, this is just a bunch of sick s*** that I should not have to go through this, and I’m tired of it. And it seems like all you MF’s are harassing us.
Marlett then informed Odem that he was under arrest for disorderly conduct.
A scuffle ensued before Odem was arrested. Deputy Sheriff Randy Tucker corroborated Marlett’s version of the incident. Odem and Chris Harris, who came with Odem, gave a different version in which Odem was civil and calm.
Odem was convicted on two counts of assault on a law enforcement officer, pursuant to Mississippi Code Annotated Section 97-3-7 (Supp.2003), and sentenced to six months in jail. On appeal, he argued the arrest was unlawful. MCOA affirmed.
Analysis
A. Was the arrest lawful?
Odem cites the principle that a person has a right to use reasonable force to resist an unlawful arrest. Boyd v. State, 406 So.2d 824 (Miss.1981).
In Brendle, Odem argues that this court held that merely uttering vulgar, indecent or profane language in the presence of a law enforcement officer is not sufficient grounds to convict the defendant for profane language if that language does not rise to the level of fighting words.
However, the State points out that MSC in Jones declined to adopt our fighting words reasoning in Brendle. MSC said in Jones that the proper test is whether there is sufficient evidence to believe that a breach of the peace was being threatened or a crime was about to be committed.
Thus, we must begin with a determination of whether there was sufficient evidence to believe that a breach of the peace was being threatened or a crime was about to be committed.
Here, the conduct which lead to the arrest occurred at the sheriff’s department, not while the deputy was out on patrol. Odem was arrested not for the crime of public profanity but for the crime of disorderly conduct or breach of the peace. Odem’s language contained profane and vulgar words. However, there was testimony that the basis for the arrest was not solely based on his spoken words but also included consideration of his conduct, behavior and demeanor.
Indeed, there was evidence that Odem was agitated, loud, irate, and was gesturing combatively. His behavior indicated that he was intent on creating a scene so that Marlett would not enforce the procedures and allow Odem to get his vehicle back immediately, without having to go to the impound lot, secure the proof of ownership, and return to the sheriff’s department to prove that he in fact owned the vehicle and should be allowed to remove it from the impound lot.
The State argued they had probable cause to arrest Marlett under: 1) Mississippi Code Annotated Section 97-35-3 (now repealed), 2) Mississippi Code Annotated Section 97-35-7, or Mississippi Code Annotated Section 97-35-13.
We agree with the State. There was sufficient evidence for Lieutenant Marlett to believe he had probable cause to arrest Odem. Therefore, we find that the arrest of Odem was a lawful arrest.
B. Odem’s right to free speech
In Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942), the U.S. Supreme Court 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 by their very utterance inflict injury or tend to incite an immediate breach of the peace.
We do not consider whether Odem used lewd and obscene or libelous words. Obscene words are defined as those that appeal to prurient interests and are in some way erotic. There is nothing to indicate that Odem’s words fell into these categories.
The U.S. Supreme Court in Cohen v. California, 403 U.S. 15 (1971), has also held that profane words alone, unaccompanied by any evidence of violent arousal, are not fighting words, and are therefore protected speech.
Although we have already determined that Odem was arrested based on his words together with his conduct, behavior and demeanor, we will nevertheless consider whether Odem’s language constituted fighting words, not speech that is simply disputatious, emotionally charged, or profane.
As stated above, fighting words are those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. The probability of words inflicting injury or inciting an immediate breach of the peace tends to depend upon to whom the words are addressed.
Law enforcement officers must have probable cause to make an arrest. They may not simply take offense to words that are expressed at them in a tense situation. We believe it is important that Lieutenant Marlett neither initiated nor had an opportunity to walk away from Odem’s words and combative conduct. Odem became agitated and began shouting profanities when Marlett told him about the protocol he would have to follow to retrieve his vehicle from the impound lot. Odem expressed his displeasure with the inconvenience.
Odem did not stop with simply expressing his displeasure. He was combative, and he created a stalemate that arose to the level of “fighting words” that were likely to inflict injury or incite an immediate breach of the peace. Indeed, Odem indicated no intent to back down until Marlett gave him his vehicle without following the proper procedure.
Thoughts
Don’t get lost in “fighting words” or “breach of peace” tests. The main thing to remember is that when you make arrests like this, focus in your police report on the conduct, behavior, and demeanor of the subject. People have first amendment rights to a big vocabulary. They don’t have the right to get in your face, elevate their voice to cause a disturbance, threaten you, etc.