Breach Of The Peace



Under the Florida disorderly conduct statute, where the basis for an arrest is speech only, the statute's application is limited to words that by their very utterance inflict injury or tend to incite an immediate breach of peace or words known to be false and reporting physical hazard in circumstances creating a clear and present danger of bodily harm to others.U.S. v. Lyons, 403 F.3d 1248, 66 Fed. R. Evid. Serv. 1032 (11th Cir. 2005). Therefore, the use of words as a tool of communication loses its constitutional protection under the statute if (1) by the manner of their use, the words invade the right of others to pursue their lawful activities; or (2) by their every utterance, they inflict injury or tend to incite an immediate breach of the peace.Morris v. State, 335 So. 2d 1 (Fla. 1976); White v. State, 330 So. 2d 3 (Fla. 1976). Thus, an offensive utterance made in an explosive situation or which disrupts the lawful activities of others constitutes disorderly conduct.White v. State, 330 So. 2d 3 (Fla. 1976); Bradshaw v. State, 286 So. 2d 4 (Fla. 1973). For example, probable cause existed to arrest a store customer for disorderly conduct, where the customer repeatedly refused to accept the store's return policy concerning a store credit and repeatedly attempted to devise plans to thwart that policy, was loud, was possibly cursing at employees working at the return counter, refused a store manager's request to leave the property, interrupted police officers' questioning of the manager, and refused to comply with the officers' order to move.Epstein v. Toys-R-Us Delaware, Inc., 277 F. Supp. 2d 1266 (S.D. Fla. 2003), aff'd, 116 Fed. Appx. 241 (11th Cir. 2004)."Fighting words" or false words reporting a physical hazard are proscribed by the disorderly conduct statute. Words which by their utterance tend to incite an immediate breach of the peace are "fighting words."L.J.M. v. State, 541 So. 2d 1321 (Fla. Dist. Ct. App. 1st Dist. 1989). On the other hand, speakers do not violate the statute merely by annoying those around them or by employing profane language to express outrage. Gold v. City of Miami, 151 F.3d 1346 (11th Cir. 1998).

Examples:

The evidence was insufficient to support a disorderly conduct conviction where there was no evidence that witnesses responded to the defendant's words in any particular manner or that anyone in the area was actually incited to engage in an immediate breach of the peace but were merely either curious or annoyed.Smith v. State, 967 So. 2d 937 (Fla. Dist. Ct. App. 2d Dist. 2007). Similarly, the evidence was insufficient to support a conviction for disorderly conduct, even though the defendant yelled obscenities at a police officer and motorists along roadway where incident occurred slowed or stopped while the defendant was yelling. However, no evidence was presented that the defendant's words were fighting words or words that would tend to incite an immediate breach of peace; that the defendant was engaged in any physical conduct toward the officer that affected the officer's ability to do her job or breached peace or otherwise incited others to act; or that anyone in area was actually incited into engaging in an immediate breach of peace. Barry v. State, 934 So. 2d 656 (Fla. Dist. Ct. App. 2d Dist. 2006). Also, a deputy did not have statutory authority to make a warrantless arrest of a defendant for the misdemeanor of disorderly conduct, even though a witness called police after the defendant was allegedly irate and loud with her, and the deputy who responded to a call about a neighborhood disturbance, saw the defendant yelling and screaming; nothing suggested that the defendant was inciting an immediate breach of peace or was yelling an equivalent of "fire" in a crowded movie theatre. Baymon v. State, 933 So. 2d 1269 (Fla. Dist. Ct. App. 2d Dist. 2006).



