DISORDERLY CONDUCT LAWYER
Disorderly conduct charges are very common. On an average day of running errands in Johnson County, you will probably see at least one-person act in a way that could get them charged with disorderly conduct. The difference between receiving a charge for disorderly conduct and not receiving one is often whether the police are called and the temperament of the officer arriving at the scene. Law enforcement officers often use disorderly conduct as a “catch all.” If an officer doesn’t like your behavior but you have not committed another crime you may find yourself cited with disorderly conduct. Keep reading to learn about this charge, written specifically by a disorderly conduct attorney.
What is Disorderly Conduct?
There are a couple of different definitions of disorderly conduct. Depending on the jurisdiction in which you are charged the law varies slightly. Here are a two common examples of laws prohibiting disorderly conduct:
State Of Kansas: (a) Disorderly conduct is one or more of the following acts that the person knows or should know will alarm, anger or disrupt others or provoke an assault or other breach of the peace:
Brawling or fighting
disturbing an assembly, meeting or procession, not unlawful in its character; or
using fighting words or engaging in noisy conduct tending reasonably to arouse alarm, anger or resentment in others.
(b) Disorderly Conduct is a class C misdemeanor.
(c) As used in this section, “fighting words” means words that by their very utterance inflict injury or tend to incite the listener to an immediate beach of the peace.
Here are a couple of the city laws prohibiting Disorderly Conduct.
What kind of punishment am I facing for a disorderly conduct charge?
Disorderly conduct is a misdemeanor. In Kansas, there are four different groups of misdemeanor offenses. Kansas ranks these offenses in severity and the punishment that a person can receive depends on the severity of the crime in which they are convicted of. Below are the different groups and examples of crimes that fall into that group.
Class A Misdemeanor– This is the most serious group of misdemeanor crimes. They include: Theft less than $1000, Second Offense DUI, Second Offense Marijuana Possession, Battery on a law enforcement officer, et. cetera. Class A offenses carry with them a punishment range up to one year in jail.
Class B Misdemeanor– This is the second most serious group of misdemeanor crimes. They include Domestic Battery, DUI, Driving on a Suspended License, Marijuana Possession, Battery, et. cetera. Class B offenses carry with them up to 6 months in jail.
Class C Misdemeanor– This is the lowest level of misdemeanor crime. This is where Disorderly Conduct charges fall in the misdemeanor ranking system. Class C misdemeanor charges carry with them up to 30 days in jail.
Unclassified Misdemeanor– This is a group for misdemeanor charges that do not fall into any of the above classifications. Crimes that fall into these groups have their own proscribed punishment but they cannot exceed one year in jail.
If you are charged with disorderly conduct you are looking at a class C misdemeanor that carries with it up to 30 days in jail and up to a $500 fine. In general, most people that get a conviction for disorderly conduct either end up with a fine or a fine and probation. It is unusual for a person convicted of disorderly conduct to receive a jail sentence. One thing to remember when you are charged with disorderly conduct is that it is a crime. If you get convicted of disorderly conduct you will have a criminal record.
What are some examples of Disorderly Conduct?
Some parts of the disorderly conduct law are easy to understand others are a little more open to interpretation. For example, both laws have a common theme in that they criminalize the use of “fighting words.” There is not an exhaustive list of what “fighting words” means in the disorderly conduct context. When there is an ambiguous or undefined term in a law we have to look to caselaw to explain the ambiguous or undefined term. Caselaw is created when a judge rules on a specific set of facts, in other words, what the judge’s ruling is in one case defines the law for all cases after that with similar facts. There are hundreds of cases that shed light on the language of the disorderly conduct law in Kansas. Here are a few cases and what points you can draw from them to help better understand the Disorderly Conduct law.
State vs. Beck, 9 Kan. App. 2d 459 (1984) This case answered the question: Can you be guilty of disorderly conduct if the conduct took place in a private place like your own home? The court held that you can commit disorderly conduct in your own home there is no requirement that the conduct occur in public.
State vs. Polson, 225 Kan. 821 (1979)This case answered the question: Can you be guilty of disorderly conduct if only one other person was around to witness the conduct? The court held that a person can be guilty of disorderly conduct if only one person is around to witness the conduct.
Chaplinsky vs. State of New Hampshire, 315 U.S. 568 (1942)This case answered the question; Is criminalizing the use of “fighting words” an unconstitutional infringement on a person’s right to free speech under the first amendment to the United States’ Constitution? The court held, that “freedom of speech” protected by the constitution is not absolute at all times and under all circumstances and there are well-defined and narrowly limited classes of speech, the prevention and punishment of which does not raise any constitutional problem, including the lewd and obscene, the profane, the libelous, and the insulting or fighting words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
State vs. Stroble, 169 Kan. 167 (1950)This case answered the question: Does the person to whom the “fighting words” are directed at have to be offended before a person uttering the fighting words can be convicted of disorderly conduct? The court held that the disorderly conduct law does not require that the victim of the speech actually experienced the emotions listed in the offense. Further the court held that when determining whether disorderly conduct has occurred, the courts look to “the intention of the person uttering the language, the person to whom uttered, and all the surrounding facts and circumstances.
In the Matter of J.K.P. , 296 P.3d 1140 (2013) This case answered the question: Is the use of a racial slur automatically Disorderly Conduct? The court held that the yelling a racial slur by [J.K.P.] directed at the people who testified in his case, that he did use language or words—and did engage in noisy conduct—tending to reasonably arouse anger or resentment. Words that are chosen in one context may not be offensive to another person, but used in another context may be extremely offensive to another person. The court does not hold that uttering a racial slur is not a per se violation of the disorderly conduct law.
State vs. Rollins, 205 Kan 432 (1970)This case answers the question: What type of language can constitute fighting words? In this case there is a distinction made between what many people would considered political protected speech and “fighting words.” The court held that evidence that defendant used loud, profane, vulgar and insulting language in presence of United States Marine Corps recruiter and numerous other persons, that his grossly offensive taunts were directed toward the Marines, the then President of the United States, the Flag and State Bureau of Investigation, three of whose agents were present at the time, and that he threatened violence to persons of Marines, all of which caused several persons present to be visibly offended and annoyed, was sufficient to sustain conviction for disturbing the peace.
State vs. Carpenter, 231 Kan 235 (1982)This case answered the question: Is disorderly conduct a lesser included offense to Obstruction of Legal Process? The Court held that disorderly conduct is not a lesser included offense to obstruction of legal process and that they do not contain the same elements.
U.S. v. McKinney, 9 Fed. Appx 887 (2001)This case helped give guidance on the use of curse words in the disorderly conduct context. In this case, a defendant told a military officer to “go f*** himself.” The court held that in that context the language did not rise to the level of “fighting words,” a thus the defendant was not guilty of disorderly conduct.
What kind of language or conduct gives rise to a Disorderly Conduct charge?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case.
What kind of language or conduct arouses alarm in others?
Short Answer: "language or initiating conduct that tends to reasonably arouse alarm, anger or resentment in others."
Cook v. Bd. of the Cty. Comm’rs, 966 F. Supp. 1049 (D. Kan. 1997).
This case explored the question of what kind of language or conduct was viewed as giving rise to disorderly conduct. In exploring this question, the court held that language or conduct which tended to reasonably arouse alarm, anger, or resentment in others could give rise to disorderly conduct. Id. at 1052.
In this case, a highway patrol officer was parked in his patrol car monitoring the speed of passing vehicles. Id. at 1051. While passing the highway patrol officer in his car, the driver “flipped the bird” to the officer. Id. As a result, the officer stopped the car and arrested the driver for disorderly conduct, a class C misdemeanor. Id. Following the arrest, the driver brought a lawsuit against the officer claiming that the officer wrongfully arrested him and prosecuted him for disorderly conduct. Id. The case was heard by the U.S. District Court for the District of Kansas. Id.
In addressing this case, the court first looked to the disorderly conduct statute. The statute stated, “Disorderly conduct is, with knowledge or probable cause to believe that such acts will alarm, anger or disturb others or provoke an assault or other breach of the peace . . . using offensive, obscene, or abusive language or engaging in noisy conduct tending reasonably to arouse alarm, anger, or resentment in others.” Id. (this is the Kansas statute from 1997 but we have a similar one today) With this knowledge, the court determined that the main issue in this case was whether the officer reasonably could have believed that the driver was engaged in disorderly conduct. Id. at 1052. According to Kansas law, an individual was guilty of disorderly conduct when he or she expressed “fighting words to another”—words which by their very utterance inflicted injury or tended to incite an immediate breach of peace. Id. at 1051. Additionally, the court concluded that disorderly conduct included language or conduct which tended to reasonably arouse alarm, anger, or resentment in others. Id. at 1052. With regard to this case, the court determined that a reasonable officer could not have believed that the driver’s actions of flipping the officer the bird rose to the level of disorderly conduct. Id. Moreover, the court concluded that the First Amendment protected a significant amount of verbal criticism and challenge directed at police officers, and this freedom was one of the principal characteristics which distinguished between a free nation from a police state. Id. at 1051.
In conclusion, according to Kansas courts, an individual can be found guilty of disorderly conduct for using language or initiating conduct that tends to reasonably arouse alarm, anger or resentment in others. Id. at 1052.
Does disorderly conduct need to be conduct that incites others to riot or violence?
Short Answer: No.
Ft. Scott v. Arbuckle, 187 P.2d 348 (Kan. 1947).
This case explored the issue of whether disorderly conduct was only conduct that incited others to riot or get violent. In exploring this issue, the court held that conduct did not need to incite others to riot or violence to be considered disorderly conduct. Id. at 358.
In this case, the defendant was a 20-year-old woman who was a minister of Jehovah’s Witnesses. Id. at 351-52. The defendant had resided and pursued her work in Fort Scott for approximately a year. Id. at 352. On numerous occasions, the defendant would go to three different apartment buildings to knock on doors and distribute her religious literature. Id. at 352-53. In all of these scenarios, the apartment owners would ask her to leave and she would refuse. Id. Despite being asked to not return on a number of occasions, the defendant kept returning to distribute her literature. Id. In fact, the defendant went as far as entering the apartments without permission. Id. Eventually, many of the apartment residents complained to the apartment owners about the defendant. Id. According to the residents, the defendant was waking them up from their sleep and greatly disturbing them. Id. In the end, the defendant was convicted of three separate counts of disturbing the peace (AKA disorderly conduct). Id. at 351. As a result, the defendant appealed the decision to the Supreme Court of Kansas. Id.
On appeal, the Supreme Court of Kansas first noted that there was no evidence that any of the residents ever invited the defendant to come to any of their apartments for any purpose. Id. at 360. In light of these facts, the court mentioned that the defendant’s entire course of conduct showed a determination on her part to commit these disturbing acts whether the residents were willing for her to do so or not. Id. at 359. With this in mind, the court stated that had the defendant stopped these people on the street or in a park or nearly any place where she had a right to be, she could have conveyed her religious message freely without any legal repercussions. Id. However, in this situation, the court concluded that an individual must have some place to which he or she may retire and be reasonably free from annoyance or disturbance. Id. In this case, the residents’ apartments were the only places where the residents could get real rest. Id. Additionally, many of the residents asked the apartment owners to keep the defendant from knocking or entering their apartments because she was disturbing them. Id. Therefore, although the defendant’s actions were not inciting others to riot or violence, the court held that that she was disturbing peace (therefore guilty of disorderly conduct). Id. at 358-60.
In conclusion, Kansas law holds that conduct does not need to incite others to riot or violence to be considered disorderly conduct. Id. at 358.
What are fighting words in the disorderly conduct context?
Short Answer: words that were of such character that their very utterance caused injury or that they tended to incite the listener to an immediate breach of the peace"
State v. Heiskell, 666 P.2d 207 (Kan. Ct. App. 1983).
This case answered the question, “What are fighting words”? In answering this question, the court held that fighting words were those which by their very utterance inflicted injury or tended to incite the listener to an immediate breach of peace. Id. at 210-11.
In this case, the defendant and three friends stopped at a Quik-Trip at approximately 1:00 a.m. to buy gasoline and cigarettes. Id. at 209. As they left, someone threw a bottle or rock at their car. Id. In response, the driver sped around the corner, attracting the attention of a police officer who stopped the car. Id. Immediately, the driver got out of his car to explain what had happened. Id. According to the police officer’s testimony, the defendant got out of the car as the police officer was talking to the driver and bombarded the police officer with verbal abuse and threats. Id. A police officer who arrived on the scene shortly after stated that the defendant called the police officer “a clubhappy motherf****ng son-of-a-b**ch” and told him he was going to kick his a**. Id. Apparently, the defendant’s comments were the result of a prior incident involving the defendant’s brother and the police officer. Id. As a result of the language toward the police officer, the defendant was arrested for disorderly conduct. Id. At trial, the defendant was convicted of disorderly conduct and was sentenced to 60 days in prison. Id. at 210. Eventually, the defendant appealed the decision to the Court of Appeals of Kansas. Id.
In considering the defendant’s appeal, the Court of Appeals of Kansas noted that the disorderly conduct charged against the defendant was based solely on the defendant’s use of abusive and threatening language toward the police officer. Id. Additionally, the jury instruction defining disorderly conduct given by the trial court stated, “To establish the charge of disorderly conduct each of the following claims must be proved: (1) That the defendant used offensive, obscene, or abusive language; (2) that the defendant acted with knowledge or reasonable cause to believe that his acts would alarm, anger, or disturb others or provoke an assault or other breach of peace; and (3) that the act occurred on May 23, 1981.” Id. In his appeal, the defendant argued that the jury instruction was overly broad and permitted the jury to convict him for the use of constitutionally protected language. Id.
In responding to the defendant’s argument, the court stated that it was the duty of the trial court to define the offense charged, stating to the jury the essential elements of the crime, either in the language of the statute or in appropriate and accurate words of its own. Id. at 211. With disorderly conduct based purely upon a defendant’s speech (as in this case), the court mentioned that an essential element was that the defendant’s words had to be “fighting words.” Id. With this in mind, the court defined fighting words as words that were of such character that their very utterance caused injury or that they tended to incite the listener to an immediate breach of the peace. Id. In this case, the court concluded that the trial court jury instruction did not adequately convey to the jury that the words had to be fighting words. Id. Therefore, the trial court’s decision resulting in the defendant’s conviction of disorderly conduct was reversed. Id.
Can disorderly conduct occur in private?
Short Answer: Yes
State v. Beck, 682 P.2d 137 (Kan. Ct. App. 1984).
This case explored the issue of whether disorderly conduct could occur in private. In exploring this issue, the court held that disorderly conduct was an offense which could be committed in either a public or private place. Id. at 139.
In this case, two police officers were dispatched to the defendant’s house at 2:00 a.m. Id. at 138. Upon arriving at the house, the two officers observed the defendant on the second-floor landing of the residence. Id. At that time, the defendant said to one of the officers, “What the f*** are you doing here?” Id. The officers then advised the defendant that they were called to a disturbance. Id. The defendant then said, “Come up here and I’ll f*** you.” Id. Throughout this encounter, the officers could smell a moderate amount of alcohol upon the defendant. Id. Meanwhile, a woman told officers that she was having a domestic problem with the defendant. Id. Upon hearing the woman, the defendant began to become abusive with the woman and told the officers to leave the premises. Id. One of the officers then told the defendant that they could stay as long as the woman wanted them to. Id. Following this statement, the defendant said, “f*** you” towards the officer. Id. Finally, the officers placed the defendant under arrest for the use of fighting words. Id. After a brief struggle and placing handcuffs on the defendant, the defendant spit in one of the officer’s face. Id. Additionally, after being taken to the police vehicle, the defendant kicked and broke the rear taillight on the vehicle. Id. At trial, the court found that the defendant’s comments were fighting words and convicted him of disorderly conduct. Id. at 138-39. The defendant appealed the decision to the Court of Appeals of Kansas. Id. at 139.
On appeal, the defendant argued that disorderly conduct could only occur in public; therefore, he could not be found guilty because all of his comments took place in his private residence. Id. In making this argument, the defendant relied on a few outdated statues and asserted that Kansas lawmakers intended that disorderly conduct only occur in public. Id. In addressing the defendant’s argument, the court noted that there was no requirement in the disorderly conduct statute that the general public be disturbed or that there be a danger of public disturbance. Id. Additionally, the court stated that a person could be disturbed or become alarmed and annoyed to the point of violence while in the private residence of another. Id. Furthermore, the court held that the lawmakers who created the disorderly conduct statute clearly intended it to include conduct occurring within a private residence. Id.
In conclusion, the Court of Appeals of Kansas did not find the defendant’s argument credible and held that disorderly conduct was an offense which may be committed in either a public or private place. Id.
Can a defendant be convicted of disorderly conduct if his or her fighting words were aimed at police officers?
Short Answer: Yes
State v. Beck, 682 P.2d 137 (Kan. Ct. App. 1984).
This case explored the issue of whether a defendant could be convicted of disorderly conduct based on fighting words aimed at police officers. In exploring this issue, the court held that there was no sound reason why police officers should be subjected to degrading treatment and fighting words toward a police officer could be enough to convict an individual of disorderly conduct. Id. at 139.
In this case, two police officers were dispatched to the defendant’s house at 2:00 a.m. Id. at 138. Upon arriving at the house, the two officers observed the defendant on the second-floor landing of the residence. Id. At that time, the defendant said to one of the officers, “What the f*** are you doing here?” Id. The officers then advised the defendant that they were called to a disturbance. Id. The defendant then said, “Come up here and I’ll f*** you.” Id. Throughout this encounter, the officers could smell a moderate amount of alcohol upon the defendant. Id. Meanwhile, a woman told officers that she was having a domestic problem with the defendant. Id. Upon hearing the woman, the defendant began to become abusive with the woman and told the officers to leave the premises. Id. One of the officers then told the defendant that they could stay as long as the woman wanted them to. Id. Following this statement, the defendant said, “f*** you” towards the officer. Id. Finally, the officers placed the defendant under arrest for the use of fighting words. Id. After a brief struggle and placing handcuffs on the defendant, the defendant spit in one of the officer’s face. Id. Additionally, after being taken to the police vehicle, the defendant kicked and broke the rear taillight on the vehicle. Id. At trial, the court found that the defendant’s comments were fighting words and convicted him of disorderly conduct. Id. at 138-39. The defendant appealed the decision to the Court of Appeals of Kansas. Id. at 139.
On appeal, the defendant argued that the charge was based only on language, and the language he employed did not constitute “fighting words.” Id. at 138. In making this argument, the defendant stated that the words were not “fighting words” because they were aimed at police officers who were used to such language or worse and were trained to restrain their natural impulse to fight back when insulted. Id. at 139. In addressing this argument, the court noted that to be fighting words the defendant’s language must have been such as to tend to provoke an assault or other immediate breach of the peace by the officers. Id. Therefore, the court rejected the notion that a defendant could say anything they wanted to a police officer without them becoming “fighting words.” Id. With this in mind, the court acknowledged that different jurisdictions were split on this issue. Id. However, in expressing their view on the subject, the court stated the following, “While it is obvious that not every abusive statement directed toward police officers would be sufficiently disturbing or provocative to justify arrest for disorderly conduct, there is no sound reason why officers must be subjected to degrading treatment such as present here, language that goes far beyond what any other citizen might reasonably be expected to endure.” Id.
In conclusion, a defendant can be convicted of disorderly conduct due to fighting words aimed at a police officer. Id.
What factors should the court consider when determining if disorderly conduct occurred?
Short Answer: "a court will consider all the facts of the case"
State v. Beck, 682 P.2d 137 (Kan. Ct. App. 1984).
This case explored the issue of whether a court should consider all of the different factors within a case when determining whether a defendant is guilty of disorderly conduct. In exploring this issue, the court held that a totality of circumstance should be considered when determining disorderly conduct. Id. at 139.
In this case, two police officers were dispatched to the defendant’s house at 2:00 a.m. Id. at 138. Upon arriving at the house, the two officers observed the defendant on the second-floor landing of the residence. Id. At that time, the defendant said to one of the officers, “What the f*** are you doing here?” Id. The officers then advised the defendant that they were called to a disturbance. Id. The defendant then said, “Come up here and I’ll f*** you.” Id. Throughout this encounter, the officers could smell a moderate amount of alcohol upon the defendant. Id. Meanwhile, a woman told officers that she was having a domestic problem with the defendant. Id. Upon hearing the woman, the defendant began to become abusive with the woman and told the officers to leave the premises. Id. One of the officers then told the defendant that they could stay as long as the woman wanted them to. Id. Following this statement, the defendant said, “f*** you” towards the officer. Id. Finally, the officers placed the defendant under arrest for the use of fighting words. Id. After a brief struggle and placing handcuffs on the defendant, the defendant spit in one of the officer’s face. Id. Additionally, after being taken to the police vehicle, the defendant kicked and broke the rear taillight on the vehicle. Id. At trial, the court found that the defendant’s comments were fighting words and convicted him of disorderly conduct. Id. at 138-39. The defendant appealed the decision to the Court of Appeals of Kansas. Id. at 139.
On appeal, the defendant argued that his conviction for disorderly conduct was not appropriate because he did not use “fighting words.” Id. In addressing this argument, the court recognized that determining disorderly conduct depended upon the totality of the circumstances (consider all of the factors in the case). Id. In expressing this statement, the court stated, “What constitutes rude behavior or disorderly conduct depends upon the intention of the person uttering the language, the person to whom uttered, and all the surrounding facts and circumstances. All these elements are proper issues for the judge and jury.” Id. In this case, the court found that the defendant’s words were in fact fighting words, a finding made in light of all the circumstances. Id. These circumstances included: (1) the defendant’s offer to fight the police officer; (2) the defendant’s resistance to the officers’ efforts to restore peace; and (3) the provocative nature of the defendant’s words themselves. Id.
In conclusion, a court will consider all the facts of the case when determining if a defendant is guilty of disorderly conduct. Id.
What are the proper issues for a jury to consider when determining if there is disorderly conduct?
Short answer: "the jury should consider the intention of the person uttering the language, the person to whom the language was directed, and all other surrounding facts and circumstances"
State v. Stroble, 217 P.2d 1073 (Kan. 1950).
This case explored the issue of what were the proper issues to consider by the jury when determining whether there was disorderly conduct. In exploring this issue, the court held that the intention of the person uttering language claimed to constitute disorderly conduct, the person to whom the language was directed, and all surrounding facts and circumstances were proper issue for the jury. Id. at 1075.
In this case, the trial court convicted the defendant of disturbing the peace (AKA disorderly conduct). Id. at 1073. On various dates between November 29 and December 17, the defendant drove through the city streets, approached, talked to, and made attempts to pick up school girls between the ages of 10 and 13 years. Id. He asked them to get in his car and show him where certain school buildings were located or to get in the car and he would take them to their destinations. Id. at 1073-74. When his offers were refused, as they were by every girl, he would either keep following the girls or reiterate his offer to give them a ride. Id. at 1074. After conviction, the defendant appealed to the Supreme Court of Kansas. Id. In his appeal, the defendant argued that the complaint against him failed to designate any definite or particular act or acts constituting the offense of disorderly conduct. Id.
On appeal, the Supreme Court of Kansas addressed what elements were proper issues for the jury. Id. at 1075. According to the court, these elements included: (1) the intention of the person uttering the language constituting disorderly conduct; (2) the person to whom the language was directed; and (3) all surrounding facts and circumstances. Id. Additionally, the court noted that the offense known as disorderly conduct embraced a great variety of conduct destroying or threatening public order and calmness. Id. Moreover, the court stated that the offense included not only violent acts but acts and words likely to produce violence to others. Id.
Considering this case, the court concluded that stopping each little girl once and asking directions to a certain school or to ride might in some circumstances be considered proper or an act of kindness. Id. However, under the circumstances of this case, the court found the occurrences to constitute a breach of peace. Id. Furthermore, the court determined that the defendant’s behavior of invading the privacy of the children and disturbing the peace of mind of the parents was behavior lawmakers were considering when they drafted the statute for this offense. Id. Therefore, the trial court’s conviction of the defendant for disturbing the peace (disorderly conduct) was completely justified. Id.
In sum, the jury should consider the intention of the person uttering the language, the person to whom the language was directed, and all other surrounding facts and circumstances when determining whether a defendant is guilty of disorderly conduct. Id.
Can a person who utters simply offensive language to another be convicted of disorderly conduct?
Short Answer: No
U.S. v. McKinney, 9 Fed. App’x. 887 (10th Cir. 2001).
This case explored the issue of whether a person could be convicted of disorderly conduct for simply uttering offensive language toward another. In exploring this issue, the court held that, under Kansas law, a defendant may not be convicted based upon “language that was simply offensive and angered others.” Id. at 889. Rather, the court concluded that the words must be of such character that their very utterance caused injury or that they tended to incite the listener to an immediate breach of the peace. Id.
In this case, a military police officer encountered the defendant during his routine patrol of the stable grounds at Fort Riley. Id. While the officer was checking some equipment, the defendant approached him in her vehicle. Id. After exiting the vehicle, the defendant accused the officer of having urinated on some of the equipment. Id. The officer denied having done so and asked the defendant who she was and whether she worked at the stables. Id. After repeating his question several times, the defendant told the officer to “go f*** himself.” Id. Afterward, the defendant walked away to make a phone call. Id. After the defendant returned, the officer again asked her whether she worked at the stables. Id. In response, the defendant stated that she did not work at the stables but that her horses were kept there. Id. Encouraged by her response, the officer asked the defendant to identify herself and again she told him to “go f***himself.” Id. The defendant then left the stable and stopped at another telephone. Id. However, this time, the officer arrested her for disorderly conduct. Id. The defendant was convicted of disorderly conduct in the United States District Court for the District of Kansas. Id. at 888. Thereafter, the defendant appealed. Id.
On appeal, the defendant argued that there was insufficient evidence to support her conviction. Id. In response to the defendant’s argument, the U.S. Court of Appeals recognized that the defendant’s conviction could only stand if her remarks would have “provoked the average person to retaliation, and thereby caused a breach of peace.” Id. With this in mind, the court acknowledged that they needed to consider the totality of the circumstances surrounding the defendant’s conduct. Id. Furthermore, the court identified one of those circumstances being that a police officer was involved. Id. at 889. According to the court, while police officers were expected to display patience and restraint, they were not required to endure degrading treatment that went far beyond what any other citizen might reasonable expect to endure. Id. Taking this into account, the court determined that the defendant’s language (although tasteless and offensive to many) would not provoke the average person to retaliate under the circumstances. Id. Moreover, the court noted that the defendant did not threaten or offer to fight the officer and she left the officer’s presence both times after uttering offensive language to him. Id.
In conclusion, under Kansas law, the court held that a defendant may not be convicted based upon “language that was simply offensive and angered others.” Rather, the court concluded that the words must be of such character that their very utterance caused injury or that they tended to incite the listener to an immediate breach of the peace. Therefore, the defendant’s language, although offensive, did not give rise to disorderly conduct. Id.r: