CAN A PERSON WHO UTTERS SIMPLY OFFENSIVE LANGUAGE TO ANOTHER BE CONVICTED OF DISORDERLY CONDUCT?
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. The following case answers the question above.
U.S. v. McKinney, 9 Fed. App’x. 887 (10th Cir. 2001).
This case addresses the following issue:
Can a person who utters simply offensive language to another be convicted of disorderly conduct?
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.