Aggressive, Compassionate, & Responsive Criminal Defense
Disorderly Conduct in Georgia
Under Georgia state law, a person commits disorderly conduct when he or she:
- Acts in a “violent or tumultuous manner” towards another person and gives that person a reasonable fear that his safety is in danger,
- Acts in a “violent or tumultuous manner” towards another person and gives that person a reasonable fear that his or her property is in danger of being damaged or destroyed,
- Uses “fighting words” (defined in more detail below) without provocation,
- Uses obscene and vulgar language in the presence of a person under 14 which has the potential to cause an immediate breach of the peace without provocation. This includes by telephone.
Many municipalities have their own disorderly conduct ordinances, including the City of Atlanta. This means that, in those cities, a person may be charged with either a violation of state law or with a violation of municipal law, and the penalties may be different for each. You should talk to your Georgia Criminal Defense Attorney about your options if you have been charged with Disorderly Conduct, either under Georgia law or under the law of one of Georgia’s cities.
Georgia courts tend to treat Disorderly Conduct as somewhat of a “I know it when I see it” sort of crime. That said, it can be helpful to learn more about what the law, and what some of the terms actually mean.
What are “fighting words” in Georgia?
The phrase “fighting words” is a bit difficult to define. The statute criminalizes the use of:
“Opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person’s presence, naturally tend to provoke violent resentment, that is, words commonly called ‘fighting words.’”
O.C.G.A. § 16-11-39. Simply using vulgar, obscene, or profane language to another person (over the age of 14) is not a crime unless those words also constitute “fighting words.” Crolley v. State, 182 Ga.App. 2 (1987).
But what exactly are fighting words? The law is not entirely clear and, in fact, this section of the statute has been challenged for being too vague on multiple occasions. The First Amendment of the Constitution – the “freedom of speech” amendment – also comes into play here and in almost any situation where words and expressive conduct are criminalized. Nonetheless, Georgia courts have consistently found the law as it currently stands to be constitutional. Because of the lack of a clear definition in the law itself, it is helpful to know how courts have interpreted it in previous cases in order to understand what is considered “fighting words.”
In Freeman v. State, the Georgia Supreme Court held that a person could be found guilty of disorderly conduct when that person acted in a “disorderly, turbulent, or uproarious manner” towards another person, causing that person to be in reasonable fear for his or her safety. It also said that the law only covered conduct that amounted to a “true threat.” Freeman v. State, 302 Ga. 181 (2017).
It is important to note that what is considered “fighting words” has, in many ways, changed over time, because society’s standards for what is sufficiently offensive to “provoke violent resentment” or “incite an immediate breach of the peace” has shifted fairly dramatically. For example, in 1983 the Georgia Court of Appeals found that a person who pointed at a police officer and yelling that he was a “dog” in front of a large group of people could be disorderly conduct. Brooks v. State, 166 Ga.App. 704 (1983). In 2017, though, the same court held that saying “f*** you” to an officer was not disorderly conduct. Knowles v. State, 340 Ga.App. 274 (2017).
What does count as “fighting words?”
- Calling the sheriff a “no-good son of a b****” and saying that the defendant should “kick the sheriff’s a**”. Anderson v. State, 231 Ga.App. 807 (1998).
- Calling the victim, a former girlfriend, a “b****” after showing up at the victim’s home angry and upset and yelling profanities at the victim’s husband. Thomas v. State, 276 Ga.App. 79 (2005).
- Calling the victim a “b****” and a “wh***” and “getting in the victim’s face” and accusing her of a crime. Mayhew v. State, 299 Ga.App. 313 (2009).
What does not count as “fighting words?”
- Calling an officer a “f***ing a**hole,” because the arrestee was not shouting and did not appear to be a danger to anyone. Merenda v. Tabor, No. 12-12562, 2013 U.S. App. LEXIS 2351 (11th Cir. Feb 1, 2013).
- Saying “f*** you” to an officer during a traffic stop, when there was no indication that the defendant exhibited any non-verbal aggressive behavior. Knowles v. State, 340 Ga.App. 274 (2017).
- Using the middle finger to an officer, because the Court found that it was a form of protest. Freeman v. State, 302 Ga. 181 (2017).
- Yelling “you b***ards” at the police from a moving vehicle and continuing to drive down the road, because defendant was not engaged in a face-to-face confrontation with the police when the words were uttered and the words would therefore not incite an immediate breach of the peace. Turner v. State, 274 Ga.App. 731 (2015).
- During an incident at a store, saying “arrest me” and “damn, I’m calling corporate office.”
It might be clear from these examples, but it’s important to point out that a person’s conduct surrounding his or her words is important. Courts have, in almost every case, examined whether the defendant was acting in some sort of threatening way, not whether he or she was merely speaking words that people may find offensive.
What does “provocation” mean in the Georgia Disorderly Conduct Statute?
Provocation is a defense to certain types of disorderly conduct. For example, the “fighting words” section specifically states that a person can be held guilty for disorderly conduct/fighting words if he or she acted “without provocation.” It is therefore important to know what that word means in a legal sense.
In the past, Georgia courts have stated that it is necessary to look at all the facts surrounding the matter to determine whether provocation occurred. It depends, according to a very old case out of the Georgia Court of Appeals, on:
- The actual language used,
- The relationship of the parties,
- The state of feeling existing between them,
- The tone, manner, and spirit in which the language is used, and
- Other circumstances that may lead the jury to determine the manner in which the language was used.
Hamilton v. State, 9 Ga.App. 402 (1911). Ultimately, whether a person was provoked or not is a question for the trier of fact to decide. In a jury trial, that would be the jury. In a bench trial, the judge is the trier of fact. Therefore, it is the trier of fact’s job to hear all the evidence and determine whether a reasonable person would feel provoked by the other party’s actions. Provocation may be proved by direct and by circumstantial evidence. Furthermore, the jury is entitled to consider “all the facts and circumstances” relevant to the issue of provocation, “not just the facts and circumstances contemporaneous with the use of the fighting words.” Talmadge v. State, 287 Ga.App. 332 (2007). This means that the jury may consider the entire history between two individuals to determine whether provocation occurred
For this reason, it is incredibly important to have a Georgia Criminal Defense Attorney who understands how to ask the right questions and get the whole story, and then effectively explain your side of the story to the judge. It can make the difference between a conviction and an acquittal.
What are the penalties for Disorderly Conduct under Georgia State Law?
Disorderly conduct is a misdemeanor offense in Georgia. That means that it carries a maximum penalty of up to a year of imprisonment and a fine of up to $1,000.
Why Hire an Attorney for a Georgia Disorderly Conduct charge?
You need a Georgia Criminal Defense Attorney who won’t push you to plead out just because your Disorderly Conduct charge is a misdemeanor. Instead, you need an attorney who understands that any criminal case is potentially life-changing, and who will listen to your side of the story and make sure the judge and jury hear it as well. If you have been charged with Disorderly conduct, contact me today.
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