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12/29/95 R.I.T. v. STATE

December 29, 1995

R.I.T.
v.
STATE



Appeal from Russell Juvenile Court. (JU-95-41.01;-41.02). Albert Johnson, TRIAL JUDGE.

Released for Publication May 31, 1996.

Cobb, Judge. All the Judges concur.

The opinion of the court was delivered by: Cobb

COBB, JUDGE

The adjudication of delinquency of the appellant, R.I.T., based on the trial court's finding of disorderly conduct and resisting arrest must be reversed and a judgment rendered in favor of the appellant.

Russell County Deputy Sheriff Chance Corbett testified that while on patrol he was dispatched to the house of the father of the 13-year-old appellant. The appellant's father had requested assistance in investigating an allegation that the appellant had run away while on weekend visitation with his father, who was the noncustodial parent. Corbett stated he was standing in the father's driveway discussing the matter when the appellant and his brother walked up. R. 6. Corbett testified that "when [the appellant] got close enough . . . I started talking to him and told him he was going to have to stay home with his father and listen to his father and he started backing away from me . . . . I went to approach him to talk to him again and he said 'fuck you' and then turned to go away from me. That's when I grabbed his arm then and he started resisting [arrest] then." R. 7. Corbett testified that the appellant was "walking away from [Corbett] when he said ['fuck you']" and that the appellant "never threatened" him. R. 9. Corbett testified that he remembered three people, the father, the stepmother, and a brother, "standing around" at the time of the incident. R. 8. He testified that he arrested the appellant for saying "fuck you."

One of the underlying offenses in the delinquency petition was disorderly conduct.

"A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

" . . . .

"(3) In a public place uses abusive or obscene language or makes an obscene gesture."

". . . ."

Ala. Code 1975, § 13A-11-7(a)(3). "The "abusive or obscene language" provision of the disorderly conduct statute "is very narrow and applies only to 'fighting words.'" Mosley v. City of Auburn, 428 So. 2d 165, 166 (Ala. Cr. App. 1982), superseded on other grounds, Mason v. City of Vestavia Hills, 518 So. 2d 221 (Ala.Cr.App. 1987), and commentary to § 13A-11-7. What language constitutes "fighting words" was discussed in Judge Bowen's Concurring opinion in Shinault v. City of Huntsville, 579 So. 2d 696, 699-700 (Ala.Cr.App. 1991) (Bowen J., Concurring). A portion of that Discussion follows.

"'This Court has defined "fighting words", in light of the United States Supreme Court decisions in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), and Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972), as follows:

"'"They are those words which have a likelihood of causing a violent response by the person to whom they are addressed. They are words that by their very utterance provoke a swift physical ...


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