Brooks v. State

• Decision Date: 20 May 1983
• Docket Number: 65769,Nos. 65768,s. 65768
• Citation: 305 S.E.2d 436,166 Ga.App. 704
• Parties: BROOKS v. The STATE. JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

Page 436

305 S.E.2d 436

166 Ga.App. 704

BROOKS v. The STATE.

JOHNSON v. The STATE.

Nos. 65768, 65769.

Court of Appeals of Georgia.

May 20, 1983.

Kenneth R. Croy, for appellants.

James L. Webb, Sol., Deborah S. Greene, Asst. Sol., for appellee.

SOGNIER, Judge.

In a joint trial Brooks was convicted of simple assault and Johnson was convicted of obstructing a law enforcement officer in the discharge of his official duty. They appeal on the general grounds.

Brooks and Johnson were part of a small group carrying a banner down Peachtree Street in Atlanta, Georgia, claiming that the conviction of Wayne Williams for the murder of two children was a police cover-up. It was the evening rush hour and the group was partially blocking the sidewalk in front of the main Marta train station. R.R. Glasgow, a police officer on duty in the area, approached the group to request that they move to one side of the walk so they would not obstruct pedestrian traffic. As Glasgow approached, Brooks started shouting that "[a]ll cops are dogs"; pointing his finger at Glasgow, Brooks yelled: "Like this man right here ... This man here is a dog." Glasgow then told Brooks that he was under arrest and grabbed him by the arm. Brooks jerked his arm away and Glasgow radioed for assistance; Glasgow then grabbed Brooks, who started swinging his arms wildly at Glasgow. At this point appellant Johnson bumped Glasgow's back and grabbed his arm to prevent Glasgow from arresting Brooks. Other police arrived on the scene and after a slight scuffle Brooks and Johnson were handcuffed and arrested.

Because both appellants were acquitted of a charge of using opprobious and abusive language, they contend that Glasgow's attempt to arrest Brooks for that offense was illegal. Thus, argue appellants, Brooks was authorized to resist arrest by committing the simple assault on Glasgow, and Johnson was authorized to come to Brooks' assistance.

OCGA § 16-11-39 (Code Ann. § 26-2610) provides: "A person who commits any of the following acts commits a misdemeanor: (1) Without provocation, uses to or of another, in his presence, 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 his presence, naturally tend to provoke violent resentment, that is, words commonly called 'fighting words';..." There is no question that appellant Brooks' utterance of the words in question was without provocation and that they were spoken in Officer Glasgow's presence. Thus, we must determine first whether the words used constituted "fighting words" within the meaning of the Code, for the United States Supreme Court has limited the prohibition against use of abusive and obscene words to "fighting words." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572(2), 62 S.Ct. 766, 768-769, 86 L.Ed. 1031. In that case the court stated that "it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include ... the insulting or 'fighting' words--those which by their very utterance ... tend to incite an immediate breach of the peace."

In discussing the test laid down in Chaplinsky this court stated that "this test has not been interpreted to mean that the state must prove the effect of the words upon a particular individual; that is, whether the individual to whom the words were addressed was incited to action by their utterance. [OCGA § 16-11-39(1) (Code Ann. § 26-2610) ] makes no distinction between the types of persons to whom the words are uttered. The fact that a policeman admits that he is used to hearing obscene language during the performance of his duties is not a defense available to the defendant under this code section." Bolden v. State, 148 Ga.App. 315, 316(2), 251...