dissenting.
I respectfully dissent from the majority’s holding that Jury Instruction No. 10, on failure to disperse, violated the law of the case and was an abuse of discretion.
The district court, in Gulliford’s first trial, never ruled that the jury could not consider failure to disperse as a ground for probable cause to arrest. To the contrary, the court stated that there was a material issue of fact regarding whether Thrash had probable cause to arrest Gulliford based on failure to disperse and allowed both lay and expert testimony on the issue of failure to disperse. Instead of specifically instructing the jury on failure to disperse, however, the court provided only a more general obstruction instruction.1 When Deputy Thrash requested a specific jury instruction on failure to disperse, the court indicated that failure to disperse was arguable under the more general obstruction instruction, stating: “Almost all of the theories that have been discussed this morning in this brief discussion are in these jury instructions. I have put them in different ways, obviously, than counsel suggested, but a great deal of what you have urged here by way of exception is entirely arguable under the jury instructions.” Thus, although the court did not give a specific failure to disperse instruction in the first trial, the jury was permitted to consider failure to disperse as a means of committing obstruction. I do not agree with the majority’s assertion that the district court was referring to failure to disperse when he remarked about instructions that would have been counterproductive or a smokescreen.
Given that the court, in the first trial, allowed the'jury to consider failure to disperse under the obstruction instruction, the law of the case did not prevent the court, in the second trial, from instructing the jury on failure to disperse. Accordingly, its decision to give such an instruction did not constitute an abuse of discretion.
Although probable cause to arrest could properly have been found based on Gulliford’s failure to disperse, I agree that In*770struction Number 16 improperly allowed the jury to find probable cause to arrested based on words that did not, as a matter of law, constitute fighting words. I would therefore remand the case for consideration before a properly instructed jury.
. The obstruction instruction, in the first trial, read: "A person commits a crime of obstructing a public servant when he knowingly hinders, delays, or obstructs any public servant in the discharge of the public servant’s official powers or duties.”