concurring. I concur with the affirmance because I agree with the State that Johnson was guilty of disorderly conduct by engaging in threatening behavior. See Ark. Code Ann. § 5-71-207(a)(1) (Repl. 1997). I further agree with the State that the record does not reflect that Johnson was charged with a specific subsection of the Disorderly Conduct statute. Moreover, Johnson appears to contest his disorderly conduct conviction generally without directing his attack at any specific subsection. Thus, I conclude that if substantial evidence supports a violation of any subsection of § 5-71-207, affirmance is required.
My problem with the majority opinion is that it concludes that substantial evidence was presented to support three categories of disorderly conduct. I disagree. The pertinent sections of § 5-71-207(a) read:
(a) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk thereof, he:
(1) Engages in fighting or in violent, threatening, or tumultuous behavior; or
(2) Makes unreasonable or excessive noise; or
(3) In a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response; or
With regard to subsection 2, there was testimony by Officer Mark Swagerty that Johnson was “cursing out loud in the street,” and Officer Thomas Mayberry confirmed that Johnson was yelling and cursing. But neither witness described the words used or the extent of the noise so as to bring into play disorderly conduct under § 5-71-207(a) (2).
In addition, though Johnson was clearly cursing, there was no evidence that the cursing was “in a manner likely to provoke a violent or disorderly response,” as required by § 5-71-207(a)(3). This case is categorically different from Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998), where the repeated cursing and racial slurs were highly antagonistic and clearly directed at the police officers. I concluded in that case that Bailey’s language was beyond the pale and constituted fighting words even for police officers who, as trained professionals, are expected to exercise a higher degree of restraint in the face of abusive language than the average citizen. Id. See also City of Houston v. Hill, 482 U.S. 451 (1987); Lewis v. City of New Orleans, 415 U.S. 130 (1974) (Powell, J., concurring). In the instant case, the only curse words repeated to the trial court by the police officers was the original question posed by Johnson and directed to Officer Swagerty: “Why are you fucking harassing me?” That is not enough to warrant a § 5-71-207(a) (3) violation in my judgment.
Accordingly, I would limit the basis for the conviction to Johnson’s threatening actions. Under that approach, discussions of § 5-71-207 (a) (2) and (3) violations would be unnecessary. This would have the additional salutary effect of removing inherent and troublesome First Amendment issues from this case that might come back to haunt this court in future cases.
For these reasons, I concur.
IMBER, J., joins.