The record indicates that Mr. Reeder’s unruly, disruptive behavior continued even after Officer Browning told Mr. Reeder multiple times to stop. The record also indicates that Mr. Reeder’s yelling, screaming, cursing, and carrying on caused at least three different families to come out of their respective homes to see what was going on.

 

State v. Reeder

2023 – Ohio – 4587

Twelfth District Appellate Court

Butler County, Ohio

December 18, 2023

Mr. Daniel Reeder is Charged with Persistent Disorderly Conduct

On the morning of Thursday October 6, 2022, Mr. Daniel Reeder was arrested and thereafter charged via a complaint with two counts of disorderly conduct in violation of O.R.C. §2917.11(A)(2) and (A)(3).  Disorderly conduct is usually charged as a minor misdemeanor pursuant to O.R.C. §2917.11(E)(2). However, in this case, each of the two counts against Mr. Reeder were charged as fourth-degree misdemeanors. This was done in accordance with O.R.C. §2917.11(E)(3)(a), which provides that disorderly conduct should be charged as a fourth-degree misdemeanor if “[T]he offender persists in disorderly conduct after reasonable warning or request to desist.”

Father of Seven had a Profanity-Laced Harangue Over Expired Tags

The charges arose after Mr. Reeder, a stay-at-home father to seven children, got upset, stormed out of his house, and began screaming and cursing as he watched his vehicle being loaded up and towed away off the street in front of his home located on Van Buren Drive in Hamilton, Butler County, Ohio.  The vehicle in question was a Hyundai Santa Fe that was displaying plates that had been expired for over a year. Mr. Reeder continued on with his disruptive, profanity-laced tirade even after he was told multiple times by a Hamilton police officer on the scene, Officer Carla Browning, that he would be placed under arrest if he did not stop with his unruly, and upsetting behavior. There is no dispute that Mr. Reeder’s continued screaming and cursing occurred in the presence of several of his neighbors who had come outside in response to Mr. Reeder’s yelling to see what all the commotion was about.

Mr. Reeder parked his Hyundai Santa Fe in front of his home here on Van Buren Drive in Hamilton, Ohio.  The vehicle had tags that had been expired for one year.  When a female officer began to impound the vehicle, Mr. Reeder, a father of seven, began a profanity-laced harangue against and towards the officer.  Was this First Amendment protected speech or a violation of the Fourth Amendment?

Jury Trial Led to a Conviction

On April 10, 2023, the matter proceeded to a one-day jury trial. During trial, the jury heard testimony from a total of five witnesses. This included testimony from the Hamilton police officer referenced above, Officer Browning, the tow truck driver who towed Mr. Reeder’s vehicle, Stanley Bishop, and from Mr. Reeder himself. Upon the conclusion of this testimony, as well as the testimony from one of Mr. Reeder’s neighbors who testified that she could hear Mr. Reeder cussing and carrying on from inside her home situated catty-cornered across the street, the jury returned a verdict finding Mr. Reeder guilty of one count of fourth- degree misdemeanor disorderly conduct.

Thirty Days in Jail – Fifteen Days Suspended

On April 12, 2023, the trial court held a sentencing hearing where it sentenced Mr. Reeder to 30 days in jail, with 15 of those days suspended, and two years of community control.   The trial court also ordered Mr. Reeder to pay a $100 fine plus court costs. The trial court imposed this sentence after noting it was Mr. Reeder’s “attitude about what was going on that day” that was “totally,” and “completely inappropriate” when considering he was directing his vitriol “towards an officer,” Officer Browning. Mr. Reeder now appeals his disorderly conduct conviction, raising the following single assignment of error for review.

Feeble Appeal

In his single assignment of error, Mr. Reeder argues the trial court erred by denying his Crim.R. 29(A) motion to acquit him of disorderly conduct. Mr. Reeder also argues the jury’s verdict finding him guilty of disorderly conduct was against the manifest weight of the evidence. We disagree with both of Mr. Reeder’s claims.

Mr. Reeder Claims he was ‘Commenting upon the situation’

Mr. Reeder argues his disorderly conduct conviction was not supported by sufficient evidence and was against the manifest weight of the evidence because, “while certainly containing curse words,” anything that he may have yelled at Officer Browning “did not rise to the level of fighting words.” Mr. Reeder instead claims that any “swear words [being] uttered” to Officer Browning was merely him “commenting upon the situation.” Mr. Reeder also argues that his disorderly conduct conviction was not supported by sufficient evidence and was against the manifest weight of the evidence because he did not threaten, lunge, or attack Officer Browning, nor did he threaten or interfere with the tow truck driver, Stanley Bishop, while he was loading up and towing away his vehicle. To support these arguments, Mr. Reeder notes that there were no children present who witnessed his tirade, and that his outburst “was not in a public parking lot or business lot,” but in a residential area just outside of his own home. This is in addition to Mr. Reeder claiming that he only “interacted with” Officer Browning for “about five minutes, mostly on his own property.”

When Does a First Amendment Right Become a Fourth Amendment Violation?

However, even when taking all of Mr. Reeder’s claims as true, the record plainly establishes that Mr. Reeder’s disorderly conduct conviction was not based on the content of his speech, but on his actions and the manner in which his words were spoken. “Where a charge of disorderly conduct is not based on the content of the speech involved but only the manner of how the words are spoken, the fighting words requirement does not apply.” State v. Cunningham, 2006-Ohio-6373. Such is certainly the case here. This is because, as the record indicates, upon Mr. Reeder seeing Bishop getting ready to tow his vehicle, Mr. Reeder stormed out of his house “irate,” “cussing and swearing.” The record indicates that Mr. Reeder’s “cussing and swearing,” and overall “confrontational” tone, continued as he hastily made his way down to the end of his driveway to where Officer Browning was standing nearby. The “very upset” Mr. Reeder then began loudly shouting and cursing at Officer Browning directly. This included, as one witness testified, Mr. Reeder yelling “[A] lot of the fuck word,”multiple instances of “bullshit,” maybe a “[T]his is fucking bullshit,” and a few utterances of “get off of my lawn.”

The Father of Seven Repeatedly Called the Female Officer a Fucking Bitch

This is in addition to the testimony offered by Stanley Bishop, the tow truck driver who towed Mr. Reeder’s vehicle, who testified that after Officer Browning tried to hand Mr. Reeder a parking citation that Mr. Reeder began “yelling at her, get the fuck off his property, fucking bitch,” and “kept telling her to get the fuck off his property.” Bishop testified that during this time Mr. Reeder “screamed” at Officer Browning to “get off [his] fucking property” several times and called Officer Browning a “fucking bitch” as much as five times. The record indicates that Mr. Reeder’s unruly, disruptive behavior continued even after Officer Browning told Mr. Reeder multiple times to stop. The record also indicates that Mr. Reeder’s yelling, screaming, cursing, and carrying on caused at least three different families to come out of their respective homes to see what was going on.

Officer Browning Remained Professional Amid a Growing Neighborhood Crowd

What we find most significant, however, is Officer Browning’s own testimony regarding her interactions with Mr. Reeder on the morning in question. Specifically, as Officer Browning testified: [Mr. Reeder] came out of his house yelling about the vehicle being impounded. Asked if – I believe he asked if he could move it, but at that point the tow truck already had it going up on the truck. We can’t allow that. So he continued just screaming and yelling, cursing, calling me names. There were a lot of people starting to gather outside, on porches and stuff. There were three or four different houses, I noticed people outside. So I had warned him at that point you need to stop yelling and cursing or you’re going to be placed under arrest. He continued, and I told him several times, he continued. And finally I gave him one last warning, say one more thing and you’re under arrest, because you can’t do that. And he continued, and at that point I went up on his porch, I told him he was under arrest.  

Get the Fuck off his property

Officer Browning also testified that, rather than the words that Mr. Reeder was using, it was instead Mr. Reeder’s loud yelling and screaming, which included Mr. Reeder repeatedly shouting at Officer Browning to “get the fuck off his property,” that “it was fucking bullshit,” and calling Officer Browning a “fucking bitch,” along with Mr. Reeder “continuing to behave that way and be[ing] loud and basically draw[ing] the public in” even after being given at least three warnings to stop, that ultimately led to her placing Mr. Reeder under arrest for disorderly conduct. When asked, Mr. Reeder did not refute any of Officer Browning’s testimony, nor did Mr. Reeder claim that Officer Browning had testified untruthfully while on the stand. Mr. Reeder instead testified that he was merely providing the jury with his “story.”

[T]here was overwhelming evidence presented at trial to support a finding of guilt.

This evidence, when taken in a light most favorable to the state, was more than sufficient to support Mr. Reeder’s disorderly conduct conviction under either O.R.C. §2917.11(A)(2) or (A)(3). This testimony, if believed, also firmly establishes that Mr. Reeder’s disorderly conduct conviction was not against the manifest weight of the evidence. This is because, as the above facts indicate, this case does not present one of those extraordinary circumstances where the evidence presented at trial weighs heavily in favor of acquittal. We believe this case instead falls under one of those cases where there was overwhelming evidence presented at trial to support a finding of guilt.

Conclusion and Holding

This holds true despite the fact that Mr. Reeder believes he did nothing wrong that would have necessitated this case being initiated in the first place. The jury disagreed, as did the trial court at sentencing, and so do we. Therefore, because we find Mr. Reeder’s disorderly conduct conviction was supported by sufficient evidence and was not against the manifest weight of the evidence, Mr. Reeder’s single assignment of error lacks merit and is overruled.

Accordingly, having overruled Mr. Reeder’s single assignment of error, Mr. Reeder’s appeal challenging his conviction for one count of fourth-degree misdemeanor disorderly conduct is denied.

Judgment affirmed.

Information for this article was obtained from State v. Reeder, 2023 – Ohio – 4587.

State v. Reeder, 2023 – Ohio – 4587 was issued by the Twelfth District Appellate Court on December 18, 2023 and is binding in the following Ohio Counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren.

Lessons Learned:

  1. First Amendment or Fourth Amendment Violation? – All citizens have a First Amendment right to use profanity in the presence of law enforcement officers and others in the community. However, there is a limit as to when a First Amendment becomes a Fourth Amendment Violation.  In this case Mr. Reeder crossed the line when he was repeatedly calling Hamilton Police Officer Carla Browning a fucking bitch.  This profanity was directed directly at the officer, repeatedly and in the presence of the tow truck driver and growing neighbors who had gathered around a simple vehicle impound.  Reeder violated O.R.C. §2917.11(E)(3)(a) “[T]he offender persists in disorderly conduct after reasonable warning or request to desist.”.  Officer Browning remained professional and gave repeated warnings for Mr. Reeder to desist, he failed to heed the lawful warnings and was arrested.
  2. Totality of the Circumstances – Officer Browning, the trial court and the Twelfth District Appellate Court all evaluated Mr. Reeder’s profanity-laced harangue on the totality of the circumstances. As the Tenth District Appellate Court held in 2006 “Where a charge of disorderly conduct is not based on the content of the speech involved but only the manner of how the words are spoken, the fighting words requirement does not apply.” State v. Cunningham, 2006-Ohio-6373. In this case the arrest, conviction and feeble appeal were all based on Mr. Reeder’s context of profanity in accordance with established case law.
  3. Thick Skin or a Constitutional Violation? Several courts have drawn a cautioned law enforcement to have ‘thick skin’. In 2012 the Fifth District Appellate Court held “Ohio consistently cautions that law enforcement officers must have thicker skin than the public as a whole.”  State v. Beamer, 2012 – Ohio – 2222.  However, the Eleventh District Appellate Court previously held not every use of profanity towards law enforcement must fall on thick skin; “We note that in most of the cases in which a police officer is the offended party, there is a distinction between the ere use of profane language in the presence of the police officer and when the language is directed to the officer personally … [B]ecause some degree of verbal abuse goes with the territory, the standard of what constitutes fighting words is raised in those cases where police officers are the offended party.  To tell anyone, including a police officer, “fuck you!”, either verbally or via an extended digit, may indeed constitute “fighting words”, depending on the circumstances.  Therefore, appellants actions were not protected by the Constitution as they were directed specifically and intentionally at the officers.”  State v. Wood, 112 Ohio App.3d 621, 627 (1996) This balance of thick skin versus crossing the Fourth Amendment line of disorderly conduct has shades of legal grayness.  Not every use of profanity is unlawful though sometimes the context of repeated profanity following reasonable warnings to desist may rise to a violation of Disorderly Conduct.  This yet another reason why law enforcement has THE hardest job in America!
  4. Pre-Sent Arms! Hamilton Police Officer Carla Browning should be highly commended for remaining professional at the scene.  Well done!

Does your agency train on Disorderly Conduct?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and objectively reasonable!

Robert H. Meader Esq.