On October 9, 2022, Joshua Gibbons, who apparently maintains a media presence (or something) under the name “Big G Audits,” was unhappy when he saw a Police Sergeant speeding into a drive through lane of a fast food restaurant. While the Sergeant was in line waiting to order, Mr. Gibbons approached the open driver’s side window of the cruiser and had the following exchange:
Defendant: Is there any way I can ask you a question what your name and badge number is?
Sergeant Dunsworth: No, sir.
Defendant: No, sir? Okay. There a reason why you feel like you can speed down through here and break the traffic laws?
Sergeant Dunsworth: I wasn’t speeding.
Defendant: You weren’t speeding? Okay. Well, what’s your car
number? Okay. Well, I’ve got you recorded speeding so you’re full of s***.
While making the above statement, Defendant walked past the driver’s side window to the back of the vehicle where the car number was displayed. Defendant then walked back to Sergeant Dunsworth’s open window and asked, “Are you sure you don’t want to give me your name, badge number?” The sergeant said, “No, sir. I don’t wish to give it out.” Defendant responded, “Okay. All right. You’ll be getting a formal complaint.” Defendant then crossed the inside lane to the corner of the restaurant and yelled toward the sergeant, “I don’t know why you feel you’re above the law. You have to obey the traffic laws just like everybody else when you’re not running emergency. Why you think you can do 55 mile per hour down Stone Drive, I have no idea. You piece of s***.
Eight days later, a Detective swore out a warrant charging Mr. Gibbons with disorderly conduct. In order to serve the warrant, a SWAT team went to Mr. Gibbons’ house and took him into custody.
Mr. Gibbons lost a bench trial in general sessions and appealed to circuit court, where he had a jury trial. Maybe because the charging instrument was a warrant instead of an indictment, there was some confusion as to which part of the statute the state was actually prosecuting. In the end, though, it did not really matter, because the Court of Criminal Appeals found the evidence insufficient under any theory.
Disorderly conduct is defined as:
(a) A person commits an offense who, in a public place and with intent to cause public annoyance or alarm:
(1) Engages in fighting or in violent or threatening behavior;
(2) Refuses to obey an official order to disperse issued to maintain public safety in dangerous proximity to a fire, hazard or other emergency; or
(3) Creates a hazardous or physically offensive condition by any act that serves no legitimate purpose.
(b) A person also violates this section who makes unreasonable noise that prevents others from carrying on lawful activities.
Tenn. Code Ann. § 39-17-305. While there is some interesting language about whether the state should be allowed to constructively amend the charging instrument, or whether the trial court conflated sections of the statute, the bottom line is this: Mr. Gibbons wasn’t guilty because he didn’t violate the statute; he simply yelled at a police officer. He did not intend to cause public annoyance or alarm, he did not fight or threaten the officer, there was no official order to disperse or any physically offensive condition, and, importantly, Mr. Gibbons did not prevent others from carrying on lawful activities. Kudos to Mr. Gibbons for the win, and to Public Defenders Andrew Gibbons and Timothy Horne at trial, and Kendall Stivers on appeal