Instead, he went back to exhorting the crowd some of whom by
now had taken up his cries and were repeating them. Captain Nash
thereupon went over to him and placed him under arrest.
Weatherall attempted to pull away into the crowd and Lieutenant
Martin Gannon who observed the maneuver went around behind the
Captain and, with other police officers, took hold of him.
Weatherall thereupon went limp and had to be physically carried
to the squadrol.*fn2
Captain Nash then addressed the crowd, explaining that the
erection of the tent without a permit was improper and urging
them to disburse. The sanitation crew finished dismantling the
tent, the crowd broke up and the demonstration was over.
As previously noted, both petitioners were charged with
violating the ordinances proscribing disorderly conduct and
resisting or interfering with a police officer in the discharge
of his official duties, including making an arrest. Also, as
previously noted, we deal here not with the question of their
guilt or innocence under those charges but solely with whether
there is evidence, taken most favorably to the city, which
constitutes probable cause for their prosecution or whether such
evidence indicates that they were engaged only in speech or
conduct which is constitutionally protected.
Turning first to the disorderly conduct charge against Mrs.
Wells, the evidence is that in response to two orders by Sergeant
O'Connor to vacate the tent so as to avoid any injury to her as
it was being dismantled, she not only refused but did so in loud
and obscene language heard by at least two of the officers
present, Sergeant O'Connor and Lieutenant Gannon.
It is well established that arguing or disputing with a
policeman is not per se disorderly conduct or a breach of the
peace. The Illinois Appellate Court has described the duty of a
police officer in dealing with a citizen as follows:*fn3
"An officer of the law must exercise the greatest
degree of restraint in dealing with the public. He
must not conceive that every threatening or insulting
word, gesture, or motion amounts to disorderly
conduct. It may be of such a character or so provoked
or conditioned as to be fully justified. City of
Jacksonville v. Headen, 48 Ill. App. 60; Pinkerton v.
Verberg, 78 Mich. 573, 44 N.W. 579, 7 L.R.A. 507;
Heath v. Hagan, 135 Iowa 495, 113 N.W. 342.
"It is apparent from this statement of the law that
words addressed to an officer in an insolent manner
do not without any other overt act tend to breach the
peace because it is the sworn duty and obligation of
the officer not to breach the peace and beyond this
to conduct himself so as to keep others from so
doing." 123 N.E.2d at 151.
While arguing with a policeman is not per se a breach of the
peace or disorderly conduct, depending on what is said, it may be
bad manners or worse tactics and, if obscene language is used in
a public place within the hearing of others, may constitute a
breach of the peace and disorderly conduct. The First Amendment
does not protect obscene public utterances.