Burgess v. City of Virginia Beach ( 1989 )

Barrow, J.,

concurring.

I concur with the majority opinion in this case except that, in my opinion, it is not necessary to determine whether a law enforcement officer is expected to exercise a higher degree of restraint than the average citizen. When the defendant spoke the language giving rise to the offense, he addressed it not only to the police officers, but to the large crowd of people overflowing from a Halloween party in the early morning. This evidence supported a finding by the trial court that the defendant’s language was used “under circumstances reasonably calculated to provoke a breach of the peace,” not a breach of the peace by the police officers, but a breach of the peace by the crowd the police were attempting to control. Therefore, I concur with the majority in reversing the conviction of profanely swearing or cursing in public and affirming the remaining convictions.