Myers v. City of Louisville

WILHOIT, Judge,

dissenting.

I respectfully dissent from the majority opinion because I believe the trial court erred to the substantial prejudice of the appellant in failing to instruct the jury on all of the elements of the offense of disorderly conduct. Unless the jury was instructed as to the elements of the offense charged, I cannot see how it could conclude that there was probable cause for the officers to believe that the appellant was guilty of the offense. Because of the peculiar facts of this case, a jury could well have concluded that the officers had no probable cause to believe that the appellant intended to cause public inconvenience, annoyance, alarm, or wantonly created a risk thereof. Yet, these are necessary elements of the offense of disorderly conduct.

I cannot agree with the majority that police officers “cannot be expected to know and apply the technical legal rules of what constitutes disorderly conduct in every street confrontation,” or the fact that they may have “acted with caution and restraint” would obviate any illegality in these acts. Police are trained and should be expected to know the elements of an offense for which they are arresting a citizen, and illegal acts are committed every day “with caution and restraint.”