Background
On October 9, 2022, Joshua Gibbons—who ran a YouTube channel called “Big G Audits” where he recorded interactions with law enforcement—filmed himself approaching a Kingsport Police Department sergeant who was sitting in the drive-through lane of a Cook Out restaurant. Gibbons had earlier recorded the sergeant allegedly driving 53 mph in a 45 mph zone. In the roughly 76-second encounter, Gibbons approached the officer’s open window, asked for his name and badge number (which the sergeant declined to provide), accused the sergeant of speeding, and called him “full of s***.” As the sergeant moved up in the drive-through line, Gibbons walked to the corner of the building and shouted that the sergeant was “a piece of s***.” None of the other drive-through customers were prevented from ordering or receiving their food; the sergeant himself got through the line in about seven minutes. Gibbons posted the video on YouTube.
Police learned of the video and arrested Gibbons. He was charged with disorderly conduct, speeding, and prohibited use of a mobile phone while driving. He was acquitted of the traffic offenses but convicted of disorderly conduct in a bench trial and then, on a de novo appeal, by a Sullivan County jury. The State argued at trial that Gibbons’s yelling created either unreasonable noise preventing others from carrying on lawful activities (Tenn. Code Ann. § 39-17-305(b)) or a hazardous or physically offensive condition (subsection (a)(3))—a theory the trial court allowed by instructing the jury on both subsections, even though the affidavit of complaint only alleged yelling and “disturbing the lawful conduct” of the officer and patrons.
The Court’s Holding
The Court of Criminal Appeals reversed and ordered the charge dismissed on two independent grounds.
Insufficient evidence under subsection (b). The court first determined that the charging instrument—an arrest warrant whose affidavit alleged Gibbons was “yelling obscenities” and “disturbing the lawful conduct of the Officer and other patrons”—charged only the subsection (b) offense of making “unreasonable noise that prevents others from carrying on lawful activities.” Under that standard, the evidence fell short. All three of the State’s witnesses (the sergeant and two customers with law enforcement backgrounds) testified that the encounter was brief, that nobody got out of their cars, and that nobody was prevented from ordering or receiving food. Tennessee courts have long held that “[m]ere verbal epithets, unless the epithets can be considered ‘fighting words,’ can not by themselves support a conviction under Tennessee’s disorderly conduct statute.” And “unreasonable noise” must actually prevent others from carrying on lawful activities—momentary distraction is not enough.
Constructive amendment of the charging instrument. The court further held that by instructing the jury on subsection (a)(3)—which requires intent to cause public annoyance or alarm and the creation of a hazardous or physically offensive condition—the trial court constructively amended the charging instrument without the defendant’s consent. Tennessee courts have consistently held that subsections (a) and (b) of the disorderly conduct statute describe “two different types of disorderly conduct” that operate independently. Permitting a conviction on an uncharged mode of liability violates the constitutional notice requirement and requires automatic reversal under State v. Goodson. Even under plain-error review, the defendant was entitled to relief because reversal was necessary to do substantial justice. The evidence was also insufficient under subsection (a)(3), as no evidence showed Gibbons intended to cause public alarm or created a hazardous or physically offensive condition; calling an officer “a piece of s***” without accompanying threatening or violent conduct does not meet that standard.
Key Takeaways
- In Tennessee, verbally insulting or cursing at a police officer—without accompanying violent, threatening, or physically obstructive conduct—does not constitute disorderly conduct under either subsection of Tenn. Code Ann. § 39-17-305; police officers are “trained to exercise a higher degree of restraint than the average citizen” and brief, non-threatening confrontations do not satisfy the statutory elements.
- The two subsections of Tennessee’s disorderly conduct statute are separate, distinct crimes; the State must charge and prove the mode of liability it prosecutes, and a jury instruction on an uncharged mode is a constructive amendment requiring reversal—even without a contemporaneous objection if the circumstances warrant plain-error relief.
- To sustain a conviction under subsection (b), the State must prove that the noise actually prevented specific people from carrying on specific lawful activities—not merely that they heard it, noticed it, or were momentarily distracted by it.
Why It Matters
This decision has direct relevance for Tennessee prosecutors, defense attorneys, and law enforcement personnel. The case arose from a “police auditor” scenario—a citizen deliberately filming officers and provoking confrontations for online video—and the court’s ruling makes clear that disorderly conduct statutes cannot be used to punish citizens who film and verbally criticize officers in public, absent conduct that actually disrupts lawful activity. The decision also draws a sharp contrast with the court’s recent ruling in State v. Patterson (2026), where a defendant who shouted at postal employees, continued filming after repeated requests to stop, and caused employees to lock the doors of the customer service area was properly convicted under subsection (a)(3)—conduct that crossed from mere insult into genuine disruption.
Practitioners handling disorderly conduct cases in Tennessee should also note the instructional precision this decision demands: the mode of liability charged in the warrant or indictment must match the instructions given to the jury. Obtaining a conviction on an uncharged theory, even inadvertently, produces automatic reversal. Prosecutors who believe subsection (a)(3) applies should ensure that theory is pleaded in the charging instrument from the outset.