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UNITED STATES v. MCDERMOTT

July 30, 1997

UNITED STATES OF AMERICA
v.
MICHAEL McDERMOTT



The opinion of the court was delivered by: DALZELL

 Dalzell, J.

 July 30, 1997

 This criminal appeal raises the question whether someone who utters vulgarities at security officers while being questioned can be guilty of disorderly conduct.

 I. Background

 At about 3:30 a.m. on April 4, 1997, Petty Officer Robert Derouin, who was on duty as a security officer at the Willow Grove Naval Air Station, rousted appellant Michael McDermott from his slumber in the backseat of his car, which was parked in the lot of the Pitcairn Club, an enlisted personnel club at the Air Station. *fn1" Earlier that evening, McDermott -- who is a First Class Petty Officer and has served in the Navy for the past eleven years and in the Marine Corps for eleven years before that -- had, after consuming about eight beers at the Pitcairn Club, wisely elected to sleep in his car (with his dog standing guard in the front seat) rather than drive home. *fn2"

 At the trial before Magistrate Judge Arnold C. Rapoport, *fn3" Petty Officer Derouin described McDermott's conduct after McDermott stepped out of the car:

 
We started to ask him some questions and immediately he became verbally abusive, using profanity toward us. Petty Officer Bates [who was backing Derouin up] kept on trying to ask him some questions. Profanity continued. Petty Officer Bates warned Mr. McDermott that if he did not cease with the profanity that he would call on Horsham Township Police Department and have Mr. [McDermott] arrested for drunk and disorderly.
 
That did not help any. Mr. McDermott continued to still use the profanity towards the officers. [After handcuffing McDermott, he] still used profanity towards us, did not want to be cooperative whatsoever.

 Tr. at 10-11. McDermott's use of "profanity", *fn4" Petty Officer Derouin testified, "lasted about three minutes." Tr. at 13.

 McDermott does not contest that when he was awakened he said to the officers, "This is bullshit." Tr. at 34. *fn5" In McDermott's estimation, his speech was not out of bounds: "I never swore at them. I was saying just normal sailor, Navy talk, like this is bullshit and I can't believe you guys are doing this." Tr. at 37. For the benefit of the trial court, McDermott explained the argot peculiar to the ranks of our Armed Forces: "It's normal, when guys are all standing around, and we fly airplanes, I fly airplanes, and we talk like that all the time. And I was talking to somebody I had worked with for five years who worked under me and has been on hundreds of flight hours with me and I'm like, fine, what the fuck is going on? Why, you know, what's going on?" Tr. at 37.

 There is no allegation that McDermott attempted to strike the officers when they handcuffed him, see Tr. at 17, or -- aside from his use of salty sailor talk -- was in any other way uncooperative, see Tr. at 18. Nonetheless, McDermott was cited that evening for disorderly conduct, see 18 Pa. Cons. Stat. § 5503, and public drunkenness, see 18 Pa. Cons. Stat. § 5005, both summary offenses in the Commonwealth.

 After a trial on June 12, 1997, McDermott was found guilty of disorderly conduct, fined fifty dollars and assessed five dollars in costs. See Tr. at 40. McDermott appealed his conviction four days later under ...


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