Ford v. City of Newport News
In Ford v. City of Newport News, 23 Va. App. 137, 474 S.E.2d 848 (1996), an officer asked a man pushing a bicycle to come over.
The defendant complied and became loud and boisterous, and waved his arms in the air.
"Although the defendant was loud, profane and uncivil, the officers had no basis to conclude, on these facts, that they would be required to use physical force to restrain the defendant in order to carry out their duties." Id. at 145, 474 S.E.2d at 852.
The Court held as follows:
The words uttered by the defendant, however offensive or rude, do not establish disorderly conduct.
Although the officer testified that the defendant "threw his arms about in the air" and was "loud and boisterous," he made no threatening remarks, uttered no words that would reasonably incite a breach of the peace, or made no threatening movements toward the officers.
While the defendant's remarks lacked civility and were impolite, loud, and persistent protestations about his treatment, his act of throwing his arms in the air could in no reasonable way cause or incite the officers to violence.
There is simply no evidence in the record to support a reasonable belief that the defendant's conduct would cause a reasonable officer to respond with physical force or violence or that the officers considered the defendant's throwing his arms in the air to be an assault. Id. at 144, 474 S.E.2d at 851.