Was breach of the peace still a South Carolina common-law offense that police could enforce in 2003?

Plain-English summary

In 2003, South Carolina's Attorney General said breach of the peace remained a common-law offense even though a separate public disorderly conduct statute covered similar behavior. Law enforcement officers could enforce it. The opinion distinguished that offense from Section 22-5-150, which authorized magistrates to arrest “breakers of the peace” but did not itself create the crime.

For an offense committed in an officer's presence, the opinion described a common-law warrantless arrest rule and said a warrant should be obtained soon afterward to serve as the trial charging document and give notice. It also discussed the separate probable-cause rule for a freshly committed misdemeanor outside an officer's presence. Threats of suicide could qualify as a breach only in some circumstances, and the offense was not limited to public places.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Sheriffs and police officers

The AG treated a misdemeanor breach committed in an officer's presence as arrestable without a warrant. It said a warrant should soon follow as the charging document. The opinion also cited the rule allowing an arrest for a freshly committed misdemeanor outside the officer's presence when observed facts supplied probable cause.

People accused of disturbing the peace

The opinion described breach of peace as conduct disturbing public order or tranquility. It said a private location did not necessarily prevent the offense, while whether a suicide threat amounted to a breach depended on the circumstances.

Common questions

Had the legislature repealed common-law breach of the peace?
The AG said no; it remained an offense alongside statutory public disorderly conduct.

Could police arrest without a warrant for a breach they witnessed?
The opinion said yes for a misdemeanor breach committed in the officer's presence, and said a warrant should be obtained soon after for trial and notice.

Was Section 22-5-150 the crime itself?
No. The AG said it authorized certain magistrate arrests but did not establish the separate common-law offense.

Could a breach occur in a home or hotel room?
The opinion cited an earlier AG view that a disturbance of others' peace could occur on private property as well as in a public place.

Background and statutory framework

The Anderson County sheriff asked about the offense's survival, enforcement, arrest procedure, possible suicide threats, and location. The AG contrasted common-law breach of peace with Section 16-17-530's public disorderly conduct offense. It also considered Section 17-13-30 on sheriff arrests and Section 22-5-150 on magistrate authority, while treating specific facts as essential to an individual breach determination.

Citations and references

The opinion discussed Section 16-17-530, Section 17-13-30, Section 22-5-150, and South Carolina decisions on warrantless misdemeanor arrests.

Official title

Regarding the offense of “breach of the peace”. Specifically, whether breach of the peace is a common law offense and whether it has been repealed by the General Assembly and can breach of the peace be enforced by police officers.

Requester

The Honorable Gene Taylor, Sheriff, Anderson County

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-23-2003-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/03/03sept-23-Taylor.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTI.R
ATTORNEY GENERAL

September 23, 2003

The Honorable Gene Taylor
Sheriff, Anderson County
Post Office Box 5497
Anderson, South Carolina 29623

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Dear Sheriff Taylor:

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In a letter to this office you raised several questions regarding the offense of"breach of the

peace".
The offense of breach of the peace has been defined as " ... a violation of public order, a disturbance of public tranquility, by any act or conduct inciting to violence." Thompson v. Ford Motor Credit Co., 324 F. Supp. 108, 115 (D.S.C. 1971). Thompson further defined "peace" as "a state of tranquility... (and) ... anything which disturbs that state is a breach of the peace." Id. As indicated in State v. Poinsett, 250 S.C. 293, 297, 157 S.E.2d 570, 571 (1967), the term "breach of the peace"
...is a generic one embracing a great variety of conduct destroying or menacing public order and tranquility. In general terms a breach of peace is a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence, which includes any violation of any law enacted to preserve peace and good order. You asked whether breach of the peace is a common law offense and questioned whether it has been repealed by the General Assembly. You further questioned whether breach of the peace can be enforced by police officers. An opinion of this office, 1984 Op. Atty. Gen. No. 84-122, stated that breach of the peace is a common law offense. See also: Poinsett, supra. Such offense still exists at common law although another offense, public disorderly conduct, S.C. Code Ann. Section 16-17-530 (2003), also exists which would cover similar conduct. 1 An opinion of this office dated August l 0, 1970

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The offense of public disorderly conduct is defined as "(a)ny person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or (continued ... )

,~s BUil.DING • POST OFFICE Box 11549 • COLUMBIA, S.C. 29211-1549 • TELEPHONE: 803-734-3970 • FACSIMILE : 803-253-6283

The Honorable Gene Taylor
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September 23, 2003

determined that ''under the common law, a peace officer was privileged to arrest an individual for a misdemeanor involving a breach of the peace provided the offense was committed in the officer's presence." See also: Prosser v. Parsons, 245 S.C. 493, 141 S.E.2d 342 (1965). The supreme court stated in State v. Mims, 263 S.C. 45, 48, 208 S.E.2d 288, 290 (1974) that "(u)nder the common law a conservator of the peace has authority to make an arrest without a warrant for a misdemeanor involving a breach of the peace committed in his presence or within his view." As stated in S.C. Code Ann. Section 17-13-30 (2003), "(t)he sheriffs and deputy sheriffs of this State may arrest without warrant any and all persons who, within their view, violate any of the criminal laws of the State if such arrest be made at the time of such violation of law or immediately thereafter." Consistent with such, the offense ofbreach of the peace can be enforced by law enforcement officers. You also asked whether the offense of breach of the peace is an offense separate from breach of the peace outlined in S.C. Code Ann. Section 22-5-150 (1989) which authorizes magistrates to arrest "all afrayers, rioters, disturbers and breakers of the peace". As defined above, breach of the peace is a separate common law offense. Section 22-5-150 in authorizing arrests by magistrates of "breakers of the peace" does not establish an offense but authorizes arrests by magistrates of "breakers of the peace". Such is included in a provision that also authorizes arrests by magistrates of " ... all who go armed offensively, to the terror of the people, ... (those who) ... utter menaces or threatening speeches and ... otherwise dangerous and disorderly persons.

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As to the enforcement of breach of the peace, you asked whether an arrest requires a warrant be issued if the crime was freshly committed in an officer's presence. Generally, an officer may not make an arrest for a misdemeanor without a warrant unless the offense was committed in the officer's presence. Op. Atty. Gen. dated June 2, 1974. An opinion of this office dated July 19, 1996 determined that "it is fundamental law in South Carolina that, in order to arrest for a misdemeanor not committed in the officer's presence, either a warrant must be obtained or there must be probable cause that the offense has been freshly committed." See also: State v. Clark, 277 S.C. 333, 334, 287 S.E.2d 143, 144 (1982) (officer generally has " ... the right to make a warrantless arrest for a misdemeanor not committed in his presence, if the facts and circumstances observed by the officer provided probable cause to believe that a crime has been freshly committed."). Consistent with the statements above, a law enforcement officer may arrest an individual for a misdemeanor involving a breach of the peace provided the offense was committed in the officer's

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( ••• continued)

otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church or (c) while under the influence or feigning to be under the influence of intoxicating liquor, without just cause or excuse, discharge any gun, pistol or other firearm while upon or within fifty yards of any public road or highway, except upon his own premises .... "

The Honorable Gene Taylor
Page 3
September 23, 2003

presence. However, a warrant should be obtained soon thereafter in order to constitute a charging document for purposes of trial and to put the defendant on notice of the charges against him.

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You also questioned whether a person threatening suicide by means of actions, verbal threats, or written threats constitutes a breach of the peace. As referenced in the definition set forth above, breach of the peace includes "a violation of the public order, a disturbance of public tranquility". As such, a person threatening suicide, which would include verbal threats, could constitute a breach of the peace under certain circumstances. Of course, each situation would have to be evaluated independently in making such a determination. A prior opinion of this office dated March 29, 1995, a copy of which is enclosed, dealt with the authority of a law enforcement officer to restrain or detain combative mental patients where there has been no court order of detention or arrest. That opinion commented that " .. .it is settled that a mentally ill person who is committing a breach of the peace may be arrested without process under the same circumstances as one who is not mentally ill, such cases 'being governed by the principles which apply to cases of arrest on probable cause without process .... "' In your last question you asked whether the offense of breach of the peace is limited with respect to public places or private property. A prior opinion of this office dated October 25, 1967
.. .it is generally accepted that a breach of the peace... may occur in a privately-owned place, such as a home or hotel-motel room, as well as in any public place ... The rationale of these decisions is that disturbance of the peace of other persons, or undue interference with the tranquility which they have a right to enjoy, is prohibited by the common law breach of peace whether committed in a public place or a private place. If there is anything further, please advise.

Sincerely,

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Charles H. Richardson
Senior Assistant Attorney General

Enclosure