The Volokh Conspiracy - What is "disorderly conduct" anyway?

Here is the Massachusetts statute under which Gates was arrested, Mass. G. L. ch. 272, s. 53:

Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment.

Here is a recent gloss by a Massachusetts court (adopting Model Penal Code s. 250.2(a)):

A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior.... 'Public' means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.

Massachusetts courts have rejected MPC s. 250.2(b) as a violation of free speech rights. So this provision is not part of Massachusetts law:

(b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present.

And here are some squibs:

Arrest under Massachusetts "idle and disorderly person" statute was unlawful under Massachusetts law, where defendant was arrested for yelling, screaming, swearing and generally causing a disturbance but, though the yelling was undoubtedly loud enough to attract the attention of other guests in hotel, it did not rise to level of "riotous commotion" or "public nuisance." U.S. v. Pasqualino, D.Mass.1991, 768 F.Supp. 13.

And --

Defendant who did not physically resist his arrest arising out of a domestic violence incident could not be convicted of disorderly conduct based solely on his loud and angry tirade, which included profanities, directed at police officers as he was being escorted to police cruiser, even if spectators gathered to watch defendant; defendant did not make any threats or engage in violence, and his speech did not constitute fighting words. Com. v. Mallahan (2008) 72 Mass.App.Ct. 1103, 889 N.E.2d 77, 2008 WL 2404550.

And --

Defendant's conduct, namely, flailing his arms and shouting at police, victim of recent assault, or both, after being told to leave area by police, did not amount to "violent or tumultuous behavior" within scope of disorderly conduct statute, absent any claim that defendant's protestations constituted threat of violence, or any evidence that defendant's flailing arms were anything but physical manifestation of his agitation or that noise and commotion caused by defendant's behavior was extreme. Com. v. Lopiano (2004) 805 N.E.2d 522, 60 Mass.App.Ct. 723.

Here is more from that case:

[Officer] Garrett asked the defendant to exit the vehicle. As the defendant was getting out of the car, he "kept saying no problem here, no problem here, everything is all set, no problem." The police advised the defendant that he would be summonsed to court for assault and battery, that he was not to be arrested at Carins's [the alleged victim] request, and that he had to leave the motel parking lot. He began to walk away. [Officer] O'Connor testified: "He took a few steps from me, ten steps, turned around, began flailing his arms, yelling that I was violating his civil rights." He was advised a second time to leave, and the defendant was "yelling at me, you're violating my civil rights, then he began yelling at Ms. Carins, why are you doing this to me, you'll never go through with this." At that time, he was placed under arrest. It is not disputed that only the defendant's conduct after he left the car forms the basis of the disorderly conduct charge.

	[Eric Posner, July 24, 2009 at 3:57pm] Trackbacks What is "disorderly conduct" anyway? Here is the Massachusetts statute under which Gates was arrested, Mass. G. L. ch. 272, s. 53: Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment. Here is a recent gloss by a Massachusetts court (adopting Model Penal Code s. 250.2(a)): A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior.... 'Public' means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood. Massachusetts courts have rejected MPC s. 250.2(b) as a violation of free speech rights. So this provision is not part of Massachusetts law: (b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present. And here are some squibs: Arrest under Massachusetts "idle and disorderly person" statute was unlawful under Massachusetts law, where defendant was arrested for yelling, screaming, swearing and generally causing a disturbance but, though the yelling was undoubtedly loud enough to attract the attention of other guests in hotel, it did not rise to level of "riotous commotion" or "public nuisance." U.S. v. Pasqualino, D.Mass.1991, 768 F.Supp. 13. And -- Defendant who did not physically resist his arrest arising out of a domestic violence incident could not be convicted of disorderly conduct based solely on his loud and angry tirade, which included profanities, directed at police officers as he was being escorted to police cruiser, even if spectators gathered to watch defendant; defendant did not make any threats or engage in violence, and his speech did not constitute fighting words. Com. v. Mallahan (2008) 72 Mass.App.Ct. 1103, 889 N.E.2d 77, 2008 WL 2404550. And -- Defendant's conduct, namely, flailing his arms and shouting at police, victim of recent assault, or both, after being told to leave area by police, did not amount to "violent or tumultuous behavior" within scope of disorderly conduct statute, absent any claim that defendant's protestations constituted threat of violence, or any evidence that defendant's flailing arms were anything but physical manifestation of his agitation or that noise and commotion caused by defendant's behavior was extreme. Com. v. Lopiano (2004) 805 N.E.2d 522, 60 Mass.App.Ct. 723. Here is more from that case: [Officer] Garrett asked the defendant to exit the vehicle. As the defendant was getting out of the car, he "kept saying no problem here, no problem here, everything is all set, no problem." The police advised the defendant that he would be summonsed to court for assault and battery, that he was not to be arrested at Carins's [the alleged victim] request, and that he had to leave the motel parking lot. He began to walk away. [Officer] O'Connor testified: "He took a few steps from me, ten steps, turned around, began flailing his arms, yelling that I was violating his civil rights." He was advised a second time to leave, and the defendant was "yelling at me, you're violating my civil rights, then he began yelling at Ms. Carins, why are you doing this to me, you'll never go through with this." At that time, he was placed under arrest. It is not disputed that only the defendant's conduct after he left the car forms the basis of the disorderly conduct charge.