2. That the defendant involved himself or herself in AT LEAST ONE or more of the following actions (ONE OR MORE):
3. That the defendant’s actions were reasonably likely to affect the public
4. That the defendant EITHER (ONE OR BOTH):
Here are three of many existing examples of cases that Massachusetts’s courts have addressed the offense of disorderly conduct:
Commonwealth v. Feigenbaum (1989):
The court ruled that political protestors who block a passage are NOT creating a “hazardous or physically offensive” condition—one of the sub-elements of the first element of the crime of disorderly conduct.
Commonwealth v. Bosk (1990):
The court ruled that a motorist defendant who stood in a traffic lane, forcing vehicles to pass around him, while debating with a police offer and refusing to return to his car conducts himself disorderly.
Commonwealth v. Lopiano (2004):
The court ruled that flailing arms and shouting at the police are NOT “violent or tumultuous behavior”—one of the sub-elements of the first element of the crime of disorderly conduct.
Commonwealth law prohibiting disorderly conduct seeks to control intentional conduct, which tends to disturb the public tranquility, or to alarm or provoke others.
Commonwealth law prohibits ALL four of the following distinct actions:
2. The making of threats that involve the immediate use of force or violence
3. Tumultuous and highly agitated behavior, which may not involve physical violence, but which causes (ALL):
…and so constitutes a public nuisance.
4. Any conduct that creates (ONE OR BOTH):
Moreover, a defendant is GUILTY of the offense of disorderly conduct if his or her actions meet this standard: “reasonably likely to affect the public”. This means that his or her actions were reasonably likely to have affected the persons in a place to which the public or a substantial group has access.
Legally speaking, a person acts recklessly when he or she consciously ignores, or is indifferent to, the probable outcome of his or her actions.
Regarding an allegation of disorderly conduct, a defendant was reckless if he or she knew, or must have known, that such actions would create a substantial and unjustifiable risk of (ONE OR MORE):
…but nevertheless ran the risk and went ahead anyway.
The offense of disorderly conduct CANNOT be constitutionally applied to language and expressive conduct, even if that language or expressive conduct is offensive and abusive.
The only exception to this is if the language and expressive conduct falls outside the scope of First Amendment protections—i.e. it constitutes fighting words, which by their very utterance tend to incite an immediate breach of the peace.
Note that the court has ruled that in most circumstances public solicitation for sexual activity is not legally considered to be “disorderly conduct”, because in most cases it does not involve proof of a significant risk of violence or serious disturbance.
Also note that non-expressive disorderly conduct is punishable even if it is accompanied by constitutionally protected speech or expressive conduct.
The acts that constitute disorderly conduct fall into two major categories (ALL):
Although conduct that is designed to call attention to a political cause, and may therefore have a legitimate purpose, may nevertheless be criminal under common law or by some statute, it DOES NOT constitute disorderly conduct under the second aforementioned category, because it DOES serve a legitimate purpose of the protestor.
IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH DISORDERLY CONDUCT AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.