Disorderly Conduct and Disturbing the Peace in Massachusetts: Elements, Penalties & Defenses

Disorderly conduct and disturbing the peace are two of the most common charges in Massachusetts District Court, and two of the most misunderstood. They share one sentence of the statute, G.L. c. 272, § 53(b), and one penalty: a fine of up to $150 for a first offense. But they are different crimes with different elements, and the courts have read both narrowly. Loud, rude, or angry is not automatically a crime.

What the Statute Says

Section 53(b) reads: “Disorderly persons and disturbers of the peace shall, for a first offense, be punished by a fine of not more than $150. For a second or subsequent offense, disorderly persons and disturbers of the peace shall be punished by imprisonment in a jail or house of correction for not more than 6 months or by a fine of not more than $200 or by both such fine and imprisonment.”

The statute sets the penalty but does not define either offense. The Supreme Judicial Court supplied the definition of disorderly conduct in Alegata v. Commonwealth, 353 Mass. 287 (1967), by adopting part of the Model Penal Code, and narrowed it further in Commonwealth v. A Juvenile, 368 Mass. 580 (1975). The elements of each charge now come from the District Court model jury instructions.

Disorderly Conduct: What the Commonwealth Must Prove

Under Instruction 7.160, the Commonwealth must prove three things beyond a reasonable doubt:

• The conduct. You engaged in fighting or threatening, engaged in violent or tumultuous behavior, or created a hazardous or physically offensive condition by an act that served no legitimate purpose of yours.
• The public. Your actions were reasonably likely to affect the public.
• The mental state. You intended to cause public inconvenience, annoyance, or alarm, or recklessly created a risk of it.

What the key words mean

• Fighting is conduct that involves physical force or violence, or a threat of force that could be carried out immediately (A Juvenile, 368 Mass. at 596–597).
• Tumultuous behavior is highly agitated conduct, which may not be physically violent, that causes “riotous commotion and excessively unreasonable noise” so as to be a public nuisance (Instruction 7.160; A Juvenile, 368 Mass. at 597).
• Public means persons in a place to which the public or a substantial group has access (Instruction 7.160, citing Alegata).
• Reckless means you knew, or must have known, that your actions would create a substantial and unjustifiable risk of public inconvenience, annoyance, or alarm, and went ahead anyway.

Where courts have drawn the line

Arguing with the police is not enough by itself. The Appeals Court found no tumultuous behavior where a driver refused an officer’s request to move her car, spoke loudly, and resisted arrest (Commonwealth v. Zettel, 46 Mass. App. Ct. 471 (1999)), and none where a man flailed his arms and shouted at police after being told he would be summonsed (Commonwealth v. Lopiano, 60 Mass. App. Ct. 723 (2004)). By contrast, it upheld a conviction where a man screamed at a parking attendant and officers in succession, pounded his steering wheel, tried to strike two officers, and forcibly resisted three (Commonwealth v. Sinai, 47 Mass. App. Ct. 544 (1999)).

Disturbing the Peace: What the Commonwealth Must Prove

Under Instruction 7.200, the Commonwealth must prove that:

• You engaged in conduct that most people would find unreasonably disruptive, such as making loud and disturbing noise, tumultuous or offensive conduct, throwing objects in a populated area, threatening, quarreling, fighting, or challenging others to fight, or personal insults that amount to fighting words;
• You acted intentionally, not by accident or mistake; and
• You did in fact annoy or disturb at least one person.

The jury considers all the circumstances, including the time and place, in deciding whether the conduct disturbed the tranquility of at least one person in the area or interfered with at least one person’s normal activity. The requirement of an actual person disturbed comes from Commonwealth v. Orlando, 371 Mass. 732 (1977).

Penalties

• First offense: a fine of not more than $150. The statute provides no jail.
• Second or subsequent offense: up to 6 months in a jail or house of correction, a fine of up to $200, or both.

There is no state prison exposure, so both charges are misdemeanors. See the difference between civil infractions, misdemeanors, and felonies.

Students. Section 53(b) provides that “an elementary or secondary school student shall not be adjudged a delinquent child for a violation of this subsection for such conduct within school buildings or on school grounds or in the course of school-related events.” That language was added by the 2018 criminal justice reform law (St. 2018, c. 69, § 160).

Is It a Crime or a Civil Infraction?

Disorderly conduct and disturbing the peace are still criminal offenses; neither has been decriminalized. But G.L. c. 277, § 70C lets the court treat a misdemeanor as a civil infraction, on a motion by either side at arraignment or pretrial conference or on the court’s own motion, unless the Commonwealth objects in writing and states its reasons. Section 53(b) is not on the statute’s list of excluded offenses. If the case proceeds as a civil infraction, the person is found “responsible” rather than guilty, cannot be sentenced to jail, and does not receive appointed counsel.

Free Speech Limits

Words alone are usually protected. Section 53 cannot be applied to language or expressive conduct, even offensive and abusive language, unless it falls outside First Amendment protection as “fighting words which by their very utterance tend to incite an immediate breach of the peace” (Instruction 7.160, citing Commonwealth v. Richards, 369 Mass. 443 (1976), and A Juvenile). Two limits on that protection:

• Conduct that is not expressive can still be punished even if it comes with protected speech.
• For disturbing the peace, loud speech can still be charged when its volume, not its content, is what disturbed someone.

Protesters. The “hazardous or physically offensive condition” branch requires an act with no legitimate purpose. The SJC held that political protest serves a legitimate purpose, so protesters can be prosecuted for disorderly conduct only under the fighting, threatening, violent, or tumultuous branch (Commonwealth v. Feigenbaum, 404 Mass. 471 (1989)).

Defenses

• The conduct does not fit. Loud or rude is not automatically “tumultuous,” “violent,” or “unreasonably disruptive.” Arguing with police, without more, often is not enough.
• No public effect. For disorderly conduct, the conduct must be reasonably likely to affect the public, not just one person in a private setting.
• No one was actually disturbed. For disturbing the peace, the Commonwealth must prove at least one person was in fact annoyed or disturbed.
• No intent or recklessness. Accidental conduct is not enough.
• Protected speech. Offensive words that are not fighting words cannot support either charge.
• A legitimate purpose. Under the hazardous-condition branch, conduct with a legitimate purpose, including political protest, is not disorderly conduct.
• Prior offense. If a second offense is charged, the Commonwealth must prove the earlier one.
• School proviso. A student cannot be adjudged delinquent under § 53(b) for conduct at school or a school event.

Why a Lawyer Matters

These charges look minor, but they are criminal charges, and they are often added on top of others. The elements are narrower than many police reports suggest, and whether the case can proceed as a civil infraction can make a real difference. In 23 years of defending clients in Massachusetts courts, I have handled many of these charges. If you have been charged, contact my office or call 781-393-5900.

Related Charges

• Annoying and accosting (G.L. c. 272, § 53(a)): offensive and disorderly acts or language directed at a person; jail is possible on a first offense.
• Affray: a fight in a public place that causes terror to the public.
• Threats (G.L. c. 275, § 2): a threat to commit a crime against a person or property.
• “Peeping Tom” disorderly conduct (G.L. c. 272, § 53): a separate model instruction for voyeurism cases.
• Resisting arrest (G.L. c. 268, § 32B): often charged alongside disorderly conduct.

Disclaimer

This article is for general educational information about Massachusetts criminal law. It is not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.