What is disorderly conduct?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 6, 2012

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Disorderly conduct is a catch-all offense used to prohibit actions, threats, or words which could breach the peace or alarm others. Even though disorderly conduct is usually charged as a misdemeanor offense, it is a hotly contested charge because of its overlap with every person’s right to freedom of speech. As long as a state’s statute is designed to protect the peace of the community and is not unreasonably restrictive, a disorderly conduct charge is probably not unconstitutional. When faced with a disorderly conduct charge, an individual should understand what is considered disorderly conduct, sentencing options, and the possible collateral effects of a conviction.

Disorderly Conduct in Speech

Because disorderly conduct is a catch-all offense, many states use this charge to prohibit a variety of actions or types of speeches. This means that a defendant could be charged in a variety of manners and means for any given situation. Disorderly conduct can be broken into several categories of sub-charges. The first type of situation that could fall under a state’s disorderly conduct statute is speech or words. Prohibited words include those words or phrases that are abusive, indecent, profane, or communicate threats. A state can’t prohibit the use of all words, but can reasonably restrict the use of certain words in public places if they would offend or alarm others to the point of inciting a “breach of the peace.” Breach of the peace involves more than just aggravating one person. Certainly many people have yelled at a driver that cut them off in traffic, using less than friendly terms. The words or demonstrative signals during such incidents are usually directed at one driver and are not designed to incite all drivers on the road to be fearful or alarmed. There also must be more than a momentary hostility. Breach of the peace usually involves aggravating more than one individual in a public place.    

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Fighting, Assaultive, or Harrassing Behavior  

The second type of conduct that could qualify for a disorderly conduct charge is fighting or assaultive behavior (that would not otherwise qualify as a direct assault). This sub-category could include two men mutually deciding to fight at a bar. It would not ordinarily be an assault because both men consented, but the fight could still be considered disorderly conduct because it involves a fight at a public location. Disorderly conduct in this aspect could also include the use of assaultive type devices. For example, if a person fires a gun in the air, they have not necessarily assaulted someone, but may have done an act to place another in fear. Throwing smoke bombs with obnoxious fumes could also qualify as disorderly conduct, even absent a specific intent to hurt someone. A defendant’s goal to harass or alarm is enough.

Lewd Behavior

The third type of conduct that could qualify is lewd behavior.  In the old days, this was referred to as the “mooning” statute, where teenagers would expose parts of their bare bodies. The intent behind the action of an individual who exposes himself is what differentiates this charge from an indecent exposure charge. If the intent of the person is to arouse their sexual gratification, then the charge would be an indecent exposure charge. If a person’s intent was to generally annoy people, then it would qualify as disorderly conduct.

Disorderly Conduct Charges and Penalties

Disorderly conduct can encompass a variety of conduct ranging from kid pranks to concerning threats. Regardless of how the charge arises, it can result in a criminal conviction with criminal consequences. Most states will charge disorderly conduct as a lower level misdemeanor. The basic punishment can include probation or confinement in a county or parish jail up to a year. If a defendant is placed on probation, the judge can order conditions of probation designed to address how the offense was committed. For example, if the disorderly conduct charge was based on a defendant exposing his genitals, then a judge could order him to participate in a sex offender assessment. If a defendant lost his temper publically, the judge could order him to complete anger management counseling. To avoid a final conviction, some defendants may qualify for diversion court programs where they are placed on informal probation. After the completion of the program, the disorderly conduct charge is dismissed. 

Even beyond the terms of probation or time in jail, a disorderly conduct charge could have other collateral consequences. Some employers interpret this charge to reflect aggressive tendencies, which they do not want in their workplace. If the conduct is directed at a family member, it may qualify as type of family violence which could be used in a later prosecution to enhance a punishment. Because some states merely ticket for lower end disorderly conduct offenses, many people do not fully consider their options before entering a plea on a disorderly conduct charge. They equate the plea with that of a traffic ticket. Unfortunately, it’s not until it appears on their criminal history and comes up in a job interview do they realize the full impact of their decision.

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