Disorderly Conduct: D.C. Court Narrows The Scope

Disorderly conduct is a really annoying charge.

The first problem is that the offense is usually so broad and poorly defined that it is too easy for police to charge and too easy for the government to prove at trial.  For example, since intent to cause a “public inconvenience” is a major element of the offense in Pennsylvania, the problem I had in Philadelphia was that any police activity, any gathering of curious onlookers as a result of this activity, and anything less than absolute compliance by the suspect with the officer instructions inevitably resulted in the inclusion of this offense in the list of charges against a client.

The second problem with the offense is that, while it is only a minor misdemeanor, an arrest on this charge often serves as the legal basis for more serious charges.  For example, once the police arrest the suspect for disorderly conduct, they are now legally entitled to search him for weapons and contraband.  This means that an arrest for disorderly conduct often leads to felony drug and firearms charges.

The good news in this city is that the D.C. Court of Appeals issued a decision last week, In Re T.L., in which it narrowed the scope of the offense in the District.  Specifically, it held that, in order to satisfy the “breach of peace” requirement under the statute, the government must prove either that (1) the defendant’s speech or conduct was likely to trigger violence or (2) it was “unreasonably loud and disruptive.”

In D.C., the government must prove two elements in order to secure a conviction for disorderly conduct.  The government must first prove specific intent; in this case, that the defendant acted with intent to provoke a “breach of the peace” or under circumstances such that a breach of peace might occur.  Second, the government must prove that the defendant either: (1) acted in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; (2) congregated with others on a public street and refused to move on when ordered by the police; (3) shouted or made a noise either outside or inside a building during the nighttime to the annoyance or disturbance of any considerable number of persons; (4) interfered with any person in any place by jostling against such person or unnecessarily crowding such person or by placing a hand in the proximity of such person’s pocketbook or handbag; or (5) caused a disturbance on public transportation.

In the case at hand, the Court was faced with situation in which the defendant had been stopped on the street by a police officer who confiscated a large sum of cash from the defendant.  When the defendant objected, calling out loudly for his mother to come help him, the officer placed him under arrest for disorderly conduct.  Upon searching the defendant incident to arrest, the officer discovered 24 ziplock bags of crack cocaine hidden in the defendant’s pants and placed him under arrest for possession of cocaine with the intent to distribute.

In denying the defendant’s pretrial motion to suppress the evidence, the trial court reasoned that, because the defendant “continued to scream and shout and began drawing a crowd of people to come out from the neighborhood,” the officer had probable cause to arrest him for disorderly conduct.  The recovery of the cocaine was then legally valid under the “search incident to arrest” exception to the Fourth Amendment requirement for a warrant.

In overturning this decision, and in vacating both the misdemeanor and felony charges, the Court of Appeals spelled out two ways in which the government could have proven the “breach of peace” requirement.

The first way would have been to prove that the defendant’s speech or conduct was likely to trigger violence.  A police officer who has “objective reason to believe that violence is imminent need not stand by and await its outbreak before he attempts to control the situation with a disorderly conduct arrest.”  However, in this case, the Court held that the government failed to meet this burden:  “[T]hough T.L. loudly protested Officer Elliott’s seizure of his money (and called upon his mother for help), he did not urge the onlookers to intervene on his behalf or otherwise manifest an intent to provoke them to violence.  And while T.L.’s yelling may have annoyed the neighbors who were attracted to the commotion, there is no evidence they were hostile or likely to become violent.”

The second way would have been for the government to prove that the defendant’s speech was “unreasonably loud and disruptive.”  “The government has a substantial interest in protecting its citizens from unwelcome noise, an interest that is perhaps at its greatest when government seeks to protect the well-being, tranquility, and privacy of the home.”

Again, however, the Court held that the government had not met this requirement in the T.L. case.  It was the police officer’s wrongful conduct – the confiscation of the defendant’s money without cause to do so – that created the disturbance in the first place. And the defendant’s yelling lasted only a few minutes before he was arrested.  The Court therefore held that the defendant’s “loud but peaceful protestations and calls for his mother’s help in reaction to [the officer’s] unjustified seizure of his money were a response to an emergency situation and were not unreasonable under the circumstances.”