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What is Disorderly Conduct?

Disorderly Conduct is an interesting law. It is a misdemeanor, and rarely results in jail time. In fact, in my experience it is often used as a "fallback" by prosecutors in order to get defendants to take a plea. For example, instead of sticking an assault charge on a defendant, prosecutors will often offer a plea of disorderly conduct, a charge which looks a lot better on your record than an assault.

Minnesota Statute § 609.72 tells us,

"Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:

(1) engages in brawling or fighting; or

(2) disturbs an assembly or meeting, not unlawful in its character; or

(3) engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others."

It's hard to think of any "brawling or fighting" such as prohibited by the statute that could not also be charged as an assault! You can probably see why prosecutors use it as a fallback for negotiating pleas!

Subdivision (2) is not of interest, since the courts have knocked it out as prohibiting free speech. See State v. Hensel, 901 N.W.2d 166 (Minn. 2017)

Subdivision (3) is still on the books, but has problems of its own. There is lots of speech protected by the First Amendment that tends to "arouse alarm, anger, or resentment in others." In general, if you are going to be charged with Disorderly Conduct based on words alone, your words have to fall in an area of speech that is not protected by the First Amendment. For example, if your talk is a kind of "fighting words," then you are not protected by the umbrella of Free Speech.

Even apart from First Amendment considerations, it is clear the Disorderly Conduct statute is so broad that it threatens to criminalize a good deal of behavior that should be protected in a free society.

Interesting to me is the statute’s Advisory Committee Comment from 1963. Though it is not binding (it isn't part of the statute or case law), it still sheds light on the purpose of the law. Here's what it says:

Two important qualifications are specified. The defendant must know or have reasonable grounds to know that his behavior will alarm, anger or disturb others. This is but an application of the principle that criminal liability should be based on fault. The second qualification is that “others” must be affected by the behavior. It is not sufficient that a single person or, depending on circumstances, only a few have grounds to complain. “Others” must be construed in the light of the objectives of the offense. A family quarrel in a private home would not be sufficient although it may be in the presence of the children or of other relatives or of visitors also in the home. But if passersby or neighbors were reasonably alarmed, angered or disturbed, the offense would be committed. [Emphasis added]

This is particular interesting, because Disorderly Conduct is often charged for things arising outside the home or in remote places where a true public disturbance is not likely (e.g. a campsite).

This matter was brought up by Justice Alan Page in his dissent in State v. Zais, 805 N.W.2d 32 (2011). In that case, the Minnesota Supreme Court held that a wife was the "victim" of disorderly conduct by virtue of her husband's breaking some garage panels to get in their shared house, and his yelling within the house. As Justice Page noticed, nothing the husband did outside the house was really boisterous or noisy (if you've never left your keys inside and had to figure out a creative way back in, well....good for you). It was only the wife, in the marital home, who could've been at all alarmed or angered by her husband's conduct, and only for personal reasons, i.e. reasons that could not be disorderly to the public at large.

The implications of the Court's holding seem to be that a person can be "disorderly" to one "victim,"--and even within his own home!

If you think the Government wouldn't charge you with such a goofy offense, you're wrong. Prosecutors charge such offenses all the time, and judges often look the other way. The reason for this is what we mentioned above: Disorderly Conduct is such a nice way to get pleas made that no one really wants to scrutinize the law. Given the history of Disorderly Conduct statutes, maybe that's not surprising.... But that's another blog post.

If you've been charged with a crime, you need an experienced and competent attorney who knows the law and will fight tough for you.

Innocence is not enough. You need legal counsel to help you through the complicated legal process. Contact Ganzhorn Law for a free consultation.

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