If the Offense of Disorderly Conduct Didn’t Exist

Posted By Cliff Tuttle | July 25, 2009

Posted by Cliff Tuttle (c) 2009

. . . . we’d have to invent it.

The charge that was made by the Cambridge Police against Professor Gates, Disorderly Conduct, is generally at the bottom of the hierachy of criminal charges. A summary offense in Pennsylvania, although it can become a misdemeanor of the third degree “if the intent of the actor is to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct or after a reasonable warning or or request to desist.”

Under 18 P.S. Section 5503, “a person is guilty of disorderly
conduct if, with intent to cause public inconvenience, annoyance
or alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or
tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture;
or
(4) creates a hazardous or physically offensive
condition by any act which serves no legitimate purpose of
the actor.”

All this is pretty vague, which has lead to it being applied in situations where the police decide to forego making a more serious charge or the actor’s conduct doesn’t quite fulfill the elements of the larger crime.

Opinions may differ as to what is disorderly and what is not. Remember the Pittsburgh case where a motorist “flipped off” an officer? The Magisterial District Judge called that disorderly, but the US District Court called it the rightful exercise of the First Amendment.

It also provides a catch-all offense that enables a Magisterial District Judge to cut you a break without letting you off entirely.

Professor Gates may have engaged in disorderly conduct under the letter of the Massachusetts statute, according to a post in Volokh Conspiracy, but the is a pretty good argument that he was justifiably outraged at the high-handed conduct of the police in his residence. Were they then both guilty of being disorderly?

So what is disorderly conduct, really? It is what the Magisterial District Judge says it is — unless, of course, you appeal.

CLT

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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