So, how many different ways are there to be arrested for being “disorderly”? Disorderly conduct statutes allow the police wide discretion in determining what conduct is “criminal.” Similar criminal situations arise with respect to vagrancy ordinances and loitering and prowling statutes. This wide police discretion is open to much abuse. As such, criminal defense attorney John Guidry is vigilant in defending this type of case. There’s many disorderly statutes floating around, as many cities in Florida have drafted their own disorderly statute, but the general, State of Florida Statute §877.03 states:
Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
Below is an example of a typical city ordinance of disorderly conduct from Daytona Beach’s statute (commonly inflicted upon spring breakers for decades…). A person commits the crime of disorderly conduct if he:
- Creates a disturbance of the public order by an act of violence or by any act likely to produce violence; or
- Engages in, promotes, instigates, encourages, aids or abets fighting or any similar violent, threatening or tumultuous behavior; or
- Makes or causes any unreasonably loud noise; or
- Addresses profane, obscene or abusive language or threats of violence to any person present so as to create a clear and present danger of violence; or
- Fails or refuses to obey a lawful order of dispersal by a police officer, where three (3) or more persons are committing acts of disorderly conduct in the immediate vicinity; or
- Loiters, crowds or congregates on the public streets or sidewalks so as to unreasonably obstruct or interfere with pedestrian or vehicular traffic or use thereof, or so as to create an unsafe condition for vehicular or pedestrian traffic or use of such street or sidewalk, and who fails or refuses to disperse and move on when ordered to do so by a police officer; or
- Damages, befouls or disturbs police public property or private property of another so as to create an unsafe, unhealthy or unsanitary condition.
How can Free Speech Become a Criminal Disorderly Conduct Charge?
Much of what’s listed above as a “crime” can directly conflict with the right to free speech under the First Amendment to the United States Constitution. Florida courts have interpreted disorderly conducts statute with regard to protected speech under the First Amendment. Specifically, State v. Saunders, 339 So.2d 641 (Fla. 1976), limits disorderly conduct through speech alone to only speech which causes injury or tends to incite an immediate breach of peace, or speech known to be false that endangers public safety.
Thus, speech can constitute criminal disorderly conduct and will not be protected if it is equivalent to “fighting words” or shouting “fire” in a crowded theatre. Saunders, 339 So.2d at 644. To be “fighting words” the speech must incite a reaction which is more than just curiosity from the crowd, or incite another person to engage in an immediate breach of the peace. When words form the basis of a disorderly conduct case, the words must incite a reaction that is more than just curiosity–the words must incite a person to engage in an immediate breach of the peace. If the words cause ‘safety’ concerns, the criminal charges may stick.
A common case of disorderly conduct involves the use of expletives during an officers’ issuance of a citation. In a real life example, officers of the Coral Springs Police Department arrived at a residence in reference to a loud noise complaint. As an officer was issuing the citation, the home owner receiving the citation was yelling various expletives at the three officers present, including “fuck you” and “all of Coral Springs officers are assholes. You guys are all fucking assholes.” The officers warned the resident to stop “mouthing off”, but the expletives continued, and eventually the home owner was arrested for disorderly conduct. S. Logan vs. State of Florida, 15 Fla. L. Weekly Supp. 889a (July, 2008). The home owner was convicted by a jury of the crime of disorderly conduct.
The appellate court overturned the disorderly conduct conviction because the expletives did not amount to “fighting words”, nor did the comments rise to such a level so as to corrupt the public morals or outrage the sense of public decency. See Cohen vs. California, 403 U.S. 15 (1971). The appellate court further held that a home owner expressing her dissatisfaction with the officers’ decision to issue a citation did not inflict injury to the officers simply by their utterance, and as such the expletives constituted protected speech. However, had the comments been directed to incite one “particular” officer, or had other witnesses from the neighborhood testified, the court may have found differently on the issue of “inciting others” to breach the peace.
Contrast this case with a similar incident that happened in a elementary school cafeteria, where the same expletives were used in front of young children, causing some children to cry, some huddling, some up out of their seats. The courts found that such speech was disorderly. See B. Adler vs. State of Florida, 9 Fla. L. Weekly Supp. 458a (May 2002). But, as you might expect, not all incidents involving shouting and expletives are criminal (ever been to a Magic game when they’re losing? Unhappy fans and alcohol don’t mix…). So, for a more detailed analysis of the issues of whether or not offensive language constitutes a criminal act, simply click on my article “Shouting and Cursing Isn’t a Crime”.
If no One is Offended, can a Disorderly Conduct Charge be Upheld?
Often times, a disorderly conduct charge is filed by a cop who witnesses the incident. Yet, this same officer fails to obtain any witnesses who will testify as to the conduct being disorderly. Typically, a police officer, standing alone, will not qualify as an “offended” person. Remember that the Florida Statute for disorderly conduct states that any act which is of a nature to corrupt the public morals, or outrage the sense of public decency is a misdemeanor. This language means that someone must be offended by the conduct. But, “someone” only applies to citizens, not necessarily law enforcement. There are plenty of cases in which nudity has been considered disorderly conduct because it is seen as corrupting the public morals or outraging the sense of public decency. However, if the prosecution never presents a member of the public as an “offended witness”, these cases can be tough to prove. For example, in cases of strippers being arrested for their nude poll dancing performance, such a conviction was overturned because “no one in the audience was offended or annoyed by the performance with the exception of the police officers.” Haines v. State of Oklahoma, 512 P. 2d 820 (1973). In Florida, attempts have been made to shut down swingers clubs, like “Trapeze”. Once again, our Florida courts overturned these convictions because the undercover officers could not produce a single civilian witness who was “offended” by the nudity within the club. Indeed, the courts correctly found that it is virtually impossible to offend someone–for criminal purposes–if they are within a private club. For more information on this topic, check out my article “Today, Garden of Eden Would Be Illegal”.
Speak with an Orlando Disorderly Conduct/Intoxication Attorney Today
Yes, you probably thought disorderly conduct was a simple issue, but it’s not. Don’t worry, Orlando disorderly conduct/intoxication lawyer John Guidry has the experience and knowledge to help you thru, just pick up the phone, and schedule a free consultation. Free is good.