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Disorderly conduct is a misdemeanor charge with a disturbing history. And historically, some police officers abuse their discretion, to charge people offending them with this offense. If that happens, then a criminal defense attorney can help achieve a good outcome, such as avoiding a criminal conviction record.
Avoid a Disorderly Conduct Charge
Assert your rights, politely. Say:
“I am asserting my Fifth Amendment rights until I can consult an attorney, officer.” And then, remain silent. But follow police instructions about your physical movements. Don’t consent to any searches. And don’t make any statements, until after consulting a defense attorney.
This helps to avoid creating evidence that a prosecutor can later twist.
Types of disorderly conduct charges
A. Police officer witness. A personality conflict leads to a disorderly (disturb peace; obstructing) charge. It’s basis is a police officer’s claim. So the police officer is a participant, not an impartial witness.
B. Disorderly conduct as a lesser included, add-on charge, along with an assault, or domestic assault, charge.
C. Disorderly conduct with a motor vehicle, following a traffic accident. These can concern drivers angry about other drivers’ dangerous, negligent or unsafe driving conduct (“road rage” claims). The police officer is not an eyewitness, arrives after the fact, gathers hearsay.
The role of alcohol
As one might imagine, alcohol consumption plays a role in many, though not all, disorderly conduct cases. But when it does, I will point to Minn. Stat. §340A.902, the law saying that “No person may be charged with or convicted of the offense of drunkenness or public drunkenness.” So, though a person can face this charge for conduct while drunken, drunkenness alone – without more – cannot be the basis for this criminal charge.
A disorderly conduct charge could begin with a citation or with an arrest. And an arrest could lead to being held jail or in Detox.
If booked at the jail, the defendant could be released by police or held for a court bail or pretrial release hearing.
Disorderly Conduct Lawyer
Minnesota Disorderly Conduct Lawyer Thomas Gallagher has been a defending clients in these cases in Minnesota for over 35 years. He is a Minneapolis Criminal Defense Attorney.
Most of the people charged have a clean record and would like to keep it that way. But help from a lawyer like Thomas Gallagher can make the difference for you.
Defenses
The criminal defenses available in Minnesota criminal cases are also available in disorderly conduct cases. But often the defense is that the prohibited conduct never happened. After all, the complaining party may have mistakenly perceived events through an emotional filter, or have an axe to grind.
But self-defense can be an affirmative defense in these cases. And the First Amendment can be a defense, for example in protester cases. See my comprehensive guide to self-defense law in Minnesota.
The Statute. Disorderly Conduct, Minnesota Statutes § 609.72, Subdivision 1:
Crime. “Whoever does any of the following in a public or private place … , 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:
Minn. Stat. § 609.72, Subd. 1
(1) engages in brawling or fighting; or
(2) … [see Note below.]; 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. …”
NOTE: The Minnesota Supreme Court held Subdivision 1, clause (2), unconstitutional under the First Amendment, as overbroad. State v. Hensel, 901 N.W.2d 166 (Minn. 2017).
Speech vs. Conduct
Minnesota’s Disorderly Conduct criminal statute, on its face, appears to criminalize both speech and conduct. But the Minnesota Supreme court has judicially curtailed the statute as applied to speech. The First Amendment protects the right to free speech, allowing: “no law … abridging the freedom of speech.”
The second prong of the disorderly-conduct statute, Minnesota Statutes § 609.72, Subdivision 1 (3), may criminalize certain “language,” because speech generally is protected by the First Amendment, unless it consists of “fighting words.”
The Minnesota Supreme Court held, In re Welfare of S.L.J., 263 N.W.2d 412 (Minn. 1978), that § 609.72, subd. 1 (3), as enacted, “clearly contemplates punishment for speech that is protected under the First and Fourteenth Amendments.” To ensure that criminal defendants are not convicted of engaging in First Amendment protected speech, the supreme court narrowly construed the disorderly-conduct statute to criminalize speech only if it consists of unprotected “fighting words,” “those ‘personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction,’” or words that “‘by their very utterance inflict injury or tend to incite an immediate breach of the peace.’”
In S.L.J., the supreme court reversed a disorderly-conduct conviction of a “small, 14-year-old child” who said “f–k you pigs” while walking away from two police officers who were sitting in a squad car 15 feet away, where “there was no reasonable likelihood that [she] would tend to incite an immediate breach of the peace or to provoke violent reaction by an ordinary, reasonable person.” See also In re Welfare of M.A.H., 572 N.W.2d 752, 758-60 (Minn. App. 1997) (reversing disorderly-conduct conviction based on juveniles making profane remarks to police officers while surrounded by other juveniles).
In response, the prosecution may point to evidence relating to the first prong of the disorderly-conduct statute, criminalizing “conduct,” without regard to speech. In re Welfare of T.L.S., 713 N.W.2d 877 (Minn. App. 2006). In that case, a juvenile visited a school, became upset, yelled, and refused to leave when asked. When police officers arrived, the juvenile again refused to leave and shouted profanities at the officers, making a “loud shrieking” noise that others was claimed was “disruptive to the running of the school and purposes of the school.” This court concluded that police officers had probable cause to arrest for disorderly conduct, reasoning:
“Although the disorderly conduct statute prohibits only ‘fighting words’ as applied to speech content, the disorderly shouting of otherwise protected speech or engaging in other ‘boisterous or noisy conduct’ may still trigger punishment under the statute without offending the First Amendment. In that circumstance, it is not the speech itself that triggers punishment; the statute may be applied to punish the manner of delivery of speech when the disorderly nature of the speech does not depend on its content.”
In re Welfare of T.L.S., 713, 880 NW2d 877 (Minn. App. 2006) (citing Minn. Stat. § 609.72, subd. 1 (3), and S.L.J., 263 NW2d at 418-19).
The S.L.J. case is a “warning against applying Minn. Stat. § 609.72, subd. 1(3) too broadly. The wording of the statute (which is subjective and borders on vagueness), requires conduct to “reasonably” arouse alarm, anger or resentment in others. Under S.L.J., the statute is limited to fighting words, and should be used only in good faith to prosecute criminal offenses. To avoid interfering with first amendment rights, this statute should not be used to combat rudeness or for social engineering.” State v. Klimek, 398 NW 2d 41 (Minn Ct App 1986).
FAQ: “Can I be arrested for Disorderly Conduct?”
Yes, a police officer can arrest a person for disorderly conduct, since it is a misdemeanor crime. Sometimes, however, the police officer may issue a citation or Summons to appear in court on the charge, without an arrest.
FAQ: “Can three or more people be charged with Disorderly Conduct?”
ingYes. Three or more people can charged with misdemeanor Disorderly Conduct individually. And the Minnesota crime of Riot can also be charged when three or more people together engage in conduct that would support a Disorderly Conduct charge. For more on this, see my articles:
Riot Criminal Charges: Disorderly Conduct by Three or More
Inchoate Crimes: Aiding, Conspiracy (Two or More People)
Question? Call Lawyer Thomas Gallagher, 612 333-1500
Call during business hours for help or with a question.
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Obstruction & Resisting Arrest in Minnesota
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