Disorderly Conduct, aka the “catch-all” offense. The definition of the charge, under Wisconsin Statutes section 947.0, is a laundry list of behaviors that reads like a typical evening of reality T.V., but that can land the average, non-celebrity- citizen in court or in jail. Let’s take a look at the definition of “DC”, and tease it apart, shall we?
1a. “Whoever, in a public or private place…” This means that you can get arrested for DC even if you are acting the fool in your own home, as long as someone other than you is disturbed by your foolishness (we’ll get to that “disturbed” part shortly).
1b. “…engages in violent, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct…” This is the aforementioned “laundry list.”
–“Violent” – this one is pretty obvious – hitting, kicking, punching, striking, shoving would all qualify; generally, something more than mere words.
–“Abusive” – could be words or actions, possibly threats; might involve excessive taunting, hazing, bullying.
–“Indecent“ – largely in the eye of the beholder, and, frankly, hard to distinguish from “profane” which is next on the list; but if nudity or gutter language are involved then it might fit into this category.
–“Profane” — see “Indecent”; but probably more in the uttering of “dirty words” (see George Carlin) than in action.
–“Boisterous” – hard to distinguish from “unreasonably loud” which follows. I always thought that boisterous was a good thing, until I became a criminal defense lawyer. I think it means getting so excited that you really piss someone else off. The loud, obnoxious drunk.
–“Unreasonably Loud” – see “boisterous”; very subjective; what is unreasonably loud to one neighbor might be an invitation to drop by with a six-pack to another neighbor.
–“Otherwise Disorderly” – my personal favorite; as if the list isn’t already enough to throw a wet blanket on any house party, this one covers everything else that might disturb someone, but that can’t be put into a neat category. One of those “I don’t know what it is, but I’d know it if I saw it” kind of things.
These two parts of the definition make up the first “element” of the disorderly conduct charge.
It would be fair to say that, except for cases involving freedom of speech or assembly (which will be discussed in a later post), it’s a rare disorderly conduct prosecution that has a weakness on this side of the ledger. In other words, if the facts of the case don’t allege conduct that fits into one of these categories (or “non” category, in the case of “otherwise disorderly”) then there, usually, is no violation.
It is the second “element” of the charge where a defendant can usually make hay. The second element (or second part of the definition) of disorderly conduct reads —
2.”…under circumstances in which the conduct tends to cause or provoke a disturbance.”
As an interesting (to me anyway) aside, after nearly 15 years as a criminal defense attorney, the phrase “tends to” is still perplexing to me. The dictionary definition of “tends to” is, essentially: “to be disposed toward or inclined in action.” If you substitute that definition with “tends to” you get either “under circumstances in which the conduct is disposed toward causing or provoking a disturbance,” or “under circumstances in which the conduct is inclined to cause or provoke a disturbance.” Either way, you have a less-than- completed action, sometimes referred to as “inchoate.”
How, one might ask, does someone “tend to” disturb someone else (but not quite)? We don’t yet live in a Minority Report world, do we? (Steven Spielberg film from 2002 – go see it). Someone was either “disturbed” by the conduct or they weren’t, right? We’re not criminalizing conduct that might disturb someone, are we?
Leaving that enigma aside, the real meat on the bones of this charge typically rests with the words “cause or provoke.” The conduct that the defendant is alleged to have engaged in must “cause” or “provoke” the disturbance. In other words, the defendant’s actions must have caused someone else to be disturbed or provoked someone into a disturbed (or disturbing?) state.
The two most common disorderly conduct fact patterns are (1) the bar fight, and (2) the unhappy couple. Both scenarios can understandably produce conduct that fits into one of the aforementioned (laundry list of) categories.
Both scenarios can include conduct that might disturb someone, including one or the other of the participants who are involved in the skirmish.
The legal question then, is, who caused it? If someone swings on you, or throws something at you, or screams profanities at you, are you then at fault for reacting in a boisterous, or unreasonably loud manner? What would be a reasonable human reaction to getting dishes thrown at you, or ducking from a drunkard’s right hook? I’d argue that a smattering of boisterous or loud profanity is more of a reflex than a volitional act in itself, and that the dish thrower or drunkard caused the disturbance, not you. That’s called a defense.