IC § 35-45-1-3. Disorderly conduct.

– A person who recklessly, knowingly, or intentionally . . . makes unreasonable noise and continues to do so after being asked to stop . . . commits disorderly conduct.

§ Article 1 Section 9. Freedom of thought and speech

Section 9. No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.

– In Price, the Indiana Supreme Court recognized that political speech receives protection under the Indiana Constitution that goes beyond the freedom of speech protections afforded by the US Constitution.

Case Law

– Police were drawn to a group of people at a New Year’s party at 3 AM. An officer approached the group and asked that they continue their argument in another location. One person was arrested, which attracted spectators from the party and additional officers. Δ confronted the officers regarding their conduct. “Price was screaming profanities while objecting first to Coleman’s arrest and then to her own.” The officers asked her to be quiet, and she responded “Fuck you. I haven’t done anything.” Price was then arrested for disorderly conduct by unreasonable noise.  The state may not punish expression when doing so would impose a material burden upon a core constitutional value. Abuse is the use of a thing in a manner injurious to the order or arrangement from which it derives its function. Unreasonable noise focuses on the intrusiveness and loudness of expression, not whether it is obscene or provocative.  When a citizen’s protest is occasioned by the conduct of government actors and regards a matter of public concern, it is squarely within the public pale. Citizen concern about the role of the police in their neighborhoods is as serious as it is timely.  Material burden analysis involves no weighing and is not influenced by the social utility of the state action at issue.  The presence of a police officer does not convert a defendant’s speech into political expression.  The State can not limit free speech to polite criticism, because the greater a grievance the more likely men are to get excited about it. The efficacy of political speech often depends upon its ability to jar and galvanize.  When the expressions of one person cause harm to another in a way that is consistent with common law tort, an abuse of § 9 has occurred.  Political expression becomes “unreasonably noisy” when and only when it inflicts upon determinant parties harm analogous to that which would sustain tort liability against the speaker.  Noise made during normal sleeping hours may be a nuisance, while the same or even greater noise during the day would not. Nonetheless, the law does not deal in trifles and mere annoyances or inconvenience is not sufficient. Moreover, given the large number of officers and civilians assembled in the alley and the commotion that had arisen even before Δ’s arrival, we do not think the link between her expression and any harm that was suffered is established. Price v. State, 622 N.E.2d 954 (Ind. 1993).

– Δ called the police because she was having problems with her boyfriend. Seven individuals were engaged in a loud argument. The officers were able to calm every one down except for Δ, who was shouting obscenities. An officer repeatedly asked Δ to calm down and eventually told her to “shut up.” Δ continued yelling at the group of seven people and was arrested for disorderly conduct.  The disorderly conduct statute is content-neutral. Therefore, the fact that Δ used obscenities is not relevant.  The mere presence of a police officer does not convert a speech into political expression.  Stites was perpetuating a disagreement with her ex-boyfriend, not protesting the actions of the police. Therefore, her speech is not political speech.  The conviction for disorderly conduct is affirmed. Stites v. State, 627 N.E.2d 1343 (Ind. App. 1994).

– Police were told that a terminated employee was taking hospital property. An officer approached Δ as she walked down the hallway of the hospital in an area adjacent to the OB-GYN clinic and close to the nursery. The officer asked Δ to step into an alcove. He also told Δ that he needed to see the contents of her box. Δ refused and protested loudly. The officer asked Δ to quiet down three times. After Δ continued to make loud noise, she was charged with disorderly conduct. It is necessary to consider the forum employed by the speaker. In Price, the forum was a residential alley with over twenty people, many from a party. Price’s contribution to the volume of noise already generated was characterized as a “fleeting annoyance.”  The forum chosen by Δ was a hospital hallway near the OB-GYN clinic and close to the nursery of newly born babies who could not escape the loud speech. A hospital is a forum where the privacy of others is guarded and the volume of disturbing noise limited for health and safety.  Δ’s abusive and harmful speech invaded the privacy of patients in the hospital and destroyed their right to a quiet and peaceful environment. Patients with heart conditions and patients with nervous disorders, among others, come to the hospital expecting quietude. The intrusiveness, harm, and abuse in Δ’s forum is a thousand times more sensitive than the forum in Price.  Δ’s remarks were not political. Her remarks were an attempt to avoid discovery of her wrong doing. Her speech was used as a weapon to avoid detainment and discovery.  Price limited the application of disorderly conduct to that expression which would create a private nuisance. Thus the court advances the idea that fleeting speech may constitute a private “nuisance” although traditionally a “nuisance” is of some duration and requires abatement by an injunction. Some balancing is inherent in the public nuisance/private nuisance scheme: the interest in making political speech supersedes the interest of the public to enjoy quietude; the interest in making political speech which imposes a nuisance upon a determinable individual is subjected to the interest of the determinable individual to enjoy quietude.  No “purely political” speech was involved. “Purely political” speech does not include speech directed at a police officer who is attempting to perform his duties or enforce a statute. “Purely political” speech must be directed to persuade and not to evade the performance of a legal duty by a policeman.  The conviction for disorderly conduct is affirmed. Radford v. State, 640 N.E.2d 90 (Ind. App. 1994).

– Δ came home from work and argued with his sister and her boyfriend. Δ hit the sister. The boyfriend struggled to restrain Δ. The police were called. The boyfriend took the officers into the apartment. When paramedics arrived, an argument erupted between Δ and the boyfriend. The officer told Δ to sit and relax. Δ continued to be loud. The officer again asked Δ to be quiet and calm down because the outbursts were agitating the boyfriend. After Δ continued to be loud, he was arrested for disorderly conduct. In Price the defendant’s loud speaking occurred in an alley. The loud speaking in this case occurred inside a private apartment, and there is no evidence that it was detectable beyond the walls of the apartment. Indiana’s disorderly conduct statute departs from the language of the Model Code. Indiana deleted any reference to a requirement that a person act purposely or recklessly toward annoying the public. Instead, the mental element of Indiana’s statute (intentional, knowing, or reckless) applies to the making of unreasonable noise, not to producing effects. The State must prove that a defendant produced decibels of sound that were too loud for the circumstances. The content of the message is irrelevant. Loud noise was unreasonable in this case because it could threaten the safety of injured parties, distract medical personnel, agitate witnesses and disrupt police investigations. It could make coordination of investigations and medical treatment more difficult.  The conviction for disorderly conduct is affirmed. Whittington v. State, 669 N.E.2d 1363 (Ind. 1996).

– An officer saw Δ exiting a car and asked to speak with Δ. Hooks refused and entered his mother’s home. The officer ran a check on the vehicle and found it had not been registered. The officer prepared to have the vehicle towed. Δ and his brother came out of the house and began to scream obscenities at the officer. The officer asked the men to quiet down. Δ continued to shout obscenities at the officer. Δ was so loud that he could be heard across the street. Δ was arrested for disorderly conduct. Speech is protected under the constitution where it is aimed at protesting the actions of police, rather than hindering or obstructing police duties or investigations. Even if Hook’s speech was protected, his conviction must be affirmed.  In Whittington, the defendant’s conviction was reversed because the State failed to demonstrate that Whittington’s screams were overheard by neighbors. The State presented evidence that Δ’s screaming was heard by neighbors across the street. The jury could reasonably conclude from this evidence that Δ’s speech infringed upon the peace and tranquility of others. Dissent: The majority holds that unamplified, verbal, politically protected speech expressed on a city street may be punished as a crime because that speech was overheard by persons across the street. I am a bit confused. It seems to me that only that speech which may be overheard could possibly require First Amendment protection. The majority would appear to uphold First Amendment protection to the sound of one hand clapping, but not two. The First Amendment recognizes that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom but must itself be protected if that freedom is to survive. The determination of whether loud speech is unduly intrusive and unreasonable, and will thus support a conviction for disorderly conduct, requires consideration of the forum employed. The speech punished was Hooks’ unamplified, verbal protest against the police officer’s conduct in preparing to tow away Hooks’ car. The forum employed was a city street. The magnitude of the infringement upon the peace and tranquility of others was a fleeting annoyance. Hooks’ politically protected speech was the type of expressive disorder inevitable in a society committed to individual freedom which itself must be protected if that freedom is to survive.  Hooks v. State, 660 N.E.2d 1076 (Ind. App. 1996).

– Δ told his mom he was not going to do comply with probation. The mom called police. An officer asked Δ what the problem was. Δ shrugged. The officer asked again, and Δ became upset and began arguing with both officers and his mother. Δ said he was not going to attend the classes. Δ spoke in a louder voice than everyone else, so no additional questions could be asked. The officer asked Δ to be quiet. Δ continued arguing with the officer and his mother. The officer arrested Δ for disorderly conduct.  The volume of speech is critical in determining whether it was unreasonable. In order to support a conviction for disorderly conduct, the State must prove that a defendant produced decibels of sound that were too loud for the circumstances. A loud noise could be found to be unreasonable where it disrupts police investigations.  Δ argued in a voice that was louder than the voices of others in the room. Δ’s volume prevented the police officers from asking additional questions. Yelling and screaming is not required. The question is whether Δ’s volume was too loud under the circumstances.   Δ’s loud manner of speaking disrupted a police investigation.  The common feature of political expression is reference to state action. Expressive activity is political if its point is to comment on government action. In contrast, where an individual’s expression focuses on the conduct of a private party, including the speaker himself or herself, it is not political.  The expression is judged by an objective standard, and the claimant bears the burden of establishing that his expression would have been understood as political. If the expression is ambiguous then the defendant has not established that it was political.  It is not implausible that Δ was criticizing the State for imposing unfair probation conditions, but it is equally plausible that Δ was simply commenting on his own conduct and intentions.  Δ’s loud manner of speaking interfered with a police investigation. The police must be able to perform their work without unreasonable interruption when they are conducting a legitimate investigation.  The conviction for disorderly conduct is affirmed. Johnson v. State, 719 N.E.2d 445 (Ind. App. 1999).

– An officer observed a motorcyclist make an alleged unsafe start. An officer followed the motorcyclist to a motorcycle club. The officer entered the front yard of the clubhouse. Δ came out of the clubhouse and began yelling and swearing at the officer. Δ demanded to know what the officer was doing on the property, why he was hassling his “brother” motorcyclist, and whether he had a warrant. The officer said he did not need a warrant and ordered Δ to be quiet and go back into the clubhouse. When the other motorcyclist attempted to hand his jacket to Δ, the officer grabbed it because he believed it might contain a weapon or drugs. A brief tug-of-war ensued, which the officer won. When Δ did not stop yelling, the officer decided to arrest Δ based on the belief that his yelling constituted resisting law enforcement because it was interfering with the officer’s investigation of the other motorcyclist’s alleged unsafe start. The officer directed the other motorcyclist and Δ to put their hands on the wall. The other motorcyclist complied, but Δ did not. Δ asked what he had done wrong and why he was being asked to place his hands on the wall. The officer told Δ that if he did not keep his hands on the wall, he would be sprayed with pepper spray. The officer then sprayed Δ in the left eye. The officer warned Δ that he would hit him with his metal flashlight. Δ still refused to cooperate, and the officer hit him twice with the flashlight, first in the leg, then in the head. Δ fell to the ground and an ambulance was called. While Δ was being handcuffed, he thrashed about and kicked the officer. Expressive activity is political if its point is to comment on government action, including criticism of the conduct of an official acting under color of law.  The Whittington court expressly rejected an earlier statement of this Court that pure political expression “does not include speech directed at a police officer who is attempting to perform his duties or enforce a statute.”  In all cases where disorderly conduct convictions have been previously upheld on the basis that a defendant’s speech was unreasonably loud because it interfered with a police investigation, none of the defendant’s were engaged in political speech. Δ, using profane language, asked the officer why he was there, what the problem was, why he was hassling the friend, and whether the officer had a warrant. Δ’s comments did not focus on Δ until after the attempted arrest. It is clear pursuant to Whittington and Price that the speech Δ engaged in prior to the arrest was protected political expression.  The State failed to introduce evidence that Δ’s speech inflicted particularized harm analogous to tortious injury on readily identifiable private interests.  Because the State failed to show that private interests were adversely affected, the conviction for disorderly conduct is reversed. – Shoultz v. State, 735 N.E.2d 818 (Ind. App. 2000).

– Animal Control responded to a call regarding a dog chasing children. Officers were told by Smothers the dog was a stray. The officers found the dog and took it to the animal shelter. Later that day, Δ and Smothers went to the animal shelter and Δ said he owned the dog. Officers went to Δ’s home to issue him a dog restraint violation. When officers arrived at the home, Δ came to the door of his trailer, called the officer a “mother fucker,” told him to get the “fuck” off of his land, and slammed the door in his face. The officer went to his car and called backup. Smothers waived the officer over to the porch. While the officer and Smothers talked about the citation, Δ reappeared in the doorway and started screaming and hollering at the officer. Officers warned Δ to calm down several times. Δ called the sheriff’s department and screamed for Smothers to take the telephone. When she did not accept the phone, he threw the phone towards her. The phone landed on the ground and the officer talked briefly with the Sherriff. Δ continued to yell and disrupt the issuance of the citation. As Δ stood in the doorway to his trailer, the officer grabbed his arm in order to arrest him. Δ jerked away from the officer and ran into the trailer. The officer followed Δ and a struggle ensued. After spraying Δ with pepper mace two times, the officers were able to handcuff Δ. The State charged Δ with disorderly conduct.  While the police were attempting to issue the citation, Δ stated that the officers didn’t have a reason to be there and that they didn’t have a warrant.  Expressive activity is political, for purposes of Article I, § 9, if its point is to comment on government action, including criticism of the conduct of an official acting under color of law. However, where an individual’s expression focuses on the conduct of a private party, including the speaker himself, it is not political. The nature of expression is judged by an objective standard, and the burden is on the defendant to demonstrate that his or her expression would have been understood as political. If the expression is ambiguous, the speech is treated as not political.  Δ commented on government action. While officers tried to explain the citation to Smothers, Δ loudly told the officer that he did not have a reason to be there and that he did not have a warrant. Δ informed the officer that he and Smothers would not pay any fine and would not go to court. Δ told Smothers not to accept the citation and to tear up the citation. Δ’s speech was directed at the legality and appropriateness of the officer’s conduct toward Smothers. Δ criticized the conduct of an official acting under color of law. The speech which Δ engaged in before his arrest was protected political speech.  The State was required to produce evidence that Δ’s speech inflicted particularized harm analogous to tortious injury on readily identifiable private interests. The State failed to present such evidence.  The conviction for disorderly conduct is reversed.  Johnson v. State, 747 N.E.2d 623 (Ind. App. 2001).

– An officer at the airport directed traffic to drive around him while he stopped pedestrian traffic. One driver disregarded the officer and the officer had to jump out of the way. The officer told the driver to obey hand signals and the driver became argumentative. Δ approached and asked what the officer was doing. The officer told Δ to quiet down. Δ called the officer an “asshole” and said she did not appreciate the way the officer was treating her husband. After Δ called the officer a “cock-sucker” and “mother-fucker,” the officer called for assistance. The officer stood next to the door of the car to prevent the driver from exiting. The second officer told Δ that if she did not quiet down she would be taken to jail, as she was causing a scene and a crowd was gathering. A female officer was called, and Δ said, “Oh, here comes that loud mouthed fucking bitch from traffic.” Δ walked forcefully to one officer, and the officer pushed Δ away. Δ turned toward the crowd and began screaming, “Police brutality. Police brutality. Did you see what this mother-fucker did?” Officers attempted to arrest Madden, but she struggled, continued to curse, and refused to put her hands together. She was eventually handcuffed. Madden was charged with disorderly conduct.  Political expression is not materially burdened if the State produces evidence that the speech inflicted particularized harm analogous to tortious injury on readily identifiable private interests. To demonstrate the requisite level of harm, there must be evidence that the speech caused actual discomfort to persons of ordinary sensibilities or that it interfered with an individual’s comfortable enjoyment of his privacy. Evidence of mere annoyance or inconvenience is insufficient.  A claimant’s expressive activity is political, for purposes of Article I § 9 of the Indiana Constitution, if its point is to comment on government action, including criticism of the conduct of an official acting under color of law. The nature of the expression is judged by an objective standard, and the burden is on the claimant to demonstrate that his or her expression would have been understood as political. If the expression is ambiguous, the speech is viewed as non-political.  Δ’s comments prior to her arrest were directed to the legality and appropriateness of police conduct. Δ was engaged in political expression.   Noisy political expression is not shielded from all criminal liability. When the expressions of one person cause harm to another in a way consistent with common law tort, an abuse under § 9 has occurred. Imposing criminal liability for behavior which harms another individual does not materially burden the values protected by § 9.  Δ’s conduct at the airport was loud enough to draw a crowd and she used profanity. The traffic flow was disrupted and the attention of the three officers was diverted. Madden’s actions created a harm that rises above the level of a fleeting annoyance. Here, her actions caused particularized harm to a readily identifiable interest, specifically the safety of those at the airport.  Δ’s conviction for disorderly conduct is affirmed.  Madden v. State, 786 N.E.2d 1152 (Ind. App. 2003).

– Hospital employees heard Δ yelling at his child. Δ and his two children were at the hospital visiting their mother, a doctor. Δ was yelling at one child “to pick up the fucking bottle,” and holding the child by his shirt, with the child’s face about a foot above the bottle on the ground. Δ picked up the child by his shirt and threw the child over his right shoulder, while holding the other child in the crook of his left arm. One child was either dropped or slid off Δ’s shoulder to the floor. Mitchell swung his leg toward one child, yelling that the child was a “fucking spoiled brat.” The employees ran after Δ into the parking lot. One employee said, “Sir, sir. Stop. You can’t treat your children that way.” Δ yelled and screamed at the employee. Another employee intervened and asked Δ to step back. Security was called. A crowd gathered. Security officers approached Δ, asking if they could speak with him. One security officer asked Mitchell to hand over the baby but he refused. A security officer asked Δ to calm down at least three times. Δ was handcuffed for officer safety. Police arrived and arrested Δ for disorderly conduct.  The person who asked Δ repeatedly to calm down was not a law enforcement officer but was, superior officer of security on duty at Methodist.  The warnings given by hospital security personnel were sufficiently “official” to satisfy the dictate of “an official warning” as set forth in Whittington.  Article I, § 9 of the Indiana Constitution has not been implicated because there was no state action. Δ concedes that the security officers were acting as private citizens.  The conviction for disorderly conduct is affirmed. Mitchell v. State, 813 N.E.2d 422 (Ind. App. 2004).

– Police officers received a report of juveniles spray-painting graffiti. When officers arrived, Δ was in the back seat of a car with another individual. Officers instructed the people in the car to hold up their hands. One person did not keep his hands up. Δ yelled, “Fuck you, he can’t keep his arms up, his arms hurt.” The officer told Δ to stop yelling. Δ continued yelling, “You guys are all racists; fuck the police.” The officer told Δ to stop yelling several more times and then arrested Δ. The State charged Δ with disorderly conduct.  Defendant may show that the expressive activity was not an abuse of his right to free speech by showing that his expression was political. If the claimant is able to meet this burden, the State must demonstrate that it did not materially burden the defendant’s opportunity to engage in political expression. The State can do this by producing evidence that the expression inflicted particularized harm analogous to tortious injury on readily identifiable private interests.  Expressive activity is “political,” if its point is to comment on government action, including criticism of the conduct of an official acting under color of law. However, where an individual’s expression focuses on the conduct of a private party, including the speaker himself, it is not political.  The burden of proof is on Δ to show that his expression was political.  Δ was expressing himself regarding the legality and appropriateness of police conduct toward his companion. The State failed to produce any evidence that Δ’s expression inflicted particularized harm analogous to tortious injury on readily identifiable private interests.  There is insufficient evidence to support Δ’s conviction for disorderly conduct. U.M. v. State, 827 N.E.2d 1190 (Ind. App. 2005).

– Δ was a Bloomington city councilman. A political opponent called police and said that Δ had left a bar, driven erratically, left his car, and urinated in the street. Δ was stopped by police. Throughout the officer’s interaction with Δ, the officer repeatedly asked Δ to quiet down, but Δ did not do so. Δ was charged with disorderly conduct.  After a defendant has shown that his expressive activity is “political,” then the State must prove that it has not “materially burdened” the opportunity to engage in “political” expression. The State has not “materially burdened” “political” expression if the restricted speech inflicted particularized harm analogous to tortious injury on readily identifiable private interests. Evidence of mere annoyance or inconvenience is not sufficient to justify restricting political speech.  Expressive activity is “political” if its point is to comment on government action, including criticizing the conduct of an official acting under color of law.  Where an individual’s expression focuses on the conduct of a private party, including the speaker, it is not political.  The burden is on the defendant to show that his speech was “political.” If the expression is ambiguous, then the speech is not “political” speech.  In Whittington, the Supreme Court recognized that portions of the Price tirade were not political. Δ’s loud diatribe was only about himself and his predicament.  At best, Δ’s speech was ambiguous, so it should be considered not political.  The loudness and anger of the diatribe compelled a neighbor to call 911 because Δ was disturbing his ability to complete a school assignment and because he feared for the safety of the officer. Δ’s speech posed a threat to peace, safety, and well-being. Δ’s conviction for disorderly conduct is affirmed. Wells v. State, 848 N.E.2d 1133 (Ind. App. 2006).

– Δ lived in foster care and experienced problems with the foster home’s house parent. Δ was accused of intimidating people at the home. An officer attempted to talk with Δ but Δ continually interrupted in a loud manner. The officer told Δ to stop yelling, but Δ continued to yell. The officer arrested Δ for disorderly conduct.  In Price, the defendant’s speech did not obstruct or interfere with the police. Here, Δ’s alleged political speech consisted of persistent loud yelling over and obscuring of an officer’s attempts to speak and function as a law enforcement officer. Because it obstructed and interfered with the officer, Δ’s alleged political speech clearly amounted to an abuse of the right to free speech.  Δ’s abusive speech is not analogous to the relatively harmless speech in Price.  Δ’s conviction for disorderly conduct is upheld. J.D. v. State, 859 N.E.2d 341 (Ind. 2007).

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