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In Indiana, disorderly conduct can be charged 3 separate ways:
(1) for fighting or tumultuous conduct,
(2) making loud noise and continuing to do so after being asked to stop; and
More specifically, the disorderly conduct state states as follows:
IC § 35-45-1-3 Disorderly Conduct
(a) A person who recklessly, knowingly, or intentionally:
(1) engages in fighting or in tumultuous conduct;
(2) makes unreasonable noise and continues to do so after being asked to stop; or
(3) disrupts a lawful assembly of persons;
commits disorderly conduct, a Class B misdemeanor. . .
Fighting or tumultuous conduct
While fighting is most often charged under battery statutes, it can also be charged as disorderly conduct. Where disorderly conduct is charged for fighting, all legal defenses are applicable, including self defense.
I.C. § 35-45-1-1 defines tumultuous conduct as: “Conduct that results in, or is likely to result in, serious bodily injury to a person or substantial damage to property.” This is a relatively high threshold.
There are a number of Indiana cases that discuss fighting and tumultuous conduct.
J.S. v. State, 843 N.E.2d 1013 (Ind. App. 2006)
A school police officer observed the defendant grabbing a boy’s hair and smacking him with an open hand three times across his face. The officer thought fighting was occurring. The officer tried to grab the defendant and the defendant tried to pull away and jerk away from him, telling him to get away from her, to get his hands off of her, and not to touch her. At one point, the defendant positioned herself and her hands next to a recessed bathroom doorway in the hall so that another officer was needed to handcuff her. The defendant argued that she had been playing with a friend. The defendant was charged with disorderly conduct. The evidence did not show beyond a reasonable doubt that the defendant was fighting. The mere act of hitting does not per se constitute fighting. The state must also show the requisite element of hostility. The officer’s assumption, without more, does not establish her motivations beyond a reasonable doubt. The officer’s inconclusive assumption that the defendant was fighting does not support a finding, beyond a reasonable doubt, that defendants actions resulted in, or were likely to result in, serious bodily injury to a person or substantial damage to property.
B.R. v. State, 823 N.E.2d 301 (Ind. App. 2005)
The defendant initiated an argument with another student at school. While the two were standing face to face, the defendant pulled out an opened knife and pointed it at the other student. After seeing the knife, the other student struck the defendant and left the scene. Tumultuous conduct is that which results in, or is likely to result in, serious bodily injury to a person or substantial damage to property. The term “likely,” as used to define tumultuous conduct, includes a temporal requirement of immediacy. The defendant approached a fellow student in an obvious state of anger and argued about an earlier incident in which one of the student’s friends had allegedly assaulted the defendant’s father. Then, when the defendant and the student were standing face to face and as little as three feet from each other, the defendant pointed an open or unsheathed knife at the other student. In the midst of a heated argument, the defendant pointed a knife at another person. The defendant’s conduct created an immediate danger of serious bodily injury, which was defused only when the threatened person struck the defendant and left. There is sufficient evidence to support the finding that the defendant committed disorderly conduct.
Davis v. State, 672 N.E.2d 1365 (Ind. Ct. App. 1996).
– Officers were patrolling a neighborhood which was in its third day of rioting. The defendant and three other men were near a car. The defendant had his hands inside the car. Officers asked the defendant and the others to go inside. The defendant and the others ignored officers. After a number of additional requests, the other men left, but the defendant kept his hands in the car. Officers arrested the defendant and the three other men. As the police officers were making the arrest approximately one or two hundred people came out of their houses and came down on the officers. The defendant was charged with disorderly conduct. Tumultuous conduct is defined by statute as conduct that results in, or is likely to result in, serious bodily injury to a person or substantial damage to property. Tumultuous conduct contemplates physical activity rising to the level of serious bodily injury, substantial property damage, or that either is likely to occur. The defendant’s conduct was not likely to result in personal injury or property damage. There is no evidence that there were any people nearby that could have been immediately injured when the defendant ignored the officer’s request to clear the street. Similarly, there is no evidence that there was any property in danger of immediate damage when Δ defied the officer’s request. The fact that personal injury and property damage had been occurring in the area during the rioting does not establish that the defendant conduct was in any way connected with such injury and damage. Also, the record contains no evidence to support the allegation that the civil disturbance erupted into looting as a result of the defendant’s conduct. The conviction for disorderly conduct is reversed.
Whitley v. State, 553 N.E.2d 511 (Ind. Ct. App. 1990)
Officers were dispatched to an apartment complex to investigate a neighborhood disturbance involving black women and white women. An officer observed seven or eight women yelling at each other. The officer separated the parties. The two groups continued to yell, scream, and curse at each other so another officer took the white women back to their apartment. Except for the defendant, the women began to calm down. Both officers and several of the black women asked the defendant to quiet down. An officer gently touched the defendant on the arm and asked her to step to the side. The defendant pulled away and began cursing and yelling at him. By this time, several residents began coming out of their apartments. One officer threatened to arrest the defendant if she refused to calm down. He displayed his handcuffs and threatened to take her to jail. The defendant continued yelling and screaming so the officer arrested her and attempted to handcuff her. The defendant declared it was a false arrest and pulled away. The officers were finally able to place handcuffs on the defendant as she struggled and continued to yell. Tumultuous conduct contemplates physical activity rising to the level of serious bodily injury, substantial property damage, or that either is likely to occur. There was a likelihood that either the defendant or the police officers could have sustained serious bodily injury during the attempt to handcuff the defendant. There was a protracted physical struggle in which it took three officers to finally place handcuffs on the defendant. One officer was unable to pin the defendant to the car while trying to handcuff her and she pulled and yanked to get away. Another officer stated the defendant was struggling against him while being handcuffed. The defendant’s conduct prior to the arrest also created a likelihood that serious bodily injury or substantial property damage would result. While one officer was escorting the white women back to their apartments, Whitley yelled at them and taunted them, provoking the white women to yell and curse back at her. Given the racial nature of the confrontation that night, the defendant’s conduct could have led to a fight between the two groups which was likely to result in serious bodily injury.
Gebhard v. State, 484 N.E.2d 45 (Ind. Ct. App. 1985)
– Gebhard walked into the hallway of an apartment house and displayed a handgun with the purpose of confronting anyone in the hallway. I.C. 35-45-1-1 defines Tumultuous Conduct as: “Conduct that results in, or is likely to result in, serious bodily injury to a person or substantial damage to property.” Tumultuous conduct contemplates physical activity rising to the level that people are seriously injured or property substantially damaged, or that either is likely to occur. Walking into an empty hall with a gun is not tumultuous conduct because it does not rise to the level that persons are immediately likely to be seriously injured. It merely anticipates and suspects future acts, or contingencies. The evidence is insufficient to sustain the conviction.
Making Unreasonable Noise And Continuing To Do So After Being Asked To Stop
There are a few main points to remember when disorderly conduct is being charged for unreasonable noise.
- First, “unreasonable noise” refers only to volume, not to what is being said. In other words, mere profanity is not sufficient if it is also not unreasonably loud. Indiana Courts have repeatedly explained that, hypothetically, reading the bible too loudly would technically constitute disorderly conduct.
- Second, there must be an order to stop making noise. Indiana law is unique in this requirement. The individual must be given an order and opportunity to reduce their volume.
- Third, whether noise is unreasonable can vary from situation to situation. Noise that is reasonable at a concert or party might not be reasonable in a library or hospital. Time of day can also impact whether noise is unreasonable.
- Lastly, where the speech is critical of the government, the speech may be constitutionally protected. This comes from Article 1 § 9 of the Indiana Constitution, which gives more protection than the First Amendment to the United States Constitution. Article 1 § 9 of the Indiana Constitution states: “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.”
Price v. State, 622 N.E.2d 954 (Ind. 1993)
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.
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. Coleman was arrested, which attracted spectators from the party and additional officers. Price 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 court found Price not guilty, and explained that 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 Price’s arrival, we do not think the link between her expression and any harm that was suffered is established.
Stites v. State, 627 N.E.2d 1343 (Ind. App. 1994)
The defendant 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 the defendant, who was shouting obscenities. An officer repeatedly asked the defendant to calm down and eventually told her to “shut up.” The defendant 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 the defendant used obscenities is not relevant. The mere presence of a police officer does not convert a speech into political expression. The defendant 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.
Radford v. State, 640 N.E.2d 90 (Ind. App. 1994)
Police were told that a terminated employee was taking hospital property. An officer approached the defendant 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 the defendant to step into an alcove. He also told the defendant that he needed to see the contents of her box. The defendant refused and protested loudly. The officer asked the defendant to quiet down three times. After the defendant continued to make loud noise, she was charged with disorderly conduct.
The Court explained 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 the defendant 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. The defendant’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 the defendant ’s forum is a thousand times more sensitive than the forum in Price. The defendant ’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.
Whittington v. State, 669 N.E.2d 1363 (Ind. 1996).
The defendant came home from work and argued with his sister and her boyfriend. The defendant hit the sister. The boyfriend struggled to restrain the defendant. The police were called. The boyfriend took the officers into the apartment. When paramedics arrived, an argument erupted between the defendant and the boyfriend. The officer told the defendant to sit and relax. The defendant continued to be loud. The officer again asked the defendant to be quiet and calm down because the outbursts were agitating the boyfriend. After the defendant 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.
Hooks v. State, 660 N.E.2d 1076 (Ind. App. 1996).
– An officer saw the defendant exiting a car and asked to speak with the defendant, who 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. The defendant and his brother came out of the house and began to scream obscenities at the officer. The officer asked the men to quiet down. The defendant continued to shout obscenities at the officer. The defendant was so loud that he could be heard across the street. The defendant was arrested for disorderly conduct.
The Court explained that 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 the defendant’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 the defendant’s screaming was heard by neighbors across the street. The jury could reasonably conclude from this evidence that the defendant’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 defendant’s unamplified, verbal protest against the police officer’s conduct in preparing to tow away his car. The forum employed was a city street. The magnitude of the infringement upon the peace and tranquility of others was a fleeting annoyance. The defendant’s 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.
Johnson v. State, 719 N.E.2d 445 (Ind. App. 1999)
The defendant told his mom he was not going to do comply with probation. The mom called police. An officer asked the defendant what the problem was. The defendant shrugged. The officer asked again, and the defendant became upset and began arguing with both officers and his mother. The defendant said he was not going to attend probation classes. The defendant spoke in a louder voice than everyone else, so no additional questions could be asked. The officer asked the defendant to be quiet. The defendant continued arguing with the officer and his mother. The officer arrested the defendant 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. The defendant argued in a voice that was louder than the voices of others in the room. The defendant’s volume prevented the police officers from asking additional questions. Yelling and screaming is not required. The question is whether the defendant’s volume was too loud under the circumstances. T he defendant’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 the defendant was criticizing the State for imposing unfair probation conditions, but it is equally plausible that he was simply commenting on his own conduct and intentions. The defendant’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.
Shoultz v. State, 735 N.E.2d 818 (Ind. App. 2000)
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. The Defendant came out of the clubhouse and began yelling and swearing at the officer. The Defendant 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 the Defendant to be quiet and go back into the clubhouse. When the other motorcyclist attempted to hand his jacket to the Defendant, 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 the defendant did not stop yelling, the officer decided to arrest the defendant 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 the defendant to put their hands on the wall. The other motorcyclist complied, but the defendant did not. The defendant asked what he had done wrong and why he was being asked to place his hands on the wall. The officer told the defendant that if he did not keep his hands on the wall, he would be sprayed with pepper spray. The officer then sprayed the defendant in the left eye. The officer warned the defendant that he would hit him with his metal flashlight. The defendant still refused to cooperate, and the officer hit him twice with the flashlight, first in the leg, then in the head. The defendant fell to the ground and an ambulance was called. While the defendant 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. The defendant, 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. The defendant’s comments did not focus on the defendant until after the attempted arrest. It is clear pursuant to Whittington and Price that the speech the defendant engaged in prior to the arrest was protected political expression. The State failed to introduce evidence that the defendant’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.
Johnson v. State, 747 N.E.2d 623 (Ind. App. 2001)
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, the defendant and Smothers went to the animal shelter and the defendant said he owned the dog. Officers went to the defendant’s home to issue him a dog restraint violation. When officers arrived at the home, the defendant 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, the defendant reappeared in the doorway and started screaming and hollering at the officer. Officers warned the defendant to calm down several times. The defendant 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. The defendant continued to yell and disrupt the issuance of the citation. As the defendant stood in the doorway to his trailer, the officer grabbed his arm in order to arrest him. The defendant jerked away from the officer and ran into the trailer. The officer followed the defendant and a struggle ensued. After spraying the defendant with pepper mace two times, the officers were able to handcuff the defendant. The State charged the defendant with disorderly conduct. While the police were attempting to issue the citation, the defendant 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. The defendant commented on government action. While officers tried to explain the citation to Smothers, the defendant loudly told the officer that he did not have a reason to be there and that he did not have a warrant. The defendant informed the officer that he and Smothers would not pay any fine and would not go to court. The defendant told Smothers not to accept the citation and to tear up the citation. The defendant’s speech was directed at the legality and appropriateness of the officer’s conduct toward Smothers. The defendant criticized the conduct of an official acting under color of law. The speech which the defendant engaged in before his arrest was protected political speech. The State was required to produce evidence that the defendant’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.
Madden v. State, 786 N.E.2d 1152 (Ind. App. 2003)
– 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. The defendant approached and asked what the officer was doing. The officer told the defendant to quiet down. The defendant called the officer an “asshole” and said she did not appreciate the way the officer was treating her husband. After the defendant 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 the defendant 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 the defendant said, “Oh, here comes that loud mouthed fucking bitch from traffic.” The defendant walked forcefully to one officer, and the officer pushed the defendant away. The defendant turned toward the crowd and began screaming, “Police brutality. Police brutality. Did you see what this mother-fucker did?” Officers attempted to arrest the defendant, but she struggled, continued to curse, and refused to put her hands together. She was eventually handcuffed and 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. The defendant’s comments prior to her arrest were directed to the legality and appropriateness of police conduct. The defendant 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. The defendant’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. The defendant’s conviction for disorderly conduct is affirmed.
Mitchell v. State, 813 N.E.2d 422 (Ind. App. 2004)
Hospital employees heard the defendant yelling at his child. The defendant and his two children were at the hospital visiting their mother, a doctor. The defendant 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. The defendant 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 the defendant’s shoulder to the floor. The defendant swung his leg toward one child, yelling that the child was a “fucking spoiled brat.” The employees ran after the defendant into the parking lot. One employee said, “Sir, sir. Stop. You can’t treat your children that way.” The defendant yelled and screamed at the employee. Another employee intervened and asked the defendant to step back. Security was called. A crowd gathered. Security officers approached the defendant, asking if they could speak with him. One security officer asked the defendant to hand over the baby but he refused. A security officer asked the defendant to calm down at least three times. The defendant was handcuffed for officer safety. Police arrived and arrested the defendant for disorderly conduct. The person who asked the defendant 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. The defendant concedes that the security officers were acting as private citizens. The conviction for disorderly conduct is affirmed.
U.M. v. State, 827 N.E.2d 1190 (Ind. App. 2005)
Police officers received a report of juveniles spray-painting graffiti. When officers arrived, the defendant 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. The defendant yelled, “Fuck you, he can’t keep his arms up, his arms hurt.” The officer told the defendant to stop yelling. The defendant continued yelling, “You guys are all racists; fuck the police.” The officer told the defendant to stop yelling several more times and then arrested the defendant. The State charged the defendant with disorderly conduct.
The 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 the defendant to show that his expression was political. The defendant was expressing himself regarding the legality and appropriateness of police conduct toward his companion. The State failed to produce any evidence that the defendant’s expression inflicted particularized harm analogous to tortious injury on readily identifiable private interests. There is insufficient evidence to support the defendant’s conviction for disorderly conduct.
Wells v. State, 848 N.E.2d 1133 (Ind. App. 2006)
The defendant was a Bloomington city councilman. A political opponent called police and said that the defendant had left a bar, driven erratically, left his car, and urinated in the street. The defendant was stopped by police. Throughout the officer’s interaction with the defendant, the officer repeatedly asked the defendant to quiet down, but the defendant did not do so. The defendant 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. The defendant’s loud diatribe was only about himself and his predicament. At best, the defendant’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 the defendant was disturbing his ability to complete a school assignment and because he feared for the safety of the officer. The defendant’s speech posed a threat to peace, safety, and well-being. The defendant’s conviction for disorderly conduct is affirmed.
J.D. v. State, 859 N.E.2d 341 (Ind. 2007)
The defendant lived in foster care and experienced problems with the foster home’s house parent. The defendant was accused of intimidating people at the home. An officer attempted to talk with the defendant but the defendant continually interrupted in a loud manner. The officer told the defendant to stop yelling, but the defendant continued to yell. The officer arrested the defendant for disorderly conduct. In Price, the defendant’s speech did not obstruct or interfere with the police. Here, the defendant’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, the defendant’s alleged political speech clearly amounted to an abuse of the right to free speech. The defendant’s abusive speech is not analogous to the relatively harmless speech in Price. The defendant’s conviction for disorderly conduct is upheld.
Disrupting a Lawful Assembly
Disorderly conduct charges for disrupting a lawful assembly are relatively rare. Also, it is generally very difficult fo the State to get a conviction for disrupting a lawful assembly, as explained below.
Oliver v. State, 789 N.E.2d 1003 (Ind. App. 2003)
Oliver and other members of his church were protesting homosexuality in downtown before a Colts game. Most of the demonstrators were standing against a brick wall out of pedestrian traffic. Oliver was standing in the middle of the sidewalk carrying a sign and turning it as he moved on the sidewalk. Pedestrians had to walk into the street to avoid running into Oliver or being hit by his sign. Oliver was arrested and charged with disorderly conduct for interrupting a lawful assembly of persons.
Assembly means “an assembled group, especially of people meeting for a specific purpose.” “Assembly” refers to a group that is already assembled, as opposed to one that is in the process of assembling. Assembly does not include pedestrian and vehicular traffic. The conviction for disorderly conduct is reversed.
D.R. v. State, 729 N.E.2d 597 (Ind. App. 2000)
D.R. was told by a teacher to put on a belt, in accordance with the school dress code. D.R. muttered “fuck you.” No other students or teachers overheard or witnessed the encounter. D.R. was arrested for disorderly conduct.
The word “assembly” is defined as: “an assembled group, especially of people meeting for a specific purpose.” The teacher involved in the incident testified that he was the only person standing near D.R. at the time of their encounter. The teacher also testified that no other students saw the incident occur. D.R. and the teacher were not a part of a group of people. The conviction for disorderly conduct is reversed.
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