Definition of Disorderly Conduct
The definition of disorderly conduct or breach of peace is contained in Section 877.03, Florida Statutes.
Under the statute, the offense includes any act deemed sufficient to “corrupt the public morals,” or “outrage the sense of public decency,” or “affect the peace and quiet of persons” who may observe the act. Disorderly conduct also encompasses brawling or fighting.
The terms used to define disorderly conduct and breach of peace are exceptionally broad and can encompass a variety of factual scenarios. For every case, the terms must be viewed in light of their common law meaning. Gonzales v. City of Belle Glade, 287 So.2d 669 (Fla., 1973).
Penalties for Disorderly Conduct
Under Florida law, disorderly conduct or breach of peace is classified as a second degree misdemeanor, carrying penalties of up to 60 days in jail or 6 months of probation, and a $500.00 fine.
These penalties represent the statutory maximum that is available for the charge, and do not reflect the likely sentence that will be imposed in the vast majority of cases. For first time offenders, jail time (usually less than 60 days) is a realistic possibility where the accused’s conduct involved highly disrespectful or disruptive actions towards police, or posed a legitimate endangerment to public safety. This is especially true where alcohol or drugs are involved.
For most first-time offenders, however, the main risk of a disorderly conduct prosecution is the creation of a permanent criminal record, and a probation sentence, which commonly includes community service. For repeat offenders, or for persons with extensive criminal histories, jail is not only a possibility, but, with the wrong prosecutor, can be a probability.
Defenses to Disorderly Conduct
Disorderly conduct is one of the most defendable charges in all of Florida criminal law. Despite the broad wording of the statute, a conviction generally cannot stand where the accused merely creates an annoyance, uses profanity, causes a crowd to gather, or displays a belligerent attitude. Mere verbal conduct is also an insufficient basis for a conviction.
Verbal Conduct- First Amendment
Where a defendant engages in purely verbal conduct, the First Amendment to the United States Constitution limits the application of Florida’s disorderly conduct statute to so-called “fighting words” or “words like shouts of ‘fire’ in a crowded theater.” See State v. Saunders, 339 So. 2d 641 (Fla. 1976); Wiltzer v. State, 756 So.2d 1063 (Fla. 4th DCA 2000).
‘Fighting words’ are defined as words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” White v. State, 330 So. 2d 3, 6 (Fla., 1976) (citing Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)).
The Florida Supreme Court has further clarified that “words like shouts of ‘fire’ in crowded theater” means “words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others.” Saunders, 339 So.2d at 644.
Given the strict construction of Section 877.03, words alone are generally insufficient to sustain a conviction for disorderly conduct. A.S.C. v. State, 14 So. 3d 1118 (Fla. 5th DCA 2009) (holding that in the absence of evidence that the juvenile was trying to incite a crowd or that a safety risk was posed from a crowd, loud speech and profanity were insufficient to support a disorderly conduct conviction); W.L. v. State, 769 So. 2d 1132 (Fla. 3d DCA 2000)(First Amendment protected profanities and offensive speech, and therefore prohibited arrest and delinquency adjudication for disorderly conduct).
Mere Profanity or Yelling at Police
Police officers do not have privileged position with regard to First Amendment speech protections. Thus, a defendant generally cannot be convicted for disorderly conduct where he or she merely uses profanity, swear words, or obscenities towards law enforcement, or yells loudly at an officer.
Source: C.P. v. State, 644 So. 2d 600 (Fla. 2d DCA 1994) (evidence insufficient for disorderly conduct where a juvenile stated “F*** you, p***y cracker” to a police officer and then, during arrest, yelled so loudly that other occupants at a hotel came out of their rooms); K.Y.E. v. State, 557 So. 2d 956, 957 (Fla. 1st DCA 1990) (reversing a conviction for disorderly conduct where a defendant repeatedly sang “F*** the police” during an officer’s conversation with another person, and yelled so loudly that he statements could be heard across the street, where adults and children had gathered); K.S. v. State, 697 So. 2d 1275 (Fla. 3d DCA 1997) (loud and obscene yelling at police insufficient to support disorderly conduct conviction).
Speech with Additional Acts
Not all speech towards police officers will be protected by the First Amendment. Where the speech is coupled with non-verbal conduct which infringes on the ability of a police officer to fulfill his or her duties, a conviction for disorderly conduct will be allowed to stand.
Thus, in C.L.B. v. State, 689 So. 2d 1171 (Fla. 2d DCA 1997), a defendant yelled obscenities at a police officer and members of a crowd during the officer’s arrest of another suspect. The defendant approached the officer so closely that the officer had to repeatedly push the defendant away. On these facts, the Second District Court of Appeal upheld the disorderly conduct conviction because the defendant’s nonverbal acts interfered with the officer’s arrest of another person.
See also Wiltzer v. State, 756 So.2d 1063, 1066 (Fla. 4th DCA 2000) (holding that Wiltzer’s words in combination with his nonverbal acts of bumping into the police officer, brushing the officer aside, and throwing his wallet at the officer were sufficient to support a conviction for disorderly conduct); Barry v. State, 934 So. 2d 656, 658 (Fla. 2d DCA 2006) (observing that protected speech can be rendered unprotected where the speech is coupled with additional physical actions).
Loudness, Annoyance, Belligerence
Conduct, such as yelling or cursing, which is merely loud, belligerent, or annoying is insufficient to sustain a conviction for disorderly conduct / breach of peace.
Source: Miller v. State, 780 So.2d 197 (Fla. 2d DCA 2001) (loud yelling and belligerent attitude insufficient for conviction because there was no evidence that the defendant’s actions were more than a mere annoyance to those around her); Miller v. State, 667 So.2d 325, 328 (Fla. 1st DCA 1995) (reversing conviction for disorderly conduct and stating that there must be “something more than loud or profane language and a belligerent attitude”); L.A.T. v. State, 650 So. 2d 214, 218 (Fla. 3d DCA 1995) (reversing disorderly conduct conviction obtained on the basis of defendant “loudly and profanely protesting police”).
‘Making a Scene’ or Causing Crowd to Gather
The First Amendment does not permit the criminalization of actions that cause people to take notice. C.L.B. v. State, 689 So. 2d at 1172. Thus, the mere fact that other people come outside or stop to observe events during an alleged ‘breach of the peace’ is inadequate to sustain a conviction for disorderly conduct. Barry v. State, 934 So. 2d 656, 659 (Fla. 2d DCA 2006).
Instead, there must be some evidence that the crowd is actually responding to the defendant’s words in some way that threatens to breach the peace.
Source: Barry, 934 So. 2d at 659; K.S. v. State, 697 So. 2d 1275, 1276 (Fla. 3d DCA 1997) (reversing adjudication for disorderly conduct even though a crowd gathered to watch the goings-on because the crowd did not respond to K.S.’s words or attempt to otherwise breach the peace); B.R. v. State, 657 So. 2d 1184, 1186 (Fla. 1st DCA 1995) (reversing adjudication for disorderly conduct even though everyone in a nearby laundry came out and passersby stopped to watch when there was no evidence that the defendant’s yelling incited anyone in the area to an immediate breach of the peace); C.P. v. State, 644 So. 2d 200 (Fla. 2d DCA 1994) (reversing a conviction even though a crowd had gathered outside a motel room as a result of the defendant’s actions).
Contrary to the beliefs of many prosecutors, self-defense is a valid defense to a charge of disorderly conduct. S.D.G. v. State, 919 So. 2d 704, 705 (Fla. 5th DCA 2006). However, the defense applies only if the defendant did not provoke the fight or other altercation. Id. D.M.L. v. State, 773 So.2d 1216, 1217 (Fla. 3d DCA 2000). Self-defense claims are often raised where the allegations involve fighting or brawling.
Once a defendant produces evidence supporting a claim of self-defense, the State is required to prove beyond a reasonable doubt that the actions were not taken in self-defense to sustain a finding of guilt. Hernandez Ramos v. State, 496 So.2d 837 (Fla. 2d DCA 1986).
Importance of an Attorney
Given the numerous defenses available to contest a charge of disorderly conduct or breach of peace, an attorney is a critical asset for avoiding a conviction, possible jail or probation, and the creation of a permanent criminal record. Under appropriate facts, disorderly conduct charges can sometimes be dismissed or negotiated downward at the earliest stages of a case.
If you have been arrested for disorderly conduct, contact Hussein & Webber, PL for a free consultation. We represent clients charged with this offense throughout the State of Florida.