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April 5, 2021

"Doing Away With Disorderly Conduct"

The title of this post is the title of this new article by Rachel Moran recently posted to SSRN.  Here is its abstract:

Disorderly conduct laws are weapons the powerful wield against the unpopular. All fifty states and many municipalities have disorderly conduct laws that criminalize speech and conduct ranging from unreasonable noise to opprobrious language.  Although these laws are facially neutral, their astounding breadth and vagueness serve as a rubber stamp for law enforcement to surveil and criminally charge marginalized people.  Their targets include communities of color, people with unpopular religious or political beliefs, and people whose mental health struggles render them incapable of complying with societal expectations of order.

While courts and scholars have criticized these laws for decades, none have explicitly called for their abolition.  This article does so.  The article examines both the constitutional flaws of disorderly conduct laws and the many societal harms they enable, before ultimately concluding that any minimal good they accomplish cannot justify the damage they inflict.

Amidst a growing national reckoning over the crisis of abusive and discriminatory policing, this article provides a timely critique of the criminal laws that empower such policing.  It uses disorderly conduct laws as a lens through which to examine the extraordinary costs of overcriminalization and the vulnerable people who most often bear the brunt of such costs.  While disorderly conduct laws are not the only criminal laws legislatures should consider eliminating, they are both constitutionally and socially problematic to a degree few other criminal laws achieve.

April 5, 2021 at 10:23 AM | Permalink


I have many times seen the police use a charge of "disorderly conduct" to arrest a citizen for what is plainly protected free speech under the First Amendment to the U.S. Constitution. This includes a University of Kentucky student who was a passenger in the back seat of an SUV, rolling down a street on a Saturday U.K. football day. As the car passed a group of 3 police officers standing at the curb, the intoxicated student stuck his left arm out the window and gave the police his middle finger, turned up! The police got into their vehicles, chased down the SUV and arrested the passenger for (1) public intoxication and (2) disorderly conduct. Even the police department's training manual explicitly tells officer-trainees that they cannot arrest citizens for cussing them out or giving them the middle finger. Yet these officers did it anyway. The student-defendant spent the weekend in jail. When he was arraigned at 1 p.m. on the following Monday, the Judge did not appoint counsel to represent the young man. Instead, she told him that if he pleaded guilty, she would sentence him to "time served" and he could go home that day, within 2 hours. Of course, the Judge knew (or should have known) that flipping off the police is not disorderly conduct, but she covered for them anyway, and did not even appoint an attorney for the 20 year old. The misuses of "disorderly conduct" charges can get pretty outrageous.

Posted by: Jim Gormley | Apr 5, 2021 11:40:01 AM

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