Disorderly Conduct

Reporter’s Notes

Under the introductory language of the statute, 13 V.S.A. § 1026, the state may charge that the defendant either (1) acted with intent to cause public inconvenience or annoyance, or (2) recklessly created a risk thereof.  If the defendant is charged with an intent to cause public inconvenience, the State must prove that the defendant acted purposely, with the conscious object of causing public inconvenience.  State v. Jackowski, 2006 VT 119, 181Vt. 73.

Violent, tumultuous, or threatening behavior.  The word “threaten” includes an element of volition.  A threat is a communicated intent to inflict harm on person or property.  Threatening behavior is behavior that communicates the requisite intent.  (Black’s Law Dictionary).  The statute requires some aspect of intent.  See State v. Cole, 150Vt. 453, 456 (1988).

The committee revised the instruction in 2011 to make clear that “threatening behavior” must be evaluated by an objective standard.  State v. Albarelli, 2011 VT 24.

In State v. Morse, 2019 VT 58, the trial court instructed the jury that “statements and words” were sufficient to constitute tumultuous behavior for purposes of disorderly conduct. Id. ¶ 6. On appeal, defendant asserted, for the first time and directly contrary to her position below, that her conviction for disorderly conduct must be reversed because speech alone was insufficient to constitute tumultuous behavior. The Court assumed without deciding that defendant’s reading of the disorderly conduct statute on appeal was correct, but held that defendant had waived her challenge under the “invited error doctrine.” Id. ¶ 7.

Abusive or Obscene Language. CR22-161 is designed for a charge of disorderly conduct based on abusive or obscene language under 13 V.S.A. § 1026(3).  The scope of the statute is narrowed by judicial gloss, to protect free speech under the first amendment.  The committee drafted this instruction following the Supreme Court’s decision in State v. Allcock, 2004 VT 52, 177 Vt. 467.  Earlier the Court had recognized, in State v. Read, 165 Vt. 141 (1996), that the statute may only be applied to the “fighting words” exception described in Chaplinsky v. New Hampshire, 315U.S. 568, 572 (1942).

In Allcock, a 3-2 majority of the Court upheld the defendant’s conviction based on recklessness (as opposed to a more specific intent), and CR22-161 is drafted with recklessness as an option.  The committee also agrees with a point made in Justice Dooley’s dissent, that the “fighting words” requirement is an essential element to be proven, and not just a synonym for “abusive language.”  See Allcock, 2004 VT 52, ¶ 23.

In State v. Tracy, 2015 VT 111, the Supreme Court held that a defendant’s act of calling a youth basketball coach a “bitch” and angrily uttering profanity while asking the coach why his daughter had not played in a game did not constitute the utterance of “fighting words,” and could not be used to support a conviction for disorderly conduct by abusive language. While the defendant’s expression was “vulgar, boorish, and just plain rude,” it was not “reasonably expected to cause the average listener to respond with violence.” Id. ¶ 39. He did not “lob heinous accusations against the coach, or taunt her to fight him.” Id. The Court observed that defendant uttered some of the offending statements as he walked away from the coach, which rendered them “especially unlikely to incite an immediate violent response.” Id.

The power to constitutionally prohibit “obscene” expression extends only to expression that is, “in some significant way, erotic.” Tracy, 2015 VT 111, ¶ 21 n.13 (citing Cohen v. California, 403 U.S. 15, 20 (1971)). In Long v. L’Esperance, the Court considered a civil suit against a police officer for unlawful arrest brought by a plaintiff who had been arrested for disorderly conduct by “abusive or obscene language” after he told a police officer at a DUI roadblock that he was irritated to have to wait “in this fucking traffic for so long.” 166 Vt. 566, 569 (1997). The comment was not obscene because it was not designed to appeal to the prurient interest. Id. at 573. Though the comment might have been vulgar, “it was entirely unrelated to sexual activity or sexual desire.” Id. Nor could the comment be punished as “fighting words” because it did not “inflict injury or tend to incite an immediate breach of the peace.” Id.

Disturbing a Lawful Assembly. CR22-166 is designed for a charge of disorderly conduct based on disturbing a lawful assembly without lawful authority, under 13 V.S.A. § 1026(4).  The model instruction derives from the charge given in State v. Maunsell, No. 489-4-05 Wrcr.  It includes a brief description of first amendment rights, explaining that there are limits to the right to free speech, and that one person does not have a right to exercise free speech in a way that prevents others from exercising their own rights of free association and discussion.  The fifth element was added in 2009 in response to the decisions in State v. Colby and State v. Wardinski, 2009 VT 28, 185 Vt. 464.