Commonwealth v. Lopiano - 60 Mass. App. Ct. 723, 805 N.E.2d 522 (2004)

Rule:

The statute authorizing prosecutions for disorderly conduct, Mass. Gen. Laws ch. 272, § 53, has been saved from constitutional infirmity by incorporating the definition of "disorderly" contained in the Model Penal Code. A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior. "Public" means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.

Facts:

The police officer observed defendant and a female in a car in a motel parking lot. The officer saw defendant grabbing the victim's hair and shaking the victim's head back and forth with the victim's hair. Defendant was also pointing at the female and yelling at her. Defendant was asked to exit the vehicle. When defendant was advised that he was not being arrested but that he was to be summonsed to court and that he was to leave the parking lot, defendant, then about 10 steps from the officer, began flailing his arms and yelling that the officer was violating his civil rights. Defendant also yelled at the victim. This outburst formed the basis for the disorderly conduct charge. Defendant was convicted of disorderly conduct in violation of Mass. Gen. Laws ch. 272, § 53. Defendant appealed. 

Issue:

Under the circumstances, could the defendant be found guilty of disorderly conduct in violation of Mass. Gen. Laws ch. 272, § 53? 

Answer:

No.

Conclusion:

The court reversed the defendant’s conviction, holding that there was insufficient evidence that defendant engaged in violent or tumultuous behavior to convict defendant under Mass. Gen. Laws ch. 272, § 53. The court noted that a person was guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, he engaged in fighting or threatening, or in violent or tumultuous behavior. In this case, the appellate court found that there was no claim that defendant's behavior constituted a threat of violence or that defendant's flailing arms were anything but a physical manifestation of his agitation. Furthermore, the evidence did not support a reasonable inference that the noise and commotion caused by defendant's behavior was extreme.