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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. The resulting definition of "disorderly" includes only those individuals who, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof (1) engage in fighting or threatening, or in violent or tumultuous behavior; or (2) create a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. "Public" is defined as affecting or likely to affect persons in a place to which the public or a substantial group has access.
When three members of the Oxford police force presented themselves at the driveway of Joseph Mulvey’s mother's house to serve him with an out-of-State restraining order, Mulvey became distraught. By the end of the encounter, Mulvey was under arrest for assault and battery on a police officer and disorderly conduct. After a District Court trial, at which Mulvey represented himself, a jury acquitted Mulvey of assault and battery, but found him guilty of disorderly conduct. He appealed, claiming that his motion for a required finding of not guilty should have been allowed because the Commonwealth failed to introduce sufficient evidence to prove the public element of the disorderly conduct offense.
Was Mulvey properly convicted of disorderly conduct?
The appellate court held that as Mulvey’s conduct took place on purely private property the Commonwealth did not meet its burden that the disturbance had or was likely to have had an impact upon persons in an area accessible to the public. The actions that precipitated Mulvey’s arrest took place 30 to 55 feet up the driveway, shielded from off-premises view by a partially opaque fence. Thus, Mulvey’s conduct could not be found to have created the substantial and unjustifiable risk of public nuisance that was the sine qua non of the offense.