In Florida Disorderly Conduct is often used as a catch all for arrest. When the case law is reviewed most statements that can be made are protected by free speech. Words alone will rarely be sufficient for a Florida disorderly conduct arrest to hold up in court. Being rude to the police will get you a ride to jail but will rarely be sufficient for a conviction. Disorderly conduct also encompasses fighting and is charged instead of battery when both parties are engaged in mutual combat.
Disorderly conduct is somewhat unique in that many of the defenses are based upon the first amendment. Free speech covers not only speech but expression. In other criminal statutes the fourth amendment is a common defense. The fourth amendment deals with unreasonable search and seizure. Generally disorderly conduct is dealing with some type of expression. The freedom of expression is broad and words alone are rarely enough to sustain a disorderly conduct conviction. Florida disorderly intoxication also deals with similar first amendment issues.
In Houston v. Hill, the United States Supreme Court wrote that in the face of verbal challenges to police action, officers and municipalities must respond with restraint. We are mindful that the preservation of liberty depends in part upon the maintenance of social order. But the First Amendment recognizes, wisely we think, that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must its self be protected if that freedom would survive. The appellate courts have repeatedly ruled in favor of allowing broad expression under the first amendment. The broad expression can be applied to many Florida disorderly conduct and Florida disorderly intoxication cases. It is often beneficial if a Florida resisting arrest with or Florida resisting arrest without violence charge is filed based upon the conduct during an illegal disorderly conduct arrest.
Some examples of what has and what has not been sufficient to sustain a disorderly conduct conviction are listed below.Evidence was insufficient to support conviction for disorderly conduct, even though defendant yelled obscenities at police officer, and motorists along roadway where incident occurred slowed or stopped while defendant was yelling; no evidence was presented that defendant's words were fighting words or words that would tend to incite immediate breach of peace, that defendant engaged in any physical conduct toward officer that affected officer's ability to do her job or breached peace or otherwise incited others to act, or that anyone in area was actually incited into engaging in immediate breach of peace. Barry v. State, 934 So. 2d 656 (Fla. Dist. Ct. App. 2006).
A Child's use of loud and profane language, while frustrating and annoying to arresting officer, was not shown to be of such nature as to incite anyone in area to immediate breach of peace, thus, child's speech was protected by First Amendment and child was not guilty of breach of peace. B.R. v. State, 657 So. 2d 1184 (Fla. Dist. Ct. App. 1995). Evidence of “cussing” and arguing in loud voice after law enforcement officer told the accused to calm down was insufficient to support a conviction for disorderly conduct, where events occurred in accused's dwelling and no evidence showed that his conduct incited others to breach peace or posed imminent danger to others. Miller v. State, 667 So. 2d 325 (Fla. Dist. Ct. App. 1995). Mere fact that other people come outside or stop to watch what is going on is insufficient to support a conviction for disorderly conduct; instead, there must be some evidence that the crowd is responding to the defendant's words in some way that threatens to breach the peace. Fields v. State, 24 So. 3d 646 (Fla. Dist. Ct. App. 2009).
Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Fla. Stat. Ann. § 877.03
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