Disorderly conduct- Fairfax criminal lawyer warns against being charged with such a crime

Disorderly conduct (DC) is not a crime you want to be convicted of. It does not look good for one’s reputation with employers, for instance, as it summonses images of a boisterous person who does not play by the rules, and perhaps starts consuming alcohol too early in the day. As a Fairfax criminal lawyer, I know that DC is charged too often by police when they cannot think of another crime to charge for a person’s actions that they deem out of line (but being out of line, by itself, is not a crime). Sensible police will stop themselves from charging DC when it should not be charged. Such stopping themselves seemed to be the case when I was one day waiting to pick up a friend’s friend on a delayed flight, went to an empty corner of the airport, and practiced my non-offensive slow-moving taijiquan calisthenics. A police officer came up to me when I next entered and exited the restroom, told me I matched the description of someone doing karate kicks (my exercise includes a few slow leg movements out of many other movements, but no karate kicks), at first would not okay my departure, but then his colleague made the sensible decision to leave me to go on my way (after I told her that I was simply doing such an exercise, subsequent to declining to tell the first cop anything; although my answering this question does clash with my telling my clients about asserting their Fifth Amendment Constitutional right to silence.) Before we continue, I underline that police with nothing else to do will often be drawn to inquire about what they consider to be unusual human behavior, and that you take a big risk to waive your Fifth Amendment right to silence with law enforcement officers (LEO) and your Sixth Amendment right to have a lawyer present before submitting to police interrogation (which you have no obligation to submit to).

What behavior does the Virginia public place disorderly conduct law criminalize?

Virginia has two DC statutes. One focuses on conduct mainly in public places and at government agencies and schools. The other involves hospitals and training centers and is very broad, too overbroad in my view (but the Virginia Court of Appeals disagrees with me, in Commonwealth of Virginia v. Sean Holmes, Record No. 1404-23-2 (Va. App., March 27, 2024) (unpublished). The most often used public place DC prohibition provides: “A person is guilty of disorderly conduct if, with the intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, he: In any street, highway, or public building, or while in or on a public conveyance, or while in a public place engages in conduct having a direct tendency to cause acts of violence by the person or persons at whom, individually, such conduct is directed.” Virginia Code § 18.2-415(A)(1). Importantly, I read the foregoing statute to bar the criminalization of the mere use of words:  “The conduct prohibited under subsection A shall not be deemed to include the utterance or display of any words or to include conduct otherwise made punishable under this title.” VA Code § 18.2-415(B). An important defense to this statute is to argue the absence of “conduct having a direct tendency to cause acts of violence by the person or persons at whom, individually, such conduct is directed.” Therefore, if the suspect or defendant is acting no worse than offensively or irritatingly but without conduct tending to cause acts of violence in those who are directed the conduct, then insufficient evidence exists to convict (and to arrest, as well, for that matter). 

What words and actions must I avoid when visiting a hospital?

If you ruffle feathers with your actions at a hospital, beware being arrested and prosecuted for disorderly conduct: “It shall be unlawful for any person to conduct himself in an insulting or disorderly manner on the grounds of any hospital or training center or in any way to resist or interfere with any officer or employee of any hospital or training center in discharge of his duty. Any person who conducts himself in an insulting or disorderly manner on the grounds of any hospital or training center or in any way resists or interferes with any officer or employee of any hospital or training center in discharge of his duty is guilty of a Class 1 misdemeanor.” Virginia Code § 37.2-429. In an unpublished opinion (therefore non-binding but still subject to being persuasive authority), the Virginia Court of Appeals reverses the Virginia Circuit Court judge’s invalidation of the foregoing statute as unconstitutional on its face, by saying that the language is Constitutional and does not cover mere words rather than conduct, and uses forum analysis to point out that a hospital is a place where people are being treated and recovering and are entitled to not being unduly disrupted, versus people’s behavior in public places, for instance on a sidewalk. Holmes. Holmes rejects that the statute violates the First Amendment. (Note: Holmes makes clear that the training center language in the foregoing statute” “As defined in Code § 37.2-100, ‘”Training center” means a facility operated by the Department [of Behavioral Health and Developmental Services] that provides training, habilitation, or other individually focused supports to persons with intellectual disability.'”)

What do I do if a police officer tells me to regulate my behavior or arrests me for alleged DC?

A police officer is not permitted to have unbridled discretion to regulate your behavior. See FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990). Consequently, as much as Holmes, for instance, speaking of content neutral DC statutory language, LEO use of unbridled discretion in enforcing the statute can amount to not using content-neutral enforcement, and then enable an argument that the prosecution should be dismissed as a violation of the defendant’s Due Process rights under the Constitution’s Fifth and Fourteenth Amendments and as a violation of the Fourteenth Amendment’s Equal Protection Clause. At the same time, a police officer’s warning to change your behavior tells you that you might get arrested if you continue with the same behavior, and that is your personal decision whether to change your behavior accordingly. (Of course, as a lawyer, I cannot tell you that it is okay to engage in unlawful conduct, but the disorderly conduct laws are not clear enough on what is actually prohibited. I do think that the foregoing laws are too vague and overbroad to allow them to be enforced — see Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) — but the Virginia Court of Appeals so disagrees.)  If you are arrested for DC, as with any criminal prosecution in the Commonwealth, do not delay in consulting with a qualified Virginia criminal  lawyer.

Fairfax criminal lawyer Jonathan Katz relentlessly fights for your best defense against Virginia DUI, felony and misdemeanor prosecutions. You are bound to know that within the first few minutes of your free in-person confidential initial consultation with Jon Katz about your court-pending prosecution.