By: Diana Aizman
Disturbing the peace or breaching the peace is generally referred to as a disorderly conduct charge under Penal Code 415. It is an offense that is often charged in conjunction with bar fights, hosting a loud party late at night, becoming unruly at a street protest or rally, domestic violence incidents or in confrontations with police officers.
There are 3 separate ways that you can be charged and convicted under PC 415 for disturbing the peace:
A very common disturbing the peace charge is for fighting a person in a public place such as a bar or outside a bar after a challenge has been made. To convict someone for this aspect of violating PC 415(1), the prosecution only needs to show:
- You willfully and unlawfully engaged in a fight with another person
- Or, you challenged another person to a fight
- And either the fight or challenge took place in a public location
Both participants can be charged if they willfully engage in a fist fight or wrestling match. Your defense to a charge of disturbing the peace is self-defense. You can employ this if:
- You had a reasonable belief that you or another person were about to suffer bodily harm
- And you had a reasonable belief that using force was the only way to protect yourself or the other person from suffering bodily harm
- And you used no more force than reasonably necessary to defend yourself
If challenged to a fight and you strike the first blow, you may also be charged unless you can show that you reasonably believed you were about to be struck because the other person took a swing at you or was brandishing a bottle and threatening you. Also, once you have subdued the pers
If you live or have ever lived in an urban area, you have undoubtedly experienced a neighbor or tenant in your apartment building who has played music at a high volume or engaged in a seemingly nonstop shouting match with a spouse or partner and continued to do so despite being asked to refrain. To be guilty of disturbing the peace, that person must meet the following elements:
- Caused loud and unreasonable noise
- In a willful and malicious manger
- That disturbed another person
- And which noise was intended to do something unlawfully or to annoy or injure another person
Also, the conduct must have caused a “disturbance” or presented a danger of immediate violence or was to disrupt lawful activities and not for the purpose of communication.
This definition of “disturbance” was intended to protect certain speech.
For example, someone making a political speech at a protest rally or demonstration that is loud and “disturbs” residents in the area is not disturbing the peace since it is a lawful activity of people exercising the right of free speech or lawful assembly. If the group had no permit as required, it may just be an ordinance violation. The same is true of rock concerts or athletic events since the noise is not maliciously created, presents no danger of immediate violence or disrupts a lawful activity.
Your intentions are a key to prosecution. If you are asked to turn down the music or to refrain from shouting and you do, then there may not be the element of malicious intent. However, continuing to engage in such conduct despite repeated requests to stop may rise to the level of willfulness and maliciousness.
A lawful activity that may be disrupted by loud and unreasonable noise is a person loudly challenging police officers who are investigating an incident or verbally interfering with any other public servant performing a duty.
Spouting offensive words does not necessarily rise to the level of disturbing the peace unless:
- The words used were inherently likely to provoke an immediate violent reaction
- And the words were spoken in a public place
We can all think of words that are provocative that are directed towards certain minorities or ethnic groups. These are so-called “fighting words” that offer nothing to the free flow of ideas or communication and are coupled with how the words are delivered—in a loud, mocking or abusive manner.
However, words that are merely rude or vulgar, such as calling someone a jerk, a bitch, imbecile or a profanity, while offensive, are not ordinarily interpreted as “fighting words,” perhaps because they are so often used and part of everyday language and are unlikely lead to an immediate violent reaction even if it does so from some people. These are words that are not inherently likely to provoke a violent response. But if they are screamed at someone repeatedly, then a finder-of-fact could reasonably determine otherwise and find the person who uttered the words to be disturbing the peace.
Offensive words on a T-shirt may or may not be likely to provoke an immediate violent reaction. If someone wore a T-shirt with a swastika on it to a synagogue or Jewish holiday gathering, it is probably not enough unless the wearer was conducting himself in a particularly mocking manner.
It is also possible that repeatedly screaming obscenities at someone comes under PC 415(2), creating an unreasonable noise willfully and maliciously and that is intended to annoy someone.
Self-defense is one defense to PC 415(1)—fighting or challenging a person to a fight in a public place. Others include:
Lack of Malicious or willful Intent
This includes the lack of intent to provoke violence. If you spoke words that were angry while expressing a political opinion ( the subject of many fights) and had a reasonable belief that you spoke them with this in mind and not to provoke a violent response, then you may not be guilty.
The same is true for creating unreasonable noise if you were merely partying or celebrating with other people.
Engaging in Constitutionally Protected Conduct
Very often, police arrest protesters at abortion clinics, political rallies or for counter-demonstrating. Common at these scenes are signs or even T-shirts with provocative words intended to annoy those who disagree with a particular position or opinion but they are also expressions of speech. As such, they are protected speech under the First Amendment to the US Constitution.
One well-known example was that of American Nazis in uniform appearing and displaying the Swastika at a parade in Skokie, Illinois, home of numerous Nazi concentration camp survivors. Many could argue that their presence was intended to provoke an immediate and violent response, but the group was also expressing its opinion, as inherently offensive as it was. This is more a case of balancing rights with the freedom of speech paramount in this particular situation.
Another is protesting the right to abortion at an abortion facility. The courts allow such protests but the protestors are usually required to stay a certain distance from the clinic entrance though they are generally allowed to express whatever they want towards clinic workers or to women entering the clinic. If the distance is breached, the protestor can be arrested for violating a court order or possibly for disturbing the peace depending on what actions the person took.
These often arise in the context of domestic disputes, fights with neighbors or with intoxicated persons at bars who claim you challenged them to a fight or took a swing at them.
In such cases, you may need an attorney to investigate the matter by interviewing possible witnesses or presenting to the prosecutor evidence of past spiteful conduct toward you by an ex-partner or spouse or other individual who was motivated to falsely accuse you.
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Because PC 415 can be charged as an infraction or as a misdemeanor with lesser penalties than other misdemeanor offenses, it is often a charge that is offered in return for a guilty plea if the defendant has been charged with a more serious offense.
Persons charged with prostitution or solicitation, with simple assault, minor domestic battery incidents, public urination or lewd conduct in public or making criminal threats often can have these charges reduced to disturbing the peace . Even if it is charged as a misdemeanor, it does not carry the same ignominy as a domestic battery or lewd conduct charge.
A violation of PC 415 is either an infraction or a misdemeanor. The prosecution has the discretion to charge either way depending on the nature of the conduct, where it was committed, the maliciousness and willfulness exhibited and if there existed the intent to harm someone or just annoy them. The prosecutor will also consider the defendant’s criminal record or if this is a repeat violation.
Infractions are not criminal offenses. If you plead guilty to one, you merely pay a fine up to $250 and it is not recorded on your public record.
Misdemeanors are crimes, however, and if convicted, you face:
- A fine up to $400
- And/or county jail time of up to 90 days
- Probation for up to 3 years
Aggravating Factor = Committed the offense on school grounds.
- If so, it is a misdemeanor. And, if the defendant committed some other offense, such as an assault in combination with disturbing the peace on school grounds then the defendant could face a 2nd violation, then the defendant could face a minimum jail sentence of 10 days up to a maximum of 6 months and a fine up to $1000.
- A 3rd violation on school grounds merits a minimum of 90 days in jail.
Is calling a police officer a pig or an obscene name considered disturbing the peace?
Not necessarily, unless you are trying to impede the officer who is in the course of performing an official duty such as questioning a witness or detaining someone. Also, if you are doing so loudly in a public place and the officer asks you to be quiet or leave and you refuse, then you may be guilty under PC 415. This may be for causing unreasonable noise or uttering offensive words, even if the officer was not provoked to immediate violence.
When does a protest violate the First Amendment right to freedom of speech?
If there was loud cheering or shouting at a protest rally or demonstration, the courts will look to see if it was for communication as a means to persuade or inform or was intended to disrupt a “lawful endeavor.” Also, if the speech or language constituted a clear and present danger of imminent violence such as exhorting those in attendance to riot, rape and plunder, then it is not protected speech. Otherwise, it comes under the protection of the right to freedom of speech even if it disturbs others.
What does “inherently likely” to provoke an immediate violent reaction mean?
There are certain words that most people know will provoke a violent reaction from someone such as calling a member of an ethnic group a certain pejorative name but they may not be words that are merely vulgar, rude or mean. These can rise to that level if you say them loudly, repeatedly and mockingly so as to provoke the person that you knew would be so affected.
Resisting Arrest—Penal Code 148(a)
Resisting arrest occurs when you interfere with, delay or obstruct a peace officer who is in the course of conducting an official task or duty. This can include giving a false name to an officer, loudly and obscenely encouraging a person who is being arrested to resist the officer or resisting an officer who is putting handcuffs on you.
If you scream obscenities, challenge an officer to a fight or even loudly argue with an officer in a public place and continue despite being warned to calm down or to leave, then you may be charged with disturbing the peace as well as resisting arrest in this context.
Resisting arrest is a misdemeanor with a penalty of up to 12 months in county jail and/or a fine up to $1000.
You could face trespassing charges, a misdemeanor, along with disturbing the peace in some situations.
Trespass can be charged as a misdemeanor with up to 6 months in jail and/or a fine of up to $1000, or as an infraction that carries a fine only of up to $250. However, it is a felony if you threaten to injure someone and then enter their home or business.
Creating a Public Nuisance—PC 372 and 373a
Conduct that is injurious to health or that obstructs the use of property or is otherwise offensive to the senses constitutes the crime of public nuisance. A large number of people need to be affected or the offensive conduct interferes with the public’s use of public property such as a park or street.
An example of either disturbing the peace or creating a public nuisance is playing very loud music on an urban or suburban street or at a park. Unlawful assembly that blocks a city street could also be charged with either offense.
Creating a public nuisance is a misdemeanor with penalties of up to 6 months in jail and/or a fine up to $1000.
With the knowledge and expertise of the Aizman Law Firm on your side, our attorneys strategically develop valid legal defenses to attempt to garner a dismissal, or reduction of the charges. Contact us at 818-351-9555 for a free Confidential Consultation.
- Penal Code 415 – Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine:(1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. [↩]
- The words “malice” and “maliciously” import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.. Pen. Code, § 7(4 [↩]
- Loud and Unreasonable Noise Deﬁned. In re Brown (1973) 9 Cal.3d 612, 618–621 [108 Cal.Rptr. 465, 510 P.2d 1017] [↩]