Florida Disorderly Conduct Defenses - Florida Disorderly Conduct Law, Defenses and Information Florida Statute 877.03

Florida Disorderly Conduct Defenses
From A Criminal Defense Attorney

In Florida disorderly conduct and Florida disorderly intoxication cases two strategies are commonly used.
1) The speech or conduct was protected by the 1st amendment.
2) The speech or conduct did not offend outrage breach the peace or disturb the public.
The information on this page has been provided by Daytona Beach DUI attorney Seminole County criminal defense attorney Kevin J. Pitts.

Self Defense A juvenile defendant charged with disorderly conduct fought in self defense against an attack initiated by other juvenile, precluding finding of guilt and adjudication of delinquency, even if defendant was yelling fighting words during the altercation and failed to respond to police officer's command to withdraw from the altercation. S.D.G. v. State, App. 5 Dist., 919 So.2d 704 (2006).

Where a defendant charged with disorderly conduct did not initiate the fight, and was acting to protect herself from her attacker, the defense of self-defense applies. S.D.G. v. State, App. 5 Dist., 919 So.2d 704 (2006).  

Self-defense may be used as a defense to a charge of disorderly conduct provided that the person charged did not provoke the fight. D.M.L. v. State, App. 3 Dist., 773 So.2d 1216 (2000).  

Juvenile's uncontroverted testimony that she did not initiate the fight with another girl and that she was acting to protect herself from her attacker at time officer broke up fight established that she was acting in self-defense, entitling her to judgment of acquittal to charge of disorderly conduct. D.M.L. v. State, App. 3 Dist., 773 So.2d 1216 (2000).

1st Amendment, Free Speech, Freedom of Expression

Public expression of ideas may not be prohibited merely because ideas are themselves offensive to some of their hearers. Wiegand v. Seaver, 1974, 504 F.2d 303, appeal dismissed 95 S.Ct. 1650, 421 U.S. 924, 44 L.Ed.2d 83. Evidence was insufficient to support conviction for disorderly conduct, where defendant's pre-arrest conduct consisted of loud and aggressive speech, directing arresting officer to remove her boyfriend from residence; until officer initiated arrest, defendant's conduct was entirely verbal, consisting of neither fighting words nor false words that created a clear and present danger of harm to others and, thus, were protected by the First Amendment. Miller v. State, App. 2 Dist., 780 So.2d 197 (2001). First Amendment protected profanities and offensive speech that arrestee yelled at police officers when they asked for identification and, therefore, prohibited arrest and delinquency adjudication for disorderly conduct; the arrestee was doing nothing unlawful, never physically interfered with the police, and was punished for pure speech. W.L. v. State, App. 3 Dist., 769 So.2d 1132 (2000). Disorderly conduct statute may constitutionally be applied to verbal conduct such as fighting words. Beebe v. Foster, App. 1 Dist., 661 So.2d 401 (1995). Evidence was insufficient to support disorderly conduct conviction; ?defendant's language did not constitute fighting words and was protected by First Amendment, and there was no evidence that public was disturbed or that defendant's words incited immediate breach of peace. C.P. v. State, App. 2 Dist., 644 So.2d 600 (1994). Words used by defendant at police station, because of delay in obtaining father's immediate release on bail, were protected even though they may not have been acceptable in certain strata of society; however, it was degree of loudness and circumstances in which they were uttered, resulting in interference with peaceful operation of police station, which took them out of constitutionally protected area for purposes of this section governing breach of peace and disorderly conduct. White v. State, 330 So.2d 3 (1976).  

Vulgar or Profane Language
Vulgar or even profane language is not necessarily unprotected constitutionally, unless words by their very utterance inflict injury or tend to incite immediate breach of peace, and even wholly neutral futilities come under the protection of free speech. Wiegand v. Seaver, 1974, 504 F.2d 303, appeal dismissed 95 S.Ct. 1650, 421 U.S. 924, 44 L.Ed.2d 83. Conduct of 15-year-old juvenile, in speaking loudly and profanely, would not constitute disorderly conduct if committed by an adult, as basis for adjudicating the juvenile as delinquent, in absence of evidence that the juvenile was trying to incite a crowd or that a crowd had gathered and presented a safety risk. A.S.C. v. State, App. 5 Dist., 14 So.3d 1118 (2009). Juvenile's speech, while annoying and offensive to arresting officer, was not shown to invoke response tending to inflict injury or incite immediate breach of peace, and, thus, juvenile's speech fell within protections afforded by the First Amendment; juvenile continually sang “fuck the police” after retreating to front porch of home at police officer's direction. K.Y.E. v. State, App. 1 Dist., 557 So.2d 956 (1990). Juvenile's utterance of certain vulgar words to police officer in loud voice in presence of others constituted “fighting words” which were intended to incite immediate breach of peace in violation of this section, which was not protected by the First Amendment and thus, utterance violated this section. ?L.J.M. v. State, App. 1 Dist., 541 So.2d 1321 (1989), review denied549 So.2d 1014. Juvenile's conduct in running around near automobile stopped by the officers, shouting profanities at the officers, which drew a large hostile crowd, constituted disorderly conduct. W.M. v. State, App. 3 Dist., 491 So.2d 335 (1986). Public use of the expletive, “F-- you,” did not, standing alone, provide legally sufficient probable cause for police officer to believe that defendant, who gave such response when officer requested his assistance in investigating alleged misdemeanor that had occurred outside the officer's presence, had breached the peace; ?hence, arrest for breach of the peace was not proper and, under then-existing law, defendant who picked up officer and held him powerless about three feet off the ground, was justified in resisting. Phillips v. State, App. 4 Dist., 314 So.2d 619 (1975). There are certain exceptions, depending on the circumstances, which, when coupled with the use of expletives will constitute a breach of peace. Phillips v. State, App. 4 Dist., 314 So.2d 619 (1975). Restaurant patron, who was vocally dissatisfied with service afforded her and her companions, and who was not shown to have been guilty of any wrongdoing except for possible utilization of an intemperate expletive or two and whose vocalizations were not shown to have been more than a mere annoyance to those about her, could not be found guilty of violating the breach of the peace--disorderly conduct statute. Gonzales v. City of Belle Glade, 287 So.2d 669 (1973). Where defendant's alleged disorderly conduct occurred at nighttime at a carnival at a time when over 100 people of mixed races had gathered around the police officers and officers sought to prevent possibility of a riot, defendant's conduct in swearing and making racial references to officers violated this section. Bradshaw v. State, 286 So.2d 4 (1973), certiorari denied 94 S.Ct. 2626, 417 U.S. 919, 41 L.Ed.2d 225. Where, although there was angry altercation between juvenile and female student, who ripped down poster that juvenile had placed on classroom door with permission of school administration, no commotion ensued disrupting the school or pupils in adjoining classroom, principal and teacher involved made no complaint to police or asked for action on their part, whether juvenile used criminal profanity or obscenity was unclear, and no disciplinary action by the school was found necessary, the juvenile's conduct did not fall within sanctions of disorderly conduct statute. In re Fuller, 255 So.2d 1 (1971).

Threatening Language
State's evidence was insufficient to support defendant's conviction for disorderly conduct; defendant's behavior of yelling into his cell phone and using profanity, while standing in bank's doorway, did not constitute “fighting words” or incite the crowd to action, people were coming out of the bank and, as they did, they stopped to watch defendant, and there was no evidence that the crowd gathered out of any purpose other than curiosity or to observe defendant's behavior.?Fields v. State, App. 3 Dist., 24 So.3d 646 (2009). Defendant's behavior of yelling into his cell phone and using profanity, while standing in bank's doorway, did not constitute “fighting words” or incite the crowd to action for purposes of disorderly conduct statute. Fields v. State, App. 3 Dist., 24 So.3d 646 (2009). Two protest marchers, who made threatening comments to police officers but who were not alleged to have either struck or threatened to strike any officers or to have violated any law and whose actions were no more than a mere annoyance to those around them, could not be found guilty of violating this section. ?Gonzales v. City of Belle Glade, 287 So.2d 669 (1973). Where defendant, in his comments to police officers at carnival, passed the bounds of argument and undertook incitement to riot, the police had the authority and power to prevent a breach of the peace. Bradshaw v. State, 286 So.2d 4 (1973), certiorari denied 94 S.Ct. 2626, 417 U.S. 919, 41 L.Ed.2d 225. A “riot” is a tumultuous disturbance of the peace by three persons or more, assembling together of their own authority with an intent mutually to assist each other against any who shall oppose them in the execution of some enterprise of a private nature, and the execution of same in a violent and turbulent manner to the terror of the people, whether the act intended was of itself lawful or unlawful. City of Daytona Beach v. Brown, App. 1 Dist., 273 So.2d 124 (1973), certiorari discharged 286 So.2d 547.

Inciting language
Juvenile's actions of shouting and using foul language did not constitute disorderly conduct, despite contention that juvenile's language incited others to fight, resulting in a breach of the peace; arresting officer testified that no one was fighting in the area around juvenile, and there was no evidence that juvenile instigated the crowd of which she was a part, but rather the crowd spontaneously came together after a party. C.N. v. State, App. 2 Dist., 49 So.3d 831 (2010). Words alone cannot constitute disorderly conduct unless they are “fighting words” or words like shouts of “fire” in a crowded theatre.?Wiltzer v. State, App. 4 Dist., 756 So.2d 1063 (2000). Simply yelling and screaming is insufficient to constitute offense of disorderly conduct. Chandler v. State, App. 4 Dist., 744 So.2d 1058 (1999). State failed to establish that juveniles used fighting words or anything to incite others as required for adjudication of disorderly conduct; testimony that juveniles continued to “hoot and holler and carry on and scream at us and of course make fun of the police” was not sufficient, and juveniles did not interfere with duties of law enforcement officer. T.S.S. v. State, App. 2 Dist., 696 So.2d 820 (1997).

Breach Of The Peace

Under the Florida disorderly conduct statute, where the basis for an arrest is speech only, the statute's application is limited to words that by their very utterance inflict injury or tend to incite an immediate breach of peace or words known to be false and reporting physical hazard in circumstances creating a clear and present danger of bodily harm to others.U.S. v. Lyons, 403 F.3d 1248, 66 Fed. R. Evid. Serv. 1032 (11th Cir. 2005). Therefore, the use of words as a tool of communication loses its constitutional protection under the statute if (1) by the manner of their use, the words invade the right of others to pursue their lawful activities; or (2) by their every utterance, they inflict injury or tend to incite an immediate breach of the peace.Morris v. State, 335 So. 2d 1 (Fla. 1976); White v. State, 330 So. 2d 3 (Fla. 1976). Thus, an offensive utterance made in an explosive situation or which disrupts the lawful activities of others constitutes disorderly conduct.White v. State, 330 So. 2d 3 (Fla. 1976); Bradshaw v. State, 286 So. 2d 4 (Fla. 1973). For example, probable cause existed to arrest a store customer for disorderly conduct, where the customer repeatedly refused to accept the store's return policy concerning a store credit and repeatedly attempted to devise plans to thwart that policy, was loud, was possibly cursing at employees working at the return counter, refused a store manager's request to leave the property, interrupted police officers' questioning of the manager, and refused to comply with the officers' order to move.Epstein v. Toys-R-Us Delaware, Inc., 277 F. Supp. 2d 1266 (S.D. Fla. 2003), aff'd, 116 Fed. Appx. 241 (11th Cir. 2004)."Fighting words" or false words reporting a physical hazard are proscribed by the disorderly conduct statute. Words which by their utterance tend to incite an immediate breach of the peace are "fighting words."L.J.M. v. State, 541 So. 2d 1321 (Fla. Dist. Ct. App. 1st Dist. 1989). On the other hand, speakers do not violate the statute merely by annoying those around them or by employing profane language to express outrage. Gold v. City of Miami, 151 F.3d 1346 (11th Cir. 1998).
Examples:
The evidence was insufficient to support a disorderly conduct conviction where there was no evidence that witnesses responded to the defendant's words in any particular manner or that anyone in the area was actually incited to engage in an immediate breach of the peace but were merely either curious or annoyed.Smith v. State, 967 So. 2d 937 (Fla. Dist. Ct. App. 2d Dist. 2007). Similarly, the evidence was insufficient to support a conviction for disorderly conduct, even though the defendant yelled obscenities at a police officer and motorists along roadway where incident occurred slowed or stopped while the defendant was yelling. However, no evidence was presented that the defendant's words were fighting words or words that would tend to incite an immediate breach of peace; that the defendant was engaged in any physical conduct toward the officer that affected the 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 an immediate breach of peace. Barry v. State, 934 So. 2d 656 (Fla. Dist. Ct. App. 2d Dist. 2006). Also, a deputy did not have statutory authority to make a warrantless arrest of a defendant for the misdemeanor of disorderly conduct, even though a witness called police after the defendant was allegedly irate and loud with her, and the deputy who responded to a call about a neighborhood disturbance, saw the defendant yelling and screaming; nothing suggested that the defendant was inciting an immediate breach of peace or was yelling an equivalent of "fire" in a crowded movie theatre. Baymon v. State, 933 So. 2d 1269 (Fla. Dist. Ct. App. 2d Dist. 2006).

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