Rethinking Disorderly Conduct
Posted: 6 Apr 2020
Date Written: March 11, 2020
Disorderly conduct laws are an amalgamation of a number of common law offenses aimed at protecting the public order, peace, and tranquility. Like their common law antecedents, modern day disorderly conduct laws proscribe behaviors such as breach of the peace, physical fighting, and fighting words, and might also criminalize behavior falling within the domain of criminal offenses such as riot, unlawful assembly, and trespass. Contrary to common legal conceptions, the criminalization of disorderly conduct is not only about policing behavior that threatens to disrupt public order or even the public’s peace and tranquility, but also reflects and reinforces deeply rooted discriminatory understandings about what kinds of behavior — and which persons — violate community norms. By relying on a false dichotomy between “order” and “disorder,” disorderly conduct laws construct and reinforce a hierarchy of normative behaviors that are imbued with racism, sexism, and ableism. Disorderly conduct laws “otherize” certain non-conforming behaviors, de-legitimizing them through the label of “disorderly,” and in doing so exclude certain historically marginalized groups from normative conceptions of community. They do all this in part by prohibiting a wide range of behavior and conferring vast amounts of discretion to law enforcement and private citizens to target individuals for behavior regulation, physical removal, and community exclusion. In this way, disorderly conduct laws delineate and police the normative boundaries of communities. Moreover, these laws also often determine access to shared community spaces resulting in the exclusion of historically marginalized groups within these purportedly “public” spaces. Despite these harms, disorderly conduct laws persist even given the lack of concrete evidence as to the precise nature of the social harm to be prevented in each case. The article’s critique demonstrates how disorderly conduct laws define and construct boundaries of communities. Viewed in this light, the article is situated within ongoing discussion within criminal legal scholarship on the broader question of role of “the community” in criminal law and criminal justice reform. This critique of disorderly conduct offers a site for problematizing unitary models of community in criminal law. The article concludes by identifying pathways to reforming the harms of the disorderly conduct regime by offering a set of reforms that rely less on consensus-driven models and more on contestatory models of democratic participation in criminal justice reform efforts that better account for the multiplicity of communities impacted by criminal law enforcement.
Keywords: disorderly conduct, race, gender, disability, public order,
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