University of Arizona students are all too often cited or arrested for misdemeanor “disorderly conduct.” This blog addresses the charge of ARS § 13-2904 “disorderly conduct” as it relates  University of Arizona students involved in late-night altercations, both minor and substantial. 

Pursuant to ARS § 13-2904  a person commits disorderly conduct if “with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so such person …. (1) engages in fighting, violent, or seriously disruptive behavior; (2) makes unreasonable noise; or (3) uses abusive or offensive language or gestures to any person present in a manner likely to provoke immediate physical retaliation by such person …” 

Disorderly conduct is considered a class one misdemeanor unless a weapon is involved.  

Police often charge students with this  misdemeanor  when they are frankly not sure what other crime occurred, especially when  police believe there is not enough to charge an actual assault. 

This is especially the case in the dorms and off-campus housing where there are late night altercations that involve roommates   or romantic partners.  Then, the charge is classified as “domestic violence disorderly conduct” and one person almost always goes to jail.

But Arizona’s “disorderly conduct” statute in my view is both vague and broad, and there are some effective defenses. 

First of all, the State must prove that the defendant “intended” to “disturb the peace” of another person, or acted with knowledge of doing so.   In some situations, especially altercations, with mutual parties arguing heatedly the defendant’s words or actions are not necessarilyintended to “disturb” a person’s peace. They may in response to offensive words, or they may be directed at deescalating a situation.   If the State cannot prove beyond a reasonable doubt that the defendant intended to disturb another’s peace the case may be dismissed. 

Second, the State must prove that the victim’s peace was actually disturbed. See Prosise v. Kottke 249 Ariz. 75 (App. Div. 1 2020). 

 In Prosise the defendant got into an argument with a Forest Service Supervisor in the rear parking lot of the Chino Valley Ranger Station in April 2018. Id at 76-77.  Prosie was “irate because the Forest Service had closed a road as a fire-prevention measure.” Id at 77.  Prossie tried to confront the supervisor Guffey.  “Guffie heard Prosise shouting.” Id.  “Prosise then drove around to the roar parking lot where he confronted Guffey about the road closure.  Prosise remained in his truck and Guffey stood on a raised porch behind a banister.  Guffey testified Prosise was “irate” used profanity and spoke in an elevated voice.” Id. at 77. Prosise “threaten[ed] to shoot anyone who tried to stop him from reopening the road, but “Prosise never identified the specific road or when and where it was closed.” Id.

A bench trial ensued and Prosise was convicted.  He appealed.

But the appellate court, in reversing the conviction held that “when one is charged with disturbing the peace of a specific individual” the state must prove that the individual’s peace was indeed disturbed.” Id.  Moreover, such conduct “does not become criminal under our current statutes unless it disturbs the peace of someone by seriously disrupting something. Id (emphasis in the original) citing In re Julio L., 197 Ariz. 1 (2000) (en banc). The court in in Prosise concluded that because the Forest Service Supervisor did not feel threated, his peace was not disturbed, and the case should be dismissed.” Prosise, supra 49 Ariz.  at 79 (“Guffey was not in fact disturbed by Prosise’s angry words.”).  

Moreover, the Court in Prosise found that Prosise’s behavior was not “seriously disruptive.” Id.  “Neither Guffey’s work duties nor the function of the ranger station were disturbed or affected by Prosise’s “cursing or yelling” Id.

The Court in Prosise cautioned that a court “must keep in mind the difference between civil and criminal conduct.” Id.  “To the extent that Prosise had a legitimate concern about road closures, his method of expressing it cannot be condoned and should not be disregarded.”  But because Guffey’s peace was not disturbed, the evidence was “categorically insufficient to support a disorderly conduct conviction.” Id.  

Other published cases also narrowly construe “seriously disruptive behavior”.  For example In re Louise C.  a juvenile was charged with disorderly conduct when in the Assistant Principal’s office when she said. “Fuck this.  I don’t have to take this shit … Fuck you. I don’t have to do what you well me.”  198 Ariz. 84 (App. Div. 1 1999).  But the court held that such outburst did not constitute “seriously disruptive behavior” to support a disorderly conduct charge, where the outburst took place in a closed office and was not heard outside the office.

In a similar case the Arizona Supreme Court held that a juvenile directing  an expletive at the school principal and kicking chair which tipped over but did not strike anyone  did not support the charge of “disorderly conduct. See In re Julio L. 197 Ariz1 (2000).  (en banc). 

 Conclusion

University of Arizona students are often charged with “disorderly” conduct or “domestic violence disorderly conduct” in matters involving late-night altercations.   This is often a choice charge where there is no assault, criminal damage or other crime for which there is probable cause to arrest.  But to prevail on the charge of disorderly conduct the State must prove both that the defendant intended to disturb the peace of the victim and that the victim’s peace was actually disturbed.   The State must further prove that the conduct was “seriously disruptive.