711-1101 Disorderly conduct. (1) A person commits the offense of disorderly conduct if, with intent to cause physical inconvenience or alarm by a member or members of the public, or recklessly creating a risk thereof, the person:

(a) Engages in fighting or threatening, or in violent or tumultuous behavior;

(b) Makes unreasonable noise;

(c) Subjects another person to offensively coarse behavior or abusive language which is likely to provoke a violent response;

(d) Creates a hazardous or physically offensive condition by any act which is not performed under any authorized license or permit; or

(e) Impedes or obstructs, for the purpose of begging or soliciting alms, any person in any public place or in any place open to the public.

(2) Noise is unreasonable, within the meaning of subsection (1)(b), if considering the nature and purpose of the person's conduct and the circumstances known to the person, including the nature of the location and the time of the day or night, the person's conduct involves a gross deviation from the standard of conduct that a law-abiding citizen would follow in the same situation; or the failure to heed the admonition of a police officer that the noise is unreasonable and should be stopped or reduced.

The renter, resident, or owner-occupant of the premises who knowingly or negligently consents to unreasonable noise on the premises shall be guilty of a noise violation.

(3) Disorderly conduct is a petty misdemeanor if it is the defendant's intention to cause substantial harm or serious inconvenience, or if the defendant persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a violation. [L 1972, c 9, pt of 1; am L 1973, c 136, 9(a); am L 1974, c 164, 1; am L 1978, c 182, 1; am L 1979, c 79, 1; gen ch 1993; am L 2003, c 48, 2]

 

Note

 

Urinating or defecating in public (repealed December 31, 2016). L 2004, c 84, 2; L 2008, c 77; L 2010, c 75; L 2014, c 50; L 2015, c 35, 51.

 

Revision Note

 

In subsection (1)(a), (b), and (c), "or" deleted pursuant to 23G-15.

 

COMMENTARY ON 711-1101

 

The offense of "disorderly conduct" has been very broadly defined in the past (see below) to include numerous petty annoyances to the public. Section 711-1101 gives a far narrower definition to the offense, both because some of the matters previously treated under that heading are now treated elsewhere and because some of the previous provisions seem unwise. The section requires proof of an intent to cause physical inconvenience or alarm, or at least a reckless creation of a risk thereof. Subsection (1)(a) is a standard clause in disorderly conduct legislation, aimed at actual fights and at other behavior tending to threaten the public generally, for this section requires public alarm, etc., as distinguished from the private alarm which may accompany assault. This is an important point. A person may not be arrested for disorderly conduct as a result of activity which annoys only the police, for example.[1] Police officers are trained and employed to bear the burden of hazardous situations, and it is not infrequent that private citizens have arguments with them. Short of conduct which causes "physical inconvenience or alarm to a member or members of the public" arguments with the police are merely hazards of the trade, which do not warrant criminal penalties.

Subsection (1)(c) is directed at "free" speech which exceeds the bounds of constitutional protection. It is important not to limit free expression, so the formula adopted--"offensively coarse"--is meant to apply only to obscene and scatalogical language, and not to language that is politically or religiously offensive. The defendant must know, or must consciously disregard the risk, that the defendant's coarse language will be offensive. The subsection also prohibits abusive language likely to evoke a violent reaction from the hearer (though no such reaction need be proved) in order that the public peace will be promoted by its prohibition.

Subsection (1)(d) is defined to include creation of a hazardous or physically offensive condition by an act not covered by any authorized license or permit. It would prohibit, for example, the use of a "stink bomb," strewing garbage or other noxious substances in public places, and turning off the lights in a public auditorium. Although there is some degree of overlap in some situations between this provision and 708-828 (criminal use of noxious substances) and 708-829 (criminal littering), subsection (1)(d) is needed to cover those cases of public annoyance where a private property owner does not wish to file a complaint or where title to property is not clear.

Disorderly conduct is a violation unless it is the defendant's intention to cause substantial harm or serious inconvenience, or if the defendant persists in disorderly conduct after a reasonable warning or request to desist.

The previous Hawaii statute covered a wide range of activity. The text of the former statute follows:

Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:

(1) Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior;

(2) Congregates with others on a public street or sidewalk and refuses to move on when ordered by the police;

(3) By his actions causes a crowd to collect, except when lawfully addressing such a crowd;

(4) Shouts or makes a noise either outside or inside a building during the nighttime to the annoyance or disturbance of any three or more persons;

(5) Interferes with any person in any place by jostling against such person or unnecessarily crowding him or by placing a hand in proximity of such person's pocket, pocketbook or handbag;

(6) Stations himself on the public streets or sidewalks or follows pedestrians for the purpose of soliciting alms, or who solicits alms on the public streets unlawfully;

(7) Frequents or loiters about any public place soliciting men for the purpose of committing a crime against nature or other lewdness;

(8) Causes a disturbance in any street car, railroad car, omnibus or other public conveyance, by running through it, climbing through windows or upon the seats, or otherwise annoying passengers or employees therein;

(9) Stands on sidewalks or street corners and makes insulting remarks to or about passing pedestrians or annoys such pedestrians;

(10) Makes or causes to be made repeated telephone calls with intent to annoy and disturb another person or his family;

(11) Wears clothing of the opposite sex in any public place with intent to deceive other persons by failing to identify his or her sex.[2]

The above offense of disorderly conduct was punishable by a fine of not more than $1,000 or imprisonment of not more than 1 year, or both.[3]

It should be noted that all of the conduct covered by the previous law, except that included in paragraphs (6), (7), and (11), is covered by various sections of this chapter, if not by the offense of disorderly conduct itself.

 

SUPPLEMENTAL COMMENTARY ON 711-1101

 

When the legislature adopted the Code in 1972, it changed the wording of the Proposed Draft's subsection (1)(c), which is now subsection (1)(d). The Proposed Draft had recommended that the offense apply where the perpetrator commits an act "which serves no legitimate purpose of the actor." The legislature changed that phrase to any act "which is not performed under any authorized license or permit", since it felt the language of the Proposed Draft was unconstitutionally vague. Conference Committee Report No. 2 (1972).

Act 136, Session Laws 1973, made two amendments. The offense of disorderly conduct was amended to require an intent to cause physical inconvenience or alarm by members of the public. Previously, the offense merely required an intent to cause "public inconvenience, annoyance, or alarm." In addition, subsection (1)(b) (now subsection (1)(c)) was changed by adding the language "which is likely to provoke a violent response" after the word "present."

Act 164, Session Laws 1974, further amended the section by clarifying the offense when it involved the making of unreasonable noise. Conduct involving a gross deviation from the standard of conduct that a law abiding citizen would follow would be a violation of this provision. Senate Standing Committee Report No. 967-74, states:

The addition of a new subsection (2) defines the quality of unreasonable noise, as a general principle of penal liability, used throughout the Hawaii Penal Code, which can be found in 702-206. This definition sets forth an intelligent, flexible and reasonable standard by which enforcement of this provision can be made. The enforcement of this section is not intended to interfere with reasonable necessary commercial activities justifiable in their profession or trade and technologically tenable. For example, it is not an offense that commercial activity causes inconvenience upon a person or persons if, considering the nature and purpose of such activity and the circumstances surrounding the activity including the location, the nature of the day (whether a weekend or a holiday) and the time of the day or night, such activity is reasonable and prudent.

Your Committee has categorically ruled out the argument that people who sleep during the day should not bear a greater burden than those people who sleep at night. We are well aware that because of Hawaii's diverse educational, commercial and recreational activities, some people have to sleep during the day through a degree of noise activity. But we believe that to limit the noise level of the day to that of the night would impose a dangerous evil that will cause irreparable damage to the general health and welfare of this state. However, the Committee finds that it is necessary to establish a reasonable standard that can be applied to all noise situations and not just the quiet of the night.

Enforcement of proposed decible standards is impractical at this time. The state of the art and present technology do not lend themselves to an acceptable justification for their use in everyday enforcement.

Act 182, Session Laws 1978, added subsection (1)(e). Conference Committee Report (Senate No. 31-78, House No. 27) states: "The conduct which your Committee believes should be regulated is the impeding and obstructing while begging in a public place or place open to the public. Your Committee does not find that the specific conduct of begging alone is offensive but begging done in the specified manner which is offensive to the public should be regulated."

Act 79, Session Laws 1979, added subsection (2) in order to clarify the offense of unreasonable noise. Conference Committee Report No. 63 states:

Your Committee finds that under current statutes, in order to convict a person under the disorderly conduct statute for making unreasonable noise, one must prove that such person's actions involved a gross deviation from the standard of conduct of a law-abiding citizen. Prosecution has been difficult using this broad, if not vague, definition. This bill authorizes any police officer to make a determination of what is unreasonable noise and makes the failure of a person to heed his warning a punishable offense.

Act 79 also holds a renter, resident or owner-occupant of a premises guilty of a noise violation if he knowingly or negligently consents to unreasonable noise on his premises.

Act 48, Session Laws 2003, amended this section by updating the crime of disorderly conduct to punish "video voyeurism" in public places. Senate Standing Committee Report No. 637.

 

Case Notes

 

Police officers did not violate plaintiff's clearly established constitutional rights by arresting plaintiff without probable cause. 872 F. Supp. 746 (1994).

Sufficiency of complaint to charge offense under section discussed. 58 H. 279, 567 P.2d 1242 (1977).

Sufficiency of conduct that annoys the police only. 61 H. 291, 602 P.2d 933 (1979).

Harassment not a lesser included offense. 63 H. 548, 632 P.2d 654 (1981).

Noise level not adequate to constitute violation of subsection (1)(b). 64 H. 101, 637 P.2d 770 (1981).

Police may testify as to "physical inconvenience or alarm". 68 H. 238, 709 P.2d 607 (1985).

Lack of substantial evidence to support finding of "gross" deviation under subsection (2). 1 H. App. 10, 612 P.2d 123 (1980).

State failed to show that defendant possessed requisite state of mind for conviction under this section. 1 H. App. 10, 612 P.2d 123 (1980).

Evidence supported finding of disorderly conduct. 5 H. App. 120, 678 P.2d 1107 (1984).

State failed to prove that defendant intended to cause physical inconvenience or alarm or recklessly created a risk thereof to a member or members of public, where disorderly arrest was based on defendant's actions within apartment after police arrived. 77 H. 314 (App.), 884 P.2d 377 (1994).

Subsection (2) interpreted as implicitly requiring that a police officer's decision that noise is unreasonable must be supported by police officer's objectively reasonable finding that the noise is gross deviation from law-abiding citizen's standard of conduct; there was insufficient evidence of defendant's unreasonable noise to support the conviction of disorderly conduct/unreasonable noise either as a petty misdemeanor or as the lesser-included violation. 78 H. 282 (App.), 892 P.2d 475 (1995).

Insufficient evidence to establish that defendant's intent was to cause physical inconvenience or alarm by members of the public where all of defendant's statements and profanity were directed only at police officers and theatre manager. 79 H. 538 (App.), 904 P.2d 552 (1995).

Insufficient evidence to convict defendant under this section where evidence indicated there was perhaps one other patron in the library on the day defendant raised defendant's voice, no physical disruption of library services was caused, and there was no finding that defendant acted with the intent to cause physical inconvenience to, or alarm by, a member or members of the public, or that defendant acted with reckless disregard that defendant's conduct might produce such a result. 107 H. 159 (App.), 111 P.3d 54 (2005).

Mentioned: 9 H. App. 315, 837 P.2d 1313 (1992).

 

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711-1101 Commentary:

 

1. An individual police officer may, however, be the object of harassment under 711-1106.

 

2. H.R.S. 772-2.

 

3. Id. 772-3.

 

 

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