Revised to December 1, 2007
The offenses of breach of peace and disorderly conduct have the same intent element: "with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof." In State v. Indrisano, 228 Conn. 795, 810-11 (1994), the Supreme Court applied the following interpretive gloss to the mens rea language of the disorderly conduct statute: "The predominant intent must be to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm." In State v. Wolff, 237 Conn. 633, 670 (1996), the Court applied it to the breach of peace statute. See also State v. Scott, 83 Conn. App. 724, 730 (2004) ("the defendant's right to exercise his freedom of speech is not as significant as compared to nearly causing a car to collide with him and frightening the occupant").
This intent to cause inconvenience, annoyance or alarm as defined must predominate over any intent to exercise a constitutional right. "Predominance can be determined either (1) from the fact that no bona fide intent to exercise a constitutional right appears to have existed or (2) from the fact that the interest to be advanced by the particular exercise of a constitutional right is insignificant in comparison with the inconvenience, annoyance or alarm caused by the exercise." (Internal quotation marks omitted.) State v. Indrisano, supra, 228 Conn. 807.
The conduct elements of breach of peace and disorderly conduct have been challenged on numerous occasions as being too broad and criminalizing some behavior that would be protected speech under the First Amendment. The appellate courts have, in those cases, applied glosses to the statutory language to limit its reach.
"Engages in fighting or in violent, tumultuous or threatening behavior"
In State v. Indrisano, supra, 228 Conn. 812, the Court interpreted the phrase "violent, tumultuous or threatening behavior" to require physical conduct. See also State v. LoSacco, 12 Conn. App. 481, 491, cert. denied, 205 Conn. 814 (1983) (statute limited to conduct that actually involves physical violence or portends imminent physical violence). "Indrisano avoided first amendment difficulties that would criminalize mere verbal speech by clarifying that a conviction under § 53a-182 must be based on a defendant's conduct rather than on a defendant's statements." State v. McKiernan, 78 Conn. App. 182, 188, cert. denied, 266 Conn. 902 (2003).
"This conclusion is consistent with the 'fighting words' limitation that must be applied when the conduct sought to be proscribed consists purely of speech. . . . The Chaplinksy doctrine [Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)] permits the state to prohibit speech that has a direct tendency to inflict injury or to cause acts of violence or a breach of the peace by the person to whom it is directed." State v. Indrisano, supra, 228 Conn. 812.
This same gloss was applied to the breach of peace statute, § 53a-181 (a) (1), in State v. Szymkiewicz, 237 Conn. 613, 620 (1996). Section 53a-181 (a) (1) "does not require proof of actual physical contact on the part of the defendant with a victim as in fact occurred in Indrisano, but rather that, when applied to speech, the parameters of the violent, threatening or tumultuous behavior prohibited by § 53a-181 (a) (1) are consistent with 'fighting words' -- i.e., speech that has a direct tendency to cause imminent acts of violence or an immediate breach of the peace. Such speech must be of such a nature that it is likely to provoke the average person to retaliation." (Internal quotation marks omitted.) Id., 620.
A narrower class of "fighting words" applies when the person to whom the words are addressed is a police officer, because a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen." (Internal quotation marks omitted.) Id., 620 n.12.
See also State v. Hawley, 102 Conn. App. 551, 555 (2007) (spitting in someone's face is "violent or tumultuous behavior with the intent to cause annoyance, alarm or inconvenience)"; State v. Porter, 76 Conn. App. 477, 488, cert. denied, 264 Conn. 910 (2003) ("violent," for the purposes of the breach of the peace statute, is defined as "characterized by extreme force and furious or vehement to the point of being improper, unjust, or illegal"); State v. Samuel, 57 Conn. App. 64, 70, cert. denied, 253 Conn. 990 (2000) (throwing a brick through a car window is violent behavior).
"Threatens to commit any crime against another person or such other person's property."
In State v. DeLoreto, 265 Conn. 145 (2003), the Court distinguished "fighting words" from "true threats." "True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur." (Internal quotation marks omitted.) Id., 154.
As applied to police officers, "a narrower class of statements constitutes fighting words when spoken to police officers, rather than to ordinary citizens, because of the communicative value of such statements." Id., 163. This is not true of true threats spoken to police officers. Id. "[W]hen a police officer is the only person upon whose sensibilities the inflammatory language could have played, a conviction can be supported only for extremely offensive behavior supporting an inference that the actor wished to provoke the policeman to violence." Id., 169.
See also State v. Crudup, 81 Conn. App. 248, 260, cert. denied, 268 Conn. 913 (2004) (trial court properly instructed the jury to apply the objective "reasonable person" standard to the threat to determine whether the defendant's speech rose to the level of an actual threat to commit a crime).
"Abusive or obscene language or makes an obscene gesture."
"'Fighting words' may consist of language that is neither obscene nor abusive. The language of the statute leads us to conclude that the distinction that may be drawn between the 'fighting words' as contemplated under subdivision (1) and those under subdivision (5) can be found 'under the totality of the circumstances,' as expressed in Szymkiewicz, which gives rise to the use of the words. Subdivision (1) proscribes fighting words uttered in a violent, tumultuous or threatening manner . . . whereas subdivision (5) proscribes fighting words that tend to induce immediate violence by the person or persons to whom the words are uttered because of their raw effect. The core meaning of subdivision (5) remains intact; fighting words may arise in different contexts not confined to abusive or obscene language." State v. Caracoglia, 78 Conn. App. 98, 109-110, cert. denied, 266 Conn. 903 (2003).
"By offensive or disorderly conduct, annoys or interferes with another person" in § 53a-182 (a) (2) means "by conduct that is grossly offensive, under contemporary community standards, to a person who actually overhears or sees it, disturbs or impedes the lawful activity of that person." State v. Indrisano, supra, 228 Conn. 818.