Posted by Orin Kerr:
Woman Ticketed for Screaming Expletives at Toilet While At Home:
http://volokh.com/archives/archive_2007_10_14-2007_10_20.shtml#1192592427
Here's [1]an interesting legal story:
A Scranton, Pennsylvania, woman who allegedly shouted profanities
at her overflowing toilet within earshot of a neighbor was cited
for disorderly conduct, authorities said.
Dawn Herb could face up to 90 days in jail and a fine of up to
$300.
"It doesn't make any sense. I was in my house. It's not like I
was outside or drunk," Herb told The Times-Tribune of Scranton.
"The toilet was overflowing and leaking down into the kitchen and I
was yelling [for my daughter] to get the mop."
Herb doesn't recall exactly what she said, but she admitted
letting more than a few choice words fly near an open bathroom
window Thursday night.
Her next-door neighbor, a city police officer who was off-duty at
the time, asked her to keep it down, police said. When she
continued, the officer called police.
So you're wondering, is that really a crime? The answer is 'no, it's
not.'
Here's the text of 18 Pa.C.S. § 5503(a), Pennsylvania's prohibition
on disorderly conduct:
A person is guilty of disorderly conduct if, with intent to cause
public inconvenience, annoyance or alarm, or recklessly creating a
risk thereof, he:
(1) engages in fighting or threatening, or in violent or tumultuous
behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any
act which serves no legitimate purpose of the actor.
Let's assume that Herb's yelling amounted to "unreasonable noise" or
"obscene language." The statute only prohibits such yelling "with
intent to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof." Did it do that? It seems pretty
clear the answer is "no." The word "public" is defined in § 5503(c):
As used in this section the word "public" means affecting or likely
to affect persons in a place to which the public or a substantial
group has access; among the places included are highways, transport
facilities, schools, prisons, apartment houses, places of business
or amusement, any neighborhood, or any premises which are open to
the public.
Pennsylvania caselaw has emphasized that the annoyance or
incovenience must be that of the general public, not just one or two
specific people who happen to be nearby. The Pennsylvania Supreme
Court stressed this in an early case involving a man who operated a
"go kart" track, Commonwealth v. Greene, 410 Pa. 111 (1963). Use of
the track to race go-karts made a lot of noise that apparently annoyed
the neighbors, and the operator of the track was then charged with and
convicted of disorderly conduct. The Pennsylvania Supreme Court
reversed in an opinion by the [2]always-colorful Justice Musmanno:
The cardinal feature of the crime of disorderly conduct is public
unruliness which can or does lead to tumult and disorder. Engaging
in clamor and outcry in the public streets in a manner which
arouses attention and causes people to draw together, whereby the
highway may be obstructed, is the classic example of disorderly
conduct. . .
While noise may break tranquility, upset rest, destroy sleep and
fracture serenity, it does not of itself break the public peace, an
indispensable feature of the crime of disorderly conduct, when the
traveling public is not disturbed. If the production of noise alone
made out the crime of disorderly conduct, then the coffers of the
Commonwealth and municipalities entitled to monetary returns could
be filled with fines assessed and collected from cheering football
and baseball fans, riveting hammer operators, gong-clanging street
car motormen, airplane pilots, siren-sounding ambulance drivers,
missile testers, amusement park devotees, bathroom soloists, fife
and drum players, trombone zealots, fireworks enthusiasts, etc. . .
.
The crime of disorderly conduct is not intended as a catchall for
every act which annoys or disturbs people; it is not to be used as
a dragnet for all the irritations which breed in the ferment of a
community.
Given the plain language of the statute and the Greene decision, I
think it's abundantly clear that Herb isn't guilty of disorderly
conduct. Herb and her daughter were at home, and it sounds like the
neighbor was the only one else around. Annoying your neighbor by being
really noisy may be an inconsiderate. But it's not the crime of
disorderly conduct, even if your annoyed neighbor happens to be a
police officer.
Thanks to Victor Steinbok for the link.
References
1. http://www.cnn.com/2007/US/10/16/toilet.obscenities.ap/index.html
2. http://volokh.com/posts/1187199197.shtml
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