Disorderly conduct in the second degree
Source:
Section 166.025 — Disorderly conduct in the second degree, https://www.oregonlegislature.gov/bills_laws/ors/ors166.html.
Notes of Decisions
The term “unreasonable noise” is not so broad or vague that prosecution under this section violates due process of law or First Amendment rights. State v. Marker, 21 Or App 671, 536 P2d 1273 (1975)
Whether statement is “unreasonable noise” depends on whether statement is intended to be communicative or is merely guise for disturbing those present. State v. Marker, 21 Or App 671, 536 P2d 1273 (1975); State v. Atwood, 195 Or App 490, 98 P3d 751 (2004)
Phrase “hazardous or physically offensive” in this section is not unconstitutionally vague. State v. Clark, 39 Or App 63, 591 P2d 752 (1979), Sup Ct review denied, overruled on other grounds, 155 Or App 279, 963 P2d 739 (1998)
Disorderly conduct ordinance based on this section was not unconstitutionally vague. City of Cottage Grove v. Farmer, 42 Or App 21, 599 P2d 472 (1979)
Defendants who were disseminating literature to motorists on a public portion of a private road were subject to prosecution under this section. State v. Horn, 57 Or App 124, 643 P2d 1388 (1982)
“Fighting” and “violent, tumultuous or threatening behavior” describe physical acts of aggression, not speech, and in prohibiting such physical acts paragraph (1)(a) does not run afoul of Article I, section 8 of the Oregon Constitution. State v. Cantwell, 66 Or App 848, 676 P2d 353 (1984), Sup Ct review denied
Paragraph (1)(a) makes unlawful only use of physical force or physical conduct which is immediately likely to produce use of such force and which is intended to create or recklessly creates risk of public inconvenience, annoyance or alarm and, so construed, is not void for vagueness on its face. State v. Cantwell, 66 Or App 848, 676 P2d 353 (1984), Sup Ct review denied
Under this section, forbidden intent means intent to cause certain public discomfiture, whether or not defendant is successful. State v. Sargent, 74 Or App 50, 701 P2d 484 (1985)
Justifiable fighting could not, without more, provide basis for disorderly conduct conviction. State v. DeLaura, 75 Or App 655, 706 P2d 1011 (1985)
Defendants, who blocked forest road to protest logging activities and were convicted of disorderly conduct, did not show emergency necessary to support choice-of-evils defense to charge of violation of this section. State v. Hund, 76 Or App 89, 708 P2d 621 (1985), Sup Ct review denied
Offense does not require creation of actual public inconvenience, annoyance or alarm or that particular number of persons be affected. State v. Willy, 155 Or App 279, 963 P2d 739 (1998)
“Lawful order” means police officer order that is authorized by and is not contrary to substantive law. State v. Ausmus, 336 Or 493, 85 P3d 864 (2004)
Statute is unconstitutionally overbroad in punishing persons who continue to congregate after abandoning damaging or harmful activity that made order to disperse lawful. State v. Ausmus, 336 Or 493, 85 P3d 864 (2004)
Inclusion of intent as requisite mental state prevents local ordinances from imposing more restrictive prohibition against obstructing vehicular or pedestrian traffic on public way. State v. Robison, 202 Or App 237, 120 P3d 1285 (2005)
Whether speech may properly be restrained as “unreasonable noise” depends on whether restraint is applied to inhibit noncommunicative elements of activity such as time, manner or place or to stifle expression. State v. Rich, 218 Or App 642, 180 P3d 744 (2008)
Evidence that defendant’s participation in fight that occurred solely in confines of trailer was insufficient to establish that defendant recklessly created risk of “public inconvenience, annoyance or alarm” sufficient to justify charge of disorderly conduct under this section. State v. Love, 271 Or App 545, 351 P3d 780 (2015)
“Public” as used in this section refers to intent to inconvenience, annoy or alarm community in general, whether or not conduct occurred in public place. State v. Love, 271 Or App 545, 351 P3d 780 (2015)
Whether odor of marijuana smoke is “physically offensive condition” under this section depends on totality of circumstances, including nature, duration, intensity, frequency and location of odor, which must be more than minimally unpleasant but need not be dangerous or harmful. State v. Lang, 273 Or App 113, 359 P3d 349 (2015)
Where defendant masturbated on public transit vehicle next to other passengers, exposed defendant’s genitals and yelled at passengers, defendant did not commit disorderly conduct in second degree, which requires reasonable person exposed to defendant’s conduct to experience unpleasant sensory effects. State v. Hawkins, 280 Or App 26, 380 P3d 979 (2016)
To establish crime of second-degree disorderly conduct, statute requires state to plead and prove that defendant obstructed traffic with either specific intent to cause or reckless disregard for creating risk of public inconvenience, annoyance or alarm; statute does not require proof of additional mental state beyond one of alternative mental states specified in subsection (1) of this section. State v. West, 298 Or App 125, 445 P3d 1284 (2019), Sup Ct review denied
Attorney General Opinions
Drunkenness as element of crime of disorderly conduct, breach of peace or vagrancy, (1975) Vol 37, p 647
Law Review Citations
51 OLR 613-624 (1972)
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