Instruction 7.160, Criminal Model Jury Instructions for Use in the District Court

DISORDERLY CONDUCT

The defendant is charged with disorderly conduct. In order to prove

the defendant guilty of this offense, the Commonwealth must prove three

things beyond a reasonable doubt:

First: The Commonwealth must prove that the defendant involved

himself (herself) in at least one of the following actions: he (she) either

engaged in fighting or threatening, or engaged in violent or tumultuous

behavior or created a hazardous or physically offensive condition by an act

that served no legitimate purpose of the defendant’s;

Second: The Commonwealth must prove beyond a reasonable doubt

that the defendant’s actions were reasonably likely to affect the public; and

Third: The Commonwealth must prove beyond a reasonable doubt

that the defendant either intended to cause public inconvenience,

annoyance or alarm, or recklessly created a risk of public inconvenience,

annoyance or alarm.

See Instruction 3.120 (Intent).

G.L. c. 272, § 53. Commonwealth v. Feigenbaum, 404 Mass. 471, 536 N.E.2d 325 (1989)

(“hazardous or physically offensive condition” branch of the statute cannot be applied to political

protesters who block passage); Commonwealth v. A Juvenile, 368 Mass. 580, 595-599, 334 N.E.2d

617, 627-629 (1975); Alegata v. Commonwealth, 353 Mass. 287, 302-304, 231 N.E.2d 201, 210-211

(1967), adopting Model Penal Code § 250.2(a) & (c) (1962); Commonwealth v. Lopiano, 60 Mass.

App. Ct. 723,725-726, 805 N.E.2d 522, 525 (2004) (finding no violent or tumultuous behavior where

defendant, upon being told by police that he would be summoned to court for assault and battery,

began to flail his arms and shout at police); Commonwealth v. Sinai, 47 Mass. App. Ct. 544, 546, 714

N.E.2d 830, 833 (1999) (affirming first element of crime); Commonwealth v. Bosk, 29 Mass. App. Ct.

904, 906-907, 556 N.E.2d 1055, 1057-1058 (1990) (statute applicable to motorist who stood in traffic

lane, forcing vehicles to pass around him, while debating with police officer and refusing to return to

his car).

SUPPLEMENTAL INSTRUCTIONS

1. Prohibited conduct. Our disorderly conduct law seeks to

control intentional conduct which tends to disturb the public

tranquility, or to alarm or provoke others. It prohibits four

separate and distinct acts: It forbids conduct that involves the

use of force or violence. It also prohibits making threats that

involve the immediate use of force or violence. It forbids

tumultuous and highly agitated behavior, which may not involve

physical violence, but which causes riotous commotion and

excessively unreasonable noise, and so constitutes a public

nuisance. Finally, the law prohibits any conduct that creates a

hazard to public safety or a physically offensive condition by an

act that serves no legitimate purpose of the defendant’s.

Feigenbaum, supra; Alegata, supra; Commonwealth v. Blavackas, 11 Mass. App. Ct.

746, 749, 419 N.E.2d 856, 858 (1981).

2. “Public.” For the defendant to be found guilty, his (her)

actions must have been reasonably likely to affect the public,

that is, persons in a place to which the public or a substantial

group has access.

Alegata, supra. See Commonwealth v. Templeman, 376 Mass. 553, 537, 381 N.E.2d

1300, 1303 (1978).

3. Recklessness. A person acts recklessly when he

consciously ignores, or is indifferent to, the probable outcome of

his actions. The defendant was reckless if he (she) knew, or

must have known, that such actions would create a substantial

and unjustifiable risk of public inconvenience, annoyance or

alarm, but he (she) chose, nevertheless, to run the risk and go

ahead.

Commonwealth v. Welansky, 316 Mass. 383, 397-401, 55 N.E.2d 902, 909-912

(1944); Commonwealth v. Papadinis, 23 Mass. App. Ct. 570, 574-575, 503 N.E.2d

1334, 1336 (1987), aff'd, 402 Mass. 73, 520 N.E.2d 1300 (1988).