dissenting:
This front fence dispute resulting in a $10 fine is entitled to the lengthy consideration it is receiving because it involves an interpretation of a significant feature of the City of Chicago’s disorderly conduct ordinance. My view is that section 193 — 1(b) is not violated by threats or conduct involving two persons in a setting which does not cause consternation and alarm to others and thus disturb the tranquility of citizens or a community or which does not incite others to a breach of the peace or imminent threat of violence. The issue on which I disagree with the majority is whether an assault by one person on another not witnessed by or within the presence of others violates the disorderly conduct ordinance of the City of Chicago. I view the ordinance as reaching only conduct of a public nature and the resulting effect of the conduct upon others besides the two persons involved in the skirmish. Disorderly conduct is an indecorum that incites public violence. United States v. Woodard (7th Cir. 1967), 376 F.2d 136, 141.
This court in City of Chicago v. Blakemore (1973), 15 Ill. App. 3d 994, 305 N.E.2d 687, reversed a disorderly conduct conviction under Section 193 — 1(b) based upon the defendant’s use of profane language towards a police officer in the presence of an on-looking gathered crowd. The reason for the reversal was the absence of evidence establishing that the bystanders to the incident were affected by defendant’s conduct.
The Blakemore holding relied upon City of Chicago v. Perez (1970), 45 Ill. 2d 258, 259 N.E.2d 4. In that case, disorderly conduct convictions of a group of “sit in” protest demonstrators who refused to leave a public welfare office after closing hours were reversed on the ground that the demonstrators’ conduct did not disturb the normal activities of the personnel employed by the welfare agency. In construing a portion of a former disorderly conduct ordinance1 of the City of Chicago, the supreme court held:
“The ordinance in question clearly prohibits only that conduct which tends to cause public disorder or to disturb the public peace and quiet.” 45 Ill. 2d 258, 260.
The city argues that if both sections 193 — 1(a) and (b) of its disorderly conduct ordinance2 require that persons other than the actors be alarmed, disturbed or incited the sections are redundant. The distinction between sections (a) and (b) is that the former reaches acts which in fact result in disturbance of the public whereas (b) circumscribes conduct which while not actually resulting in public disorder creates a clear and present danger of public disruption. The difference is between conduct which provokes and an act which imminently threatens to provoke the public order.
The city also argues that because section 193 — 1(b) refers both to “breach of the peace” and “imminent threat of violence,” separating the phrases with the disjunctive “or,” two distinct types of illegal conduct must have been intended, only one of which includes the element of public disturbance. The thrust of section (b) is to reach all unreasonable conduct, verbal or physical, threatening the public peace. The use of the words “imminent threat of violence” shows that the term “breach of the peace” includes more than violent acts, just as the preceding language “utterance, gesture or display” following the word “act” shows that the ordinance includes verbal as well as physical conduct. Section (a) does not use the words “imminent threat of violence,” but neither does it refer to “utterances, gestures and displays.” Yet, an argument that section (a) does not cover utterances which in fact disturb the public peace would be unsupportable. I do not interpret “breach of peace” in section (a) or (b) to exclude the threat of violence.
City of Chicago v. Ikin (1973), 12 Ill. App. 3d 489, 299 N.E.2d 513, relied on by the majority, involved only two persons in an apartment with no one else present, and did not pass upon whether the ordinance required that a third person be incited by the defendant’s conduct. It is not helpful in disposing of the issue raised by defendant here.
Chicago’s disorderly conduct ordinance includes the element of public disturbance, and is based on the tendency of the defendant’s conduct to disturb or alarm others. Other criminal prohibitions are designed to deal with disorders involving only two individuals. The Illinois statutes relating to bodily harm declare it a crime for one person to threaten another with imminent use of force, thereby placing him in reasonable apprehension of receiving a battery. (Ill. Rev. Stat. 1975, ch. 38, par. 12-1.) If the defendant ordered his dog to attack Officer Young, he was guilty of assault and should have been charged with that offense. Had the city introduced evidence to prove that the defendant’s conduct had an effect not only on Officer Young but on the public at large, he would have been guilty of disorderly conduct. The defendant was not charged with assault, and the city failed to introduce evidence establishing that anyone else was disturbed by the event involved in this case. There was no showing that any of the occupants of automobiles traveling on 79th Street were disturbed by the dispute between the defendant and Officer Young, paid any attention to it or even noticed it. I do not believe that the city of Chicago’s disorderly conduct ordinance was intended to or should be used as a “catch all” for conduct which society may regard as offensive or as an expedient, and convenient receptacle for dealing with minor offenses. I would reverse the conviction.
Chapter 193 — 1 of the Municipal Code of Chicago (since superseded): “All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of peace, or diversion tending to a breach of the peace shall be deemed guilty of disorderly conduct ° 0 °
The ordinance provides: “193 — 1. A person commits disorderly conduct when he knowingly:
(a) Does any act in such unreasonable manner as to provoke, make or aid in making a breach of peace; or
(b) Does or makes any unreasonable or offensive act, utterance, gesture or display which, under the circumstances, creates a clear and present danger of a breach of peace or imminent threat of violence; or ° ° ° .”