State v. Sweeney

Cotter, J.

(dissenting). The majority opinion establishes the rule that there is probable cause to believe that General Statutes § 53-175 is criminally violated in a set of circumstances in which an individual, in the precise words of the court’s finding, “hollered in a very loud voice that the detectives were picking on him, that he didn’t do anything, that they had no right to hold him” and that “people appeared on the scene . . . and . . . returned from whence they came when the detectives identified themselves” on the premise that such deportment constitutes disorderly conduct. The defendant did not engage in any profanity, obscenities or physical abuse, common to cases of this nature involving disorderly conduct. See cases such as Thompson v. Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 654; Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 1031. Oral remonstrance, without the use of abusive epithets or indignities directed toward an officer, although bad manners, is not considered to be disorderly conduct. See Landry v. Daley, 288 F. Sup. 183, 187 (N.D. Ill.); Oratowski v. Civil Service Commission, 3 Ill. App. 2d 551, 561, 123 N.E.2d 146. It is to be noted that a statute defining disorderly conduct is to be construed strictly; Commonwealth v. Lombard, 321 Mass. 294, 296, 73 N.E.2d 465; in favor of the accused; Lewis v. Commonwealth, 184 Va. 69, 73, *49234 S.E.2d 389; and against the prosecution. Hackney v. Commonwealth, 186 Va. 888, 892, 45 S.E.2d 241; see 27 C.J.S., Disorderly Conduct, § 1 (1). One may engage in his right to speak freely for the purpose of protesting, and, “[w]hen an individual seeks to pursue his constitutionally protected rights, criminality is not to be assessed against him on a super-sensitive standard.” State v. Givens, 28 Wis. 2d 109, 122, 135 N.W.2d 780; 12 Am. Jur. 2d, Breach of Peace and Disorderly Conduct, § 38; 6 Am. Jur. 2d, Assault and Battery, § 79. Disorderly conduct is based on the principle that in an organized society a person should so conduct himself with decency and propriety as not unreasonably to offend the sensibilities of others in the community, but it does not contemplate the application of a supersensitive or overly puritanical standard in measuring the conduct of an individual. State v. Givens, supra. I dissent.