§711-1101  Disorderly conduct.  (1)  A
person commits the offense of disorderly conduct if, with intent to cause
physical inconvenience or alarm by a member or members of the public, or
recklessly creating a risk thereof, the person:



(a) Engages in fighting or threatening, or in violent
or tumultuous behavior; or



(b) Makes unreasonable noise; or



(c) Subjects another person to offensively coarse
behavior or abusive language which is likely to provoke a violent response; or



(d) Creates a hazardous or physically offensive
condition by any act which is not performed under any authorized license or
permit; or



(e) Impedes or obstructs, for the purpose of begging
or soliciting alms, any person in any public place or in any place open to the
public.



(2)  Noise is unreasonable, within the meaning
of subsection (1)(b), if considering the nature and purpose of the person's
conduct and the circumstances known to the person, including the nature of the
location and the time of the day or night, the person's conduct involves a
gross deviation from the standard of conduct that a law-abiding citizen would
follow in the same situation; or the failure to heed the admonition of a police
officer that the noise is unreasonable and should be stopped or reduced.



The renter, resident, or owner-occupant of the
premises who knowingly or negligently consents to unreasonable noise on the
premises shall be guilty of a noise violation.



(3)  Disorderly conduct is a petty misdemeanor
if it is the defendant's intention to cause substantial harm or serious
inconvenience, or if the defendant persists in disorderly conduct after
reasonable warning or request to desist.  Otherwise disorderly conduct is a
violation. [L 1972, c 9, pt of §1; am L 1973, c 136, §9(a); am L 1974, c 164,
§1; am L 1978, c 182, §1; am L 1979, c 79, §1; gen ch 1993; am L 2003, c 48,
§2]



 



Note



 



  Urinating or defecating in public (repealed December 31, 2012). 
L 2004, c 84, §2; L 2009, c 77.



 



COMMENTARY ON §711-1101



 



  The offense of "disorderly conduct" has been very
broadly defined in the past (see below) to include numerous petty annoyances to
the public.  Section 711-1101 gives a far narrower definition to the offense,
both because some of the matters previously treated under that heading are now
treated elsewhere and because some of the previous provisions seem unwise.  The
section requires proof of an intent to cause physical inconvenience or alarm,
or at least a reckless creation of a risk thereof.  Subsection (1)(a) is a
standard clause in disorderly conduct legislation, aimed at actual fights and
at other behavior tending to threaten the public generally, for this section
requires public alarm, etc., as distinguished from the private alarm which may
accompany assault.  This is an important point.  A person may not be arrested
for disorderly conduct as a result of activity which annoys only the police,
for example.[1]  Police officers are trained and employed to bear the burden of
hazardous situations, and it is not infrequent that private citizens have
arguments with them.  Short of conduct which causes "physical
inconvenience or alarm to a member or members of the public" arguments
with the police are merely hazards of the trade, which do not warrant criminal
penalties.



  Subsection (1)(c) is directed at "free" speech
which exceeds the bounds of constitutional protection.  It is important not to
limit free expression, so the formula adopted--"offensively
coarse"--is meant to apply only to obscene and scatalogical language, and
not to language that is politically or religiously offensive.  The defendant
must know, or must consciously disregard the risk, that the defendant's coarse
language will be offensive.  The subsection also prohibits abusive language
likely to evoke a violent reaction from the hearer (though no such reaction
need be proved) in order that the public peace will be promoted by its
prohibition.



  Subsection (1)(d) is defined to include creation of a
hazardous or physically offensive condition by an act not covered by any
authorized license or permit.  It would prohibit, for example, the use of a
"stink bomb," strewing garbage or other noxious substances in public
places, and turning off the lights in a public auditorium.  Although there is
some degree of overlap in some situations between this provision and §708-828
(criminal use of noxious substances) and §708-829 (criminal littering),
subsection (1)(d) is needed to cover those cases of public annoyance where a
private property owner does not wish to file a complaint or where title to
property is not clear.



  Disorderly conduct is a violation unless it is the
defendant's intention to cause substantial harm or serious inconvenience, or if
the defendant persists in disorderly conduct after a reasonable warning or
request to desist.



  The previous Hawaii statute covered a wide range of
activity.  The text of the former statute follows:



Any person
who with intent to provoke a breach of the peace, or whereby a breach of the
peace may be occasioned, commits any of the following acts shall be deemed to
have committed the offense of disorderly conduct:



(1)  Uses
offensive, disorderly, threatening, abusive or insulting language, conduct or
behavior;



(2)  Congregates
with others on a public street or sidewalk and refuses to move on when ordered
by the police;



(3)  By
his actions causes a crowd to collect, except when lawfully addressing such a
crowd;



(4)  Shouts
or makes a noise either outside or inside a building during the nighttime to
the annoyance or disturbance of any three or more persons;



(5)  Interferes
with any person in any place by jostling against such person or unnecessarily
crowding him or by placing a hand in proximity of such person's pocket,
pocketbook or handbag;



(6)  Stations
himself on the public streets or sidewalks or follows pedestrians for the
purpose of soliciting alms, or who solicits alms on the public streets
unlawfully;



(7)  Frequents
or loiters about any public place soliciting men for the purpose of committing
a crime against nature or other lewdness;



(8)  Causes
a disturbance in any street car, railroad car, omnibus or other public
conveyance, by running through it, climbing through windows or upon the seats,
or otherwise annoying passengers or employees therein;



(9)  Stands
on sidewalks or street corners and makes insulting remarks to or about passing
pedestrians or annoys such pedestrians;



(10) Makes
or causes to be made repeated telephone calls with intent to annoy and disturb
another person or his family;



(11) Wears
clothing of the opposite sex in any public place with intent to deceive other
persons by failing to identify his or her sex.[2]



The above offense of disorderly conduct was punishable by a
fine of not more than $1,000 or imprisonment of not more than 1 year, or
both.[3]



  It should be noted that all of the conduct covered by the
previous law, except that included in paragraphs (6), (7), and (11), is covered
by various sections of this chapter, if not by the offense of disorderly
conduct itself.



 



SUPPLEMENTAL COMMENTARY ON §711-1101



 



  When the Legislature adopted the Code in 1972, it changed the
wording of the Proposed Draft's subsection (1)(c), which is now subsection
(1)(d).  The Proposed Draft had recommended that the offense apply where the
perpetrator commits an act "which serves no legitimate purpose of the
actor."  The Legislature changed that phrase to any act "which is not
performed under any authorized license or permit", since it felt the
language of the Proposed Draft was unconstitutionally vague.  Conference
Committee Report No. 2 (1972).



  Act 136, Session Laws 1973, made two amendments.  The offense
of disorderly conduct was amended to require an intent to cause physical
inconvenience or alarm by members of the public.  Previously, the offense
merely required an intent to cause "public inconvenience, annoyance, or
alarm."  In addition, subsection (1)(b) (now subsection (1)(c)) was
changed by adding the language "which is likely to provoke a violent
response" after the word "present."



  Act 164, Session Laws 1974, further amended the section by
clarifying the offense when it involved the making of unreasonable noise. 
Conduct involving a gross deviation from the standard of conduct that a law
abiding citizen would follow would be a violation of this provision.  Senate
Standing Committee Report No. 967-74, states:



  "The addition of a new subsection (2) defines the
quality of unreasonable noise, as a general principle of penal liability, used
throughout the Hawaii Penal Code, which can be found in §702-206.  This
definition sets forth an intelligent, flexible and reasonable standard by which
enforcement of this provision can be made.  The enforcement of this section is
not intended to interfere with reasonable necessary commercial activities
justifiable in their profession or trade and technologically tenable.  For
example, it is not an offense that commercial activity causes inconvenience
upon a person or persons if, considering the nature and purpose of such
activity and the circumstances surrounding the activity including the location,
the nature of the day (whether a weekend or a holiday) and the time of the day
or night, such activity is reasonable and prudent.



  Your Committee has categorically ruled out the argument that
people who sleep during the day should not bear a greater burden than those people
who sleep at night.  We are well aware that because of Hawaii's diverse
educational, commercial and recreational activities, some people have to sleep
during the day through a degree of noise activity.  But we believe that to
limit the noise level of the day to that of the night would impose a dangerous
evil that will cause irreparable damage to the general health and welfare of
this state.  However, the Committee finds that it is necessary to establish a
reasonable standard that can be applied to all noise situations and not just
the quiet of the night.



  Enforcement of proposed decible standards is impractical at
this time.  The state of the art and present technology do not lend themselves
to an acceptable justification for their use in everyday enforcement."



  Act 182, Session Laws 1978, added subsection (1)(e). 
Conference Committee Report (Senate No. 31-78, House No. 27) states:  "The
conduct which your Committee believes should be regulated is the impeding and
obstructing while begging in a public place or place open to the public.  Your
Committee does not find that the specific conduct of begging alone is offensive
but begging done in the specified manner which is offensive to the public
should be regulated."



  Act 79, Session Laws 1979, added subsection (2) in order to
clarify the offense of unreasonable noise.  Conference Committee Report No. 63
states:



  "Your Committee finds that under current statutes, in
order to convict a person under the disorderly conduct statute for making
unreasonable noise, one must prove that such person's actions involved a gross
deviation from the standard of conduct of a law- abiding citizen.  Prosecution
has been difficult using this broad, if not vague, definition.  This bill
authorizes any police officer to make a determination of what is unreasonable
noise and makes the failure of a person to heed his warning a punishable
offense."



  Act 79 also holds a renter, resident or owner-occupant of a
premises guilty of a noise violation if he knowingly or negligently consents to
unreasonable noise on his premises.



  Act 48, Session Laws 2003, amended this section by updating
the crime of disorderly conduct to punish "video voyeurism" in public
places.  Senate Standing Committee Report No. 637.



 



Case Notes



 



  Police officers did not violate plaintiff's clearly
established constitutional rights by arresting plaintiff without probable
cause.  872 F. Supp. 746.



  Sufficiency of complaint to charge offense under section
discussed.  58 H. 279, 567 P.2d 1242.



  Sufficiency of conduct that annoys the police only.  61 H.
291, 602 P.2d 933.



  Harassment not a lesser included offense.  63 H. 548, 632
P.2d 654.



  Noise level not adequate to constitute violation of
subsection (1)(b).  64 H. 101, 637 P.2d 770.



  Police may testify as to "physical inconvenience or
alarm".  68 H. 238, 709 P.2d 607.



  Lack of substantial evidence to support finding of
"gross" deviation under subsection (2).  1 H. App. 10, 612 P.2d 123.



  State failed to show that defendant possessed requisite state
of mind for conviction under this section.  1 H. App. 10, 612 P.2d 123.



  Evidence supported finding of disorderly conduct.  5 H. App.
120, 678 P.2d 1107.



  State failed to prove that defendant intended to cause
physical inconvenience or alarm or recklessly created a risk thereof to a
member or members of public, where disorderly arrest was based on defendant's
actions within apartment after police arrived.  77 H. 314 (App.), 884 P.2d 377.



  Subsection (2) interpreted as implicitly requiring that a
police officer's decision that noise is unreasonable must be supported by
police officer's objectively reasonable finding that the noise is gross
deviation from law-abiding citizen's standard of conduct; there was
insufficient evidence of defendant's unreasonable noise to support the
conviction of disorderly conduct/unreasonable noise either as a petty
misdemeanor or as the lesser-included violation.  78 H. 282 (App.), 892 P.2d
475.



  Insufficient evidence to establish that defendant's intent
was to cause physical inconvenience or alarm by members of the public where all
of defendant's statements and profanity were directed only at police officers
and theatre manager.  79 H. 538 (App.), 904 P.2d 552.



  Insufficient evidence to convict defendant under this section
where evidence indicated there was perhaps one other patron in the library on
the day defendant raised defendant's voice, no physical disruption of library
services was caused, and there was no finding that defendant acted with the
intent to cause physical inconvenience to, or alarm by, a member or members of
the public, or that defendant acted with reckless disregard that defendant's
conduct might produce such a result.  107 H. 159 (App.), 111 P.3d 54.



  Mentioned:  9 H. App. 315, 837 P.2d 1313.



 



__________



§711-1101 Commentary:



 



1.  An individual police officer may, however, be the object of
harassment under §711-1106.



 



2.  H.R.S. §772-2.



 



3.  Id. §772-3.