Okay, that’s a misleading title. This is not a post by some old guy ranting about how all you young folks are too loud all the time. No, the Badger is just fine with that.

What I hate is the disorderly conduct statute. The law that makes it a crime to engage in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to provoke a disturbance.

Perhaps you read this and wonder, what’s not to like?

Lots of things. This is a criminal statute. There are a lot of serious ramifications. Upon conviction, you can go to jail for 90 days and get a $1000 fine. If you get three of them, the penalties for most any additional criminal charge go through the roof (think, two years for a noise disturbance). If you get convicted, you’re a criminal and you’ll have to explain that on every job and professional license application for the rest of your life. Your name will appear on CCAP and everyone can read all about it. If you are going through a divorce or child custody issue, you’re a criminal, and also irresponsible, right? Couldn’t control your behavior and got all disorderly? And heaven help you if it was a domestic DC. Even a minor conviction for disorderly can haunt you in many ways.

But disorderly is also the least serious crime out there. If you represent yourself, very likely you went to visit the DA and were offered a fine if you pled guilty. That probably sounded good. After all, you did do what they said, and your behavior certainly fit into list above .. boisterous, profane, or if nothing else “otherwise disorderly conduct.”

And there’s why I hate this statute. Anything, and I mean just about anything, can fit within the definition of disorderly conduct. If you yell at someone, or grab something out of their hand, or whoop it up, or drop an F bomb in the wrong place, you could catch this charge. That gives an awful lot of power to the police — power they aren’t supposed to have — to pick on certain people they don’t like. And the statute to me makes it really hard to figure out what you can and can’t do. Maybe you want to stand outside the courthouse and yell about the bad job you think some judge is doing. That’s called protesting, but it’s also disorderly conduct. Knowing you might get arrested, are you still going to go tell the world what you think, or maybe are you going to let it ride?

I think the DC statute is unconstitutional, and I am sad that the Wisconsin Supreme Court disagrees with me. I believe in our right to free speech, press and association, and I don’t think we should be arrested for speaking our mind, even if there is an F-bomb in there. And I also believe the police should not have the subtle power to single out groups or individuals they don’t like and arrest them at random on some “otherwise disorderly conduct.” And the thing is, the Wisconsin Supreme Court agrees with me. They say well, people in prosecutor’s offices are sensitive to the Bill of Rights, so certainly those cases where the disorderly conduct is actually an exercise of free speech won’t be charged.

If only that were true. I see case after case where someone should not be charged with a crime but the DA and the police don’t want to let him go. So they throw a DC on him. And worse than that, I see lots of cases where people, including some with lawyers, plead out to the charges without ever challenging the constitutionality of their particular case. After all, it’s only a DC, right?

And that’s where I think the Wisconsin Supreme Court ought to reconsider the issue. While it is true that the courts are there to weed out the bad cases, the reality is that people can’t usually afford to hire some big gun lawyer to fight a lowly disorderly conduct. So people plead and get a fine. And prosecutors know that. And cops know that. So the fact is, it doesn’t matter what the learned Supreme Court has said about the way the law ought to be used, because that’s not the way it is used in practice. You can’t have a law so broad that anyone is a criminal and leave it up to the enforcers to decide. The law has to set the limits itself. Otherwise, we might all be too afraid to raise or voices in protest. And that’s why I hate disorderly conduct. The law needs to be re-written to make it clear what is criminal disorderly conduct, and what is us acting free.

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