California Law: Disturbing The Peace

It happens all the time on crime television shows: Someone gets handcuffed and taken away for “disturbing the peace,” often on apparently trumped-up grounds. But, in fact, in California, as in most states, the crime of disturbing the peace is a real one, and it can be enough to give someone a criminal record.

The crime of disturbing the peace is also known as breaching the peace. It falls under the larger category of disorderly conduct crimes, and almost every state has these on the books. They include laws against disturbing the peace, being drunk in public and loitering.

Since “the peace” is such a general phrase, open to individual interpretations, it’s easy to think of “disturbing the peace” as a catch-all offense that police officers can use whenever they don’t appreciate someone’s behavior. And that’s not entirely wrong. Police do use these statutes to maintain order when someone is behaving in a disruptive manner but presents no serious public danger.

However, to charge someone with the crime of disturbing the peace, simple allegations of disruptive conduct are not enough. State statutes set out the actual elements that must be proved.

California’s disturbing the peace laws are found in Penal Code (PC) section 415. The statute establishes the different factual situations in which someone can be charged with the misdemeanor of disturbing the peace. Under PC 415, the state can prosecute:

1. Any person who unlawfully fights in a public place or challenges another person in a public place to fight.
2. Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.
3. Any person who uses offensive words in a public place that are inherently likely to provoke an immediate violent reaction.

While the statute uses legal terminology to describe conduct that falls within the boundaries of this offense, real-time conduct is likely to be familiar. It can be disturbing the peace of an individual to:

• give someone a shove in a bar;
• challenge a driver to a fight in an argument over a parking space;
• turn up the radio full blast to annoy a neighbor after an argument;
• practice the tuba in the middle of the night to disturb your neighbors; or
• call someone a blatantly offensive name on the Muni.

The statute uses qualifying language for each of the three types of actions described in PC 415.

The first type of behavior California PC 415 criminalizes is fighting. But not every type of fighting constitutes disturbing the peace: The statute references “unlawfully” fighting in a public place or challenging another individual in a public place to fight, so the fight or the challenge must be unlawful and in a public place.

If this brings to mind bar fights, it’s not wrong. Many PC 415 arrests are made in bars and clubs in California. But what about “unlawful”? That is used to indicate that the person to be charged with fighting cannot be exercising his legal right to defend himself. Remember that self-defense is a legal defense in California to a criminal charge.

A person can acquit herself of a charge of disturbing the peace if her actions and the circumstances fit the legal description of self-defense. In California, that means that the individual must have been acting to defend herself or someone else. And she must have:

• reasonably believed that someone was about to be physically harmed;
• she reasonably believed that force was the only manner in which she could protect against that harm, and
• the force she used was no more than was reasonably necessary to defend against the danger.

If all three of these conditions are met, she cannot be prosecuted under PC 415 for disturbing the peace for fighting.

A person can also be charged with disturbing the peace under PC 415 if he makes a lot of noise. The person must “willfully and maliciously” make “loud and unreasonable” noise that disturbs another person.

The requirement that the noise be made “willfully and maliciously” requires the prosecutor to show that the person made the noise deliberately, intending to do something wrong or to annoy or injure someone else. Add to this the requirement that the noise is made to “disturb another person.” Under California law, that means the noise must have either presented a danger of immediate violence or have been used specifically to disrupt lawful activities as opposed to simple communication.

These requirements put a real brake on arrests for disturbing the peace for noise. Most loud parties or crowd cheering are done for fun, not to annoy someone else. Most crowds gather and cheer or boo to communicate, not to annoy others, and they do not present an immediate danger of violence.

The third behavior found under the umbrella of California’s disturbing the peace law is using offensive words. Just calling someone a name is not enough here. The statute requires that an individual use offensive words “inherently likely to provoke an immediate violent reaction” and must be spoken in a public place. The law means that the individual must:

• say something that in and of itself is reasonably likely to provoke a violent response, and
• made the statement in the face of a clear and present danger that the other person would immediately erupt into taking a violent action.

Note that the statute doesn’t use the words “intentional” or “malicious” to describe this. The speaker doesn’t have to intend to provoke a violent response. What the statute does is to provide a defense: If she reasonably believed that her statement was not likely to provoke an immediate violent reaction, she isn’t culpable under the statute.

The First Amendment of the U.S. Constitution protects free speech. However, courts in California have recognized an exception to free speech rights for “fighting words,” when the communication is not essential to the expression of ideas and is outweighed by society’s interest in order.

This statute describes offensive-word disturbing the peace in a way that falls within the fighting-words exception. But there is still ambiguity as to exactly what type of words classify as offensive for PC 415. Clearly, vulgarities or profanities don’t qualify. The words must be spoken in a provocative manner, with the intention of provoking a violent response.

Maximum penalties for disturbing the peace charges are set out in Penal Code 415 as “imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both of such, imprisonment and fine.” This means that the crime can be charged as a misdemeanor, but in fact it is a wobbler. It can also be charged as an infraction, the least serious type of offense in California. It carries a maximum fine of $250 and no jail time.

The prosecutor decides which charges to file based on the circumstances of the crime and the individual’s prior criminal history. Note that if you are disturbing the peace on school grounds and you are not a student at or employee of the school, the crime must be charged as a misdemeanor.