Crimes against the Public

§ 36 CFR - 2.34 Disorderly conduct.
Answered by Police Officer 

The state has not only a right to “maintain a decent society” but an obligation to do so. In the public nuisance context, the community’s right to security and protection must be reconciled with the individual’s right to expressive and associative freedom. Reconciliation begins with the acknowledgment that the interests of the community are not invariably less important than the freedom of individuals.
You must understand that we MUST first use 36 CFR first on all primary lands. We only assimilate a state charge when there is NO CFR charge to use. Under 36 CFR 4.2 (Chapter 4 is the CFR version of a traffic code) it says in so many words that violating a state law is prohibited on all NPS lands. For example driving without a license/suspended, equipment violations, and other non specific CFR traffic violations. Chapter 2 of 36 CFR is the "criminal code" of the CFR. Here again we MUST use 36 CFR Chapter Two on all primary lands first. To assimilate a criminal charge from a State's code we use 18 USC 13. In specific Regions there are other violations we must use. The NCR uses 36 CFR 7.96 whereas the SFFO has 36 CFR 7.97.

SInce Chapter 16 USC allows for us to enforce all laws cognizable under the United States on NPS lands, we can enforce a wide range of laws from other USC codes. We just do not do this on a regular basis. 

To find all of this on your own use this link to all of the CFR titles.

Since this is CFR it 

§ 36 CFR - 2.34 Disorderly conduct.

(a) A person commits disorderly conduct when, with intent to cause public alarm, nuisance, jeopardy or violence, or knowingly or recklessly creating a risk thereof, such person commits any of the following prohibited acts:

(1) Engages in fighting or threatening, or in violent behavior.

(2) Uses language, an utterance, or gesture, or engages in a display or act that is obscene, physically threatening or menacing, or done in a manner that is likely to inflict injury or incite an immediate breach of the peace.

(3) Makes noise that is unreasonable, considering the nature and purpose of the actor's conduct, location, time of day or night, and other factors that would govern the conduct of a reasonably prudent person under the circumstances.

(4) Creates or maintains a hazardous or physically offensive condition.

(b) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States.

[48 FR 30282, June 30, 1983, as amended at 52 FR 35240, Sept. 18, 1987]

12.1 Quality-of-Life Crimes

Crimes against the public include offenses that affect the quality of life, group violence such as gang activity, and vice crimes. Because quality-of-life crimes are often based on moral or value judgments, these offenses tend to target the poor and downtrodden. If the conduct prohibited involves an individual’s status in society, assembling, or speech, the First and Fourteenth Amendments require a narrowly tailored statute supported by a compelling government interest. This creates a conflict between legislators trying to ensure peace and tranquility for citizens and judges upholding the many individual protections included in the Bill of Rights.
Disorderly Conduct
Disorderly conduct, also called disturbing the peace, criminalizes conduct that negatively impacts the quality of life for citizens in any given city, county, or state. Although disorderly conduct is typically a low-level offense, the enforcement of disorderly conduct statutes is important to preserve citizens’ ability to live, work, and travel in safety and comfort. Disorderly conduct has the elements of criminal act, criminal intent, and an attendant circumstance, as is explored in Section 12.1.1 "Disorderly Conduct".

Disorderly Conduct Act
Three criminal acts generally are identified in any disorderly conduct statute. The defendant must either (1) make a loud and unreasonable noise, obscene utterance, or gesture, (2) engage in fighting or threatening, or state fighting words, or (3) create a hazardous condition by an act that does not serve a legitimate purpose.18 Pa. C. S. § 5503, accessed April 2, 2011,  

The Model Penal Code defines disorderly conduct as engaging in fighting or threatening or violent tumultuous behavior, making unreasonable noise or an offensively course utterance, gesture, or display, addressing abusive language to any person present, or creating a hazardous or physically offensive condition by an act that serves no legitimate purpose (Model Penal Code § 250.2). When the criminal act is a loud and unreasonable noise, the quality of the noise is judged in the setting where the noise occurred. A noise made in an extremely quiet area can be softer than a noise made in a loud and busy area like a city street during peak hours.
Rev. Stat. § 711-1101(2), accessed April 2, 2011, . The term “hazardous condition” generally refers to a situation that is dangerous and poses a risk of injury to others in the vicinity of the defendant’s conduct.Wolfe v. State, 24 P.3d 1252 (2001), accessed April 2, 2011, disorderly+conduct+%22hazardous+condition%22&hl=en&as_sdt=2,5&as_ylo=2000 .
Disorderly Conduct Intent
The criminal intent element required for disorderly conduct in many jurisdictions is the specific intent or purposely to cause public inconvenience, annoyance, or alarm, or the reckless intent to cause a risk thereof.Ala. Code § 13A-11-7, accessed April 3, 2011, . The Model Penal Code has the same criminal intent requirement (Model Penal Code § 250.2(1)).

Potential Constitutional Challenges
Disorderly Conduct Statutes
Because disorderly conduct statutes often criminalize obscene gestures and words, threats, and fighting words, they are subject to constitutional challenges under the First and Fourteenth Amendments. However, not all speech is protected under the First Amendment. As Chapter 3 "Constitutional Protections" discusses in detail, it is constitutional to regulate obscenity, true threats, and fighting words. Nonetheless, any statute criminalizing speech or expression is subject to strict scrutiny, must be narrowly drafted, and supported by a compelling government interest. Thus two common grounds for challenging disorderly conduct statutes are void for vagueness and overbreadth. Colten v. Kentucky, 407 U.S. 104 (1972), accessed April 3, 2011, Colten+v.+Kentucky&hl=en&as_sdt=2,5.


A. Qualifying Behavior: It shall be a violation of this section for any person to conduct himself or herself in a violent, noisy, or riotous manner, or in any way which commits a breach of the peace of another person(s), and/or to conduct himself or herself in a manner that endangers the health and safety of another person(s); and a violation of this section shall also include, but shall not be limited to, the following:

1. Accosting other persons within twenty five feet (25') of a bank, automatic teller machine, or bill payment drop box, for the purpose of begging or soliciting alms.

2. Occupying, lodging or sleeping in any building, structure or place, whether public or private, or any automobile, truck, railroad car or other similar vehicles or equipment without the permission of the owner or person entitled to the possession or in control thereof.

3. Using any motor vehicle, motor home, travel trailer, as a residence upon any public street (highway) and/or alleyway or upon any other premises under the ownership and/or control of a government subdivision of the state.

4. Loitering, prowling or wandering upon the private property of another, without lawful business, permission or invitation by the owner or the lawful occupants thereof.

5. Loitering or remaining in or about school grounds or buildings, without having any reason or relationship involving custody of or responsibility for a pupil or student, school authorized functions, activities or use.

6. Wilfully fleeing or attempting to elude a peace officer after being lawfully ordered to stop by an identified peace officer.

7. Lighting a cigarette, cigar, pipe, or any tobacco product, or refusing to extinguish same, on any public or private premises where smoking is prohibited. Such prohibition shall be indicated by means of a posted sign that: a) reads "no smoking", describes the premises as "smoke free", or contains the international no smoking symbol; b) uses letters at least one inch (1") in height; and c) is conspicuous, legible, unobscured, and placed at a height and location easily seen and read by persons entering or within the posted area. Persons violating this section shall be guilty of an infraction and shall be subject to a fine of fifty dollars ($50.00).

B. Misdemeanor: Except as otherwise specified herein, any person violating this section shall be guilty of a misdemeanor. (Ord. 10-1444, 3-23-2010)
Vagrancy and Loitering
Although the government technically does not have an interest in punishing individuals for who they are, such as an impoverished person or a transient, the public perception of law enforcement is often affected by the presence of so-called vagrants and panhandlers in any given area. Thus virtually every jurisdiction has statutes punishing either vagrancy or loitering. However, these statutes are subject to constitutional attack if they are void for vagueness, overbroad, or target status.

Historically, vagrancy statutes were broadly drafted to allow law enforcement considerable discretion in arresting the unemployed, gamblers, drug addicts, alcoholics, and those who frequented houses of prostitution or other locations of ill repute. In a sense, vagrancy statutes attempted to incapacitate individuals before they engaged in criminal activity, to ensure the safety and security of any given area.

In 1972, the US Supreme Court struck down a Florida vagrancy statute in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). The Court held that the statute, which prohibited night walking, living off one’s spouse, and frequenting bars or liquor stores was void for vagueness and violated the due process clause in the Fourteenth Amendment. Thereafter, many states repealed or modified vagrancy statutes in lieu of more precisely drafted statutes prohibiting specific criminal conduct such as loitering. The Model Penal Code prohibits public drunkenness and drug incapacitation (Model Penal Code § 250.5) and loitering or prowling (Model Penal Code § 250.6). To summarize US Supreme Court precedent refining loitering statutes: it is unconstitutional to target those who are unemployed Edwards v. California, 314 U.S. 160 (1941), accessed April 5, 2011, .or to enact a statute that is vague, such as a statute that criminalizes loitering in an area “with no apparent purpose,”City of Chicago v. Morales, accessed April 5, 2011, 527 U.S. 41 (1999)
or without the ability to provide law enforcement with “credible and reliable identification.”Kolender v. Lawson, accessed April 5, 2011, 461 U.S. 352 (1983),

In a jurisdiction that criminalizes loitering, the criminal act element is typically loitering, wandering, or remaining, with the specific intent or purposely to gamble, beg, or engage in prostitution. Ala. Code § 13A-11-9, accessed April 5, 2011,
An attendant circumstance could specify the location where the conduct takes place, such as a school or transportation facility. Ariz. Rev. Stat. § 13-2905, accessed April 5, 2011 . Another common attendant circumstance is being masked in a public place while loitering, with an exception for defendants going to a masquerade party or participating in a public parade.Ala. Code § 13A-11-9, accessed April 5, 2011,
The Model Penal Code prohibits loitering or prowling in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity (Model Penal Code § 250.6). Loitering is generally graded as a misdemeanorAriz. Rev. Stat. § 13-2905, accessed April 5, 2011,
or a violation.Ala. Code § 13A-11-9, accessed April 5, 2011,
The Model Penal Code grades loitering as a violation (Model Penal Code § 250.6).


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