Also known as: disturbing the peace · disturbs the peace · breach of the peace
Written by attorneys — see sources below.
Conduct that constitutes a public offense by violence or that causes or is likely to cause an immediate disturbance of public order. The category supplies the doctrinal trigger for privileges to use force in defense of the peace and for limits on speech regulation aimed at preventing unrest.
Esme burned an American flag during a demonstration at the entrance to a federal wildlife preserve to protest drilling permits. Federal rangers arrested her under a preserve rule that prohibited flag desecration. The arrest turned on whether the regulation suppressed communicative impact without an imminent breach of the peace.
Derek Douglas sued the city after police failed to intervene in a violent disturbance near his home. The city defended on the ground that no municipal policy caused the officers' inaction. The claim required proof that the municipality had adopted a custom of tolerating breaches of the peace.
In July 1971 petitioners, a class of female employees of the Department of Social Services and of the Board of Education of the City of New York, commenced this action under 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York. They sued the Department and its Commissioner, the Board and its Chancellor, and the city of New York and its Mayor, all in their official capacities. The complaint alleged that the city and its agencies had as a matter of official policy compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. The suit sought injunctive relief and backpay for periods of unlawful forced leave. On cross-motions for summary judgment, the District Court held petitioners' claims for injunctive and declaratory relief moot because the city and the Board had changed their maternity-leave policies after the complaint was filed. The court found that the acts complained of were unconstitutional under the Fourteenth Amendment. It denied backpay on the ground that any damages would come ultimately from the city of New York and that holding otherwise would circumvent the immunity conferred on municipalities by Monroe v. Pape. On appeal, petitioners renewed their arguments that the Board of Education was not a municipality within the meaning of Monroe v. Pape and that the District Court had erred in barring a damages award against the individual defendants. The Court of Appeals for the Second Circuit held that the Board was not a “person” under § 1983 because it performed a vital governmental function and had no final say over its appropriations. It also held that a damages action against officials sued in their official capacities could not proceed because any award would have to be paid by a city held not amenable to suit in Monroe v. Pape. The Supreme Court granted certiorari to consider whether local governmental officials and local independent school boards are “persons” within the meaning of 42 U.S.C. § 1983 when equitable relief in the nature of back pay is sought against them in their official capacities. After oral argument, the Court requested the parties to address whether Monroe v. Pape should be reconsidered in light of the legislative history of the Civil Rights Act of 1871.
View caseDaniel Diaz was arrested under a city ordinance that allowed officers to disperse groups suspected of gang activity. He argued the statute was unconstitutionally vague because it failed to define conduct likely to produce a breach of the peace. The court examined whether the law provided adequate notice of what behavior disturbed public order.
In 1992 the Chicago City Council enacted the Gang Congregation Ordinance after hearings revealing that gang members intimidated residents by loitering in public places. The ordinance made it unlawful for any person to loiter in a public place with one or more persons knowing that at least one of those persons was a criminal street gang member. The ordinance defined loitering as remaining in any one place with no apparent purpose. It required a police officer who reasonably believed a person to be a gang member loitering with others to order the entire group to disperse, and failure to obey the order was punishable by a fine of up to $500, imprisonment for not more than six months, or up to 120 hours of community service. Two months after enactment the Chicago Police Department issued General Order 92-4 to provide guidelines to govern its enforcement. The order confined arrest authority to members of the Gang Crime Section and other designated officers, established criteria for identifying street gangs and membership, and directed district commanders to designate enforcement areas where gang presence had a demonstrable effect on law-abiding persons. Those designated areas were not released to the public. During the three years the ordinance was enforced, officers issued more than 89,000 dispersal orders and arrested more than 42,000 people. Respondent Jesus Morales and other individuals were charged with violating the ordinance. Trial courts divided on its constitutionality, with some judges upholding it while eleven others ruled it invalid. The Illinois Appellate Court consolidated the cases, affirmed the invalidations, and reversed convictions in the remaining matters. The Illinois Supreme Court affirmed, and the United States Supreme Court granted certiorari.
View caseDemetrius Douglas played recordings attacking other religions while walking through a neighborhood. A listener became enraged and threatened violence. Officers arrested Douglas for conduct likely to cause an immediate breach of the peace. The court assessed whether the speech itself created the risk of public disorder.
Newton Cantwell and his two sons, Jesse and Russell, members of a group known as Jehovah’s Witnesses, and claiming to be ordained ministers, were arrested in New Haven, Connecticut, and each was charged by information in five counts, with statutory and common law offenses. After trial in the Court of Common Pleas of New Haven County each of them was convicted on the third count, which charged a violation of § 6294 of the General Statutes of Connecticut, and on the fifth count, which charged commission of the common law offense of inciting a breach of the peace. On appeal to the Supreme Court the conviction of all three on the third count was affirmed. The conviction of Jesse Cantwell, on the fifth count, was also affirmed, but the conviction of Newton and Russell on that count was reversed and a new trial ordered as to them. On the day of their arrest the appellants were engaged in going singly from house to house on Cassius Street in New Haven. They were individually equipped with a bag containing books and pamphlets on religious subjects, a portable phonograph and a set of records, each of which, when played, introduced, and was a description of, one of the books. Each appellant asked the person who responded to his call for permission to play one of the records. If permission was granted he asked the person to buy the book described and, upon refusal, he solicited such contribution towards the publication of the pamphlets as the listener was willing to make. If a contribution was received a pamphlet was delivered upon condition that it would be read. Cassius Street is in a thickly populated neighborhood, where about ninety per cent of the residents are Roman Catholics. A phonograph record, describing a book entitled “Enemies,” included an attack on the Catholic religion. None of the persons interviewed were members of Jehovah’s Witnesses. The statute under which the appellants were charged provides that no person shall solicit money, services, subscriptions or any valuable thing for any alleged religious, charitable or philanthropic cause, from other than a member of the organization for whose benefit such person is soliciting or within the county in which such person or organization is located unless such cause shall have been approved by the secretary of the public welfare council. Upon application of any person in behalf of such cause, the secretary shall determine whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity, and, if he shall so find, shall approve the same and issue to the authority in charge a certificate to that effect. The facts which were held to support the conviction of Jesse Cantwell on the fifth count were that he stopped two men in the street, asked, and received, permission to play a phonograph record, and played the record “Enemies,” which attacked the religion and church of the two men, who were Catholics. Both were incensed by the contents of the record and were tempted to strike Cantwell unless he went away. On being told to be on his way he left their presence. There was no evidence that he was personally offensive or entered into any argument with those he interviewed. By demurrers to the information, by requests for rulings of law at the trial, and by their assignments of error in the State Supreme Court, the appellants pressed the contention that the statute under which the third count was drawn was offensive to the due process clause of the Fourteenth Amendment because, on its face and as construed and applied, it denied them freedom of speech and prohibited their free exercise of religion. In like manner they made the point that they could not be found guilty on the fifth count, without violation of the Amendment. We have jurisdiction on appeal from the judgments on the third count, as there was drawn in question the validity of a state statute under the Federal Constitution, and the decision was in favor of validity. Since the conviction on the fifth count was not based upon a statute, but presents a substantial question under the Federal Constitution, we granted the writ of certiorari in respect of it.
View caseDeborah Dunn purchased a home in a neighborhood subject to a racially restrictive covenant. Neighbors sought to enforce the covenant to prevent her occupancy. The court refused to allow state judicial power to maintain the private arrangement.
In February 1911, thirty out of thirty-nine owners of property fronting both sides of Labadie Avenue between Taylor Avenue and Cora Avenue in St. Louis signed a recorded agreement. The agreement restricted the use and occupancy of the properties for fifty years to persons of the Caucasian race. It excluded occupancy by people of the Negro or Mongolian race. The district included fifty-seven parcels of land. The signers held title to forty-seven parcels. At the time, five parcels were owned by Negroes, with one occupied by Negro families since 1882. On August 11, 1945, the Shelley petitioners, who are Negroes, purchased one parcel from Fitzgerald by warranty deed for valuable consideration without knowledge of the restriction. On October 9, 1945, respondents sued in the Circuit Court of St. Louis to restrain the Shelleys and divest title. The trial court denied relief, but the Supreme Court of Missouri reversed and directed enforcement. In June 1934, Ferguson and his wife executed a contract restricting their Detroit property to Caucasian occupancy. The restriction was effective only if at least eighty percent of the lots in the block were subjected to similar restrictions. The restrictions were to remain in effect until January 1, 1960. Similar agreements covered eighty percent of the lots. By deed dated November 30, 1944, the McGhee petitioners, who were Negroes, acquired and occupied the Detroit property. On January 30, 1945, respondents sued in Wayne County Circuit Court. The court ordered them to move within ninety days and enjoined future occupancy. The Supreme Court of Michigan affirmed. Petitioners claimed that judicial enforcement violated the Fourteenth Amendment.
View caseDarius Dixon burned an American flag at a political rally to express opposition to government policy. Police arrested him under a statute prohibiting flag desecration. The prosecution failed because the statute targeted the communicative message rather than any actual or imminent breach of the peace.
In 1984, during the Republican National Convention in Dallas, Texas, Gregory Lee Johnson participated in a political demonstration organized by the Revolutionary Communist Youth Brigade to protest the policies of the Reagan administration and Dallas-based corporations. The demonstration began with a march through the city streets where participants chanted slogans and carried signs critical of the administration and corporations. At several points the group staged die-ins to dramatize the consequences of nuclear war, and on some occasions spray-painted buildings and overturned plants, though Johnson took no part in those acts. The march concluded in front of Dallas City Hall. There Johnson was handed an American flag that had been removed from a flagpole at one of the corporate locations visited during the march. Johnson then poured kerosene on the flag and set it on fire. As the flag burned the demonstrators chanted America the red white and blue we spit on you. After the flag was consumed the group dispersed. No one was physically injured or threatened during the event although several witnesses were seriously offended by the flag burning. Of the approximately 100 demonstrators Johnson was the only one arrested. He was charged with desecration of a venerated object under Texas Penal Code Annotated section 42.09(a)(3). Following a trial Johnson was convicted and sentenced to one year in prison and a fine of two thousand dollars. The Court of Appeals for the Fifth District of Texas affirmed the conviction. The Texas Court of Criminal Appeals reversed the judgment. The Supreme Court of the United States granted certiorari.
View caseConduct qualifies when it is done by violence or is likely to cause an immediate disturbance of public order. The Restatement definition focuses on the objective tendency to disrupt public tranquility rather than actual violence in every instance.
Fighting words are personally abusive epithets delivered face to face that are inherently likely to provoke an immediate violent response from an ordinary person. That likelihood of violence supplies the breach of the peace that permits criminal punishment consistent with the First Amendment.
Flag burning as political expression cannot be punished merely because it offends observers. Punishment is permissible only when the conduct creates an imminent breach of the peace or serves a compelling non-speech interest unrelated to suppressing the message.
A secured party may repossess collateral without judicial process only if the repossession can be accomplished without breach of the peace. Any use of force or threat that disturbs public order violates the statutory limitation.
…labels" of state law. N. A. A. C. P. v. Button, 371 U. S. 415, 429. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the repression of expression that have been challenged in this court, libel can claim no talismanic immunity…