Disorderly conduct consists of:
A. engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace; or
B. maliciously disturbing, threatening or, in an insolent manner, intentionally touching any house occupied by any person.
Whoever commits disorderly conduct is guilty of a petty misdemeanor.
HISTORY:
1953 40A-20-1, enacted by Laws 1963, ch. 303, § 20-1; 1967, ch. 120, § 1.
Notes to Decisions
Analysis
Constitutionality.
New Mexico courts have held 30-20-1 NMSA 1978, which prohibited disorderly conduct, constitutional because it criminalized only speech that tended to incite an immediate breach of the peace. United States v. Stenzel, 49 F.3d 658, 1995 U.S. App. LEXIS 4315 (10th Cir. N.M.), cert. denied, 516 U.S. 840, 116 S. Ct. 123, 133 L. Ed. 2d 73, 1995 U.S. LEXIS 5759 (U.S. 1995).
Because 30-20-1 NMSA 1978 can be narrowly construed to punish only “fighting words,” it does not violate the First Amendment. State v. James M., 1990-NMCA-135, 111 N.M. 473, 806 P.2d 1063, 1990 N.M. App. LEXIS 150 (N.M. Ct. App. 1990).
Generally.
30-20-1A NMSA 1978, which prohibited disorderly conduct and defined “disorderly conduct” as violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct which tended to disturb the peace was not void for vagueness or overbreadth. A municipal ordinance, Town of Bernalillo, N.M., Ordinance No. 62, § 2-1-7, prohibiting unreasonable noise by prohibiting any person from making, continuing or causing to be made any loud or unusual noise which either annoyed, disturbed, injured or endangered the comfort, repose, health, peace, or safety of others was likewise not unconstitutional for vagueness. United States v. Vanness, 342 F.3d 1093, 2003 U.S. App. LEXIS 17820 (10th Cir. N.M. 2003).
Applicability.
“Disorderly,” as that term is used in former 43-2-18C NMSA 1978, has a meaning that is different from that in 30-20-1 NMSA 1978. State v. Johnson, 1996-NMCA-117, 122 N.M. 713, 930 P.2d 1165, 1996 N.M. App. LEXIS 97 (N.M. Ct. App.), cert. denied, 122 N.M. 578, 929 P.2d 269, 1996 N.M. LEXIS 480 (N.M. 1996).
Burden of proof.
City did not carry its burden of proving that the transfers by the owners of land within its extraterritorial zoning jurisdiction created a “subdivision,” as the city did not show that the owners in any one year transferred two or more pieces of property for “building purposes” or any other purposes set forth in the New Mexico Municipal Subdivision Act, 3-20-1 NMSA 1978 et seq. Gallegos v. City of Las Vegas, 1998-NMCA-054, 125 N.M. 125, 957 P.2d 1159, 1998 N.M. App. LEXIS 33 (N.M. Ct. App. 1998).
Civil rights.
In federal civil rights claim by anti-war protester against police officers who arrested him during protest, denial of officers’ motion for summary judgment was proper, since, under the protester’s version of events, he was arrested without probable cause to believe that his drumming during protest constituted disorderly conduct. Fogarty v. Gallegos, 523 F.3d 1147, 2008 U.S. App. LEXIS 8587 (10th Cir. N.M. 2008).
Construction.
Section 30-20-1 NMSA 1978 does not distinguish between speech and conduct; the types of conduct stated in 30-20-1A NMSA 1978 that consist of the offense describe speech as well as what generally would be considered to be conduct, because speech is a form of conduct. State v. Salas, 1999-NMCA-099, 127 N.M. 686, 986 P.2d 482, 1999 N.M. App. LEXIS 68 (N.M. Ct. App.), cert. denied, 128 N.M. 149, 990 P.2d 823, 1999 N.M. LEXIS 215 (N.M. 1999).
Section 30-20-1 NMSA 1978 is interpreted by the Supreme Court of New Mexico such that conduct that tends to disturb the peace includes conduct which, by causing consternation and alarm, disturbs the peace and quiet of the community; the standard is whether a defendant’s conduct tends to disturb the public peace. State v. Salas, 1999-NMCA-099, 127 N.M. 686, 986 P.2d 482, 1999 N.M. App. LEXIS 68 (N.M. Ct. App.), cert. denied, 128 N.M. 149, 990 P.2d 823, 1999 N.M. LEXIS 215 (N.M. 1999).
Elements.
Convictions for disorderly conduct under former 40A-20-1, 1953 Comp., could not stand where the defendants’ actions were not violent, (now 30-20-1 NMSA 1978) abusive, profane, boisterous, or loud, did not cause consternation or alarm, and did not disturb the peace and quiet of the community. State v. Florstedt, 77 N.M. 47, 419 P.2d 248, 1966 N.M. LEXIS 2758 (N.M. 1966).
Evidence.
—Insufficient.
While New Mexico’s Detoxification Reform Act, did not preclude the state from charging an accused with disorderly conduct when the accused’s conduct otherwise satisfied the statutory elements of the charge, regardless of whether the offender was intoxicated, the evidence in the instant case was insufficient to support defendant’s conviction because all he did was shout profane and vulgar remarks towards police from a distance, and the record did not reveal any threatening conduct accompanying defendant’s verbal insults toward the police. State v. Correa, 2009-NMSC-051, 147 N.M. 291, 222 P.3d 1, 2009 N.M. LEXIS 556 (N.M. 2009).
Evidence of defendant’s conduct of yelling at a police officer in an offensive manner was insufficient to support defendant’s conviction of disorderly conduct in violation of 30-20-1 NMSA 1978. State v. Hawkins, 1999-NMCA-126, 128 N.M. 245, 991 P.2d 989, 1999 N.M. App. LEXIS 100 (N.M. Ct. App. 1999).
Evidence was insufficient to convict a juvenile of disorderly conduct, where he only got angry and argued with police about why he had been stopped, but made no violent or threatening moves, nor did anything to disturb the peace. State v. Doe, 1978-NMSC-072, 92 N.M. 100, 583 P.2d 464, 1978 N.M. LEXIS 963 (N.M. 1978).
—Sufficient.
The record contained sufficient evidence to convict defendant of disorderly conduct under 30-20-1 NMSA 1978 where all of the State’s witnesses testified that they perceived defendant’s actions as a physical threat. United States v. Stenzel, 49 F.3d 658, 1995 U.S. App. LEXIS 4315 (10th Cir. N.M.), cert. denied, 516 U.S. 840, 116 S. Ct. 123, 133 L. Ed. 2d 73, 1995 U.S. LEXIS 5759 (U.S. 1995).
Because defendant’s language and actions were likely to incite an immediate breach of the peace, there was sufficient evidence of disorderly conduct as defined by 30-20-1 NMSA 1978. State v. James M., 1990-NMCA-135, 111 N.M. 473, 806 P.2d 1063, 1990 N.M. App. LEXIS 150 (N.M. Ct. App. 1990).
Defendant’s conviction for disorderly conduct was affirmed where defendant made obscene remarks to girls playing tennis because a reasonable mind could find defendant’s conduct adequate to support the conclusion that it intended to disturb the peace. State v. Oden, 1971-NMCA-062, 82 N.M. 563, 484 P.2d 1273, 1971 N.M. App. LEXIS 795 (N.M. Ct. App. 1971).
Probable cause.
Individual defendants were entitled to qualified immunity on plaintiff's claim that defendants arrested him without a warrant in violation of Fourth Amendment because reasonable officer could have believed plaintiff violated New Mexico law by failing to show identification during investigative stop. Mocek v. City of Albuquerque, 813 F.3d 912, 2015 U.S. App. LEXIS 22435 (10th Cir. N.M. 2015).
Police officer was not entitled to qualified immunity in suit under 42 U.S.C.S. § 1983 for directing arrests of protestors and authorizing use of force against some of them because he issued arrest orders when on notice that probable cause for arrest on charges such as disorderly conduct under this section was lacking. Buck v. City of Albuquerque, 549 F.3d 1269, 2008 U.S. App. LEXIS 25450 (10th Cir. N.M. 2008).
Probable cause for an arrest for disorderly conduct, 30-20-1A NMSA 1978, existed when an arresting officer reasonably believed a member of the public was disturbed by a defendant’s behavior. State v. Salas, 1999-NMCA-099, 127 N.M. 686, 986 P.2d 482, 1999 N.M. App. LEXIS 68 (N.M. Ct. App.), cert. denied, 128 N.M. 149, 990 P.2d 823, 1999 N.M. LEXIS 215 (N.M. 1999).
Review.
—Standards.
Pursuant to 40A-20-1A, 1953 Comp. (now 30-20-1 NMSA 1978), defendant’s disorderly conduct conviction was properly reversed because defendant’s words and actions toward the officer did not constitute disorderly conduct; no act of violence was attempted and at the time of the arrest defendant was not combative nor was it apparent that his words or actions would produce violence or disturb the peace. State v. Doe, 1978-NMSC-072, 92 N.M. 100, 583 P.2d 464, 1978 N.M. LEXIS 963 (N.M. 1978).
Notes to Unpublished Decisions
Civil rights.
Unpublished decision: Plaintiff arrestee’s claim for violations of his Fourth Amendment rights failed on the second element of the qualified immunity defense because defendant police officer had probable cause to direct plaintiff’s arrest for disorderly conduct in violation of this section. The undisputed facts showed that plaintiff was yelling and using profanities at the officer, approached the officer in a threatening manner, drew a crowd from surrounding apartments, and incited at least two other individuals to attempt to approach the officer in a similarly threatening manner; all this caused the officer to fear for his safety, send an officer-in-distress signal, and threaten the use of pepper spray twice.Aragon v. City of Albuquerque, 423 Fed. Appx. 790, 2011 U.S. App. LEXIS 9993 (10th Cir. 2011).
Research References and Practice Aids
New Mexico Law Review.
Note: Criminal Procedure-New Mexico Court Of Appeals Defines The Scope Of A Lawful Inventory Search Of A Detainee Under The New Mexico Detoxification Act-State v. Johnson, Jaeleen J. Kookesh, 28 N.M. L. Rev. 115 (1998).