As the goal is to maintain a peaceful society, public order crimes address areas of disorderly conduct, unlawful assembly or riot, actions related to homelessness, all areas of prostitution, and drug and alcohol related offenses.

8.6.1 Disorderly Conduct

Disorderly conduct, also called disturbing the peace, is a very broad, very vague catch-all bucket for any behaviors that can be considered offensive in an attempt to address most disruptive annoyances and dangers a person may experience. Disorderly conduct laws list particular actions, but are often written in a vague manner regarding the concept of what a “reasonable person” would do or would tolerate.

The actus reus of disorderly conduct laws include disruptions like causing excessive noise, engaging in alarming or threatening behavior, obstructing traffic, creating hazardous conditions, or engaging in fighting. The mens rea of disorderly conduct laws rests heavily on what is going on in a particular situation. For example, when the criminal act is a loud and unreasonable noise, the quality of the noise is judged in the setting where the noise occurred. Music heard outside a bar downtown late at night is to be expected. However, music heard from someone’s backyard when they are having a small party may be considered unreasonable noise if the rest of the neighborhood is typically a very quiet area. Considering the context in order to figure out the mens rea, one has to determine the intent of the person committing the offense.

The mens rea element required for disorderly conduct in many jurisdictions is to purposely cause public inconvenience, annoyance, or alarm, or the reckless intent to cause a risk thereof. Is a person hosting a small party in the backyard of their home in a quiet neighborhood playing music too loudly with the intention of inconveniencing, annoying, or alarming their neighbors? If they are, that is criminal. If they are not, it is simply inconsiderate.

8.6.2 Unlawful Assembly and Riot

Unlawful assembly as a public order crime requires elements like assembling or meeting of a group with the specific intent to purposely commit a breach of the peace, some other unlawful act, or riot. This is different from a constitutionally protected protest or demonstration because the behaviors involved are not peaceful and could instead be harmful.

When a crowd is asked by law enforcement to leave from a location because they are behaving in a way that is likely to cause substantial harm or serious annoyance, their refusal to obey is the crime of failure to disperse. Refusing to obey law enforcement in this manner can also be called interfering with a peace officer.

When the group behavior escalates to a dangerous level, it is considered a riot. A riot is characterized by the amplified energy and risk inherent in the gathering of a group behaving in a violent, aggressive, or out-of-control manner. A riot can be the result of a lawful or unlawful assembly that escalates, or can occur spontaneously without any planning. For group behavior to be considered a riot, it must include the use of force or violence, which are not constitutionally protected behaviors of assembly or expression.

The attack on the United States Capitol on January 6, 2021 is an extreme example of a riot. In protest to the results of the election, over 2,000 individuals stormed the building, vandalized and looted offices, and made threats to government employees. Their actions were violent as they assaulted several members of the Capitol Police force and news reporters. Five people died as a result of the riot, 138 police officers were injured, four responding officers died by suicide within seven months of the attack, and over $2.7 million in damage was done. Investigations and charges related to this riot continue with over 900 rioters facing criminal charges as of late 2022.

8.6.3 Vagrancy and Loitering

People experiencing homelessness are often targets of crimes against the public order. Some argue it is public perception of the potential for increased criminal activity and diminished health and safety of an area that drives vagrancy and loitering laws to try to keep homeless groups out of certain neighborhoods. Vagrancy is homelessness and is demonstrated by a person who appears to be transient (moving from place to place) without a clear way to support themselves (unemployed) (figure 8.3).

Figure 8.3 Photograph of Portland street showing tents used by people experiencing homelessness

Historically, vagrancy laws were broadly written 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.” The claim is that vagrancy laws could incapacitate individuals before they engaged in criminal activity, to ensure the safety and security of any given area.

In 1972, the U.S. Supreme Court struck down a Florida vagrancy statute in Papachristou v. City of Jacksonville. The Court said the law, which prohibited night walking, living off one’s spouse, and frequenting bars or liquor stores was invalid because it was so vague and it violated the Fourteenth Amendment. This amendment protects citizens from any laws that deprive them from “life, liberty, or property, without due process of the law; nor deny to any person within its jurisdiction the equal protection of the laws” (U.S. Const. amend. XIV). After the decision in Papachristou v. City of Jacksonville (1972), many states changed their vagrancy laws to focus more on specific behaviors that could be criminalized, like loitering.

Loitering is technically just standing around without a purpose. Under the law, however, loitering is defined by behaviors (the actus reus) of wandering around or remaining in one area with the specific intent to gamble, beg, or engage in prostitution. Loitering is considered especially bad if it is near a school or a transportation facility.

Many jurisdictions also criminalize panhandling or begging. Laws around panhandling run the risk of criminalizing speech because they are saying someone cannot ask another person for money. For this reason, lawmakers have to be careful not to violate anyone’s First Amendment rights to freedom of speech. The laws are generally written to expressly prohibit aggressive conduct or conduct that blocks public access or the normal flow of traffic.

One relatively new approach to preventing individuals experiencing homelessness from congregating in cities, affecting the quality of life of residents, the prosperity of businesses, and the experience of tourists are sit-lie laws. Sit-lie laws prohibit sitting or lying on public streets and sidewalks and, as a result, force individuals to move about. This prevents anyone from blocking access to businesses, roadways, or transportation facilities. Basically, the old vagrancy laws that prohibited wandering around looking unemployed, and the loitering laws prohibiting hanging out somewhere without a purpose, can now prevent sitting or lying down instead. These laws are being challenged in the courts already because they target the poor, addicted, and unemployed.

Seattle, Washington, was the first city in the United States to enact a sit-lie ordinance in 1993 that prohibited sitting or lying on a public sidewalk between the hours of 7 a.m. and 9 p.m. in Seattle’s downtown area. The ordinance was attacked, but ultimately upheld in 1996.

In 2021, Los Angeles, California enacted a more comprehensive ordinance that banned sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles city limits. Section 41.18 of the Los Angeles Municipal Code (LAMC) prohibits sitting, lying, or sleeping:

• Anywhere that impedes any passage protected by the Americans with Disabilities Act such as ramps on and off sidewalks,
• Within ten feet of a driveway or loading dock,
• Within five feet of a building entrance or exit,
• Anywhere that impedes the right of way for any activity for which the City has issued a permit,
• Within 500 feet of a property designated for a sensitive use (such as public park or library),
• Within 500 feet of a designated overpass, underpass, freeway ramp, tunnel, bridge, pedestrian bridge, subway, wash, spreading ground, or active railway,
• Within 1,000 feet of a homeless shelter or support center,
• Within 500 feet of a school or day care center, and
• Anywhere else the City has posted a sign prohibiting sitting, sleeping, or lying down.

This ordinance was originally struck down in 2006 because it was determined to be unconstitutional. However, it is now back and even more thorough. The court’s decision in 2006 is the same as the argument against the law now – that individuals experiencing homelessness in Los Angeles far outnumber the amount of space available in homeless shelters, so the law punishes people for conduct that is involuntary. Although many claim this law constitutes cruel and unusual punishment, especially because no alternatives are provided to help people experiencing homelessness in the area, it remains active as of late 2022.

8.6.4 Crimes Involving Prostitution

Prostitution is engaging in sexual activity in return for payment. Every state except Nevada criminalizes prostitution. In Nevada, legal prostitution must follow specific guidelines and can occur only in a licensed house of prostitution. However, street prostitution, called pandering, is illegal even in Nevada.

The actus reus element required for prostitution varies, depending on the jurisdiction. In many states, prostitution is offering, agreeing to, or engaging in sexual conduct for money, property, or anything of value. Agreeing and engaging in are both considered prostitution, meaning the prostitute and the prostitute’s client could be prosecuted for and convicted of prostitution in most jurisdictions. Patronizing a prostitute is the act of buying sexual conduct, or being the customer. This part of the transaction has not always been punished. Although illegal, most customers, or “johns” were typically allowed to leave while the prostitute alone was arrested and punished. This started to change in the 1990s when jurisdictions saw that addressing only one side of the equation was not working, and concerns were raised about human trafficking.

Laws also criminalize pimping, which is the organizing and facilitating of prostitution. A pimp (or madam, if female) usually also collects part of the money earned by the prostitutes they manage. As understanding grows about human trafficking for sex, enforcement of all elements of prostitution (including those that happen over the internet) are increasingly monitored and prosecuted.

The mens rea element required for prostitution is either strict liability (the act itself is enough without determing any mental state) or the specific intent to engage in prostitution. The fact that the criminal action occurred is enough to demonstrate that the crime was committed and what someone was thinking or what they thought they were doing is irrelevant.

8.6.5 Drug and Alcohol Crimes

All states and the federal government criminalize the manufacture or cultivation, possession, sale, and use of certain drugs. Many modern statutes focus on rehabilitation for nonviolent drug offenders, rather than incarceration, because this has proven effective in reducing reoffending and freeing up space in jails and prisons for offenders who pose a greater security risk to society. In addition, marijuana has been legalized by many states for medicinal or recreational purposes, but is still illegal at the federal level.

Federal criminal statutes targeting illegal drugs are part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, commonly known as the Controlled Substances Act, which was drafted by a commission striving for uniformity in state and federal laws. For the purpose of drug crimes, the states and the federal government categorize illegal drugs in drug “schedules.” The schedules generally focus on the harmful or addictive qualities of the drug, with Schedule I drugs being the most harmful or addictive. The remaining schedules reflect less harmful or addictive drugs, including drugs that are legal with a prescription. Any drugs identified in these government lists are called scheduled drugs.

The government cannot criminalize the status of being a drug addict but there is no constitutional barrier to punishing criminal acts involving controlled substances. In most jurisdictions, the manufacture (creation) and possession (ownership) of scheduled drugs is illegal. Possession is typically graded based on the quantity possessed, the drug’s classification in the schedule, and whether or not the possession is for the purpose of distribution, with the penalties ranging from a misdemeanor for simple possession to a serious felony for possession with intent to sell.

The sale (exchanging drugs for money), distribution (giving drugs to others to sell), or trafficking (moving drugs across state lines) are all public order crimes. These criminal offenses are  generally considered felonies, with more severe penalties for drugs in a higher schedule, the sale of larger quantities, a sale by an adult to a minor, or a sale near school grounds. Scheduled drug use, also “called being under the influence of a controlled substance,” is typically a misdemeanor with more severe penalties for habitual offenders.