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Disorderly Conduct and Resisting Arrest in Massachusetts
Disorderly conduct and resisting arrest are separate offenses under separate statutes, and they are frequently charged together after a public encounter with police.
A disorderly conduct charge under M.G.L. c. 272, § 53 concerns what the accused did in a public setting before the police intervened. A resisting arrest charge under M.G.L. c. 268, § 32B concerns what the accused did while an officer was attempting an arrest. The Commonwealth may fail to prove one charge even if it can prove the other.
These charges arise from bars and nightlife areas, concerts and events, demonstrations, campus incidents, street encounters, and traffic stops. The evidence may include officer and civilian testimony, body-worn camera footage, and other recordings. Recordings may establish when the officer attempted the arrest, what the accused did in response, and what force the officer used.
Where the accused was not arrested and the police instead applied for a criminal complaint, the case may begin with a private clerk-magistrate hearing before any complaint or arraignment.
Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and defends these cases in the Boston Municipal Court, the District Courts, and the Superior Court. Serpa Law Office can be reached at 617.936.0201.
The Elements of Disorderly Conduct
Section 53 punishes “disorderly persons and disturbers of the peace” without defining the terms. The courts defined them, and Model Jury Instruction 7.160 states the elements the Commonwealth must prove beyond a reasonable doubt:
- The defendant engaged in fighting or threatening, engaged in violent or tumultuous behavior, or created a hazardous or physically offensive condition by an act that served no legitimate purpose of the defendant’s;
- The defendant’s actions were reasonably likely to affect the public; and
- The defendant either intended to cause public inconvenience, annoyance, or alarm, or recklessly created a risk of public inconvenience, annoyance, or alarm.
The instruction identifies four distinct acts the law forbids: conduct involving the use of force or violence; threats involving the immediate use of force or violence; tumultuous and highly agitated behavior that causes riotous commotion and excessively unreasonable noise, amounting to a public nuisance; and conduct creating a hazard to public safety or a physically offensive condition by an act serving no legitimate purpose.
Each element is separately contestable. Loud, rude, or angry behavior that produced no riotous commotion, created no hazard, and involved no threat of immediate force does not satisfy the first element merely because an officer found it objectionable.
Speech and Expressive Conduct
Speech alone cannot support a disorderly conduct conviction unless it consists of fighting words, meaning words that “by their very utterance tend to incite an immediate breach of the peace.” When the Commonwealth relies on conduct rather than speech alone, it must still prove the statutory conduct and public elements beyond a reasonable doubt.
Arguing with an officer, questioning the basis for a stop, swearing, criticizing the police, or objecting loudly does not by itself establish disorderly conduct. If the Commonwealth relies on the accused’s words, it must prove that they were fighting words or identify separate conduct satisfying the statute.
The Public Element
The accused’s actions must have been reasonably likely to affect the public, meaning persons in a place to which the public or a substantial group has access.
An incident inside a private residence, in a private office, or in a location where no member of the public was present or likely to be present raises a question on this element. A sidewalk or another location open to the public ordinarily satisfies the location requirement. Whether a parking lot, bar, common hallway, or campus area qualifies depends on who may enter and whether members of the public were present or likely to be present.
Students and the School Provision
Section 53(b) contains a provision that protects students rather than exposing them. It provides that an elementary or secondary school student shall not be adjudged a delinquent child for a violation of that subsection for conduct within school buildings, on school grounds, or in the course of school-related events.
The provision applies to elementary and secondary students. It does not extend to college and university students, who face the ordinary charge and may also face a separate campus disciplinary proceeding. See student criminal defense.
The Penalties for Disorderly Conduct
A first offense is punishable by a fine of not more than $150. There is no jail exposure on a first offense.
A second or subsequent offense is punishable by imprisonment in a jail or house of correction for not more than six months, a fine of not more than $200, or both.
Although a first offense is punishable by a fine only, arraignment creates a CORI entry. A student, licensed professional, or noncitizen may also face a separate school, licensing, or immigration consequence.
The Elements of Resisting Arrest
Section 32B provides that a person commits resisting arrest by knowingly preventing or attempting to prevent a police officer, acting under color of official authority, from effecting an arrest of the accused or another, by either:
- Using or threatening to use physical force or violence against the officer or another; or
- Using any other means that creates a substantial risk of causing bodily injury to the officer or another.
The statute defines the surrounding terms. An officer acts under color of official authority when, in the regular course of assigned duties, the officer makes a good faith judgment based on the surrounding facts that an arrest should be made. A police officer means an officer in uniform, or an out-of-uniform officer who identified himself by exhibiting credentials while attempting the arrest.
The penalty is imprisonment in a jail or house of correction for not more than two and a half years, a fine of not more than $500, or both.
The evidence must establish that an officer was effecting an arrest rather than conducting a stop, detention, or inquiry. The Commonwealth must also prove that the accused knowingly prevented or attempted to prevent it. Pulling an arm away reflexively, tensing, or failing to comply immediately with a confusing instruction is not the same as knowingly using force to prevent an arrest.
Flight
Section 32B(a)(2) governs flight that creates a substantial risk of bodily injury. In Commonwealth v. Montoya, 457 Mass. 102 (2010), the Supreme Judicial Court held that the provision covers a defendant’s flight where the circumstances expose pursuing officers to that risk. In that case the defendant ran at night and went over a fence above a deep canal.
Two features of the holding matter to the defense. The analysis depends on the risk the fleeing person created, so the fact that officers chose not to follow into the danger is not determinative. The officers’ subjective fear is likewise not determinative.
The Court observed that mere flight was not at issue in Montoya. Where the Commonwealth’s evidence is that the accused ran, and nothing about the circumstances of the running exposed anyone to a substantial risk of bodily injury, that element is where the case is litigated.
An Unlawful Arrest and Excessive Force
These are two different arguments, and the statute treats them differently.
An unlawful arrest is not, by itself, a defense. Section 32B(b) provides that it is not a defense that the officer was attempting to make an unlawful arrest, if the officer was acting under color of official authority.
Excessive force is different. The same subsection contains an exception: the unlawfulness of the arrest is not a defense only where the officer, in attempting the arrest, “was not resorting to unreasonable or excessive force giving rise to the right of self-defense.” Evidence that the officer used unreasonable or excessive force may raise self-defense. Once the evidence raises that defense, its ordinary limits and the Commonwealth’s burden apply.
Prosecutors often charge resisting arrest together with assault and battery on a police officer under G.L. c. 265, § 13D. A defendant charged with assault and battery on a police officer may also claim self-defense against an officer’s excessive force.
An unlawful stop or arrest may support a motion to suppress evidence obtained as a result of the violation, even though the illegality is not itself a defense to resisting arrest. If suppression leaves the Commonwealth unable to prove an underlying charge, the prosecution may no longer be able to proceed on that charge. See illegal searches and seizures in Massachusetts.
Video and Digital Evidence
Body-worn camera footage, cruiser video, business surveillance, and bystander recordings may provide direct evidence of the sequence, distance, words, and force used.
Counsel should request this material early because agencies and private businesses may retain recordings for limited periods, and private recordings may be overwritten or deleted. Counsel can request body-worn camera footage and dispatch recordings in discovery, identify businesses and residences with cameras facing the location, and send appropriate preservation requests.
Authentication and admissibility are separate questions, addressed on digital evidence in Massachusetts criminal cases.
The Clerk-Magistrate Hearing
Under M.G.L. c. 218, § 35A, a court ordinarily must give a person who was not arrested notice and an opportunity to be heard before it issues process on a misdemeanor complaint application, subject to the statute’s exceptions. Disorderly conduct and resisting arrest are both misdemeanors.
Whether the hearing occurs depends on how the case began and on the statutory exceptions. If police arrested the person at the scene, the case ordinarily proceeds to arraignment without a clerk-magistrate hearing. If police released the person and later applied for a misdemeanor complaint, a § 35A hearing ordinarily occurs before a complaint issues.
A denial ends that application: no complaint issues, no arraignment occurs, and the application produces no CORI entry. A police report of the incident can still exist in the department’s files, and where there was an arrest, the arrest and booking record can remain.
See Massachusetts clerk-magistrate hearings and the clerk-magistrate hearing FAQs.
Arraignment, the Record, and Collateral Consequences
Once the case proceeds to arraignment, the charge appears in CORI regardless of the later disposition. What the entry shows and who can access it depend on the disposition and any sealing order.
A not-guilty finding must be sealed under M.G.L. c. 276, § 100C unless the defendant objects. After a dismissal or nolle prosequi, the defendant may petition the court for sealing under § 100C without a waiting period, and the judge applies the substantial-justice standard. An otherwise eligible conviction may be sealed under § 100A after the applicable statutory waiting period. Sealing changes what the Commissioner of Probation reports. See criminal records and outcomes and sealing and expungement.
Three groups may face proceedings or disclosure questions beyond the criminal case. A university student may face a campus disciplinary proceeding under the institution’s own schedule and standard. A licensed professional may face a profession-specific reporting rule; see criminal defense for licensed professionals. A noncitizen should obtain immigration advice before accepting a disposition; see immigration consequences.
How Disorderly Conduct and Resisting Arrest Cases End
These cases end at one of several stages, and the earlier the ending, the less record it leaves behind. The stages below describe the ordinary sequence.
At the clerk-magistrate hearing. Where the case begins with an application rather than an arrest, a denial ends it before any complaint issues. The section above explains when that hearing occurs and what a denial does.
Before arraignment. Where a complaint has issued but the arraignment has not occurred, ending the case at that point prevents the CORI entry that arraignment creates. Whether that is available depends on the court, the prosecutor, and the strength of the application materials.
On a pretrial motion. After arraignment, the defense may move to suppress evidence or to dismiss a count for want of probable cause in the complaint application. Removing the resisting arrest count changes the negotiating position on what remains, because that count is the heavier of the two.
By negotiated disposition. A continuance without a finding, pretrial probation, or diversion can resolve the case without a conviction. Each leaves a different record, and the choice belongs with the collateral consequences described above rather than apart from them.
At trial. Both statutes cover less conduct than officers commonly charge, and the recordings often show less than the report describes. Where the evidence does not prove the public element, or does not separate protected speech from conduct, trial can be the right answer.
How the Defense Prepares the Case
Counsel should begin preserving and organizing the evidence as soon as possible.
Obtain the recordings. Counsel requests body-worn camera footage, cruiser video, booking video, business surveillance, and bystander recordings before an agency or private business overwrites them.
Build the sequence. Counsel reconstructs what the officer saw before intervening, what each person said, when the officer attempted an arrest, and what force each person used. Dispatch logs and radio recordings can establish the timing.
Test the public element. The defense identifies who was present, whether members of the public were likely to be present, and whether the location was open to the public or a substantial group.
Separate speech from conduct. Counsel identifies precisely what the Commonwealth claims was disorderly and whether the evidence proves conduct beyond protected speech.
Examine the arrest. The defense determines whether an arrest was being effected, when it began, and whether the officer used unreasonable or excessive force.
Identify witnesses. Counsel identifies staff members, security personnel, companions, and other witnesses before memories fade or contact information is lost.
Review statements and protect the right to remain silent. Counsel determines what the accused said at the scene and during booking. The accused should make no further statement about the incident before receiving legal advice. See your right to remain silent.
The Massachusetts disorderly conduct and resisting arrest FAQs answer common questions about the charges, hearings, records, and possible collateral proceedings.
Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation. The Boston office is at 20 Park Plaza #400A. The Quincy Office is at 500 Victory Road, Suite 400A.
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