Disorderly Conduct and Resisting Arrest in Massachusetts

Disorderly conduct and resisting arrest are the charges that turn an ordinary night into a criminal case. They arise from arguments outside bars, noise complaints at student apartments, crowded sidewalks after games and concerts, and encounters with police that escalated faster than anyone intended. The people charged are usually students, young professionals, and visitors with no criminal history and a great deal riding on the outcome. Serpa Law Office defends these cases across Massachusetts, and most of them can be won early, quietly, and without a record. Recent examples appear on our results page, including disorderly conduct and resisting arrest complaints denied outright at the clerk-magistrate hearing.

Disorderly Conduct Under M.G.L. c. 272, § 53

Massachusetts charges disorderly conduct under M.G.L. c. 272, § 53. The statute reaches fighting, threatening, violent or tumultuous behavior, and conduct that creates a hazardous or physically offensive condition for no legitimate purpose. A first offense is punishable by a fine of up to $150 and carries no possibility of jail. A second or subsequent offense is punishable by up to six months in a house of correction, a fine of up to $200, or both. The same section covers the related charge of disturbing the peace.

The Supreme Judicial Court narrowed the statute decades ago. In Alegata v. Commonwealth, 353 Mass. 287 (1967), the court adopted the Model Penal Code definition, and the Commonwealth must now prove three things. The defendant engaged in fighting, threatening, violent or tumultuous behavior, or created a hazardous or physically offensive condition by an act that served no legitimate purpose. The conduct was reasonably likely to affect the public. And the defendant either intended to cause public inconvenience, annoyance, or alarm, or recklessly created a risk of it.

Each element gives the defense something to work with. Conduct inside a private apartment usually fails the public element. Speech alone almost never qualifies because Commonwealth v. A Juvenile, 368 Mass. 580 (1975), holds that words cannot support the charge unless they amount to fighting words likely to provoke immediate violence. Yelling at a police officer is not a crime, and Commonwealth v. Lopiano, 60 Mass. App. Ct. 723 (2004), holds that shouting and arm waving during a police encounter is not tumultuous behavior. Conduct with a legitimate purpose falls outside the statute entirely under Commonwealth v. Feigenbaum, 404 Mass. 471 (1989). Section 53 also protects enrolled students from delinquency adjudications for conduct within a school or at school events, a provision that matters in campus cases.

Resisting Arrest Under M.G.L. c. 268, § 32B

Resisting arrest is the more serious charge. Under M.G.L. c. 268, § 32B, a person resists arrest by knowingly preventing or attempting to prevent a police officer acting under color of official authority from making an arrest, either by using or threatening physical force or by any other means that creates a substantial risk of bodily injury to the officer or anyone else. The offense is a misdemeanor punishable by up to two and one half years in a house of correction, a fine of up to $500, or both.

Massachusetts does not recognize a right to resist an unlawful arrest. The statute says so expressly, and the courts enforce it. The lawfulness of the underlying arrest is fought later, through motions to suppress and at trial, not on the street. The one exception involves excessive force. Under Commonwealth v. Moreira, 388 Mass. 596 (1983), a person may defend against an officer’s unreasonable or excessive force, and when the evidence raises that issue the Commonwealth must disprove self-defense beyond a reasonable doubt.

The statute is narrower than police reports suggest. Running away is not resisting arrest. Commonwealth v. Montoya, 457 Mass. 102 (2010), holds that flight alone does not violate the statute unless the manner of flight itself creates a substantial risk of injury to an officer. Timing matters too. The crime can only occur while an arrest is being effected. Under Commonwealth v. Grandison, 433 Mass. 135 (2001), once a person is secured and under police control the arrest is complete, and later conduct at the station cannot be resisting arrest. The defendant must also know the person making the arrest is a police officer, which becomes a real issue in plainclothes encounters.

How These Cases Begin

Most disorderly conduct and resisting arrest cases in Greater Boston start in the nightlife districts and campus neighborhoods that feed the Boston Municipal Court divisions, Cambridge District Court, and the district courts surrounding the city. Some begin with an arrest and an arraignment. Many others begin with a summons to a clerk-magistrate hearing because the officer applied for a complaint instead of making an arrest. That difference controls the entire defense strategy.

When the case arrives as a complaint application, the clerk-magistrate hearing is the single best opportunity to end it. A denied application means no complaint, no arraignment, no CORI entry, and no criminal record of any kind. Attorney Serpa has resolved disorderly conduct and resisting arrest applications this way for three decades, and even strong applications can often be held open and dismissed after a quiet period. When the case begins with an arrest, the goal shifts to resolving the charge before or at arraignment and protecting the record wherever possible.

Defending the Charges

The defense of a disorderly conduct charge usually attacks the elements directly. The conduct was speech the First Amendment protects. The location was not public. The behavior was loud but not violent or tumultuous. The purpose was legitimate. The defense of a resisting arrest charge examines what actually happened in the seconds around the arrest. Pulling an arm away, going stiff, or stumbling during handcuffing is regularly charged as resisting even though the statute requires force or a substantial risk of injury. Body camera footage, witness accounts, and the officer’s own report often tell a smaller story than the charge suggests. Where the police used excessive force, Moreira puts self-defense squarely in play. Where the stop or arrest itself was unlawful, suppression motions can gut the Commonwealth’s case.

What the Charge Means for Students and Professionals

The direct penalties are rarely the real stakes. A first-offense disorderly conviction carries only a fine, but the arraignment that precedes it creates a CORI entry that background checks will surface for years. For a college or university student, the same incident can trigger a separate campus disciplinary proceeding that moves on its own schedule and its own standard of proof. For a licensed professional, an arraignment can raise reporting questions with a licensing board. For a visa holder, any criminal case deserves careful handling. Resolving the case before a record is created answers all of these problems at once, which is why the early stages matter so much. Where a record already exists, sealing may be available.

Related Serpa Law Office Resources:

• Clerk-Magistrate Hearings in Massachusetts
• Massachusetts Disorderly Conduct and Resisting Arrest FAQs
• What to Do in the First 24 Hours After an Arrest in Massachusetts
• College and University Student Criminal Defense
• The Right to Remain Silent in Massachusetts
• Recent Case Results

Contact Serpa Law Office at 617.936.0201 for a confidential consultation. Boston office at 20 Park Plaza #400A. Quincy office at 500 Victory Rd., Suite 400A. Available 24 hours a day.