Massachusetts Disorderly Conduct and Resisting Arrest FAQs

The Commonwealth must prove three things beyond a reasonable doubt: that the defendant engaged in fighting or threatening, engaged in violent or tumultuous behavior, or created a hazardous or physically offensive condition by an act serving no legitimate purpose; that the actions were reasonably likely to affect the public; and that the defendant either intended to cause public inconvenience, annoyance, or alarm, or recklessly created that risk.

Section 53 does not define “disorderly.” The elements come from the case law and are stated in Model Jury Instruction 7.160. Each element is separately contestable. See the full practice page.

No. It is a misdemeanor, because the statute authorizes no state prison sentence.

A first offense is punishable by a fine of not more than $150, with no jail exposure. A second or subsequent offense is punishable by up to six months in a jail or house of correction, a fine of up to $200, or both. Resisting arrest is also a misdemeanor, punishable by up to two and a half years in a jail or house of correction, a fine of up to $500, or both. See felonies and misdemeanors in Massachusetts.

Speech alone cannot support the charge unless it constitutes fighting words, meaning words “which by their very utterance tend to incite an immediate breach of the peace.”

Arguing with an officer, questioning a stop, swearing, and criticizing the police do not by themselves 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 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.

A sidewalk or another location open to the public ordinarily satisfies the location requirement. Whether a bar, parking lot, common hallway, or campus area qualifies depends on who may enter and whether members of the public were present or likely to be present. An incident inside a private residence, or in another location where no member of the public was present or likely to be present, raises a question on this element.

Section 53(b) provides that an elementary or secondary school student shall not be adjudged a delinquent child for a violation of that subsection for conduct in school buildings, on school grounds, or at school-related events.

That protection covers elementary and secondary students. A college or university student faces the ordinary criminal charge and may also face a separate campus disciplinary proceeding. See student criminal defense.

A person commits resisting arrest by knowingly preventing or attempting to prevent an officer, acting under color of official authority, from effecting an arrest, either by using or threatening physical force or violence, or by using any other means that creates a substantial risk of bodily injury to the officer or another.

The Commonwealth must prove that an officer was effecting an arrest rather than conducting a stop or detention. It must also prove that the person knowingly prevented or attempted to prevent the arrest. Pulling away reflexively or failing to comply immediately with a confusing instruction is different from knowingly using force.

It can be. In Commonwealth v. Montoya, 457 Mass. 102 (2010), the Supreme Judicial Court held that the statute covers flight where the circumstances of the flight expose pursuing officers to a substantial risk of bodily injury.

Montoya focuses on the risk the fleeing person created. The officers’ decision not to follow into the danger does not defeat the charge, and their subjective fear is not determinative. The Court noted that mere flight was not at issue in the case. If nothing about the circumstances exposed anyone to a substantial risk of bodily injury, the Commonwealth may be unable to prove that element.

Generally no. Section 32B(b) provides that it is not a defense that the officer was attempting an unlawful arrest, if the officer was acting under color of official authority.

The statute provides that the rule applies only where the officer, in attempting the arrest, “was not resorting to unreasonable or excessive force giving rise to the right of self-defense.”

An unlawful stop or arrest can support a motion to suppress evidence obtained through the illegality. Whether the underlying charge can proceed after suppression depends on what admissible evidence remains. See illegal searches and seizures.

Evidence that an 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.

The evidence may include officer and civilian testimony, body-worn camera footage, cruiser video, bystander recordings, booking photographs, and medical records. Counsel should identify and request recordings promptly before an agency or private owner deletes them under the applicable retention practice. The pages on digital evidence in Massachusetts criminal cases and self-defense explain the related evidentiary and substantive rules.

It depends on how the case began and on the statutory exceptions. 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.

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. See Massachusetts clerk-magistrate hearings and the clerk-magistrate hearing FAQs.

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.

Where the case began with a complaint application rather than an arrest, and the clerk-magistrate denies the application, no complaint issues, there is no arraignment, and that application produces no CORI entry. A police report of the incident can still exist in the department’s files.

Yes, if the record satisfies the statute governing its disposition.

Section 100C requires sealing of a not-guilty finding, no bill, or no-probable-cause finding unless the defendant objects. A dismissal requires a petition, and the judge may seal it when substantial justice would best be served. Section 100C imposes no waiting period.

Under § 100A, an otherwise eligible misdemeanor conviction may be sealed after at least three years, including any period of incarceration or custody. Sealing changes what the Commissioner of Probation reports. See sealing and expungement.

It can. Each licensing authority sets its own reporting questions, triggers, forms, and deadlines. A charge alone does not create one universal disclosure duty. See criminal defense for licensed professionals.

It can, and the question does not depend on the Massachusetts misdemeanor label. Immigration counsel should review the charged statute, disposition, sentence, immigration status, and prior record before the defendant accepts a disposition. See immigration consequences.

Preserve relevant evidence and do not discuss the facts with police or witnesses, or on social media, before consulting counsel.

Write down the date, time, location, and the officers involved. Give counsel the names of anyone who recorded the encounter and of any businesses or residences with cameras facing the location. Counsel can send the appropriate preservation requests. See your right to remain silent.