Also known as: offences against the public peace · breach of the peace
Written by attorneys — see sources below.
A public offense involving violence or conduct likely to cause an immediate disturbance of public order.
Oliver Okeke burned a flag during a political demonstration outside a federal building. No crowd reacted with violence or disorder. Officers arrested him under a desecration rule. The conduct did not meet the elements of an offense against the public peace.
Oscar Ortiz published an article accusing a local official of corruption. The statements reached a wide audience but produced no immediate physical confrontation. The publication did not constitute an offense against the public peace.
In 1968, Chicago police officer Richard Nuccio shot and killed a youth named Nelson. State authorities prosecuted Nuccio and obtained a conviction for second-degree murder. The Nelson family retained petitioner Elmer Gertz, a Chicago attorney, to represent them in civil litigation against Nuccio. Respondent Robert Welch, Inc., publishes American Opinion, a monthly magazine expressing the views of the John Birch Society. In March 1969, the magazine published an article titled "FRAME-UP: Richard Nuccio And The War On Police." The article accused Gertz of participating in a Communist conspiracy to discredit local law enforcement, described him as a "Leninist" and "Communist-fronter," and claimed he had been an officer of the National Lawyers Guild, which it portrayed as a Communist organization involved in planning attacks on Chicago police during the 1968 Democratic Convention. The article contained numerous inaccuracies, including the false implication that Gertz had a criminal record. Gertz had served as an officer of the National Lawyers Guild approximately fifteen years earlier but had no involvement in planning the 1968 demonstrations. He had never been a member of the Marxist League for Industrial Democracy or the Intercollegiate Socialist Society. The managing editor of American Opinion made no effort to verify the charges against Gertz before publication and appended an editorial introduction stating that the author had conducted extensive research. Gertz filed a diversity action for libel in the United States District Court for the Northern District of Illinois. The district court ruled that the statements constituted libel per se under Illinois law. After a trial, the jury awarded Gertz $50,000 in compensatory damages. The district court later entered judgment for the defendant notwithstanding the verdict, applying the New York Times standard. The Court of Appeals for the Seventh Circuit affirmed. The Supreme Court granted certiorari to review the application of constitutional standards to defamation of a private individual.
View caseOrson Ochoa challenged a city employment practice through a civil rights suit. The underlying conduct involved no violence or public disturbance. The claim did not rest on an offense against the public peace.
In July 1971 petitioners, a class of female employees of the Department of Social Services and of the Board of Education of the City of New York, commenced this action under 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York. They sued the Department and its Commissioner, the Board and its Chancellor, and the city of New York and its Mayor, all in their official capacities. The complaint alleged that the city and its agencies had as a matter of official policy compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. The suit sought injunctive relief and backpay for periods of unlawful forced leave. On cross-motions for summary judgment, the District Court held petitioners' claims for injunctive and declaratory relief moot because the city and the Board had changed their maternity-leave policies after the complaint was filed. The court found that the acts complained of were unconstitutional under the Fourteenth Amendment. It denied backpay on the ground that any damages would come ultimately from the city of New York and that holding otherwise would circumvent the immunity conferred on municipalities by Monroe v. Pape. On appeal, petitioners renewed their arguments that the Board of Education was not a municipality within the meaning of Monroe v. Pape and that the District Court had erred in barring a damages award against the individual defendants. The Court of Appeals for the Second Circuit held that the Board was not a “person” under § 1983 because it performed a vital governmental function and had no final say over its appropriations. It also held that a damages action against officials sued in their official capacities could not proceed because any award would have to be paid by a city held not amenable to suit in Monroe v. Pape. The Supreme Court granted certiorari to consider whether local governmental officials and local independent school boards are “persons” within the meaning of 42 U.S.C. § 1983 when equitable relief in the nature of back pay is sought against them in their official capacities. After oral argument, the Court requested the parties to address whether Monroe v. Pape should be reconsidered in light of the legislative history of the Civil Rights Act of 1871.
View caseOswald Orozco delivered a speech in a crowded hall that incited listeners to shout and push. Police arrested him under a disorderly conduct statute. The words created an immediate risk of violence and therefore qualified as an offense against the public peace.
On February 7, 1946, Albert Terminiello delivered a speech in the auditorium of the West End Women's Club in Chicago to an audience of about eight hundred people under the auspices of the Christian Veterans of America. An overflow crowd of about one thousand persons gathered outside the auditorium to protest the meeting. The crowd was angry and turbulent, with many making threats against the speaker, shouting, and attempting to force their way into the building while the police proved unable to maintain order. Terminiello was arrested and charged under a Chicago ordinance making it unlawful to make any improper noise, riot, disturbance, breach of the peace, or diversion tending to a breach of the peace. At trial the court instructed the jury that misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, and the jury returned a verdict of guilty resulting in a fine of one hundred dollars. The Illinois Appellate Court and the Illinois Supreme Court both affirmed the conviction. The Supreme Court of the United States granted certiorari to review the case.
View caseOlive Okafor failed to wear a seatbelt during a routine traffic stop. Officers arrested her without a warrant. The violation involved no violence or threat of immediate disorder and therefore was not an offense against the public peace.
In March 1997, petitioner Gail Atwater was driving her pickup truck in Lago Vista, Texas, with her three-year-old son and five-year-old daughter in the front seat. None of them was wearing a seatbelt. Respondent Bart Turek, a Lago Vista police officer, observed the seatbelt violations and pulled Atwater over. Turek approached the truck, yelled at Atwater, and told her she was going to jail. He called for backup and asked to see her driver's license and insurance documentation, which she explained she did not have because her purse had been stolen the day before. Atwater asked to take her frightened and crying children to a friend's house nearby, but Turek refused and said she was not going anywhere. Atwater's friend soon arrived to take charge of the children. Turek then handcuffed Atwater, placed her in his squad car, and drove her to the local police station. Booking officers had her remove her shoes, jewelry, and eyeglasses and empty her pockets. Officers took Atwater's mug shot and placed her alone in a jail cell for about one hour, after which she was taken before a magistrate and released on $310 bond. Atwater was charged with driving without her seatbelt fastened, failing to secure her children in seatbelts, driving without a license, and failing to provide proof of insurance. She ultimately pleaded no contest to the misdemeanor seatbelt offenses and paid a $50 fine on each charge; the other charges were dismissed. Atwater and her husband filed suit under 42 U.S.C. § 1983 against Turek, the City of Lago Vista, and Chief of Police Frank Miller, alleging that the warrantless arrest violated the Fourth Amendment. The United States District Court for the Western District of Texas granted the defendants' motion for summary judgment. A panel of the United States Court of Appeals for the Fifth Circuit reversed, but sitting en banc the Fifth Circuit affirmed the District Court's judgment. The Supreme Court granted certiorari.
View caseOdessa Okada stood on a public sidewalk with others after dark. Police cited the group under a loitering statute. The conduct produced no violence or imminent disturbance and did not amount to an offense against the public peace.
In 1992 the Chicago City Council enacted the Gang Congregation Ordinance after hearings revealing that gang members intimidated residents by loitering in public places. The ordinance made it unlawful for any person to loiter in a public place with one or more persons knowing that at least one of those persons was a criminal street gang member. The ordinance defined loitering as remaining in any one place with no apparent purpose. It required a police officer who reasonably believed a person to be a gang member loitering with others to order the entire group to disperse, and failure to obey the order was punishable by a fine of up to $500, imprisonment for not more than six months, or up to 120 hours of community service. Two months after enactment the Chicago Police Department issued General Order 92-4 to provide guidelines to govern its enforcement. The order confined arrest authority to members of the Gang Crime Section and other designated officers, established criteria for identifying street gangs and membership, and directed district commanders to designate enforcement areas where gang presence had a demonstrable effect on law-abiding persons. Those designated areas were not released to the public. During the three years the ordinance was enforced, officers issued more than 89,000 dispersal orders and arrested more than 42,000 people. Respondent Jesus Morales and other individuals were charged with violating the ordinance. Trial courts divided on its constitutionality, with some judges upholding it while eleven others ruled it invalid. The Illinois Appellate Court consolidated the cases, affirmed the invalidations, and reversed convictions in the remaining matters. The Illinois Supreme Court affirmed, and the United States Supreme Court granted certiorari.
View caseThe Restatement defines it as a public offense done by violence or one causing or likely to cause an immediate disturbance of public order. Courts apply this standard when evaluating disorderly conduct or breach-of-peace statutes. The test focuses on the likelihood of immediate disorder rather than later consequences.
Flag burning receives First Amendment protection when it constitutes expressive conduct. The government may not prohibit it solely to suppress the message absent an imminent breach of the peace. The absence of violence or immediate disorder prevents classification as an offense against the public peace.
A seatbelt violation carries no jail time and creates no immediate danger to persons or property. Common-law limits on warrantless misdemeanor arrests often required a breach of the peace. The violation therefore does not qualify as an offense against the public peace.
Speech qualifies when it consists of personally abusive epithets delivered face to face that are inherently likely to provoke an immediate violent response. The fighting-words doctrine supplies the boundary. Mere offensive content without that risk remains protected.
…labels" of state law. N. A. A. C. P. v. Button, 371 U. S. 415, 429. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the repression of expression that have been challenged in this court, libel can claim no talismanic immunity…