New Disorderly Conduct Case May Help Address Noise

The Pennsylvania Superior Court modestly stepped-up criminal relief for victims of alleged neighbor retaliation or excessive noise.

In Commonwealth v. McConnell, 2020 PA Super 300 (Super., Dec. 30, 2020) (Slip). police cited  McConnell with disorderly conduct for turning on eight, construction-grade, floodlights in a residential neighborhood and directing them towards the home of a neighbor.

The case illustrates how neighbor issues escalate quickly—and parallels noise-related issues. According to the opinion, the construction-grade lights responded to alleged problems between neighbors about lighting around a neighbor's pool area, which apparently included "string lights, a “green glow from the swimming pool,” tiki torches, the motion-detecting security light, and the light from a fire pit on the property.

While technically not addressing noise, the case may apply to retaliatory or excessive noise situations and also addresses spurious claims of First Amendment activity cited to excuse noise violations.

Disorderly Conduct Includes "...direct assaults on the physical senses of members of the public"

Criminal disorderly conduct in Pennsylvania may arise when a party creates a "physically offensive condition," which includes "...direct assaults on the physical senses of members of the public." [Slip 6]. "[A] defendant can create a physically offensive condition if she invades the physical privacy of another in an extreme manner...." [Slip 7]. (Note: disorderly conduct also applies to unreasonable noise.)

The new opinion may give relief in some extreme cases of noise pollution and noise retaliation in Pennsylvania. Noise may rise to "direct assaults on the physical senses of members of the public."

However, disorderly conduct still applies only in extreme situations of "public unruliness which can or does lead to tumult and disorder." [Slip 6-8] The Superior Court reminds "the offense of disorderly conduct is not intended as a catchall for every act which annoys or disturbs people and it is not to be used as a dragnet for all the irritations which breed in the ferment of a community." [Slip 6]

The latter shows why disorderly conduct alone is not enough to address most noise problems. Thus, municipalities need a true noise ordinance, a public nuisance ordinance, and zoning performance standards to address other noise issues that do not necessarily arise to the extreme levels required to support criminal, disorderly conduct.

First Amendment Activity Not Exempt from Reasonableness and Excessive Activity May Support Disorderly Conduct

McConnell reminds that even First Amendment activity must be exercised in a reasonable manner. and the analysis focuses on the disturbance from the noise, not the content of the noise. [Slip 14-16]."[W]hen a protected first amendment right to free speech is implicated, a disorderly conduct conviction will stand only when “he actor intend[s] to breach the public peace by making
unreasonable noise.' [Slip 15] However, one must "exercise his rights in a reasonable manner." [Slip 14] The opinion also suggests, in a criminal context, that noise that was clearly unreasonable for the standard noise levels in a residential neighborhood may constitute disorderly conduct. See [Slip 16].

Oftentimes, wrongdoers waive First Amendment activity like a magic talisman to avoid liability for noise assaults.  McConnell again reminds that even alleged First Amendment activity may support disorderly conduct convictions when exercised in an unreasonable manner. See [Slip 15-16].