Disorderly conduct laws are a combination of common lawoffenses aimed at protecting the public order, peace, and tranquility.Yet, contrary to common legal conceptions, the criminalization ofdisorderly conduct is not just about policing behavior that threatens todisrupt public order or even the public’s peace and tranquility.Policing disorderly conduct reflects and reinforces deeply rooteddiscriminatory understandings about what behavior—and whichpersons—violate community norms. By relying on a false dichotomybetween “order” and “disorder,” disorderly conduct laws constructand reinforce a hierarchy of normative behaviors that are imbued withracism, sexism, and ableism. Disorderly conduct laws “otherize”certain nonconforming behaviors, delegitimize them through the labelof “disorderly,” and in doing so exclude certain historicallymarginalized groups from normative conceptions of community. Theydo this in part by prohibiting a wide range of behaviors and conferringvast amounts of discretion upon law enforcement and private citizensto target individuals for behavior regulation, physical removal, andcommunity exclusion. These laws often determine access to sharedcommunity spaces, resulting in the exclusion of historicallymarginalized groups from these purportedly “public” spaces. In thisway, disorderly conduct laws delineate and police the normativeboundaries of communities.
This Article begins by offering an overview and substantivecritique of disorderly conduct laws. It then demonstrates howenforcement of these laws reinforces social hierarchies on the basis ofrace, gender, and disability and defines and constructs communityboundaries. In this way, the Article offers a site for problematizingunitary models of community in criminal law and is situated withincriminal legal scholarship’s ongoing discussions on the role of “thecommunity” in criminal justice reform. The Article concludes byidentifying pathways to end the harms of the disorderly conductenforcement regime, including decriminalizing and abolishingdisorderly conduct. Instead of honing in on specific policy reforms, theArticle aims to set forth certain models that rely less on consensus andmore on contestatory approaches to democratic participation, whichbetter account for the multiplicity of communities affected by criminallaw enforcement.