Disorderly Conduct Laws and Penalties in Wisconsin

What Is a Disorderly Conduct Offense in Wisconsin?

Under Wisconsin's laws, a person commits the crime of disorderly conduct by engaging in violent, abusive, indecent, or unreasonably loud conduct that tends to disturb or provoke others. For example, yelling curse words at a police officer during an argument could be considered disorderly conduct. Getting into a screaming fight with a roommate that causes neighbors to call police could also be considered disorderly conduct. The law doesn't require that the person actually cause a disturbance, only that their conduct tends to do so.

Disorderly conduct is a Class B misdemeanor, punishable by up to 90 days in jail, a fine of up to $1,000, or both.

Going Armed Is Not Disorderly Conduct

Wisconsin lawmakers added language to the law stating that going armed or openly carrying a firearm or knife, in and of itself, is not disorderly conduct. (Wisconsin is an "open carry" state.) But the language goes on to say that disorderly conduct charges are still possible if the circumstances indicate that the person carrying has a "criminal or malicious intent." So a person who legally carries a firearm or knife in public cannot be charged with disorderly conduct for the mere act of open carrying—even if people are startled. But carrying a firearm or knife in a crowded street while screaming obscenities at bystanders could result in disorderly conduct charges.

Public Intoxication Alone Is Not Disorderly Conduct

A different law states that intoxicated persons cannot face criminal prosecution because they consumed drugs or alcohol. Instead, the law directs police to assist the person and help them get home or to a treatment center. If the intoxicated person threatens or attempts to inflict harm on oneself or others, the officer can place the person under protective custody and bring them in for emergency treatment, even if they don't consent to treatment.

(Wis. Stat. §§ 51.45, 947.01 (2024).)

What Is Unlawful Assembly or Rioting in Wisconsin?

An unlawful assembly under Wisconsin's laws is a gathering of three or more people that is so disruptive that it's reasonable to expect injury or property damage if the assembly is not dispersed. The definition includes an assembly of people who gather for the purpose of blocking streets, highways, or access to buildings or property and end up doing just that.

An example of an unlawful assembly might be a rally where protestors carry offensive signs and yell obscenities and threats at people passing by on the sidewalk. Linking arms across a street or highway to intentionally block public travel or to prevent the public from accessing a hospital or clinic could also be considered an unlawful assembly.

It's a class A misdemeanor to fail or refuse to leave an unlawful assembly when the defendant knows that a law enforcement officer has ordered the attendees to disperse. Class A misdemeanors are punishable by up to 9 months in jail, a fine of up to $10,000, or both jail and a fine. Any public university employee or student who is convicted of unlawful assembly may also be suspended from school or work for up to six months.

(Wis. Stat. § 947.06 (2024).)

Defenses to Disorderly Conduct and Unlawful Assembly Charges in Wisconsin

Defendants charged with disorderly conduct or unlawful assembly have a few defenses they can raise.

Constitutional Challenges

Wisconsin's (as well as other states') disorderly conduct and unlawful assembly laws raise First Amendment concerns. A defendant might argue that the law unlawfully infringes on their right to free speech, whether that's to protest, speak one's mind, or post photos on social media. Defendants might also challenge the law as unconstitutionally vague or overbroad. Laws are unconstitutionally vague if the average person doesn't know what behavior is prohibited. It's overbroad if the law sweeps in protected conduct, like peaceful protests.

Defendants have claimed that Wisconsin's law against disorderly conduct is so broad and vague that it infringes on their federal constitutional right to free speech, but these challenges have generally not been successful. However, in 2021, a defendant successfully argued that the law as applied to his case was unconstitutional. He was arrested for social media posts showing guns, bullets, and a local movie theatre. Two people in that theatre took the post as a threat. But the court found that these posts were protected under the First Amendment, specifically finding that the circumstances were coincidental and didn't pose a true threat or disturbance. (Brookfield v. Gonzalez, WL 4987976 (Wis. App. 2021).)

Challenging the Prosecution's Case

It's the prosecutor's job to prove all the elements of the crime beyond a reasonable doubt. The defendant doesn't need to prove anything. This being the case, defense attorneys try to poke holes in the prosecutor's case and place reasonable doubt in the minds of the jurors. For instance, the defendant might argue that their actions were not the type to provoke or disturb others. Rather, one person had an oversensitive reaction and called police. If the jury sides with the defendant and doesn't think the prosecutor proved this element, it should acquit the defendant.

Obtaining Legal Assistance

While disorderly conduct and unlawful assembly charges seem minor, it's almost always best to have a criminal defense lawyer by your side. If you can't afford a private attorney, ask the court for a public defender. A lawyer might be able to argue that the prosecutor should drop the case because the defendant was only exercising their First Amendment rights or the police acted improperly in making the arrest. In some cases, the attorney might be able to get the charges dropped with a few phone calls and save you from a conviction and criminal record. If not, the lawyer will protect your rights in court.

(Wis. Stat. §§ 947.01, 947.06, 939.51 (2024).)