18-9-106. Disorderly conduct
(1) A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly:
(a) Makes a coarse and obviously offensive utterance, gesture, or display in a public place and the utterance, gesture, or display tends to incite an immediate breach of the peace; or
(b) (Deleted by amendment, L. 2000, p. 708, 39, effective July 1, 2000.)
(c) Makes unreasonable noise in a public place or near a private residence that he has no right to occupy; or
(d) Fights with another in a public place except in an amateur or professional contest of athletic skill; or
(e) Not being a peace officer, discharges a firearm in a public place except when engaged in lawful target practice or hunting or the ritual discharge of blank ammunition cartridges as an attendee at a funeral for a deceased person who was a veteran of the armed forces of the United States; or
(f) Not being a peace officer, displays a deadly weapon, displays any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon, or represents verbally or otherwise that he or she is armed with a deadly weapon in a public place in a manner calculated to alarm.
(3) (a) An offense under paragraph (a) or (c) of subsection (1) of this section is a class 1 petty offense; except that, if the offense is committed with intent to disrupt, impair, or interfere with a funeral, or with intent to cause severe emotional distress to a person attending a funeral, it is a class 2 misdemeanor.
(b) An offense under paragraph (d) of subsection (1) of this section is a class 3 misdemeanor.
(c) An offense under paragraph (e) or (f) of subsection (1) of this section is a class 2 misdemeanor.
Source: L. 71: R&RE, p. 467, 1. C.R.S. 1963: 40-9-106. L. 72: P. 275, 8. L. 81: (1)(a) amended, p. 1010, 1, effective April 24. L. 2000: IP(1), (1)(b), and (1)(f) amended, pp. 696, 708, 11, 39, effective July 1. L. 2006: (3) amended, p. 1198, 3, effective May 26; (2) repealed, p. 1493, 21, effective June 1. L. 2014: (1)(e) amended, (HB 14-1059), ch. 22, p. 153, 1, effective March 7.
Editors note: In Snyder v. Phelps, 562 U.S. 443 , the United States Supreme Court held that the first amendment shielded military funeral protesters from tort liability for their picketing because the picketing constituted speech on matters of public concern and because the father of the deceased was not a member of a captive audience.
Cross references: (1) For affirmative defenses generally, see 18-1-407, 18-1-710, and 18-1-805.
(2) In 2006, subsection (3) was amended by the Right to Rest in Peace Act. For the title and legislative declaration, see section 1 of chapter 262, Session Laws of Colorado 2006.
Annotators note. Since 18-9-106 is similar to former 40-8-1, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Former subsection (1)(a) was unconstitutional because it was facially overbroad and could not be restrictively construed. Hansen v. People, 190 Colo. 457, 548 P.2d 1278 (1976).
Subsection (1)(b) held unconstitutional. Statute facially overbroad because it may prohibit constitutionally protected speech as well as unprotected speech. Aguilar v. People, 886 P.2d 725 (Colo. 1994).
Subsection (1)(a) applicable to speech. Subsection (1)(a) prohibits certain types of utterances, gestures, and displays in a public place. It is clear that the statutes proscription applies to speech and expression closely akin to speech. Hansen v. People, 190 Colo. 457, 548 P.2d 1278 (1976).
The statute does not prohibit utterances, gestures, or displays that inflict injury, but only those that tend to incite an immediate breach of the peace. People in Interest of R.C., 2016 COA 166, 411 P.3d 1105.
The term public place does not include a public building covered by the specific provisions of 18-9-110. The court found that the Colorado legislature has excluded from the term public place those areas mentioned in other statutes. Therefore, the court dismissed disorderly conduct charges arising out of alleged threats made to the staff of a veterans administrative hospital within one of the hospital buildings. U.S. v. Wright, 864 F. Supp. 1013 (D. Colo. 1994).
The immediate breach of the peace limiting clause in subsection (1)(a) is explicitly meant to limit liability to fighting words. Brandt v. City of Westminster, 300 F. Supp. 3d 1259 (D. Colo. 2018).
For sufficiency of evidence, see Flores v. City County of Denver, 122 Colo. 71, 220 P.2d 373 (1950).
State statute as to disturbing the peace not superseded by nonconflicting home-rule ordinance. Vela v. People, 174 Colo. 465, 484 P.2d 1204 (1971).
The actus reus of felony menacing is placing another person in fear of imminent serious bodily injury by the use of a deadly weapon, an act more specific than the actus reus of disorderly conduct with a deadly weapon, which is displaying a deadly weapon in an alarming manner in a public place. Therefore, it does not violate the equal protection clause of article II, section 25, of the Colorado constitution to subject defendants to potential criminal liability under both statutes. People v. Torres, 848 P.2d 911 (Colo. 1993).
No equal protection violation was found in defendants claim that the conduct proscribed by 18-3-206 (felony menacing), a class 5 felony, was indistinguishable from the conduct proscribed in subsection (1)(f) of this section, a class 2 misdemeanor, in which the actus reus is less specific than the actus reus in 18-3-206. People v. Ibarra, 849 P.2d 33 (Colo. 1993).
It is only when the same conduct is proscribed in two statutes and different criminal sanctions apply, that problems arise under equal protection. People v. Ibarra, 849 P.2d 33 (Colo. 1993).
Defendants display of a crudely altered photo did not amount to fighting words because it was not likely to incite an immediate breach of the peace. People in Interest of R.C., 2016 COA 166, 411 P.3d 1105.