Legal Commentary

Everyone (Well, Almost Everyone) Likes a Boy Who Stands Up for His Mother

By Eugene Volokh

That little-mentioned but deeply held legal principle might be the true story behind M.J. v. State (Ark. Ct. App. Mar. 2, 2011):

Appellant, M.J., was charged as a juvenile with disorderly conduct. Following a hearing, the juvenile judge adjudicated him delinquent....

Arkansas Code Annotated section 5?71-207 (Supp. 2009) provides:

... (a) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk of public inconvenience, annoyance, or alarm, he or she:

(1) Engages in fighting or in violent, threatening, or tumultuous behavior;

(2) Makes unreasonable or excessive noise;

(3) In a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response; ...

(5) Obstructs vehicular or pedestrian traffic; ...

Here, the evidence ? viewed most favorably to the State ? showed that appellant is fifteen years old; that he unexpectedly came upon the scene where his mother was being arrested and handcuffed; that he had a ?look of fear or frustration? but no clenched hands; that he yelled in a very loud voice, ?Get your fucking hands off my mother? and that the situation was ?fucked up?; that the resource officer put his hands on appellant, who was jumping up and down, and told appellant to lower his voice because he did not need to get involved; that the resource officer could not say appellant was trying to actively get past him; that the incident occurred on a public street, close to the school entrance, in a residential area, with children around, and a utility crew nearby, all causing backed-up traffic; and that the incident lasted about twenty seconds. The evidence establishes the use of foul language, but no demonstration of violent demeanor or acts of aggression.

Under the facts of this case, we have concluded that the evidence did not establish that appellant engaged in purposeful conduct. That is, the evidence does not support the conclusion that it was his conscious object to engage in disorderly conduct as defined in section 5?71-207. We have wrestled more with whether the State established that appellant acted ?recklessly,? again concluding that, under the facts presented, the evidence does not support that state of mind for appellant either.

A ?person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur,? i.e., that disorderly conduct will occur. And, ?[t]he risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor?s situation[.]? Twenty seconds of the described conduct ? by a fifteen-year-old boy whose mother was being unexpectedly handcuffed in front of him ? does not constitute a ?gross deviation from the standard of care that a reasonable person would observe? in his situation.

Full post as published by The Volokh Conspiracy on March 04, 2011 (boomark / email).