CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Sunday, January 22, 2006

The Taking of Pelham BVD: They're Not Wearing Any Pants

A number of NY pranksters (their site here) were arrested for disorderly conduct in the midst of a pantsless subway ride.  Here's the statute: NY Penal Law § 240.20 Disorderly conduct . A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
1. He engages in fighting or in violent, tumultuous or threatening behavior; or
2. He makes unreasonable noise; or
3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or
4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or
5. He obstructs vehicular or pedestrian traffic; or
6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or
7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.  Disorderly conduct is a violation.

It is clearly not 1, 2, 3, 4, or 6.  There are no facts suggesting obstruction of pedestrian traffic (5).  The question, then, is the applicability of (7), a hazardous or offensive condition, without legitimate purpose.  If street mimes are legal (a big if), then street absurdist comedy should be also.  In any event, how is walking around in shorts hazardous or offensive?  From the photos what these people were wearing could be swim trunks or gym shorts, no naughtly bits showed.

Indeed, another provision of the Penal Law addresses indecent exposure, and it does not cover this.  Shouldn't that give rise to a "safe harbor"? See NY Penal Law Section 245.01: "A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed. For purposes of this section, the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola. This section shall not apply to the breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment."

My prediction: If challenged, the case will be dismissed; skits and protests have not been held to constitute disorderly conduct in the absence of some specific interference with pedestrian traffic or something else that arguably fits into one of the categories.  People v. Losinger 63 Misc.2d 577, 313 N.Y.S.2d 60 (City Ct. 1970);  People v. Mehdi, 29 N.Y.2d 824, 277 N.E.2d 673 (N.Y. 1971).

I mean, for crying out loud, the idea that seeing someone walking around in shorts would alarm New Yorkers is preposterous. [Jack Chin]

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After reading the Web site of the "suspects," I can't believe any judge would do anything other than send the arresting officers to clown college to take some classes in "getting a joke."

Posted by: Matthew | Jan 23, 2006 5:20:26 AM

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