Citiserv Process Servers

What Is A Breach Of The Peace?

A breach of the peace may be generally defined as a violation of the public order which amounts to a disturbance of the public tranquillity, or by inching others to do so. It is clear that not every misdemeanor is a breach of the peace.

To constitute a breach of the peace there must be some violence or harm existing or threatened to occur to person, property. health or morals.

Affrays, assaults, riotous conduct, or destruction of property make up the largest part of what can be called a breach of the peace.

Thus in the majority of cases of a breach of peace, some actual violence is present. In some States there have been attempts to expand the meaning of ” breach of peace” to include all indictable misdemeanors; “but this it must be confessed is doing serious violence to a simple expression, easily and well understood.

Some of the types of breaches of the peace are described as follows: A breach of peace, includes acts of public turbulence, acts of violence or tending to produce violence or tending to incite violence, disturbance of the public tranquillity by yelling, hollering, or uttering loud and vociferous language, making disturbing noises on a public street by one in a state of intoxication, … a wanton discharge of firearms in a public place, engaging in an affray or an assault, … uttering abusive, profane, indecent, or otherwise provocative language.

In discussing what constitutes a breach of the peace the Supreme Court of North Carolina held: A breach of the peace is a public offense done by violence or one causing or likely to cause an immediate disturbance of public order. 

Breaches of the peace are acts that are malum in se, being wrongful or evil by their nature. Thus acts which are malum prohibita, or those acts made wrong merely by a statute. cannot be classed as a breach of the peace.

Those acts which constitute a breach of peace have been settled throughout · the course of the common law.

The legislature cannot declare any act they choose to be a breach of peace. The nature of the act determines if it fits the common law definition of a breach of the peace. The acts that are only malum prohibita include liquor prohibition laws, traffic laws, labor laws, health laws, food laws, building codes, and zoning ordinances, safety acts. game laws, and very many other “police regulations.”

Without a statute, most of the acts constituting these offenses would be innocent acts. A parade on the street is not of itself a breach of the peace though it could constitute one.

The carrying of arms in a quiet, peaceable. and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act. of itself, tend to a breach of the peace

A mere trespass is not a breach of the peace and does not impose criminal liability upon the wrongdoer. 

Driving an automobile while intoxicated constitutes a breach of peace. Indecent exposure as where one is walking in public naked or nearly naked or in indecent dress is disruptive of the morals of society and constitutes a breach of the peace. Blasphemy of Christ or Christianity in public is a breach of the peace. A mere violation of public decorum or penal law does not constitute a breach of peace. Conduct merely amounting to a nuisance is not per se a breach of peace.  The sale of fifteen dynamite caps to an I5-year old boy did not constitute a breach of peace.A theft is not in its nature a breach of the peace.

A charge of “disorderly conduct” is a broader term than a breach of the peace because a person who commits a breach of the peace is necessarily guilty of disorderly conduct.

However, all acts of disorderly conduct are not necessarily a breach of the peace. Littering or yelling are such cases. Breach of the peace is a common-law offense, but it is not itself a specific offense.

Thus in a charge or indictment, the specific offense must be specified. arrests for breach of the peace.

In the struggle for government to claim and exercise greater powers of arrests, it has unlawfully attempted to apply the common law rule for a breach of peace arrest to all misdemeanors.

The general rule of law under the common law for the arrest of misdemeanor offenses amounting to a breach of the peace is stated as follows: In cases of misdemeanor, a peace officer like a private person has a common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of the peace is about to be committed or renewed in his presence.'”

An arrest can only be made to suppress and prevent the breach of peace, and if the act ceases, there is no longer justification for the arrest without a warrant. “‘A constable cannot arrest, but when he sees an actual breach of peace, and if the affray is over, he cannot arrest; and where a breach of the peace had been committed and was over, the constable must proceed in the same way as any other person, namely; by obtaining a warrant from a magistrate” !

The rule for arrest without a warrant involving misdemeanors was stated in an article in the Michigan Law Review as follows: Neither a peace officer nor a private citizen may arrest a person for a misdemeanor which is not a breach of the peace, In regards to this rule, it was stated: neither an officer nor a citizen may arrest for a misdemeanor which does not amount to a breach of the peace even though it occurs in his presence. As for an example. talking loudly in the street in the presence of the officer, who ordered the parties to be quiet, an arrest without a warrant was not justified; nor where someone in the presence of another, was “turning toward the wall for a particular purpose” of relief, in the street; or where he was disturbing a public meeting; or obstructing the free passage across a bridge; or refusing to move on, on a sidewalk, at the request of an n officer; or fraudulently substituting a smaller for a larger check; or fraudulently evading payment of a railroad fare, or maintaining a billboard on a sidewalk, or insulting the head of the house in the presence of his family, or assembling to witness a Sunday ball game, or a movie show.

It is a common rule that an officer cannot arrest for a breach of peace after it has ended.

When a breach of the peace ceases, the reason for the arrest ceases, that being to stop or prevent the breach of public order.

Mr. Bishop, in his Treatise on Criminal Procedure, speaking on the subject of arrest for breaches of the peace says: After the tumult is over. with no prospect of its renewal, it is too late to interfere without judicial process.

And other past misdemeanors are within the same rule, namely, that a private person, or even an officer, cannot without a warrant arrest one for a misdemeanor committed on an occasion already passed.( 1 Bish. Crim. Proced. §§ 166, 167.11 )

The principle behind the common law rule of arrests was that to prevent harm, violence, or disturbance to the public peace, it is necessary that those perpetrating such acts be promptly stopped by arrest.

Where, however, the offense is an accomplished fact. its prevention is no longer possible. Also, if public order has been fully restored before the officer appears. the power to arrest without warrant for a misdemeanor breach of the peace no longer exists, for the end by which such authority to arrest is allowed- to maintain the public peace-is no longer attainable.

The occasions which would justify an arrest without process for “vagrancy” would indeed be very rare, inasmuch it involves no immediate danger to public or private security.

Under American common law, no one can be required to “give an account of themselves,” or to show they have a “visible means of support,” or that they have employment. As part of the right to life all have a right to choose how to live and how to support themselves, and no government act can interfere with this right. The majority of misdemeanor offenses would not fall in the class of a breach of the peace which allow the immediate inter-vention of authority by arrest, as they are not an offense of a grave nature, or because they do not actually disturb the public peace.

An arrest for breach of the peace in the officer’s presence must be made “promptly,  either “at the time of the offense” or “as soon as the circumstances permit. ” If the officer “does not act immediately after the offense has been committed, he can thereafter make arrests only by procuring a warrant.

When an officer, after having seen a breach of the peace committed, departs on other business or for other purposes, and afterward returns, he cannot, without warrant, make an arrest for the offense; but where the officer finds it necessary to procure assistance, a reasonable time may be employed in the pursuit.

In such a case the officer must at once set about the arrest and follow up the effort until the arrest is effected. An unreasonable delay will make the arrest invalid. To justify a delay. there should be a continued attempt on the part of the officer to make the arrest.

It has been erroneously stated that officers are authorized to break in a house or building to prevent the commission of any crime without a warrant. This is an invalid exaggeration of the true law on the matter, which is revealed as follows: The authority of a constable to break open doors and arrest without a warrant is confined to cases where treason or felony has been committed, or if there is an affray or a breach of the peace in his presence. 2 H a le P.e. 88-96; 1 Hawkins, c. 63, § 16; 1 Russell on Crimes, 629; I Chitty’s C r criminal Law, 14, 15; Bacon, Abr. “Constable,” (C)21

The cases in which a breach of the peace occurs in the presence of an officer when done in a building would be very rare.

The cases of felony and treason in such a case would most often occur where the felon was pursued into a building by the officer.

Public drunkenness unaccompanied by language or conduct which creates a breach of the peace, will not justify arrest without a warrant. Impudent, abusive or offensive language addressed to a peace officer does not tend to breach the peace, even though it may provoke the officer to anger.

And it has been held that the mere  refusal to give one’s name and address does not justify the incarceration of a citizen.

An officer cannot arrest because he thinks or has suspicions that a breach of peace might be committed.

The cause for arresting upon such cases must be when a breach of the peace is “threatened” or its occurrence is “imminent … In determining when officers may interfere by an arrest to prevent a threatened breach of the peace, the Supreme Court of Michigan stated: We are of opinion that a threat or other indication of a breach of the peace will not justify an officer in making an arrest, unless the facts are such as would warrant the officer in believing an arrest is necessary to prevent an immediate execution thereof, as where a threat is made coupled with some overt act in attempted execution thereof.

The object of permitting an arrest under such circumstances is to prevent a breach of the peace, where the facts show the danger of its being immediately committed.

Thus the interposition of the officer in a threatened breach of the peace is not for the purpose of an arrest but “to prevent a disturbance or breach of the peace under a present menace of violence. “

The courts are almost unanimous in their holdings, …… that a threatened breach of the peace will not justify an arrest without warrant, unless the facts are such as would warrant the officer in believing an arrest necessary to prevent an immediate execution thereof, as where the threat is made coupled with some overt act in attempted execution thereof. In such cases the officer need not wait until the offense is actually committed.

The guideline then for making arrests on what is to be called a “threatened” breach of the peace, is when the conditions are such that the threatened breach of peace is imminent, or that it is obvious to the average person that it is going to occur.

As held by the Supreme Court of North Carolina: We think a breach of the peace is “threatened” …. if the offending person’s conduct under the surrounding facts and circumstances is such as reasonably justifies a belief that the perpetration of an offense amounting to a breach of the peace is imminent.

Since the nature of most breaches of the peace are such that cause violence to person or property, the acts which constitute them are apparent, so that one can readily see or hear them occurring.

It is said a breach of peace is committed in one’s presence when, by the use of his senses, he knows of its commission by the person about to be arrested. Thus an arrest for a breach of peace may be made when one’s “senses afford him knowledge” that it “is being committed,” whether through “sight, hearing, or other senses.

An arrest for a breach of the peace cannot be justified merely upon belief or suspicion existing in the mind of the officer; but, where the actions of the person and the surrounding circumstances are such as to indicate a threatened breach of the peace, the arrest may be lawfully made.

It is thus said that an officer can not arrest for a misdemeanor or a breach of the peace based solely upon information from another or suspicion without a warrant. In no case could advise or information given after the arrest was made justify the arrest.

Likewise, an arrest cannot be made for one purpose and justified for another.

(A Treatise on Arrest and False Imprisonment by Charles A. Weisman)