In Pursuit of Ordered Liberty: Breach of the Peace in California
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BREACH OF THE PEACE IN CALIFORNIA
Civil liberties, as guaranteed by the Constitution, imply the ex-
istence of an organized society maintaining public order without
which liberty itself would be lost in the excesses of unrestrained
abuses.'
The common law offense known as breach of the peace has been
the focal point of considerable litigation in the past decade.2 Breach
of the peace statutes have been deemed, in their literal terms, to crim-
inalize activity protected by the First Amendment. Litigation result-
ing from this conflict has endeavored to bring the offense of breach of
the peace into harmony with the Constitution.
This note will examine the evolution of one such statute, Califor-
nia Penal Code section 415. It will first explore the common law
theory of breach of the peace as contained in the pre-1969 California
cases. It will next focus on the decisions of the United States Supreme
Court which significantly altered the common law offense and will dis-
cuss how those decisions have been incorporated in the California
law. Finally, the note shall present a proposed statutory definition of
breach of the peace which would comply with constitutional limitations
while still remaining a flexible instrument for the preservation of the
public peace.
California Case Law Prior to 1969
Elements of Disturbing the Peace
California Penal Code section 415 was enacted in 18781 as a
codification of the existing common law crime of breach of the peace.4
The statute states:
Every person who maliciously and willfully disturbs the peace or
quiet of any neighborhood or person, by loud or unusual noise,
or by tumultuous or offensive conduct, or threatening, traducing,
quarreling, challenging to fight, or fighting . . . is guilty of a mis-
demeanor . . ..
1. Cox v. New Hampshire, 312 U.S. 569, 574 (1941).
2. See, e.g., Cohen v. California, 403 U.S. 15 (1971); Bachellar v. Maryland,
397 U.S. 564 (1970); Cox v. Louisiana, 379 U.S. 536 (1965); Garner v. Louisiana,
368 U.S. 157 (1961); In re Bozorg, 9 Cal. 3d 612, 510 P.2d 1017, 108 Cal. Rptr. 465
(1973), cert. denied, - U.S. -, 94 S. Ct. 1959 (1974); In re Bushman, 1 Cal. 3d
767, 463 P.2d 727, 83 Cal. Rptr. 375 (1970).
3. Cal. Code Amend. 1877-78, ch. 299, § 1, at 117.
4. People v. Cohen, 1 Cal. App. 3d 94, 98, 81 Cal. Rptr. 503, 505 (1969), rev'd
sub nom., Cohen v. California, 403 U.S. 15 (1971).
5. CAL. PEN. CODE § 415 (West 1970).
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In Pursuit of Ordered Liberty: Breach of the Peace in California
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