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Can being “annoying” land you in jail?

Since jail time, whatever the reason, infringes on a deeply protected right to freedom, most states, and the federal government, takes jail as punishment for a crime seriously. Jail for civil contempt reasons is far less common, and cannot be used to “punish,” but rather to incite action to comply with court orders. One of the main tenants of the constitution is to protect certain civil liberties that we, as a society, hold in high regard, such as freedom, free speech, and bearing arms. Many civil liberties receive more attention these days in the media than jail time, because generally, when someone is a danger to society and acts criminally, we deem it appropriate to punish them by taking away their freedom. Of course there are many safeguards along the criminal process to ensure that someone is guilty of a crime and the punishment is appropriate.

But, what if the legislature makes certain behavior illegal? Generally, a statute or law has to be written in such a way that the average person can understand that his or her conduct is illegal. A person does not have to have specific knowledge of a law to be criminally charged, but since laws are published for the public, the question really is, if that person did read the law, would it be clear that he or she was acting illegally.

In a recently decided case (the Indiana Supreme Court has granted transfer, but not yet issued a decision) the Court of Appeals addressed the issue of whether a criminal defendant was “annoying” and whether the word “annoy” in a criminal statute was so vague that a reasonable person could not understand that he or she was acting criminally. The principles of due process dictate that if a penal (criminal) statute is unconstitutionally vague if it fails to clearly define what conduct is prohibited.

In Morgan v. State of Indiana, a police officer first encountered Mr. Morgan when he heard his brother yelling at him, while he lay on a bench inside a bus stop shelter1. The officer then attempted to rouse Mr. Morgan and noticed that he was intoxicated. Mr. Morgan continued to conduct himself in an angry manner towards the officer. The officer then arrested Mr. Morgan, who continued to yell, scream, and make unreasonable noise. Mr. Morgan was convicted of a Class B misdemeanor for violation of Indiana Code § 7.1-5-1-3(a), which criminalizes public intoxication if the intoxicated personal also (1) endangers a their own or another person’s life (2) breaches the peace, or is imminent danger of breaching the peace, or (3) harasses, annoys, or alarms another person.

Mr. Morgan appealed his conviction to the Indiana Court of Appeals. The Court of Appeals overturned his conviction, finding that the statute is void for vagueness, as “annoys” is not defined by the legislature, nor under common and ordinary definitions, would a reasonable person be able to discern if his conduct was that which was contemplated by the statute as illegal. A statute is void for vagueness (and therefore unconstitutional) if it (1) does not enable an ordinary person to understand the conduct that is prohibited, or (2) authorizes or encourages arbitrary or discriminatory enforcement. Here, the word “annoy” is left to the subjective impression of the person being “annoyed.” That means that every person has a different perception of what is annoying to them or not annoying. The Court held that “the definition may encompass a vast array of human behavior, and the statute provides no guidance for distinguishing between acceptable and annoying conduct.”

So while many people wish just being annoying could be grounds to put someone in jail, at least within the context of the public intoxication statutes, it is not criminal behavior. The Indiana Supreme Court has granted transfer to consider the merits of this case, but has not issued an opinion yet.

We hope that you have found this information to be helpful in understanding some policies underlying the constitutionality of criminal statutes. This is not intended to be legal advice. If you have questions or concerns about your specific case, CIYOU & DIXON, P.C. can help evaluate your specific case. This blog post was written by Attorney, Lori B. Schmeltzer.


  1. Morgan v. State, 4 N.E.3d 751 (Ind.Ct.App.2014)
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