A Pennsylvania teen cannot be charged with disorderly conduct for taking a cellphone video of a fist fight between two fellow students and then texting the video to two friends, the state Superior Court has ruled in a case of first impression.

A three-judge panel of the court, reversing a Clearfield County trial judge's ruling in Commonwealth v. N.M.C., determined that recording the fight and sending it to others was not enough to form the basis of a “disorderly conduct—creates a hazardous or physically offensive condition” charge under 18 Pa.C.S. Section 5503(a)(4).

The court said the prosecution failed to show that defendant N.M.C.'s dissemination of the video to two people created a hazardous condition under the law or that the video was physically, as opposed to morally, offensive to those who viewed it.

“We recognize that the video's subject matter may be unsettling,” Judge H. Geoffrey Moulton Jr. wrote for the panel in a published opinion. “Nor do we discount the prosecutor's comment in closing argument that 'I can see why this type of behavior shouldn't be tolerated,' at least not by school officials. Nevertheless, the evidence presented does not show that N.M.C.'s dissemination of the video or its content directly assaulted the physical senses of members of public.”

Moulton was joined by Judge Paula Francisco Ott and Senior Judge James J. Fitzgerald III.

In May 2016, according to Moulton's opinion, N.M.C., who was 14 years old at the time, took a 45-second video with his cellphone of two schoolmates fighting in the bathroom at DuBois Area Middle School. The video, Moulton said, showed the two boys squaring off, shoving each other and then throwing several punches while another student exposed his buttocks to the camera and a fourth student could be seen standing at a urinal behind a divider.

That evening, N.M.C. texted the video to his girlfriend and another student, according to Moulton. The following day, a third student asked N.M.C. to see the video but N.M.C. refused. Later that same day, Michael Maholtz, the assistant principal, learned of the fight and shortly thereafter was given a copy of the video by N.M.C.'s girlfriend.

N.M.C. eventually admitted to taking the video and was cited for disorderly conduct. After a magisterial district judge found him guilty, he appealed to the trial court, which upheld the conviction and sentenced N.M.C. to 90 days' probation and 35 hours of community service, as well as ordering him to pay a $100 fine and court costs.

According to Moulton, the trial court reasoned that N.M.C. created a hazardous condition by texting the video to others because it could have been further disseminated, potentially encouraging more fighting.

Moulton said there are only “a handful of cases” that have addressed the definition of “'hazardous or physically offensive condition'” under Section 5503(a)(4). The question of whether disseminating a video of a fight falls under that definition appeared to be one of first impression, the judge added.

In the 1990 case Commonwealth v. Williams, Moulton said, the Superior Court determined that a man could not be charged with disorderly conduct under Section 5503(a)(4) for stepping out of his vehicle in an apartment complex parking lot, removing his pants and entering another vehicle that did not belong to him.

The court in Williams reasoned that the defendant had not created a hazardous condition because he had not created “'a significant risk or danger of injury to anyone.'”

The Williams court also said the defendant had not created a physically offensive condition.

“Although a precise definition of 'physically offensive condition' is elusive, this term encompasses direct assaults on the physical senses of members of the public,” the Williams court said, citing the “Model Penal Code and Commentaries” from 1980. “A defendant may create such a condition if she sets off a 'stink bomb,' strews rotting garbage in public places, or shines blinding lights in the eyes of others.”

However, in the 1987 case Commonwealth v. Roth, the Superior Court had found that a group of activists who attempted to place a large piece of scrap iron on a church's altar in protest of the church's practices had created a hazardous condition because they disrupted services at the church, which potentially could have led to altercations between protesters and members of the congregation.

Turning to the evidence against N.M.C., Moulton said the government failed to meet its burden because N.M.C.'s conduct did not create the type of risk or danger the court found sufficient in Roth.

The court similarly found that the video N.M.C. texted was not ”physically offensive” under Section 5503(a)(4).

“As in Williams, while some may find the video's content morally offensive, we cannot say that its content is as physically offensive as 'set[ting] off a “stink bomb”, strew[ing] rotten garbage in public places, or shin[ing] blinding lights in the eyes of others,'” Moulton said.

Counsel for N.M.C., Beau Grove of Ridgway, could not be reached for comment.

Clearfield District Attorney William Shaw Jr. also could not be reached.