‘Stupid’ Disorderly Conduct Laws
Matt Drudge’s latest fascination concerns a dust-up between the Cambridge Police Department and one of Harvard’s preeminent black scholars, Henry Louis Gates, after he was seen forcing his way into his own house. A neighbor notified police of a possible break-in, and after being questioned by police Gates got angry and was eventually arrested for disorderly conduct. What’s important to Matt Drudge becomes important to the rest of the media, and thus a major national news story was born. You can find plenty of summaries of the event’s particulars elsewhere, if you’re not familiar with it already, but I especially recommend reading the official police report of the incident.
At a press conference on Wednesday evening President Obama was asked to respond; here’s video of his response and here’s the transcribed pertinent part:
I don’t know all the facts. What’s been reported, though, is that the guy forgot his keys. He jimmied his way to get into the house. There was a report called into the police station that there might be a burglary taking place. So far so good. Right? I mean, if I was trying to jigger in — well, I guess this is my house now so it probably wouldn’t happen. Let’s say my old house in Chicago. Here I’d get shot. But so far so good. They’re reporting, the police are doing what they should. There’s a call. They go investigate what happens. My understanding is at that point Professor Gates is already in his house. The police officer comes in. I’m sure there’s some exchange of words but my understanding is that Professor Gates then shows his I.D. to show that this is his house. And at that point he gets arrested for disorderly conduct, charges which are later dropped. Now, I don’t know, not having been there and not seeing all the facts what role race played in that, but I think it’s fair to say, number one, any of us would be pretty angry. Number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home and, number three, what I think we know separate and apart from this incident is that there is a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately. And that’s just a fact.
Unfortunately for Obama, the press headlines often simply read something like this: “Obama says police acted ’stupidly’”. But the reality is that Obama supported the officer’s need to verify Gates’ identity and residence. What Obama considered ’stupid’ was the actual arrest for disorderly conduct, and I couldn’t agree with him more.
Before I go on it’s important to point out that Professor Gates repeatedly leveled charges of racism throughout the incident, often in a demeaning and disrespectful way. Though Prof. Gates may be right that he was investigated and/or arrested for his race, nothing in the evidence would suggest that to be true. Indeed, given the circumstances and the police officer’s outstanding record and history, I’m persuaded that race had absolutely nothing to do with the police’s actions. The police appear to have had every right – and indeed every responsibility – to investigate the matter and confirm Gates’ identity.
Nevertheless, there remains an unfortunate arrest for “disorderly conduct,” and arrests of this nature are far too common. Massachusetts defines the crime as fighting or threatening, violent or tumultuous behavior, or creating a hazardous or physically offensive condition for no legitimate purpose other than to cause public annoyance or alarm.
This sort of definition is relatively similar to that found in most states, and in almost every instance it is fraught with vagaries, giving far too much discretion to police officers. In short, “disorderly conduct” can easily become a euphemism for whatever a particular police officer doesn’t like. That kind of environment runs counter to fundamental ideals of the American system.
To account for some of these concerns most states carve out expressive activity from being considered disorderly conduct, and if it is political expressions they are particularly protected. In Indiana (where I practice law), expressive activity is political if its aim is to comment on governmental action, including criticism of an official acting under color of law.
But this is a small consolation. First, expressing a defense of your conduct is generally not political. Second, as a recent Indiana Appeals Court noted, “Even if one is engaging in protected political speech, this ‘does not obviate one’s responsibility to act in a civilly responsible manner.’” In other words, the government has a right to ensure you behave nicely, just as your mommy or daddy or nanny once ensured when you were younger. If you must comment in defense of your actions, don’t you dare do so with a raised or angry voice.
All of which brings us back to the Cambridge dust-up. Sgt. Crowley was understandably carrying out his duty to investigate the report, and from the quotes attributed to Gates, the professor was unfair in his comments to an officer doing a good job. But being rude, unfair, or disrespectful should not be illegal, and that’s essentially the effect of most disorderly conduct laws. Our American society increasingly hands more responsibility and control to the great Nanny State. Heightened arrests under disorderly conduct laws enable this frightening progression.
President Obama would have been wise to avoid this controversy, particularly since he admits to lacking all of the facts. But ultimately I cannot disagree with the thrust of his statement. Arresting Prof. Gates under the circumstances was stupid and Americans in every state would do well to scale back the reach of disorderly conduct laws.
Update: Reason weighs in with substantially similar views, and the Legal Blog Watch provides a great legal analysis concluding the arrest was unwarranted.
95 Responses to “‘Stupid’ Disorderly Conduct Laws”
Let me say this really slowly and in a condescending manner
Go right ahead! You can be as condescendingly moronic and slow as you wish. Free country. But it doesn’t change the facts. In fact, the landmark case on this very issue involved someone screaming insults at a police officer. The screamer lost the case.
In the end, if you don’t like ‘disorderly conduct’ statutes, lobby to have them repealed in your municipality. If the majority of the public really doesn’t like them, they should be easy to repeal.
Nice to think so. Not so easy in real life.
It’s amazing at how people’s anger towards/dislike of Obama can crystallize around such silly little things. I’d love to see 59 comments on a post that deals with something of relevance.
I’m you would. Welcome to 21st century politics. Note that this started as early as 1/20/2001. Suck it up, whiner.
Disorderly conduct laws are not stupid and are often used by police to defuse potentially explosive situations by arresting individuals provoking violent or unlawful conduct.
If the police overreach, prosecutorial discretion and/or the courts provide a remedy.
Assuming Gates’ conduct met the minimum elements of the Mass. statute, it is pretty clear that the beef is that the officer didn’t exercise discretion in Gates’ favor because he was a Harvard prof. Tough.
Gates was asked to show ID. He did not have ID with the address of the house (which he was renting). He showed his University ID (no address), and a driver’s license with the address of his other house. He refused to explain that he lawfully resided at the house. He wasn’t sure if his mistress was inside the house, and tried to keep the police officer from checking to see if anyone else was in the home. Multiple suspicious actions.
I served 12 years as a public defender in Lake Co., IN. I defended many defendants charged with Disorderly Conduct in that period. It id one of the three “pocket charges” that the police have at hand at all times, along with Resisting Law Enforcement and Public Intoxication, and I would agree that these three charges are probably the most abused in the system.
However, just because these three charges are the most abused, it does not follow that they are frequently abused. The vast majority of officers in the vast majority of cases obviously would have preferred not to file these charges. It is just more work and headaches for them. If they can calm things down and avoid the extra work, the vast majority of the time they will do so.
I disagree that the offense of Disorderly Conduct has no place in the overall scheme of maintaining public order. I have successfully defended people so charged where they were in in disagreement with an officer, but did not create a disturbance in the process. And I would remind the author that in Indiana, it has been held that addressing an officer with vulgar language (i.e., the “f-word”) does not, in and of itself, constitute Disorderly Conduct.
It is simply not possible to craft a criminal code that cannot be exploited by an officer determined to arrest someone, probable cause or not. Like it or not, they must have some discretion. The correct response to managing abuses of discretion is not to eliminate that discretion for all officers, but addressing abuses of that discretion on a case by case basis.
Law enforcement simply must have a tool available to deal with persons who are creating a public disturbance and refuse to cease and desist. What constitutes such a disturbance is determined to a large extent by the circumstances, and the elements of the offense will therefore reflect something less than clear cut precision.
No system is perfect, and the current state of the law of Disorderly Conduct has been refined by years of case law. It works reasonably well. The vast majority of defendants who are charged with this offense have been warned to calm down and refused to dos so. they may resent being ordered, and believe they are being treated unfairly, but most would escape prosecution if they were to exercise a modicum of common sense.
As for Gates, he was not arrested for disagreeing with the officer, or criticizing him, or calling him a racist, or insulting the officer’s mother. He was arrested for raging like a lunatic in public and creating a public disturbance after having been given, reportedly, 4 separate warning to calm down. The last warning was reportedly given while the officer was holding his handcuffs in his hand, so Gates obviously knew what was coming. He either couldn’t control himself, thought he would call the officers bluff, or intentionally got himself arrested so that he could exploit the situation as he has been doing ever since.
In any case he got exactly what he deserved when he was arrested, and he received far more consideration from the prosecutor than he deserved when the charges were dismissed. Joe Citizen, be he black, white, brown or sky-blue pink would have been required to appear in court, even if he got a deferred prosecution. But Gates is a big-shot Harvard professor, playing the race card on a national stage, so he walked. He should have been grateful to the citizen who took the time to report an apparent crime in progress, and to the officer who came to investigate and protect his property and his personal safety. He should be ashamed of himself.
The law does not need to be changed, much less eliminated.
A very good reply. Well written, informative, and reasonably argued, and ending in a articulate statement of position.
Now, following the unwritten rules of internet commenting, it will be completely ignored.
Let me not ignore it. This is why we need to get rid of sovereign immunity. A police officer who thought that he’d be hit for kidnapping or assault would think long and hard about who he arrested on flimsy charges. It’s high time that our public servants face the same consequences they so (in some cases) carelessly toss people into. Simply defending against a flimsy disorderly conduct arrest (as the lawyer above can surely attest to) costs a significant amount of time and money. The officers should have similar consequences on the line.
He was arrested for raging like a lunatic in public and creating a public disturbance after having been given, reportedly, 4 separate warning to calm down.
Actually, he was raging like a lunatic on his own property, not necessarily in public, and only after being invited to the front porch by the police officer. All of this occurred after the officer was satisfied that it was in fact Gates’ residence. What purpose did the officer have to linger there? Once he determined it was in fact Gates’ residence he should have left immediately.
Per the report, Gates initially refused to produce identification. Officer Crowley was leaving after Gates finally did produce his id. Gates thereupon followed Officer Crowley outside, and his tumultuous behavior continued after he was warned to stop, and was attracting a crowd. It is exactly the kind of situation this category of offense was designed to address.
Do you mean to suggest it is impossible for Gates to create a public disturbance simply because he was engaging in tumultuous conduct on private property? Neither the law in Indiana, or the law in Massachusetts (which I took the time to review) makes any such exception. Or do you mean to suggest that it is impossible to commit any criminal offense on private property? (Reportedly, Gates does not own the residence, which belongs to the University. He is a tenant, so it isn’t “his” property.)
I am beginning to doubt you read the report, or that you have any actual experience with the realities of law enforcement on the street.
Clearly, Joshua, you didn’t read the police report. Gates was belligerent, uncooperative, and confrontational. Clearly the officers, after warning Gates to calm himself or be arrested, acted appropriately.
You mislead with your characterizations because you wish to attack Drudge and his reporting, as evidenced by your concentration of Obama’s remarks instead of quoting from the report.
And, since you do not practice law in Mass., your bait and switch is irrelevant.
A Disorderly Conduct charge is a “time out” for adults.
Society needs protocols for handling adults who need a time out.
Most cops will say something like: If you continue to….. then I will have to….
This is your cue to return to a neutral posture.
Cops are all about boundaries and escalating terms, consequences.
On the flip side, how do you feel about “loitering”?
Clearly moving people along has utility to patrol officers and the public, otherwise someone could stand next to an ATM or a public restroom all night.
Usually I’ve heard it delivered as “find somewhere else to hang out…”
Loitering laws have great utility in screening adults with no kids who are hanging around child parks, cops tell them to move along and if they come back it gives a reason to ask for ID
Why does he have to be calm on his porch? Why do the police have the authority to tell him to shut up?
People have to apologize for a bad job done by a police officer by coming up with hypotheticals like “what if he had a gun”
The officer had no probable cause that this man was a threat to anything other than the officer’s pride.
“The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state”
City of Houston v. Hill (1987)
In this Supreme Court case a man was arrested for yelling at a police officer who arresting his friend. The conviction was overturned because it violated the First Amendment.
I think the key thing in the police report is Gate’s alleged threatening of the police officer:
“Gates then turned to me and told me that I had no idea who I was ‘messing’ with and that I had not heard the last of it.”
I am *not* a lawyer, but this seems like something that, if it is not illegal, is definitely very shady. I haven’t thoroughly searched the MGL, but threatening an officer to prevent him from carrying out his lawful duties seems like something that probably should be illegal. Certainly the inverse action (offering a bribe) is illegal.
Back to what I do know about the MGL, taunting someone loudly, whether on the street, from your front porch, or even from inside your own home would put one under the category of a “common railer” under MGL c275 s53.
Goodness knows that the even elderly Allston residents who phone in noisy Harvard undergraduates to the police know that you don’t have to be in the street to make a public disturbance; I don’t think that the rest of us can be fooled by the sham argument that Gates is immune from disorderly conduct charges because he was on Harvard property.
Anyway, as I understand the law in this area, since the officer demanded identification, that would indicated that he had at least detained Gates on suspicion of a crime, and was therefore in a position to issue instructions about behavior.
-Area man
The so-called professor’s inner thug came out and he was going off on the cop, screaming ghetto crap about the cop’s mama. If you do that with any real man, cop or not, you deserve an attitude adjustment, a tune up as we call it in Chicago.
Joshua,
You make good points but shouldn’t your objection be aimed at the lawmakers who make these laws and not the officers who enforce them?
May seem subtle in some respects but I’m reading that you’re agreeing with Obama that the Officer Crowley acted stupidly (though he’s now backpedaling) yet the thrust of your post is that the law is stupid.
Crowley had nothing to do with the law and everything to do with simply attempting to enforce it. That’s not stupid.
That’s duty.
You make good points but shouldn’t your objection be aimed at the lawmakers who make these laws and not the officers who enforce them?
That was my intent.
It’s an intent obscured by the fact that you’re insistent that the cop did wrong…
He did not.
He enforced the law.
He did his duty.
I’m a tad biased Joshua in that my brother’s a cop and my Uncle is a cop who was shot on duty, a shooting that led to his retirement on disability.
Until more lawyers walk in cop’s shoes, more lawyers will insist that cops are the ones acting stupidly when enforcing stupid laws.
Cops aren’t acting stupid. Cops are in large part honorable people doing honorable things.
Unlike blacks who empower themselves by agitating the races and Presidents who stupidly endorse that agitation.
The five words spoken inside the house, and how Crowley saved Gates’ life…
“Cops. Get rid of them.”
When I read comments like the majority of those posted here and consider that these are coming from people who likely consider themselves to be the true defenders of the legacy of the American Revolution, I fear for my country.
The law does not require me to give to police officers unconditional deference and submission. Common sense demands courtesy, and I always extend courtesy to the police whenever I speak with them. But to be arrested on my own property after having proven my identity simply for hurting a cop’s feelings is outrageous and tyrannical. No agent of any government deserves my unconditional deference. Cooperation and non-threatening behavior – yes. Submission – no.
Wake up! Gates is an ass, but Crowley is an arm of the state. It is clear where any true patriot’ sympathies should lie in this instance.
Outstanding post, Josh.
Chuck, your argument would be more effective if the facts youe cite were accurate. Officer Crowley was walking away and was followed by Gates. Gates continued to be beligerant and only after that was he placed under arrest. Had he not left the interior of his residence, no arrest would have occured. And for those who think Disorderly conduct is a bad law, I bet I could say very offensive and scary things to your loved ones in which you would demand the police take action.
@Chuck
Read the MGL — the statute is to protect all people from harassment and threatening behavior in a multitude of contexts.
Maligning someone as a racist for doing their job and threatening their livelihood is not the free speech of a patriot but is the tactic of intimidation used by tyrants and criminals. Assuming the police report is accurate, Gates is *not* fighting the power — he is a relatively wealthy and influential man abusing his power. His conduct, as recorded in the police report, was disorderly.
“No agent of any government deserves my unconditional deference. Cooperation and non-threatening behavior – yes”
That’s precisely what the officer in question did not receive. Read the report again (assuming you read it at all in the first place). I’ll go out on a limb and suggest that under the scenario presented in the report, this officer displayed considerable forbearance in not arresting Gates earlier.
@Josh
Let’s make this really about disorderly conduct laws and leave the Gates case out of this. What sort of world do you envision would exist in the absence of disorderly conduct laws?
I’ll bring in a true story for the enjoyment of the rest of the class, so we can discuss laws and not men:
The condominium complex where I live is also inhabited by a man who occasionally becomes very agitated (particularly on the eve of elections) and will yell incoherent ravings (mainly about the alleged body odor of several female politicians in Massachusetts) out his window from 6PM to well after 3AM, preventing his neighbors from sleeping.
Is this disorderly conduct or First-amendment protected political speech? Am I promoting tyranny by summoning the police to quiet this man, or is he a tyrant forcing his neighbors to listen to his unwelcome raillery?
In the absence of a disorderly conduct law (and other laws against disturbing the peace, which could equally well have been used in the Gate’s case since the noise was enough to attract a crowd with photographers), what protects normal citizens from this sort of behavior?
I submit that the law is not stupid. It serves an important purpose in society, and poor judgement on the part of any officer has the opportunity to be corrected by prosecutorial discretion and juries of our peers.
-Area Man
-Area man
Model Penal Code (adopted by all states) description for Disorderly Conduct:
Model Penal Code s. 250.2: “(1) Disorderly Conduct. Offense Defined. A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
“(a) engages in fighting or threatening, or in violent or tumultuous behavior; or
“(b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or
“(c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
“‘Public’ means affecting or likely to affect persons in a place to which the public or a substantial group has access . . . .”
As for the front porch private vs public property protection:
Professor Gates satisfied the criteria of Model Penal Code s. 250.2: (1) by shouting insults at the cop from his front porch, and even though the front porch itself is not a public place, it was sufficiently close to the public sidewalk and street so that “persons in a place to which the public or a substantial group has access” were affected.
run along now.
You my knowledgable friend, said it perfectly!
“Professor Gates satisfied the criteria of Model Penal Code s. 250.2: (1) by shouting insults at the cop from his front porch, and even though the front porch itself is not a public place, it was sufficiently close to the public sidewalk and street so that ‘persons in a place to which the public or a substantial group has access’ were affected.”
I suggest you read better next time, before the three possible avenues of Disorderly Conduct and the definition of public, there is the phrase “with purpose to cause public inconvenience, annoyance or alarm.” He did not berate the officer with the aim to annoy people, inconvenience them, or alarm them. He was yelling because he believed that he was being treated unjustly. He cannot be convicted of DC if he doesn’t meet all the requirements. That’s why they dropped the charges.
[...] have been several replies to my post titled “‘Stupid’ Disorderly Conduct Laws” which are worth highlighting here. Reason editor Jacob Sollum offers his take here, though [...]
“Professor Gates satisfied the criteria of Model Penal Code s. 250.2: (1) by shouting insults at the cop from his front porch, and even though the front porch itself is not a public place, it was sufficiently close to the public sidewalk and street so that “persons in a place to which the public or a substantial group has access” were affected.”
Utter bullshit. “In a public place” is not the same thing as “near a public place.” The fact that Cambridge dropped the charges immediately and without legal intervention tells us all we need to know about their legitimacy.
… or their political expediency…
The Middlesex County DA might not see the upside in trying the case since it is an elected position and he might want the governor of Massachusetts and the mayor of Cambridge to show up at some campaign events.
… just saying
-Area Man
Cambridge dropping the charges has little to do with legitimacy and tons to do with the fear instilled in whenever the racist charge is raised.
Period.
And the race baiters and pimps know this.
Why do all you clowns take the police report as definitive fact. Clearly an officer has a self interested motive to write the facts to best protect himself and cover his actions.
The Iranian authorities used the same “disorderly conduct” justification to arrest street protesters who
1. were protesting on public street
2. would not obey police demands to disband
3. were behaving unruly
4. were shouting threats (”death to ahmadinejab”)
Like many supporters of police power, I hope they throw the books at those “raving lunatics”
Norris,
I suggest you pick a better example.
You must know as well as I do that threatening the life of the president *is* a crime in the United States as well. That the crowds in Iran decided to chant “death to ahmadinejad” is rather unfortunate, since it does provide their oppressors with a legitimate cover.
-Area Man
Josh is right, by the way. It is important to remember that criticism of “disorderly conduct” statutes is not necessarily meant to apply to more limited statutes concerning actions and threatened actions. The criticism is of the grant of undefined or open-ended authority to police. Police should never be permitted to arrest a person for mere rudeness or for refusing to follow an order that a police officer has no right to issue.