Having abandoned their unsustainable Big Lie on Gates, the left comes up with a new twist

(In comments posted in reply to Lydia’s question, Ken Hechtman explains the usual disposition of disorderly conduct arrests, I quote the New York State Penal Code’s definition of disorderly conduct, and John B. has a long comment responding to an article at Slate which claims that disorderly conduct in Massachusetts is limited to behavior that might cause a riot.)

Lydia McGrew (here is her blog) writes:

I would love to see VFR readers talk more about the latest liberal take on the Gates affair, which is (apparently) that the police report is correct but that Gates still shouldn’t have been arrested because the courts have previously not upheld charges of disorderly conduct when people have been doing things similar to what Gates was doing. Such is the claim—that granting that Officer Crowley’s account is entirely correct, Gates was doing nothing illegal, according to case law precedents. This, I gather, is based on some analysis by Posner of allegedly parallel cases and how they fared in the courts.

One VFR reader said something wise to the effect that lots of arrests do not result in convictions, but that the fact that some courts have not upheld similar charges does not mean in itself that the arrest was abusive in any way. Police are not called upon to be lawyers. I think this is correct but would like to hear more from knowledgeable readers who have had time to look into these alleged parallels. Are there counter-cases where charges against people doing things just like Gates was doing (shouting insults from his porch at the police and disturbing the neighborhood) have been upheld?

- end of initial entry -

Ken Hechtman writes:

I don’t want to dominate this discussion; I initially didn’t want to get into it at all. But I’ve probably taken more “dis-con” (disorderly conduct) busts than all the rest of your readers combined so I do have the answer to your correspondent’s question.

Almost no disorderly conduct arrests stand up in court. That’s not what the charge is on the books for. It’s the law enforcement equivalent of giving a little kid a “time-out.” Every state has its own variation. Some call it “Disturbing the Peace.” Some states use the “Loitering” charge. Massachusetts, if I remember right, actually calls it “Disorderly Person,” not “Disorderly Conduct.”

But it all amounts to the same thing. If you act up around a cop, you’ll spend a couple of hours in handcuffs and a couple of days in a cell and then a judge will send you home a little bit sadder and wiser. No assistant DA is going to prosecute a dis-con. No judge is going to sit and listen to arguments for and against. It’s beneath them. But the charge is there so that any time a cop wants to put the cuffs on a citizen and make him sit in a cell for a couple of days, he can do it, no questions asked.

LA replies:

This is very useful information. It shows that the purpose of arresting someone for disorderly conduct is not necessarily to have a trial and convict him of a misdemeanor and put in the county jail for a month. It’s to end his disorderly conduct—by taking him away and giving him a night in jail so that he will be less likely to do it again. The punishment is appropriate to the offense.

Which by the way doesn’t mean that “disorderly behavior” is an “informal” charge, or, as Heather Mac Donald irresponsibly called it, “the informal offense of contempt of cop.” Disorderly conduct is defined in the penal code along with all other felonies and misdemeanors (see below). What is informal is not the definition of the offense, but the way, in practice, a case may be disposed of after the individual has been arrested and spent a night in jail. Which, returning to Lydia’s question, means that the fact that people arrested for behavior similar to Gates’s were not sentenced to jail by a judge does not mean that the arrest of Gates was improper. To the contrary. It’s just another leftist lie.

LA continues:

We’ve all been talking about disorderly conduct for the last week without referencing the legal definition. Since I’m more familiar with the New York Penal Code, I started with that. Notice the word “tumultuous.” I’ll bet that the same word is in the Massachusttes Penal Code and that Crowley in his report was deliberately using that word to show that Gates was in violation of the law. I also notice that disorderly conduct in New York is a “violation,” which is lower than a misdemeanor. The maximum punishment for a Class A misdemeanor is one year, for a class B misdemeanor three months, and for a violation 15 days.


Section 240.20 Disorderly conduct

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior; or

2. He makes unreasonable noise; or

3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or

4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or

5. He obstructs vehicular or pedestrian traffic; or

6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or

7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

[end of quote]

Clearly Gates violated clauses 1, 2, and 3. I imagine Massachusetts is pretty similar.

John B. writes:

On July 22, slate.com posted an article that addressed, among other things, the question Lydia McGrew has raised. The article’s concluding portion is the following question and answer:

The arresting officer alleges that Gates shouted at him and threatened to speak to his “mama.” He then arrested Gates for disorderly conduct. What, exactly, is disorderly conduct?

Behavior that might cause a riot. Massachusetts courts have limited the definition of disorderly conduct to: 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. (The statute, however, just says “idle and disorderly persons,” a formulation that is, on its own, patently unconstitutional.) Violators may be imprisoned for up to six months, fined a maximum of $200, or both.The stilted language in the Gates police report is intended to mirror the courts’ awkward phrasing, but the state could never make the charge stick.

The law is aimed not at mere irascibility but rather at unruly behavior likely to set off wider unrest. Accordingly, the behavior must take place in public or on private property where people tend to gather. While the police allege that a crowd had formed outside Gates’ property, it is rare to see a disorderly conduct conviction for behavior on the suspect’s own front porch. In addition, political speech is excluded from the statute because of the First Amendment. Alleging racial bias, as Gates was doing, and protesting arrest both represent core political speech.

Let’s put aside the false suggestion that Sgt. Crowley arrested Professor Gates simply because the latter shouted at him and threatened to speak to his “mama”; it was not even really supported by the incomplete account at the online news article that the Slate article linked. We’ll concentrate on the Slate author’s remarks about the legal nature of disorderly conduct.

1—The Slate author states that disorderly conduct is “behavior that might cause a riot.” He provides no basis for that. In his next paragraph, he states, similarly, that the disorderly-conduct statute is “aimed not at mere irascibility but rather at unruly behavior likely to set off wider unrest.” Supposedly to support this, he links to Commonwealth v. Mulvey, a 2003 Massachusetts case that does not support it at all. Indeed, Mulvey cites a 2001 case, Commonwealth v. Chou, to this effect:

“The resulting definition of ‘disorderly’ … includes only those individuals who, ‘with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof … : (a) engage[] in fighting or threatening, or in violent or tumultuous behavior; or … (c) create[] a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.’ (Mulvey, first paragraph of section 2, citing Chou. Emphasis added.)

2—The author also states that the statute’s phrase “idle and disorderly persons” is “patently unconstitutional.” The courts do not seem to have said that. Again—his own citation, Commonwealth v. Mulvey, includes this:

The statute authorizing prosecutions for disorderly conduct, G. L. c. 272, § 53,(5) has been saved from constitutional infirmity by incorporating the definition of “disorderly” contained in Model Penal Code § 250.2(1)(a), (c) (1980). (Beginning of section 2.)

3—In support of his statement that “political speech is excluded from the statute,” the Slate author links Commonwealth v. Zettel, which doesn’t have to do with political speech. Zettel, in pointing out that the statute is limited to the prohibition of acts “which [serve] no legitimate purpose of the actor,” does, in turn, cite Commonwealth v. Feigenbaum, a 1989 case that has, in fact, to do with political expression (and which, accordingly, is the case the Slate author should have linked). In Feigenbaum, the court cited Commonwealth v. A Juvenile (1975) to the effect that “the statute only can reach conduct ‘which involves no lawful exercise of a First Amendment right.’” (Feigenbaum at page 474.) The defendant in Feigenbaum was a member of a planned political demonstration at the entrance of an Air Force Base:

Approximately at noon, demonstrators began sitting across the entrance road to the base. That road also leads to a national cemetery, open to the public, on the base. The police, who had not interfered with the demonstration to this point, warned the demonstrators to leave the road and not to block traffic. Between noon and 1 P.M., the police rerouted traffic so that vehicles both entered and exited on the exit road. Approximately two hours later, protesters blocked the exit road. At 2:30 P.M., the police made an announcement that vehicles would be towed. Thereupon, some of the protesters moved their vehicles. At 4:15 P.M., the police again warned that vehicles would be towed, and again some of the protesters moved their vehicles. At 4:30 P.M., the police gave an order to begin towing remaining vehicles parked in the area. When the tow trucks arrived at the entrance road, thirty people sat in front of the trucks as close as six inches from the wheels. The defendant was in the second row of people about ten feet from a tow truck. When the police pulled people out of the path of the trucks, the people immediately returned to their places in front of the trucks. The police then began to arrest people for disorderly conduct. Most of them had to be carried to police buses. The defendant was among those picked up from in front of a tow truck and escorted to a bus.

Feigenbaum, pages 472-73. In reversing the defendant’s conviction, the court wrote as follows:

The Commonwealth’s case rests on its proof of disorderly conduct within subsection (c) of the Model Penal Code definition, an essential element of which is that the conduct be undertaken without legitimate purpose of the actor. Therefore, although conduct that is designed to call attention to a political cause, and may therefore have a legitimate purpose, may nevertheless be criminal under the common law or by some statute, it does not constitute disorderly conduct under G. L. c. 272, Section 53.

As you see, the Feigenbaum defendant’s effort to “call attention to a political cause” was a continuation of political conduct that had nothing to do with his arrest per se. He was, in other words, not voicing any objection to his arrest—which was under way; he was merely continuing in the political conduct that was the arrest’s basis. The court decided that that conduct—as political conduct—could not be deemed disorderly. 4—The Slate author states that “[a]lleging racial bias, as Gates was doing, and protesting arrest both represent core political speech. In support of this, he links Houston v. Hill, a U.S. Supreme Court case from 1987. In the fourth paragraph of Section II of that decision, the court states that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” Citing its own earlier case, Terminiello v. Chicago (1949), the court continues:

Speech is often provocative and challenging… . [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.

Terminiello itself has nothing to do with statements directed to police. The defendant was a speaker at a political meeting that was held in an auditorium. He condemned the “angry and turbulent” conduct of a crowd that had gathered outside the auditorium, to protest against the meeting. As for Houston v. Hill itself: The defendant, one Raymond Wayne Hill, deliberately interfered with police officers who were in the process of speaking with a friend of his about possible illegal activity in which the friend was then engaged. (The activity involved disruption of traffic on a busy street. The friend’s name was also Hill—Charles Hill.) Hill, not incidentally, has nothing to do with allegation of racial bias. The Slate author cites no case having to do with that, and I do not have access to such cases.

Because the charge against Henry Louis Gates has been dropped, no court will have to address the question whether Gates’s conduct—which took place after Sgt. Crowley had proceeded to leave Gates’s residence—is distinguishable from Feigenbaum (continuation of protected political expression during an arrest therefor) or Hill.(inteference with a police officer in the course of a criminal investigation). That the alleged disorderly conduct of Professor Gates took place after police were satisfied with the information they had obtained from him and about the situation at his house and were in the process of leaving him would seem to be of some importance. The above is my reaction to the statements in the Slate article. I really have no access to other pertinent legal material. I won’t say I’ve taken time—which I don’t have—to read the above-cited cases with exactitude (or to make sure that every one of my citations, to specific paragraphs and such, is accurate); but I’ve tried quickly to identify the material points.

Posted by Lawrence Auster at July 27, 2009 12:24 PM | Send

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