In law enforcement, there are few situations that are clear cut, and
disorderly conduct is one of the fuzziest. As Harvard professor Henry Louis
Gates Jr. now knows all too well, the misdemeanor charge can be used to corral people who are simply uncooperative or rude. State statutes are designed to help police
officers maintain authority, and they are so broadly worded that divining
what constitutes disorderly conduct is left up to the discretion of
individual officers. “It’s probably the most abused statute in America,”
says Eugene O’Donnell, a professor of law and police studies at John Jay
College of Criminal Justice in New York City.
Perhaps not surprisingly, a good chunk of disorderly conduct charges end up being
dropped, as happened in the case against Gates, who was arrested on his
porch July 16 after yelling at the officer who responded to a report of a
possible break-in at the Harvard scholar’s home in Cambridge, Mass. Gates, who is black, accused Sgt. James Crowley, who is white, of being a racist and also cast
aspersions about the cop’s “mama”. “Mr. Gates was given plenty of opportunities to stop what he was doing. He didn’t. He acted very irrational. He controlled the outcome of that event,” Crowley told WBZ Radio in Boston on Thursday.
Talking trash by itself isn’t a punishable
offense — unless, it seems, you draw a crowd while doing it, which is part of the allegation against Gates. That’s why in the wake of the Gates incident, cops are holding firm on the need for lots of latitude
in issuing disorderly conduct charges. President Barack Obama, who said
earlier this week that Cambridge police had “acted stupidly,” called Crowley
Friday to make nice, though he stopped short of issuing the apology
that Massachusetts police unions sought and maintained that he still thought “there was an overreaction.”
“Disorderly conduct is a fluid concept,” says Tom Nolan, a criminal justice
professor at Boston University who spent 27 years in uniform at the Boston
Police Department. “Unlike a lot of other crimes, this really calls for the
use of discretion in a way that armed robbery or more serious felony crime
doesn’t. The less serious a crime, the more officer discretion you use,” he
says, adding “discretion is judgment that we hope is based on wisdom,
experience and training.”
Disorderly conduct has its roots in the mid-19th century, when police
officers needed a way to quell street brawls that erupted frequently between
recent immigrants and already established residents, often regarding labor
issues. Crowds would gather and cops needed to restore order in public
places. According to the Cambridge police report, Gates exhibited “loud and
tumultuous behavior, in a public place” that “caused citizens passing by
this location to stop and take notice while appearing surprised and
alarmed.”
The issue of whether or not Gates — first in his home and later on his front porch — was in a public place has sparked plenty of debate, including in the
blogosphere. Crowley’s account of the incident included the detail that “at
least seven” passers-by had stopped to rubberneck. Sam Goldberg, author of
Boston Criminal Lawyer Blog, thinks the report includes that detail in order
to bolster the case that this altercation was playing out publicly. “It’s as
if he was saying, ‘Look, he was really causing a disturbance,'” says
Goldberg, a criminal defense attorney at the Cambridge-based firm of Altman
& Altman.
Jon Shane, who spent 17 years as a police officer in hardscrabble Newark, N.J., said that had he been the cop called to Gates’ house, he would have left Gates and his huffy comments alone once he was sure Gates was the homeowner. He admits he may well have been offended by the professor’s alleged bluster, but that’s just part of the job, so much so that there’s a term in police vernacular devoted to situations like this: contempt of cop.
“In contempt of court, you get loud and abusive in a courtroom, and it’s against the law,” says Shane, now a professor of criminal justice at John Jay who specializes
in police policy and practice. “With contempt of cop, you get loud and nasty
and show scorn for a law enforcement officer, but a police officer can’t go
out and lock you up for disorderly conduct because you were disrespectful
toward them.” The First Amendment allows you to say pretty much anything to
the police. “You could tell them to go f–k themselves,” says Shane, “and
that’s fine.”
Like Shane, there are plenty of cops and ex-cops who think Gates’ behavior didn’t warrant the disorderly conduct charge, and there are those, like Nolan, who feel it did.
“Police pride themselves on resolving issues, and 99% of the time it occurs without arrests happening,” says Nolan. “You are not going to win any accolades bringing in anyone for a street disturbance. It’s a waste of time because in order to bring this
situation to a conclusion, you’ve got hours of paperwork ahead of you.”
“You do it because you have no other tool at your disposal,” he says of
disorderly conduct. “There really isn’t any other choice.”
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