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The pliability of disorderly conduct laws

Salud. L’Chaim. Cheers. Whatever the toast, the beer summit seems to have engendered a detente between Harvard scholar Henry Louis Gates and Sgt. James Crowley of the Cambridge, Mass., police. Forgive me for prolonging the controversy over Gates’ arrest by Crowley, but as I see it, people have been focusing on the wrong thing. The issue is not so much race or class but the law itself.

Let’s just say for argument’s sake that Gates did raise his voice to Crowley and call the man a racist and talk about his mama. So? You should see my hate mail. Crowley got it mild.

People call me all manner of names, emphasizing colorful pejoratives associated with my Jewish heritage and female gender, but I don’t think for a moment they should be arrested for their lack of couth. Nasty vitriol from certain types of readers comes with the territory.

Ask any woman about the insulting, sexualized comments and gestures she gets when walking down a city street. It’s all part of living in a society where free speech is protected. In other words, any police officer who can’t stand being angrily berated should find another line of work.

But we know that police are human. Some of them, including, apparently, Crowley, will resort to their trump cards of handcuffs and state authority when being affronted. The problem is that there is a law so vague and broad that police can use it to punish impertinence.

Gates was charged with “disorderly conduct” (a charge later dropped). The courts in Massachusetts have said this statute is violated when a person engages in fighting, threatening, violent or “tumultuous” behavior in public. Crowley even used the term “tumultuous” in his police report to describe Gates’ conduct. Its inherent vagueness invites police to use it as a catchall when there is nothing else to charge.

Back in 1972, one of the most clear-eyed civil libertarians to ever sit on the U.S. Supreme Court, William O. Douglas, wrote a decision invalidating a vagrancy ordinance in Jacksonville, Fla.

He said the ordinance violated due process and was “void for vagueness.” “All persons,” Douglas wrote, “are entitled to be informed as to what the state commands or forbids.”

But the ordinance was so broad that it failed to give a person of average intelligence notice of what conduct violates it. This, Douglas warned, “encourages arbitrary and erratic arrests and convictions.”

Bingo. That’s just what’s wrong with disorderly conduct laws. There is no way to know ahead of time what conduct will land one in handcuffs.

Stories abound about the abuse of these statutes.

They are used to stifle protests, such as those in Miami in 2003 where union members and elderly protesters were arrested for disorderly conduct during the Free Trade Area of the Americas ministerial meetings—charges that were later dropped.

They are used to punish people who annoy public officials, such as the case of Greg Kachka, a disabled veteran who was charged last year with disorderly conduct for making a gun gesture toward officials from the village of Island Lake, Ill., during a public hearing. Again, the charges were dropped.

And most frequently, disorderly conduct statutes are abused by police in what University of South Florida criminology professor Lorie Fridell describes as “contempt of cop” situations.

The laws give “police way too much power and allow them to intervene with arrest for verbal abuse of state agents,” Fridell says. “Police need to be able to put up with people yelling at them.”

Eugene O’Donnell, professor of law and police studies at John Jay College of Criminal Justice, says disorderly conduct statutes encompass so much conduct that “the law becomes (the cops’) gut reaction to where somebody crosses their line.”

True freedom is the right to question authority, boisterously and even offensively, and yet be left alone. Living under a law that essentially punishes any conduct that a police officer doesn’t like is no freedom at all. It condemns us all to the whims of police officer pique.

In the Dickensian telling of the Gates/Crowley affair, the law is an ass.

Robyn Blumner is a civil liberties and labor law expert who writes about individual freedom, trade, globalization and workers’ rights. She is a columnist for the St. Petersburg Times in St. Petersburg, Fla., and syndicated by Tribune Media Services. E-mail her at blumner@sptimes.com.