Sir, You're Becoming Disorderly

Indiana lawyer Joshua Claybourn notes that the Henry Louis Gates affair (Gatesgate?) highlights the threat to civil liberties posed by laws prohibiting "disorderly conduct," the offense for which Gates was arrested. In Massachusetts, a person is deemed "disorderly," and therefore subject to a jail term of up to six months, if he

1) "engages in fighting or threatening, violent or tumultuous behavior," or

2) "creates a hazard or physically offensive condition by any act which serves no legitimate purpose"

3) "with purpose to cause public inconvenience, annoyance or alarm," or

4) "recklessly creates a risk thereof."

Claybourn (who, for what it's worth, is skeptical of Gates' charges of racism) says:

This sort of definition is…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.

The danger of such discretion is clear from the report on Gates' arrest. Sgt. James Crowley, the Cambridge police officer who arrested Gates at his home after responding to an erroneous burglary report, claims the Harvard professor's complaints and charges of racism amounted to "tumultuous behavior" that recklessly created a risk of "public inconvenience, annoyance or alarm." How so? Crowley reports that Gates followed him from the house onto the front porch, where he continued haranguing the sergeant (emphasis added):

As I descended the stairs to the sidewalk, Gates continued to yell at me, accusing me of racial bias and continued to tell me that I had not heard the last of him. Due to the tumultuous manner Gates had exhibited in his residence as well as his continued tumultuous behavior outside the residence, in view of the public, I warned Gates that he was becoming disorderly. Gates ignored my warning and continued to yell, which drew the attention of both the police officers and citizens, who appeared surprised and alarmed by Gates's outburst.

Notably, Crowley invited Gates to follow him, thereby setting him up for a disorderly conduct charge. "I told Gates that I was leaving his residence and that if he had any other questions regarding the matter I would speak with him outside the residence," Crowley writes. He claims "my reason for wanting to leave the residence was that Gates was yelling very loud and the acoustics of the kitchen and foyer were making it difficult for me to transmit pertinent information to ECC or other responding units." But instead of simply leaving, Crowley lured Gates outside, the better to create a public spectacle and "alarm" passers-by. The subtext of Crowley's report is that he was angered and embarrassed by Gates' "outburst" and therefore sought to create a pretext for arresting him.

The charge against Gates was dropped. But what are the odds that it would have been if Gates had not been a nationally famous scholar with many friends in high places, including the president of the United States? Instead of showing what happens to "a black man in America," the case illustrates what can happen to anyone who makes the mistake of annoying a cop.

Yesterday Damon Root discussed what Gatesgate tells us about the relationship between African Americans and the police. I argued that, questions of race aside, Crowley clearly abused his power. The other day Michael Moynihan sampled reactions to the arrest.