The Threat to Civil Liberties Posed by the Charge of “Disorderly Conduct”

Via the Daily Dish, Jacob Sullum over at Reason’s Hit & Run:

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?

UPDATE: Via billy in the comments, Henry Farrell has posted a defense of the discretionary power of police by Brandon del Pozo, a captain in the NYPD and a Ph.D. candidate in philosophy at CUNY, over at Crooked Timber. To me there is some merit in de Pozo’s arguments for discretionary power, which does not mean I’m totally convinced. I’m far from convinced that Sergeant Crowley used that discretionary power wisely, and am inclined to think he used it unwisely.

From my own experience and what I have learned about the incident, I highly doubt that I would have ordered the arrest of Professor Gates for any charge. I do, however, think that based on his actions as alleged by Sergeant Crowley, his arrest was somewhat plausible within the universe of possible outcomes to the incident. That still does not mean that the cops in question weren’t acting “stupidly,” as President Obama suggested. It is possible to do a lawful thing that is stupid, and that is why officers have discretion in many cases. While it can be misused, discretion is there to prevent them from stupidly enforcing the letter of the law. That the arrest was unwise and imprudent has also been made clear by how quickly the charges were dropped and the apologies issued by the government of Cambridge.

On the other hand, I do feel that Professor Gates seems to have acted inappropriately. There was no good reason for him to converse belligerently with the responding officer from his first words, or accuse him of racism, or refuse to answer basic questions directly related to the scope of the officer’s legitimate investigation. Of course, Gates also had the prerogative to say nothing at all, but this is different from saying nothing constructive, and instead issuing verbal abuse.