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 corralpeople who are simply uncooperative or rude. State statutes aredesigned to help police officers maintain authority, and they are sobroadly worded that divining what constitutes disorderly conduct isleft up to the discretion of individual officers. "It's probably themost abused statute in America," says Eugene O'Donnell, a professor oflaw and police studies at John Jay College of Criminal Justice in NewYork City.
Perhaps not surprisingly, a good chunk of disorderly conduct chargesend up being dropped, as happened in the case against Gates, who wasarrested on his porch July 16 after yelling at the officer whoresponded to a report of a possible break-in at the Harvard scholar'shome in Cambridge, Mass. Gates, who is black, accused Sgt. JamesCrowley, who is white, of being a racist and also cast aspersions aboutthe cop's "mama". "Mr. Gates was given plenty of opportunities to stopwhat he was doing. He didn't. He acted very irrational. He controlledthe outcome of that event," Crowley told WBZ Radio in Boston onThursday.
Talking trash by itself isn't a punishable offense — unless, it seems,you draw a crowd while doing it, which is part of the allegationagainst Gates. That's why in the wake of the Gates incident, cops areholding firm on the need for lots of latitude in issuing disorderlyconduct charges. President Barack Obama, who said earlier this weekthat Cambridge police had "acted stupidly," called Crowley Friday tomake nice, though he stopped short of issuing the apology thatMassachusetts 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 hisfront porch — was in a public place has sparked plenty of debate,including in the blogosphere. Crowley's account of the incidentincluded the detail that "at least seven" passers-by had stopped torubberneck. Sam Goldberg, author of Boston Criminal Lawyer Blog, thinksthe report includes that detail in order to bolster the case that thisaltercation was playing out publicly. "It's as if he was saying, 'Look,he was really causing a disturbance,'" says Goldberg, a criminaldefense attorney at the Cambridge-based firm of Altman & Altman.
Jon Shane, who spent 17 years as a police officer inhardscrabble Newark, N.J., said that had he been the cop called toGates' house, he would have left Gates and his huffy comments aloneonce he was sure Gates was the homeowner. He admits he may well havebeen offended by the professor's alleged bluster, but that's just partof the job, so much so that there's a term in police vernacular devotedto 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 criminaljustice at John Jay who specializes in police policy and practice."With contempt of cop, you get loud and nasty and show scorn for a lawenforcement officer, but a police officer can't go out and lock you upfor disorderly conduct because you were disrespectful toward them." TheFirst Amendment allows you to say pretty much anything to the police."You could tell them to go f--k themselves," says Shane, "and that'sfine."
Like Shane, there are plenty of cops and ex-cops whothink Gates' behavior didn't warrant the disorderly conduct charge, andthere are those, like Nolan, who feel it did.
"Police pride themselves on resolving issues, and 99% of thetime it occurs without arrests happening," says Nolan. "You are notgoing 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 aconclusion, 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."
