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"Disorderly conduct" and the First Amendment

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The Cat-Tribe
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"Disorderly conduct" and the First Amendment

Postby The Cat-Tribe » Fri Jul 31, 2009 3:39 pm

Although I wouldn't mind further discussion of the arrest of Professor Henry Louis Gates, there is another thread for that. I would like to focus on an important related point that has been somewhat lost in the media fervor about racial implications: disorderly conduct laws and their abuse.

Included below is an excellent article on the subject (with some emphasis added by me), but for those who won't read it, here is the short version: One should not be subject to arrest merely for berating an officer (particularly at one's own home). Disorderly conduct statutes tend to be vague and amorphous allowing police officers to use them against those who annoy them. This is contrary to the concepts of free speech.

Using the Gates Arrest as a Comprehensive "Teachable Moment"
By VIKRAM DAVID AMAR
Findlaw.com
Friday, July 31, 2009
In this column, I offer some legal analysis of the recent high-profile arrest of African American Harvard Professor Henry Louis Gates by white Cambridge police Sergeant James Crowley. In particular, I focus on the free speech aspects of the episode, which are related to, but distinct from, the questions of racial equality that have commanded so much attention in the national conversation.

The Basic Background of the Incident

Although the specifics are disputed by the parties to the incident, the basic facts are familiar to most Americans with access to TV, the Internet or a newspaper. Responding to a report of an attempted residential break-in by two black men, Sergeant Crowley approached Professor Gates's house, saw the Professor behind the front door in the foyer, and began to question him. At some point, Gates came to believe that his race improperly factored into Sergeant Crowley's questioning of him, and let Sergeant Crowley know in no uncertain terms of his dissatisfaction over the way he was being treated.

Sergeant Crowley, for his part, maintains that Professor Gates was uncooperative with the investigation from the outset, and then became "loud," "tumultuous" and "disorderly" in a public place (i.e., the front yard of Gates's home, viewable from the sidewalk), at which time the arrest was made and Professor Gates was placed in handcuffs.

Most of the media attention concerning this incident has centered on the disputed question of the extent to which "racial profiling" played into Sergeant Crowley's conduct, and the related question of whether the episode reveals any general truth about the way that men of color are treated by law enforcement even in Twenty-First Century America.

A Different Constitutional Question

This mainstream media's focus on questions of race and equal protection under the law in this case is certainly understandable and quite important. But I want to put to one side, at least for the moment, the question of whether the racial identities of the participants played a role in the encounter. Let us stipulate, for present purposes, that Officer Crowley is guilty of no invidious "racial profiling" (and his background and expertise suggest, at least, that he tries hard to keep race out of his decision-making processes). Even so, his arrest of Professor Gates still seems constitutionally troubling, if not indefensible, because his application of the "disorderly conduct" idea violates basic notions of due process and free speech.

For the remainder of this essay, I will assume as true the facts that Sergeant Crowley himself alleges in the police report (even though some of those facts are hotly contested by Professor Gates). According to this report, Professor Gates did not readily answer Sergeant Crowley's questions or comply with requests to produce identification from the moment the two men saw each other. However, the report relates that, after some ranting and accusations of racism by Gates and some cryptic references by Gates to what a big-shot Gates was, the Professor did eventually produce some Harvard identification that led Crowley to conclude that Gates was not in fact a burglar.

Here's what Crowley's police report says in its key passages: "With the Harvard University identification in hand, I radioed my findings. . . and prepared to leave. . . . Gates continued to yell at me [and] I told Gates I was leaving his residence and that if he had any other questions regarding the matter, I would speak to him outside of the residence. . . . As I descended the stairs to the sidewalk, Gates continued to yell at me, accusing me of racial bias and contin[uing] to tell me 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 [many] police officers and citizens [on the sidewalk], who appeared surprised and alarmed by Gates's outburst. [After a second unheeded warning to calm down,] I informed Gates he was under arrest [and] stepped up the stairs onto the porch and attempted to place him in handcuffs."

Why the Disorderly Conduct Arrest Runs Afoul of First Amendment Principles

There are several aspects of this account that are legally crucial. First, the investigation into the reported burglary had already wound down when Sergeant Crowley determined that Professor Gates crossed the line into disorderly behavior and arrested him for it. Whatever else can be said of Professor Gates's alleged yelling from his porch at Sergeant Crowley as the officer walked to the sidewalk, this yelling and ranting in no way interfered with the investigation of the reported burglary; the officer had already determined that no burglary had taken place.

In other words, this is not a case in which a person who is uncooperative with a police officer, or who is interfering with a police officer's investigation of a third person, is arrested because of that obstruction or interference. Even if Sergeant Crowley would have been justified in arresting Professor Gates earlier -- either for suspicion of burglary or for obstructing the investigation -- based on Gates's alleged failure to promptly answer questions or promptly produce identification, that was not the basis for the arrest that in fact occurred. The arrest of Professor Gates was for disorderly conduct after Officer Crowley was no longer trying to figure out whether a burglary was in progress.

Second, consider the allegedly disorderly conduct itself. As boisterous as the yelling from his porch might have been, Professor Gates's "disorderly" conduct did not in any way suggest that he was a physical threat to any police officer, any passerby or himself. The (many) police officers and citizens who were allegedly gathered on the sidewalk may have been, as the police report suggests, "surprised" and "alarmed," but they could not reasonably have felt threatened in any way, and their "alarm" might have owed more to the substance of Gates's allegations (i.e., that police had been guilty of racial profiling) than to the heated manner in which Gates was allegedly conducting himself.

Moreover, even if Professor Gates's volume as he was speaking was high and his tone was excited (and people do blare music and other noise from their homes all the time for short periods of time, committing no crime), note that Sergeant Crowley could have ended the alleged tirade simply by leaving the scene; no reasonable person could think that Professor Gates would have continued to yell at Sergeant Crowley after the Sergeant was no longer within earshot.

All of this brings us to the likely real basis for the disorderly conduct arrest: Sergeant Crowley was being yelled at and accused of racism within view and earshot of many other police officers and members of the community, and that kind of disrespect and accusation angered and embarrassed him.

Being angry is natural when a person is being yelled at and accused of evil. But as the Supreme Court has made clear in a number of cases (largely from the 1970s and 1980s), police officers cannot invoke vague and open-ended laws like "disorderly conduct" ordinances simply because police are being unfairly berated.

Free Speech Protects Caustic Criticism of Cops and Requires that They Have Thick Skins

As free speech champion Justice William Brennan explained for the Court two decades ago in a seminal case in this line of decisions, Houston v. Hill, "contrary to the city's contention, the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. 'Speech is often provocative and challenging.... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.'"

To put the matter succinctly, there does not appear to be any "clear and present danger of a serious substantive evil" in the Gates episode.

What about the police officer who is being unfairly pilloried and humiliated? Doesn't such disrespectful and derisive treatment make it harder for him to do his job? Perhaps, but that is something the First Amendment's protection of our right to be vociferously critical of our government requires us, as a society, to endure. In the famous Texas v. Johnson flag-burning case, the Court explained that "expression of dissatisfaction with the policies of this country [is] situated at the core of our First Amendment values." And as Justice Lewis Powell properly suggested, one would at least hope that police officers who cannot develop a thick skin simply shouldn't be police officers: "[A] properly trained officer may reasonably be expected to 'exercise a higher degree of restraint' than the average citizen."


The Right to Free Speech May Sometimes Be Used Unwisely, But The Right Still Exists

None of this is to say that scolding well-intentioned and dutiful police officers who are just trying to do their jobs and protect life and property is wise or laudable. It may well be that Professor Gates overreacted in this encounter and that his escalation of the incident caused much of the problem. But overreaction and even unjustifiable ranting by a private citizen is very different than use of the coercive power by the police. When police act excessively and stupidly (to use the word President Obama did in commenting on the incident) they violate not just norms of common sense, respect and etiquette, but also our basic constitutional values like those embodied in the First Amendment.

One reason the First Amendment frowns on vaguely-worded regulations like "disorderly conduct" ordinances is that such ordinances can be used discriminatorily against racial and other minorities. But even if race is taken out of the picture, the arrest of Professor Gates on the facts alleged in the police report is hard to constitutionally stomach because people have a right to accuse government of wrongdoing, and government cannot punish them for the content or viewpoint of their speech. All of this may well explain why the disorderly conduct charges against Gates were so promptly dropped.

Perhaps the whole episode should now be dropped soon too, but if we are going to use the incident as a "teachable moment" (again, President Obama's wording), let's make sure our teaching covers all the important constitutional lessons.


Note: I am not, and I don't believe Professor Amar is, saying or implying that all disorderly conduct statutes have been held unconstitutional. The contrary is true. Nor should they be. The point is that they are suspect and subject to abuse. And that should be carefully watched.
Last edited by The Cat-Tribe on Fri Jul 31, 2009 4:00 pm, edited 1 time in total.
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Fartsniffage
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Re: "Disorderly conduct" and the First Amendment

Postby Fartsniffage » Fri Jul 31, 2009 3:46 pm

I agree wholeheartedly with the article.

Free speech shouldn't be restricted just because the person it's being aimed at doesn't like what's being said. This is especially important when the person is an officer of the government.

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Re: "Disorderly conduct" and the First Amendment

Postby Charlotte Ryberg » Fri Jul 31, 2009 4:03 pm

I am in favour of the freedom of expression because humans were born to think freely. However, libel should be exempted and common sense should be used often.

A very interesting article to read.

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Re: "Disorderly conduct" and the First Amendment

Postby Phenia » Fri Jul 31, 2009 4:32 pm

If a cop is so emotionally sensitive and unstable that he cannot listen to someone's angry words without being 'forced' to arrest that person, he shouldn't have a badge and definitely shouldn't have a gun.

But I don't think that's really the case. I don't think he's ultra-sensitive. I think this is a case of people's tendency to blame the victims, whether they are victims of rape, or victims of police abuse. It's a sad habit in this country.

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Re: "Disorderly conduct" and the First Amendment

Postby NERVUN » Fri Jul 31, 2009 4:55 pm

I read something similar about how these disorderly conduct laws are pretty much giving police a wide raging ability to arrest people on their say so, which is troubling to say the very least.
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Re: "Disorderly conduct" and the First Amendment

Postby Muravyets » Fri Jul 31, 2009 5:09 pm

I think, once upon a time, disorderly conduct laws were supposed to be invoked only to break up things like bar fights, back when things like bar fights were not treated like major crimes because nobody thought getting punched in the face while drunk among other drunks was tantamount to attempted murder.

But I do not believe there was ever a time when when they were not abused by authority figures against people they just did not like, especially social groups who would be blamed for "getting uppity" or "stepping out of line" with the power structure.

With that in mind, I think it's pretty clear they need reform.
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Re: "Disorderly conduct" and the First Amendment

Postby Lunatic Goofballs » Fri Jul 31, 2009 5:11 pm

My whole life is a series of disorderly conducts. :)
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Re: "Disorderly conduct" and the First Amendment

Postby North Suran » Fri Jul 31, 2009 5:12 pm

Lunatic Goofballs wrote:My whole life is a series of disorderly conducts. :)

And we wouldn't have it any other way.

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Re: "Disorderly conduct" and the First Amendment

Postby Marcuslandia » Fri Jul 31, 2009 6:27 pm

I find the following excerpt from Crowley's report quite pertinent: "Gates continued to yell at me [and] I told Gates I was leaving his residence and that if he had any other questions regarding the matter, I would speak to him outside of the residence."

In other words, "If you want to keep on yelling at me, do so outside -- where I can arrest you for disorderly conduct." What Gates was doing to Crowley outside Gates' home (but still in his own yard) was the same thing he did inside of the house , BUT now it was in public view. In essence, Crowley lured Gates to a location where Crowley felt he had sufficient grounds for making an arrest.

Isn't that called, "entrapment"?
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Re: "Disorderly conduct" and the First Amendment

Postby Pedoka » Fri Jul 31, 2009 6:36 pm

Phenia wrote:If a cop is so emotionally sensitive and unstable that he cannot listen to someone's angry words without being 'forced' to arrest that person, he shouldn't have a badge and definitely shouldn't have a gun.

Getting angry at the cop and yelling/creating a disturbance won't do anything to help your cause. Accept the citation quietly and fight it in court, that is how the system is designed.
Last edited by Pedoka on Fri Jul 31, 2009 6:36 pm, edited 1 time in total.

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Re: "Disorderly conduct" and the First Amendment

Postby Phenia » Fri Jul 31, 2009 6:38 pm

Pedoka wrote:
Phenia wrote:If a cop is so emotionally sensitive and unstable that he cannot listen to someone's angry words without being 'forced' to arrest that person, he shouldn't have a badge and definitely shouldn't have a gun.

Getting angry at the cop and yelling/creating a disturbance won't do anything to help your cause. Accept the citation quietly and fight it in court, that is how the system is designed.


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Re: "Disorderly conduct" and the First Amendment

Postby Parthenon » Fri Jul 31, 2009 6:43 pm

Phenia wrote:
Pedoka wrote:
Phenia wrote:If a cop is so emotionally sensitive and unstable that he cannot listen to someone's angry words without being 'forced' to arrest that person, he shouldn't have a badge and definitely shouldn't have a gun.

Getting angry at the cop and yelling/creating a disturbance won't do anything to help your cause. Accept the citation quietly and fight it in court, that is how the system is designed.


It's almost as if you didn't read a word I wrote.

It's almost as if you didn't read a word of the quoted post.
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Re: "Disorderly conduct" and the First Amendment

Postby NERVUN » Fri Jul 31, 2009 6:45 pm

Marcuslandia wrote:I find the following excerpt from Crowley's report quite pertinent: "Gates continued to yell at me [and] I told Gates I was leaving his residence and that if he had any other questions regarding the matter, I would speak to him outside of the residence."

In other words, "If you want to keep on yelling at me, do so outside -- where I can arrest you for disorderly conduct." What Gates was doing to Crowley outside Gates' home (but still in his own yard) was the same thing he did inside of the house , BUT now it was in public view. In essence, Crowley lured Gates to a location where Crowley felt he had sufficient grounds for making an arrest.

Isn't that called, "entrapment"?

No, it's not entrapment. entrapment is when you are given no choice but to commit a crime.
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Phenia
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Re: "Disorderly conduct" and the First Amendment

Postby Phenia » Fri Jul 31, 2009 6:48 pm

Parthenon wrote:It's almost as if you didn't read a word of the quoted post.


The quoted post has nothing to do with the quoted post of mine.

Nice try though! Feel free to chime in with your nonsensical cheerleading some other time!

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Re: "Disorderly conduct" and the First Amendment

Postby Greed and Death » Fri Jul 31, 2009 6:52 pm

If we are going off the officers account Mr. Amar left off 2 important facts in his analysis.
Mr Gates was warned he was becoming disorderly.
Also left out is the stated reason in the officer's report for why he stepped outside Mr. Gates home.
He was unable to hear is radio.

Officers are often the first responders to emergencies and life threatening criminal situations.
In order to respond to such situations the officer needs to be able to hear his radio.
As such preventing an officer from hearing his radio does present a clear and present danger to anyone in the vicinity, who may need the assistance of the officer. This is why it is vital an officer be able to order someone to in, essence speak, in a reasonable voice, and to enforce that order when need be with an arrest.

While humoring Mr. Gates was not something the officer had to do.
For the sake of community relations with the police department it only makes sense to have the police be willing, time permitting, to try explain why they did what they did.

If taking the report of the officer as fact the officer was on the porch with Mr Gates when he began yelling.
This puts the officer in a position where he may not be able to hear his radio. Moreover when an officer is faced with someone is obviously angry and yelling at them it makes no sense what so ever for the officer to turn their on the person and leave. As someone so angry may make take an unreasonable course of action. Mr gates on top of this was armed with a cane which would have extended his reach.

The officer could not turn his back on Mr. gates and by virtue of being on a patio restricted from backing away for fear of injuring himself , as he might not be able to see any obstructions or drop offs. As Mr. Gates did not calm down despite the officers warning to do so the arrest at this time was necessary in order to insure the officers ability to respond to emergency situations, without endangering the officer's safety by turning his back to an irate man with a cane.
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The Cat-Tribe
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Re: "Disorderly conduct" and the First Amendment

Postby The Cat-Tribe » Fri Jul 31, 2009 11:19 pm

greed and death wrote:If we are going off the officers account Mr. Amar left off 2 important facts in his analysis.
Mr Gates was warned he was becoming disorderly.
Also left out is the stated reason in the officer's report for why he stepped outside Mr. Gates home.
He was unable to hear is radio.

Officers are often the first responders to emergencies and life threatening criminal situations.
In order to respond to such situations the officer needs to be able to hear his radio.
As such preventing an officer from hearing his radio does present a clear and present danger to anyone in the vicinity, who may need the assistance of the officer. This is why it is vital an officer be able to order someone to in, essence speak, in a reasonable voice, and to enforce that order when need be with an arrest.

While humoring Mr. Gates was not something the officer had to do.
For the sake of community relations with the police department it only makes sense to have the police be willing, time permitting, to try explain why they did what they did.

If taking the report of the officer as fact the officer was on the porch with Mr Gates when he began yelling.
This puts the officer in a position where he may not be able to hear his radio. Moreover when an officer is faced with someone is obviously angry and yelling at them it makes no sense what so ever for the officer to turn their on the person and leave. As someone so angry may make take an unreasonable course of action. Mr gates on top of this was armed with a cane which would have extended his reach.

The officer could not turn his back on Mr. gates and by virtue of being on a patio restricted from backing away for fear of injuring himself , as he might not be able to see any obstructions or drop offs. As Mr. Gates did not calm down despite the officers warning to do so the arrest at this time was necessary in order to insure the officers ability to respond to emergency situations, without endangering the officer's safety by turning his back to an irate man with a cane.


1. As I noted, the argument about specifics of the case are better left in the other thread.

2. Either you misunderstand the facts as stated in Sgt. Crowleys report (AND are adding to them facts you have imagined) or you are lying about the circumstances of Professor Gates's arrest. Either way, knock it off.
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The Cat-Tribe wrote:With that, I am done with these shenanigans. Do as thou wilt.

Can't miss you until you're gone, Ambassador. Seriously, your delegation is like one of those stores that has a "Going Out Of Business" sale for twenty years. Stay or go, already.*snip*
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With that, "he put his boots on, he took a face from the Ancient Gallery, and he walked on down the Hall . . ."

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The Cat-Tribe
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Re: "Disorderly conduct" and the First Amendment

Postby The Cat-Tribe » Fri Jul 31, 2009 11:20 pm

Pedoka wrote:
Phenia wrote:If a cop is so emotionally sensitive and unstable that he cannot listen to someone's angry words without being 'forced' to arrest that person, he shouldn't have a badge and definitely shouldn't have a gun.

Getting angry at the cop and yelling/creating a disturbance won't do anything to help your cause. Accept the citation quietly and fight it in court, that is how the system is designed.


Not only is this point non-responsive to Phenia's post, but is completely irrelevant to the question of whether a cop should be able to arrest you merely because you yell at him or her.
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The Cat-Tribe wrote:With that, I am done with these shenanigans. Do as thou wilt.

Can't miss you until you're gone, Ambassador. Seriously, your delegation is like one of those stores that has a "Going Out Of Business" sale for twenty years. Stay or go, already.*snip*
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With that, "he put his boots on, he took a face from the Ancient Gallery, and he walked on down the Hall . . ."

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The Cat-Tribe
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Re: "Disorderly conduct" and the First Amendment

Postby The Cat-Tribe » Fri Jul 31, 2009 11:22 pm

Marcuslandia wrote:I find the following excerpt from Crowley's report quite pertinent: "Gates continued to yell at me [and] I told Gates I was leaving his residence and that if he had any other questions regarding the matter, I would speak to him outside of the residence."

In other words, "If you want to keep on yelling at me, do so outside -- where I can arrest you for disorderly conduct." What Gates was doing to Crowley outside Gates' home (but still in his own yard) was the same thing he did inside of the house , BUT now it was in public view. In essence, Crowley lured Gates to a location where Crowley felt he had sufficient grounds for making an arrest.

Isn't that called, "entrapment"?


It isn't legally entrapment. It is pretty fucking sleazy and stupid.

But, regardless, what do you think of the broad power given to law enforcement by "disorderly conduct" statutes?
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The Altani Confederacy wrote:
The Cat-Tribe wrote:With that, I am done with these shenanigans. Do as thou wilt.

Can't miss you until you're gone, Ambassador. Seriously, your delegation is like one of those stores that has a "Going Out Of Business" sale for twenty years. Stay or go, already.*snip*
"Don't give me no shit because . . . I've been Tired . . ." ~ Pixies
With that, "he put his boots on, he took a face from the Ancient Gallery, and he walked on down the Hall . . ."

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Re: "Disorderly conduct" and the First Amendment

Postby Marcuslandia » Sat Aug 01, 2009 12:11 am

NERVUN wrote:
Marcuslandia wrote:Isn't that called, "entrapment"?

No, it's not entrapment. entrapment is when you are given no choice but to commit a crime.


"entrapment n. in criminal law, the act of law enforcement officers or government agents to induce or encourage a person to commit a crime when the potential criminal expresses a desire not to go ahead. The key to entrapment is whether the idea for the commission or encouragement of the criminal act originated with the police or government agents instead of with the "criminal." Entrapment, if proved, is a defense to a criminal prosecution."

In the house, Crowley felt he did not have grounds to arrest Gates for what Gates was doing. _Crowley_ was the one that decided to move the argument outside, where different rules apparently applied. That makes for an argument for entrapment.
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Re: "Disorderly conduct" and the First Amendment

Postby Grays Harbor » Sat Aug 01, 2009 12:36 am

Marcuslandia wrote:
NERVUN wrote:
Marcuslandia wrote:Isn't that called, "entrapment"?

No, it's not entrapment. entrapment is when you are given no choice but to commit a crime.


"entrapment n. in criminal law, the act of law enforcement officers or government agents to induce or encourage a person to commit a crime when the potential criminal expresses a desire not to go ahead. The key to entrapment is whether the idea for the commission or encouragement of the criminal act originated with the police or government agents instead of with the "criminal." Entrapment, if proved, is a defense to a criminal prosecution."

In the house, Crowley felt he did not have grounds to arrest Gates for what Gates was doing. _Crowley_ was the one that decided to move the argument outside, where different rules apparently applied. That makes for an argument for entrapment.


Not neccessarily. Gates had the option to not follow Crowley outside and continue his harangue. It was his choice to do so. My own opinion is that an officer responding to a report of a suspected break-in, the homeowner might want to be glad the police didn't just ignore it. Providing ID showing that it was indeed his residence, the cop seeing it, and leaving seems a much better scenario then the homeowner (or leaser, in this case) berating the officer and being loud, abusive and uncooperative. I am having a hard time figuring that one out.

I also don't believe the 1st amendment gives people blanket authorization to abuse verbally whoever they may want to. Actions have consequences.
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Marcuslandia
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Re: "Disorderly conduct" and the First Amendment

Postby Marcuslandia » Sat Aug 01, 2009 12:46 am

The Cat-Tribe wrote:But, regardless, what do you think of the broad power given to law enforcement by "disorderly conduct" statutes?

Generally speaking, my impression of the MANY police officers I have known over the years (as the saying goes, "Some of my best friends are..."), the common denominator for all of them is that they really like the authority that cloaks them when they're in uniform. Undoubtedly, the vast majority of them live and breathe "To Protect & Serve". Still, there _are_ quite a few that I term, "adult frustrated 2nd-grade hallway monitor mentalities". The fastest way I know of to piss off an officer is to disrespect the uniform, to his face. That's when you find out just how strong his/her streak of AFSGHMM is.

The disorderly conduct statutes are not the _only_ super-flexible ordinance an officer can throw at you. "Disturbing the peace", "resisting arrest", "obstruction of an officer in the performance of his duties", etc. are ALL "legitimate" citations that officers may choose to throw at anyone an officer deems too unruly, disruptive, non-cooperative, or just plain annoying. And unless you happen to have someone filming the arrest close enough to pick up the soundtrack, when the case goes to court, it's the defendent's word against the officer's, and 9 times out of 10, the court will automatically accept the officer's version as being the actual facts. Because "officers are trained professionals and therefore more likely to render an accurate account of the pertinent events."

Do you remember the Rodney King arrest video some years back? http://www.afrostyly.com/english/afro/d ... y_king.htm
The arresting officers got let off on the police brutality charges by contending that King was "resisting arrest". How did they know he was "resisting"? Because after each time they struck him, he was still moving. That means if an officer starts beating on you for whatever reason, you MUST _not_ do anything to minimize the impact. Even if you have absolutely no idea how long the beating is likely to go on, you are not allowed to defend yourself in any way, shape, or form.

All this is to say that we already have tipped the balance of power towards the officers. God help you if an officer makes a mistake because the way the system works, one way or another, by the time the whole melodrama is over, you WILL be guilty of something.
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BunnySaurus Bugsii
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Re: "Disorderly conduct" and the First Amendment

Postby BunnySaurus Bugsii » Sat Aug 01, 2009 6:35 am

The Cat-Tribe wrote:Although I wouldn't mind further discussion of the arrest of Professor Henry Louis Gates, there is another thread for that. I would like to focus on an important related point that has been somewhat lost in the media fervor about racial implications: disorderly conduct laws and their abuse.

Included below is an excellent article on the subject (with some emphasis added by me), but for those who won't read it, here is the short version: One should not be subject to arrest merely for berating an officer (particularly at one's own home). Disorderly conduct statutes tend to be vague and amorphous allowing police officers to use them against those who annoy them. This is contrary to the concepts of free speech.

Using the Gates Arrest as a Comprehensive "Teachable Moment"
By VIKRAM DAVID AMAR
Findlaw.com
Friday, July 31, 2009
[blocktext]In this column, I offer some legal analysis of the recent high-profile arrest of African American Harvard Professor Henry Louis Gates by white Cambridge police Sergeant James Crowley. In particular, I focus on the free speech aspects of the episode, which are related to, but distinct from, the questions of racial equality that have commanded so much attention in the national conversation.

The Basic Background of the Incident

Although the specifics are disputed by the parties to the incident, the basic facts are familiar to most Americans with access to TV, the Internet or a newspaper. Responding to a report of an attempted residential break-in by two black men, Sergeant Crowley approached Professor Gates's house, saw the Professor behind the front door in the foyer, and began to question him. At some point, Gates came to believe that his race improperly factored into Sergeant Crowley's questioning of him, and let Sergeant Crowley know in no uncertain terms of his dissatisfaction over the way he was being treated.

Sergeant Crowley, for his part, maintains that Professor Gates was uncooperative with the investigation from the outset, and then became "loud," "tumultuous" and "disorderly" in a public place (i.e., the front yard of Gates's home, viewable from the sidewalk), at which time the arrest was made and Professor Gates was placed in handcuffs.

Most of the media attention concerning this incident has centered on the disputed question of the extent to which "racial profiling" played into Sergeant Crowley's conduct, and the related question of whether the episode reveals any general truth about the way that men of color are treated by law enforcement even in Twenty-First Century America.

A Different Constitutional Question

This mainstream media's focus on questions of race and equal protection under the law in this case is certainly understandable and quite important. But I want to put to one side, at least for the moment, the question of whether the racial identities of the participants played a role in the encounter. Let us stipulate, for present purposes, that Officer Crowley is guilty of no invidious "racial profiling" ...


Oh, Cat. That is long.

I skimmed the rest. This certainly deserves debate. I'll get back to the thread when I have more fuel in the tank.
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Yenke-Bin
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Re: "Disorderly conduct" and the First Amendment

Postby Yenke-Bin » Sat Aug 01, 2009 7:11 am

Marcuslandia wrote:
The Cat-Tribe wrote:But, regardless, what do you think of the broad power given to law enforcement by "disorderly conduct" statutes?

Generally speaking, my impression of the MANY police officers I have known over the years (as the saying goes, "Some of my best friends are..."), the common denominator for all of them is that they really like the authority that cloaks them when they're in uniform. Undoubtedly, the vast majority of them live and breathe "To Protect & Serve". Still, there _are_ quite a few that I term, "adult frustrated 2nd-grade hallway monitor mentalities". The fastest way I know of to piss off an officer is to disrespect the uniform, to his face. That's when you find out just how strong his/her streak of AFSGHMM is.

The disorderly conduct statutes are not the _only_ super-flexible ordinance an officer can throw at you. "Disturbing the peace", "resisting arrest", "obstruction of an officer in the performance of his duties", etc. are ALL "legitimate" citations that officers may choose to throw at anyone an officer deems too unruly, disruptive, non-cooperative, or just plain annoying. And unless you happen to have someone filming the arrest close enough to pick up the soundtrack, when the case goes to court, it's the defendent's word against the officer's, and 9 times out of 10, the court will automatically accept the officer's version as being the actual facts. Because "officers are trained professionals and therefore more likely to render an accurate account of the pertinent events."

Do you remember the Rodney King arrest video some years back? http://www.afrostyly.com/english/afro/d ... y_king.htm
The arresting officers got let off on the police brutality charges by contending that King was "resisting arrest". How did they know he was "resisting"? Because after each time they struck him, he was still moving. That means if an officer starts beating on you for whatever reason, you MUST _not_ do anything to minimize the impact. Even if you have absolutely no idea how long the beating is likely to go on, you are not allowed to defend yourself in any way, shape, or form.

All this is to say that we already have tipped the balance of power towards the officers. God help you if an officer makes a mistake because the way the system works, one way or another, by the time the whole melodrama is over, you WILL be guilty of something.


I sometimes watch the show COPS. I know its not the best place to get reliable information on how police work, but I have seen countless episodes where something like what you are describing has happened. I remember one where a cop tackled a man to the ground for no apparent reason and the man landed on a broken bottle or something, and he was trying to move off of it, and the cop had his elbow in the back of neck of the individual yelling at him to quit resisting arrest. I get so angry at that stupid tv show because of so many instances of the police just using their authority to appear as brave and cunning on national tv, but I can tell that many of those cops are like that normally. The real problem lies within the training of said officers. I went to a school that is well known for training law enforcement individuals. They are some of the most cocky, arrogant, son of a guns ever. Add that to the fact that not much emotional training is given to these people, and you have kids coming into police force that are bent on being authoritarian with the law as their backing. Its quite frightening, to be honest.
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Re: "Disorderly conduct" and the First Amendment

Postby Greed and Death » Sat Aug 01, 2009 8:38 am

The Cat-Tribe wrote:
greed and death wrote:If we are going off the officers account Mr. Amar left off 2 important facts in his analysis.
Mr Gates was warned he was becoming disorderly.
Also left out is the stated reason in the officer's report for why he stepped outside Mr. Gates home.
He was unable to hear is radio.

Officers are often the first responders to emergencies and life threatening criminal situations.
In order to respond to such situations the officer needs to be able to hear his radio.
As such preventing an officer from hearing his radio does present a clear and present danger to anyone in the vicinity, who may need the assistance of the officer. This is why it is vital an officer be able to order someone to in, essence speak, in a reasonable voice, and to enforce that order when need be with an arrest.

While humoring Mr. Gates was not something the officer had to do.
For the sake of community relations with the police department it only makes sense to have the police be willing, time permitting, to try explain why they did what they did.

If taking the report of the officer as fact the officer was on the porch with Mr Gates when he began yelling.
This puts the officer in a position where he may not be able to hear his radio. Moreover when an officer is faced with someone is obviously angry and yelling at them it makes no sense what so ever for the officer to turn their on the person and leave. As someone so angry may make take an unreasonable course of action. Mr gates on top of this was armed with a cane which would have extended his reach.

The officer could not turn his back on Mr. gates and by virtue of being on a patio restricted from backing away for fear of injuring himself , as he might not be able to see any obstructions or drop offs. As Mr. Gates did not calm down despite the officers warning to do so the arrest at this time was necessary in order to insure the officers ability to respond to emergency situations, without endangering the officer's safety by turning his back to an irate man with a cane.


1. As I noted, the argument about specifics of the case are better left in the other thread.

With out specifics:
Then my answer would be almost all laws are subject to abuse, and it is why we have a court system.
If the abuse is too broad then repeal or alter the law.
Though police need the authority to order noise levels to be lowered and to arrest those who do not complain, as it could interfere with their ability to hear their radio and save lives.

2. Either you misunderstand the facts as stated in Sgt. Crowleys report (AND are adding to them facts you have imagined) or you are lying about the circumstances of Professor Gates's arrest. Either way, knock it off.


The two facts I quoted are the reason he left the interior because he could not hear his radio, and he warned Mr gates about becoming disorderly before arrest. The rest were inferred from my time as a UP(base too small with MPs so we took a 2 week training course and rotated being the police).
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Re: "Disorderly conduct" and the First Amendment

Postby Wanderjar » Sat Aug 01, 2009 8:40 am

Fartsniffage wrote:I agree wholeheartedly with the article.

Free speech shouldn't be restricted just because the person it's being aimed at doesn't like what's being said. This is especially important when the person is an officer of the government.



Freedom of Speech was designed solely and only to grant people the freedom to criticize the government without fear of retribution. It does not mean you can say whatever you want whenever you want. The professor was being disorderly and should've simply handed over his ID, then the cop would've apologized for wasting his time and nothing would be made of it. People are making a huge deal out of nothing.
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