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The Henry Louis Gates Jr. Arrest and Disorderly Conduct

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By Caleb Groos on July 24, 2009 1:37 PM

Anger and debate rage regarding the Henry Louis Gates Jr. arrest, but outside of questions about race in law enforcement, what exactly is "disorderly conduct"? It turns out that any private exchange, no matter how heated, between Gates and his arresting officer inside Gates' house would be very unlikely to constitute disorderly conduct under Massachusetts law.

At this point, the Gates arrest has become such an issue that President Obama has weighed in on it, been criticized for doing so, and recalibrated his response. Meanwhile, the arresting officer and some police unions stand by the arrest.

Officially, the Cambridge Police Department deeply regrets the arrest but does not believe it to have been racially motivated.

Outside of why the cops were called in the first place and whether profiling had anything to do with Gates' arrest, what about the actual charge (subsequently dropped) -- disorderly conduct?

Massachusetts bars disorderly conduct through Section 53 of Chapter 272 of its general laws, the chapter devoted to crimes against chastity, morality, decency and good order. Specifically, it states that:

Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment.

With charges as nebulous as disorderly conduct, over time, courts refine what it means to violate the law. Certainly, there are many ways one can violate disorderly conduct restrictions. However, one requirement that Massachusetts courts have recognized is that the behavior must in some way be public.

At the very least, the conduct must be likely to have an impact on people in an area accessible to the public.

And generally, the presence of a police officer does not make the scene a public scene. In 2003, a Massacusetts Court of Appeals opinion (Commonwealth v. Mulvey, 57 Mass. App. Ct. 579) specifically held that the presence of a police officer is not enough to make behavior public. So behavior in a private setting with an officer present should not be disorderly conduct under Msssachusetts law.

The 2003 Court of Appeals decision recognized that part of the rationale behind disorderly conduct laws is to prevent public disorder -- to prevent someone from provoking violence in others. Because police officers are trained to maintain control, and routinely deal with distraught or volatile individuals, they are supposed to be less subject to provocation.

This would mean that Professor Gates' behavior in his home, with just he and the arresting officer present, would be very hard to argue as disorderly conduct. The area outside his house might be argued to be publicly accessible, particularly if the ruckus drew onlookers. However, this should not matter if Gates was cuffed and arrested for things he said inside.

Authorities quickly withdrew the charge against Gates after the media storm began. However, this might also have happened because being beligerent to a cop in your own house is not disorderly conduct under Massachusetts law.

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