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Disorderly Conduct and Criminal Justice

The Case of Harvard Professor Henry Gates

Criminal laws and state statutes such as disorderly conduct exist on the law books to enable police officers to maintain authority. Such statutes are often broadly defined and in general terms to be applied to specific circumstances. In essence then, these laws are left open to interpretation.

Tom Nolan, a criminal justice professor at Boston University who served 27 years in uniform for the Boston Police Department, calls disorderly conduct in a recent Time article: a fluid concept. 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. Discretion is judgment that we hope is based on wisdom, experience and training.

The recent debate over the appropriate use or abuse over disorderly conduct statutes refers to the flare between Harvard professor Henry Louis Gates Jr. and Sergeant James Crowley.

Henry Gates’ Charges

Sgt. Crowley responded to the Harvard scholar’s home in Cambridge, Massachusetts after a neighbor reported a possible break-in at Professor Gates’ home. The Cambridge police department cited Professor Gates with loud and tumultuous behavior, in a public place.

While what actually happened is impossible to know, the police report provides Sgt. Crowley’s perspective. After responding to the report of a possible break-in, Crowley arrived to find Gates in his home, and with permission, entered the home to speak with Gates. Gates, who had just returned from an international flight, was, according to the police report, less than cooperative, and insisted that he was being targeted because he was black.

After Gates provided his Harvard identification, Crowley began to exit the home, with Gates reportedly continuing to accuse the sergeant of racism. Crowley informed Gates that if he wanted to continue speaking with him, he’d have to do it outside, at which point Gates allegedly replied that he’d speak to Crowley’s mama outside.

Gates, one of the nation’s preeminent scholars of African-American history, followed Crowley out to the porch, and, according to the police report, continued to accuse the sergeant of being a racist. Crowley, not sure of the situation, had called for backup, and later called for Harvard police to confirm Gates’ identity. With the additional squad cars now outside the home, a crowd of about seven onlookers had gathered around and were surprised and alarmed by Gates’ outbursts.

Crowley claims to have reportedly warned Gates he was becoming disorderly, and when Gates refused to calm down, Crowley placed him under arrest.

Disorderly Conduct Laws

Disorderly conduct has its roots in mid-19th century affairs when police officers needed recourse to restore order in crowded public places by subduing public street fights between recent immigrants and residents over labor issues.

The question as to whether the incident occurred in a public place is certainly rousing supporters and opponents.

Massachusetts law defines disorderly conduct as fighting or threatening, violent or tumultuous behavior, or creating a hazardous or physically offensive condition for no legitimate purpose other than to cause public annoyance or alarm.

A very loose application of that law could apply to Gates’ behavior, as Crowley certainly felt it did at the time.

While some empathize with Crowley, other law enforcement personnel such as Jon Shane, a 17-year police veteran of Newark, New Jersey and criminal justice professor at John Jay College of Criminal Justice in New York, specializing in police policy and practice, confessed that this situation was one of contempt of cop.

In contempt of court, you get loud and abusive in the courtroom, and it’s against the law. With contempt of cop, you get loud and nasty and show scorn for a law enforcement officer, but a police officer can’t go out and lock you up for disorderly conduct because you were disrespectful toward them.

First Amendment Rights

The First Amendment protects an individual’s personal liberty to the right to free speech.

While public speech—any public speech—is not a punishable offense, Gates was cited for drawing a crowd. The interpretative space surrounding a disorderly conduct citation enables and hinders its appropriate use for debate surrounds what is considered appropriate.

When asked about the case, President Barack Obama acknowledged that he didn’t know the facts, but said Crowley and the Cambridge police department acted stupidly, but later phoned both Gates and Crowley, admitting that there was an overreaction.

Even the president, the commander-in-chief may have difficulty in applying a strict interpretation of the statute.

All charges against Gates were later dropped.


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