Legally, how can a police officer, such as Cambridge, Massachusetts, Police Sgt. Jim Crowley (who represents the Government), arrest a person from his own home, when that person didn’t commit a crime? The obvious answer: He can’t!

Gates was supposedly arrested for disorderly conduct, but Gates was really arrested for exercising his First Amendment rights on private property.  However, this type of arrest represents an illegal, unconstitutional arrest. The police can’t use their authority unconsciously or frivolously to punish an individual that hasn’t committed a crime.

In Levine v. Clement (2004), a U. S. District Court of Massachusetts determined that a person “may be arrested for tumultuous behavior only when ‘the conduct … disturb[s] through acts other than speech.’” Crowley stated in his police report, “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.” Consequently, from his police report, Crowley claimed Gates was exhibiting “tumultuous behavior,” but where was the disruptive act? Gates only exhibited speech and not acts.

However, speech may be prosecuted as disorderly conduct if words can be shown to be fighting words. Though, fighting words are limited to “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace” (see Levine v. Clement below). Clearly, Gates’s speech did not amount to the type of fighting words that result in a disorderly conduct charge.

Furthermore, Sgt. Jim Crowley noted in his police report, “I radioed on channel 1 that I was off in the residence with someone who appeared to be a resident but very uncooperative. . . . , [and] while I was led to believe that Gates was lawfully in the residence, I was quite surprised and confused with the behavior he exhibited toward me.” At that point, Crowley should have left Gates’s home.

Additionally, Gates did supply Crowley with his Harvard University identification card, but Crowley ”radioed and requested the presence of the Harvard Unversity Police.” From Levine v. Clement (emphasis added):

The Fourth Amendment protects citizens from arrests that are not based on probable cause. See U.S. Const. amend. IV. As will be described, it is clear that Plaintiff’s arrest for violating the disorderly conduct statute, Mass. Gen. L. ch. 272, § 53, was not grounded in probable cause and, therefore, violated Plaintiff’s Fourth Amendment rights.

.       .       .

In 1967, the Massachusetts Supreme Judicial Court (“SJC”), recognizing the facial unconstitutionality of Mass. Gen. L. ch. 272, § 53, preserved the statute through judicial construction by incorporating therein the Model Penal Code’s definition of disorderly conduct. See Alegata v. Commonwealth, 353 Mass. 287, 231 N.E.2d 201, 211 (1967). As described in Alegata, the Model Penal Code states as follows:

A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

(a) engages in fighting or threatening, or in violent or tumultuous behavior; or

(b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or

(c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

Id. Due to constitutional limitations on subsections (b) and (c), and no allegation of “fighting,” “threatening” or “violent” behavior in the instant case, Plaintiff’s language must be evaluated in the context of the portion of subsection (a) describing “tumultuous behavior.” Because “neither a provocative nor a foul mouth transgresses the statute,” one may be arrested for tumultuous behavior only when “the conduct … disturb[s] through acts other than speech.” Commonwealth v. LePore, 40 Mass.App.Ct. 543, 666 N.E.2d 152, 155 (1996). No disruptive acts have been alleged here.

“[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). The Supreme Court has established a high level of protection for “the expression of a desire for political change.” Meyer v. Grant, 486 U.S. 414, 421, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988). Thus, even though the government can restrict the time, place and manner an idea is expressed, “such regulation is particularly circumscribed when the speech occurs in a place where public speech is usually allowed,” Musso v. Hourigan, 836 F.2d 736, 742 (2d Cir.1988) (citing Board of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 572, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987)), for example, at an open school board meeting, see id. As Magistrate Judge Robert B. Collings recently observed in a matter relevant to the case at hand, individuals protesting the Iraq war at the 2003 South Boston Saint Patrick’s Day Parade “would have been well within their First Amendment rights” if they “had gathered at a specified point along the Parade route and voiced their opinions peacefully.” South Boston Allied War Veterans Council v. City of Boston, 297 F.Supp.2d 388, 395 (D.Mass.2003).

To be sure, as Plaintiff acknowledges, his speech-although political and expressed along a parade route-may nonetheless be prosecuted as disorderly conduct under Mass. Gen. L. ch. 272, § 53, if it is properly classified as “fighting words.” See generally Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Defendant concedes, however, that Plaintiff’s language did not fall into this category. Moreover, thorough research provided by Plaintiff’s counsel illustrates that the classification of language as “fighting words” is limited to “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). See also A Juvenile, 334 N.E.2d at 624-25 (citing cases). Here, however, as in Cohen, the simple use of obscenities did not transform Plaintiff’s “offensive” speech into fighting words.

Furthemore, in addition to the requirement of tumultuous behavior that disturbs through acts and not speech, there was no public element in the Gates case. For example, courts have found that the “public element was not met where acts took place in car parked fifty feet from street, up driveway and on lawn area of house” (see Com. v. Mulvey below). In Com. v. Mulvey (2003), a Massachusetts Appeals Court determined (footnotes omitted) (emphasis added):

The public element of the offense is readily met in cases where the proscribed conduct takes place on public streets, see Commonwealth v. Mulero, 38 Mass.App.Ct. 963, 963-964, 650 N.E.2d 360 (1995); or by the side of a highway, see Commonwealth v. Bosk, 29 Mass.App.Ct. 904, 906-907, 556 N.E.2d 1055 (1990). It also may be satisfied where the disturbance takes place in a more secluded environment, but only if members of the public are likely to be affected. See Commonwealth v. Collins, 36 Mass.App.Ct. 25, 33, 627 N.E.2d 941 (1994) (disruption occurred in area of police station that was public place); Commonwealth v. LePore, 40 Mass.App.Ct. 543, 549, 666 N.E.2d 152 (1996) (voyeur’s conduct, even though unseen by victim, occurred in public alley). Compare Commonwealth v. Blavackas, 11 Mass.App.Ct. 746, 747-750, 419 N.E.2d 856 (1981) (defendant’s sexual solicitation and conduct should not have been prosecuted as disorderly conduct; regardless, public element was not met where acts took place in car parked fifty feet from street, up driveway and on lawn area of house).

Whether the disturbance itself occurs on publicly owned property is not dispositive. The public element may be satisfied where the actor’s conduct takes place on private property that is frequented by the public, such as stores, apartment houses, or theaters. See Model Penal Code § 250.2 comment 2, at 329. See also Commonwealth v. Carson, 10 Mass.App.Ct. 920, 921-922, 411 N.E.2d 1337 (1980) (tumultuous conduct in dormitory and abutting plaza). It also is possible that behavior occurring on purely private property may be shown to affect or be likely to affect persons in an adjacent or nearby “place to which the public or a substantial group has access,” Model Penal Code § 250.2, such that a disorderly conduct charge would be appropriate. Still, “[n]othing less than conscious disregard of a substantial and unjustifiable risk of public nuisance will suffice for liability.” Model Penal Code § 250.2 comment 2, at 328-329.

Here, the defendant’s conduct took place on purely private property. Thus, in order to satisfy the public element of the crime, the Commonwealth was required to establish that the disturbance nevertheless had or was likely to have had an impact upon persons in an area accessible to the public. This it did not do. As it stood at the end of the Commonwealth’s case, the actions that precipitated the defendant’s arrest took place thirty to fifty feet up the driveway, shielded from off-premises view by the partially opaque fence. There was no evidence that a crowd, inquisitive neighbors, or passersby actually saw or heard the disturbance. Nor was there any evidence to establish that people could have seen or heard the defendant from any place of public access, such as a nearby sidewalk, publicly used path or road, shopping area or other neighborhood facility.

.       .       .

We disagree with the Commonwealth that the public element was established by the fact that Officers Kennedy and Hassett observed the disruption. The officers’ presence, alone, did not suffice to prove the public element, regardless of any concern they may have felt as they witnessed the defendant’s confrontation with Sergeant Boss. As recognized in the commentaries to the Model Penal Code, behavior that has an impact only upon members of the police force is significantly different from that affecting other citizens in at least two respects: it is an unfortunate but inherent part of a police officer’s job to be in the presence of distraught individuals; and, to the extent that the theory behind criminalizing disorderly conduct rests on the tendency of the actor’s conduct to provoke violence in others, “one must suppose that [police officers], employed and trained to maintain order, would be least likely to be provoked to disorderly responses.” Model Penal Code § 250.2 comment 7, at 350. Accordingly, police presence in and of itself does not turn an otherwise purely private outburst into disorderly conduct.

The Supreme Judicial Court of Massachusetts in Com. v. A Juvenile (1975) discussed free speech rights where a juvenile was charged under a disorderly conduct provision (footnotes omitted) (emphasis added):

1. Idle and Disorderly Person. In reviewing the crime of being a disorderly person under s 53, we, as is required by the First Amendment, start out with the primary postulate that any statute which regulates speech requires the strictest of our scrutiny because ‘the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn.’ Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958).

This court will consider the facial validity of the s 53 disorderly person offense despite the fact that the defendant’s speech might be of the class properly the subject of State regulation, for ‘(i)t matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute.’ Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). See generally, Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), and cases cited therein. Thus if a law is found deficient as unconstitutionally overbroad in its potential application to protected speech, it may not be applied even to the person raising the challenge though that person’s speech is arguably unprotected by the First Amendment. This follows since ‘(t)he statute, in effect, is stricken down on its face.’ Coates v. Cincinnati, 402 U.S. 611, 620, 92 S.Ct. 1686, 1691, 29 L.Ed.2d 214 (1971) (White, J., dissenting). See generally, note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970).

.       .       .

We state the general principles to be applied. First, if ‘idle and disorderly persons’ is, per se or as construed, ‘susceptible of application to protected expression,’ it is unconstitutionally overbroad.

.       .       .

From the reasoning of these recent Supreme Court cases it would seem that in order to satisfy present constitutional standards, a statute seeking to regulate what we have broadly termed offensive speech will stand only if that statute, in the words of Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), is so narrowly drawn as to be limited to “fighting’ words.’ Vulgar, profane, offensive or abusive speech is not, without more, subject to criminal sanction for ‘the First and Fourteenth Amendments must be taken to disable the State from punishing public utterance of . . . unseemly expletive(s) in order to maintain what they regard as a suitable level of discourse within the body politic.’ Cohen v. California, 403 U.S. 15, 23, 91 S.Ct. 1780, 1787, 29 L.Ed.2d 284 (1971). In the words of the court, it is to be observed that ‘one man’s vulgarity is another’s lyric’ ( id. at 25, 91 S.Ct. at 1788), and the State may not, consistent with the First Amendment, make any single ‘four-letter expletive’ a criminal offense ( id. at 26, 91 S.Ct. 1780). Thus ‘so long as the means are peaceful, the communication need not meet standards of acceptability.’ Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971). And the means are presumed peaceful unless the words used constitute fighting words.

.       .       .

The Supreme Court, perhaps because of the inherent definitional difficulty involved, and, unlike the methodology of the obscenity cases, has articulated neither a per se standard nor any specific example of fighting words. However, certain cases do provide some insight as to the minimum requirements that an offensive speech statute must meet in order to ensure that the statute is limited to fighting words and thus reaches only speech not protected by the First Amendment. Fighting words as referred to in the relevant constitutional decisions are limited to ‘those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.’ Chaplinsky v. New Hampshire, 315 U.S. at 572, 62 S.Ct. at 769 (1942). The words must be ‘personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971). In order to be personally abusive the words must be ‘directed to the person of the hearer’ in the sense that they are a face to face personal insult. Cantwell v. Connecticut, 310 U.S. 296, 309, 60 S.Ct. 900, 906, 84 L.Ed. 1213 (1940). Finally, the determination of whether words are personally abusive may not rest on subjective perceptions since an ‘undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.’ Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969).

In the court’s opinion, the s 53 disorderly person offense clearly does not fall exclusively within and is broader than this narrow definition of fighting words. Both the statutory claim of being a disorderly person as it has existed for centuries and our authoritative construction thereof, specifically Am.Law Inst., Model Penal Code, s 250.2 (Proposed Official Draft, 1962), as adopted in Alegata v. Commonwealth, 353 Mass. 287, 302-304, 231 N.E.2d 201 (1967), encompass more than fighting words. Therefore, we are compelled to conclude that the disorderly person provision in so far as it relates to speech and expressive conduct is unconstitutionally overbroad as ‘susceptible of application to protected expression.’ Gooding v. Wilson, 405 U.S. 518, 523, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408 (1972).

. . .

Indeed, virtually every definitional word in this court’s limiting construction has been found lacking in the requisite specificity to survive a challenge on First Amendment overbreadth grounds. These words include ‘public inconvenience, annoyance or alarm’ (Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971)); ‘offensively coarse utterance’ (Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971)); and ‘abusive language’ (Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972)).

The United States Supreme Court has recognized in its decisions that the State has a valid interest in regulating certain types of speech, but it has also made clear that this end may not be achieved by a statute with as broad a potential sweep as the disorderly person provision of s 53.

.       .       .

To summarize, we hold that the idle and disorderly person provision of s 53 as it presently stands cannot be validly applied against persons for the use of offensive and aubsive language. However, the provision as construed by this court in Alegata v. Commonwealth, 353 Mass. 287, 231 N.E.2d 201 (1967), and as construed in the instant case, may validly be applied to conduct which involves no lawful exercise of a First Amendment right.

Patrick Burns nails it:

You know what’s funny?

What’s funny is all the right-wing self-defense, right-to-carry,
private property conservatives who are as silent as church mice when it comes to the Henry Louis Gates arrest in Boston.

You see, what happend in Boston was not a close call: the cop was wrong, was poorly trained, and violated Mr. Gates’ rights as a citizen and home owner. As Lowry Heussler writes:

The crime of disorderly conduct, beloved by cops who get into arguments with citizens, requires that the public be involved.

.        .       .

Read Crowley’s report and stop on page two when he admits seeing Gates’s Harvard photo ID. I don’t care what Gates had said to him up until then, Crowley was obligated to leave. He had identified Gates. Any further investigation of Gates’ right to be present in the house could have been done elsewhere. His decision to call HUPD seems disproportionate, but we could give him points for thoroughness if he had made that call from his car while keeping an eye on the house. Had a citizen refused to leave Gates’ home after being told to, the cops could have made an arrest for trespass.

But for the sake of education, let’s watch while Crowley makes it worse. Read on. He’s staying put in Gates’ home, having been asked to leave, and Gates is demanding his identification. What does Crowley do? He suggests that if Gates wants his name and badge number, he’ll have to come outside to get it. What? Crowley may be forgiven for the initial approach and questioning, but surely he should understand that a citizen will be miffed at being questioned about his right to be in his own home. Perhaps Crowley could commit the following sentences to memory: “I’m sorry for disturbing you,” and “I’m glad you’re all right.”

Spoiling for a fight, Crowley refuses to repeat his name and badge number. Most of us would hand over a business card or write the information on a scrap of paper. No, Crowley is upset and he’s mad at Gates. He’s been accused of racism. Nobody likes that, but if a cop can’t take an insult without retaliating, he’s in the wrong job. When a person is given a gun and a badge, we better make sure he’s got a firm grasp on his temper. If Crowley had called Gates a name, I’d be disappointed in him, but Crowley did something much worse. He set Gates up for a criminal charge to punish Gates for his own embarrassment.

So where is the right-wing outrage at the over-reaching of the police state?

Where is the instruction piece that says this is why every black man in America should be strapped with a Glock even as they walk around in their own home (not to mention when they go to the Mall, to Church, or to a Sarah Palin rally)?

Oh. Right. Henry Louis Gates is a black man. In that case, what the hell did he expect would happen to him? The man was being uppity.

And he was being uppity to a good, God-fearing law enforcement official to boot! He’s lucky he was not shot. In fact, he should have been shot. How else will we ever teach black people to never question authority?

Al Sharpton is absolutely correct:

More from Lawrence O’Donnell Jr. (emphasis added):

There is no crime described in Crowley’s official version of the way Gates behaved. Crowley says explicitly that he arrested Gates for yelling. Nothing else, not a single threatening movement, just yelling. On the steps of his own home. Yelling is not a crime. Yelling does not meet the definition of disorderly conduct in Massachusetts. Not a single shouted word or action that Crowley has attributed to Gates amounts to disorderly conduct. That is why the charges had to be dropped.

.       .       .

In classically phony police talk, Crowley refers to “[Gates'] continued tumultuous behavior.” When cops write that way, you know they have nothing. What is tumultuous behavior? Here’s what it isn’t: brandishing a knife in a threatening manner, punching and kicking, clenching a fist in a threatening manner, throwing a wrench or, in the Gates house, maybe a book. If the subject does any of those things, cops always write it out with precision. When they’ve got nothing, they use phrases that mean nothing. Phrases like tumultuous behavior.

Unless you confess to a crime or threaten to commit a crime, there is nothing you can say to a cop that makes it legal for him to arrest you. You can tell him he is stupid, you can tell him he is ugly, you can call him racist, you can say anything you might feel like saying about his mother. He has taken an oath to listen to all of that and ignore it. That is the real teachable moment here: cops are paid to be professionals, but even the best of them are human and can make stupid mistakes.

We have an uncomfortable choice with Sergeant Crowley. Either he didn’t know what disorderly conduct is or he decided to show Gates who’s boss the only way he knew how — by whipping out his handcuffs and abusing his power to arrest. Police make the latter choice in this country every day, knowing the charges are going to have to be dropped.

Insight from John Berlau:

I have come to a conclusion siding with Gates against the officers – but only in a limited sense. Although I disagree that this was a case of racial profiling, I do think the charging of Gates with disorderly conduct for yelling at the officer in Gates’ own home was an improper and likely unconstitutional infringement on both Gates’ free speech and property rights.

Generally, unless a something like a bullhorn is involved, a homeowner cannot “disturb the peace” on his own property, not matter how obnoxious the content of his speech might be. And the Cambridge police made a serious error in the charge against Gates in describing Gates’ own front porch as a “public place,” rather than the private property that it is.

But I also believe President Obama should not have weighed in on this or any other pending legal dispute. In so doing, he broke a longstanding precedent that presidents should not make any comments as to the guilt or fault of individuals in an ongoing or potential legal case, because they could compromise the impartiality of the proceeding.

And via AzBlueMeanie (emphasis added):

I have reviewed the police report filed by Officer Crowley and Officer Figueroa Henry Louis Gates, Jr. Police Report – July 23, 2009 (via The Smoking Gun). For the uninitiated who are unfamiliar with police reports, the report is written in typical “cop speak” fashion. For the uninitiated, police reports often contain errors of fact – they are more often than not a narrative based upon the officer’s perception of events. Officer Crowley’s report contains factual errors based upon the edited tapes of the 911 call and transmission tape released on Monday. Gates arrest audio indicates race was not factor at start – The Boston Globe (link to audio recordings (mp3) from the arrest: 911 call, radio transmissions). Lucia Whalen, the 911 caller, disputes Officer Crowley’s police report as to what she said, and the 911 tape confirms this.

It may be true that Dr. Gates perceived the events which occurred inside his home as racial profiling, and he may have said to Officer Crowley that he “is a racist” and complained that “this is what happens to a Black man in America.” Let’s be clear: this is not a crime.

I believe this case was just a run-of-the-mill abuse of police power. It happens. Even good cops will on occasion go beyond the reasonable exercise of judgment and abuse the authority with which they are invested by the state.

The Cambridge Police Union made a statement last week that Dr. Gates was always “in control of the situation,” meaning that he could cooperate or be arrested. Cops are taught to say this. I have heard this line repeated from the witness stand all too often.

The truth is, it is the police officer, as an agent of the state invested with the authority to make an arrest who is always in control of the situation. The officer is the professional and is expected to act reasonably and exercise good judgment. This is what the officer has been trained to do and it is what is expected from a professional. The Union’s statement implies that the power of the state is absolute. They are wrong. The power of the state is limited by the Constitution and the Bill of Rights which protects individual liberties.

A “public disturbance” is the catch-all charge that a police officer will be most tempted to allege any time that someone questions his or her authority or questions why they are being stopped and questioned, or detained. Call the officer names or swear and the odds that you will be charged with a “public disturbance” charge goes up dramatically. It is a demonstration of authority for police. Let’s be clear: this is not a crime. Such charges are frequenty dismissed, as occurred with Dr. Gates.

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