Obama '08?

That's old news now. They'll not kiss, drink beer, and make up with the president.

Gates-gate: What's the Law Say?




From the officer's report:



As noted in the article posted above, Mr. Gates' private property (the front porch of his own home) cannot, as a matter of law, be characterized as "a public place." It is noteworthy that the officer "asked" Mr. Gates several times to step outside onto the porch to speak to him. The officer stated, "My reason for wanting to leave the residence was that Gates was yelling very loud and the acoustics of the kitchen and foyer were making it difficult for me to transmit pertinent information to ECC or other responding units." I don't believe for a moment that this was his reason for wanting to take this matter outside because immediately after the officer got the upset Mr. Gates onto the front porch, the officer "warned Gates that he was becoming disorderly." The officer wrote that he "warned Gates to calm down while I withdrew my department issued handcuffs from their carrying case."

Based on the facts and circumstances, we may reasonably infer that the officer insisted that Mr. Gates step outside to talk because the officer already made up his mind that he was going to arrest Mr. Gates for disorderly conduct -- and arresting Mr. Gates inside his own home would have made the officer's abuse of power way too obvious. The officer's conduct was both calculated and malicious.

Furthermore, it is long established judicial precedent that disorderly conduct or breach of the peace statutes cannot be aimed at speech unless it is "shown likely to produce a clear and present danger of a serious substantive evil that arises far above public inconvenience, annoyance, or unrest." Terminiello v. Chicago, 337 U.S. 1 (1949). The Supreme Court has "repeatedly invalidated laws that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them." Houston v. Hill, 482 U.S. 451, 465 (1987). "[A] properly trained officer may reasonably be expected to 'exercise a higher degree of restraint' than the average citizen, and thus be less likely to respond belligerently to 'fighting words.'" Lewis v. New Orleans, 415 U.S. 130, 135 (1974) (Powell, J., concurring).

Neither the facts nor the law were on the officer's side. IMO, this was a clear case of a malicious arrest.

A clear case of a malicious arrest.

That's what I thought.

it is wondrous how you get from a legal review that indicates that the charge might not lead to conviction to "malicious arrest". Debra's legal analysis is routinely swamped by her moral compass, her evaluations are shaky at best, BS at worst. She has not even begun to support her Malicious Arrest charge.

2004 Mass. App. LEXIS 332,*;60 Mass. App. Ct. 723;
805 N.E.2d 522

COMMONWEALTH vs. KENNETH M. LOPIANO.

Excerpts:

The police advised the defendant that he would be summonsed to court for assault and battery, that he was not to be arrested at Carins's request, and that he had to leave the motel parking lot. He began to walk away. O'Connor testified: "He took a few steps from me, ten steps, turned around, began flailing his arms, yelling that I was violating his civil rights." He was advised a second time to leave, and the defendant was "yelling at me, you're violating my civil rights, then he began yelling at Ms. Carins, why are you doing this to me, you'll never go through with this." At that time, he was placed under [*4] arrest. It is not disputed that only the defendant's conduct after he left the car forms the basis of the disorderly conduct charge.

"The statute authorizing prosecutions for disorderly conduct, G. L. c. 272, § 53, has been saved from constitutional infirmity by incorporating the definition of 'disorderly' contained in § 250.2(1)" of the Model Penal Code (1980).[/b] Commonwealth v. Mulvey, 57 Mass. App. Ct. 579, 582, 784 N.E.2d 1138 (2003). "What now remains of the definition of 'disorderly' conduct is subsections (a) and (c) of § 250.2 of the Model Penal Code . . . ." Commonwealth v. Sholley, 432 Mass. 721, 728, 739 N.E.2d 236 (2000), cert. denied, 532 U.S. 980, 149 L. Ed. 2d 484, 121 S. Ct. 1621 (2001). n1 The defendant argues that the evidence was insufficient to establish either that the area was public or that his conduct was tumultuous....

We agree, however, that the evidence was insufficient to establish that the defendant had engaged in "violent or tumultuous behavior." n2 Commonwealth v. Whiting, 58 Mass. App. Ct. 918, 920, 792 N.E.2d 1047 (2003). See note 1, supra. "To be disorderly, within the sense of the statute, the conduct must disturb through acts other than speech; neither a provocative nor a foul mouth transgresses the statute." Commonwealth v. LePore, 40 Mass. App. Ct. 543, 546, 666 N.E.2d 152 (1996). The Commonwealth argues that the defendant engaged in "'tumultuous behavior' because he created a public nuisance by flailing his arms" and shouting. There [*6] is no claim that the defendant's loud protestations directed either at police n3 or at Carins constituted a threat of violence and no evidence that the defendant's "flailing arms" were anything but a physical manifestation of his agitation. n4 Tumultuous behavior is conduct which may be "characterized as involving riotous commotion and excessively unreasonable noise so as to constitute a public nuisance." Commonwealth v. Sholley, 432 Mass. at 729, quoting from Commonwealth v. A Juvenile, 368 Mass. 580, 597, 334 N.E.2d 617). Compare Commonwealth v. Zettel, 46 Mass. App. Ct. 471, 472, 706 N.E.2d 1158 (1999). Here, the evidence does not support a reasonable inference that the "noise and commotion caused by [the defendant's] behavior was . . . extreme." Commonwealth v. Sholley, supra at 729. n5

Massachusetts Court Opinions

Docket No.: 01-P-0742
Parties: COMMONWEALTH vs. JOSEPH MULVEY.
County: Worcester.
Dates: November 6, 2002. - March 14, 2003.

Obama Was Right About the Gates Arrest

Adam Winkler
Professor at UCLA School of Law


On Thursday, President Obama weighed in on the arrest of African-American Harvard professor Henry Louis Gates, saying a Cambridge police officer "acted stupidly" when he arrested Gates for disorderly conduct. The next day, Obama backed down from his harsh comment.

Obama was right the first time.

I don't know if the police officer arrested Gates because of the Harvard professor's race. A lot of white people would say that if they mouthed off to a cop, they too would be arrested.

But one thing is clear: Gates did not violate any law. Under Massachusetts law, which the police officer was supposedly enforcing, yelling at a police officer is not illegal.

There are clear decisions of the Massachusetts courts holding that a person who berates an officer, even during an arrest, is not guilty of disorderly conduct. And yet that is exactly what Gates was arrested for.

The Massachusetts statute defining "disorderly conduct" used to have a provision that made it illegal to make "unreasonable noise or offensively coarse utterance, gesture or display," or to address "abusive language to any person present." Yet the courts have interpreted that provision to violate the Massachusetts Constitution's guarantee of freedom of speech. So police cannot lawfully arrest a person for hurling abusive language at an officer.

In several cases, the courts in Massachusetts have considered whether a person is guilty of disorderly conduct for verbally abusing a police officer. In Commonwealth v. Lopiano, a 2004 decision, an appeals court held it was not disorderly conduct for a person who angrily yelled at an officer that his civil rights were being violated. In Commonwealth v. Mallahan, a decision rendered last year, an appeals court held that a person who launched into an angry, profanity-laced tirade against a police officer in front of spectators could not be convicted of disorderly conduct.

So Massachusetts law clearly provides that Gates did not commit disorderly conduct.

The Cambridge Police should be training their officers to know the difference between legal and illegal conduct. What Gates did was probably not so smart -- in general, be nice to people carrying guns -- but it wasn't disorderly conduct. At least not in Cambridge, Massachusetts.

That explains why the charges against Gates were dropped. It wasn't because the police were trying to defuse the situation. It was because Gates had done nothing illegal.

Arresting someone for doing something that isn't illegal is pretty stupid.

Then again, perhaps Obama was wrong. Maybe the police officer wasn't acting stupidly. He was just acting abusively. That is even worse.

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT



COMMONWEALTH vs. PETER D. MALLAHAN.


07-P-334


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following his arrest for assault and battery arising out of a domestic violence incident, the defendant launched a screaming tirade at the arresting police officers. The defendant's loud yelling continued for some ten minutes, as the officers walked the defendant, in handcuffs, from an apartment toward the police cruiser. The defendant's rantings included warnings that he would sue the officers, as well as loud protestations interlaced with profanities that he had done nothing wrong, including that he never '******* touched that bitch.' When they reached the cruiser, the defendant stiffened his body upright. One officer placed his hand on the defendant's head in order to move the defendant into the cruiser. The defendant sat on the cruiser's seat but left his feet outside. The defendant, who recently had neck surgery, yelled that the police had hurt his neck. The officers removed the handcuffs and called the fire department. An ambulance transported the defendant to South Shore Hospital and then to Massachusetts General Hospital.

During the originating domestic violence incident, approximately six people in the housing complex had emerged from their apartments and gathered outside. As the cruisers arrived with sirens on, additional residents emerged or peered out their apartment windows. At one point, it was estimated ten persons were outside.

The defendant was charged with assault and battery for the originating domestic violence incident and with disorderly conduct for what transpired during his arrest. The defendant was acquitted of the assault and battery, but was convicted of disorderly conduct. G. L. c. 272, § 53.

The defendant's principal appellate challenge is that there was insufficient evidence on the disorderly conduct charge [FN1] and that this conviction cannot withstand constitutional muster under the controlling legal principles set forth in Commonwealth v. A Juvenile, 368 Mass. 580 (1975), and Commonwealth v. Sholley, 432 Mass. 721 (2000), cert. denied, 532 U.S. 980 (2001). The essence of this claim is that the defendant's conviction was based on words alone, and there was no evidence that the defendant engaged in threatening or violent conduct. The defendant did not physically resist arrest (the Commonwealth implicitly acknowledges that this was not a case of resisting arrest), and did not make any threats or engage in violence. Indeed, the only evidence of a physical gesture was the defendant's stiffening of his body as he was brought near the cruiser and keeping his feet outside the cruiser. Based on our review of the record, we conclude that the defendant's conviction, based as it was on words alone, cannot stand. Accordingly, we reverse. [FN2]

Discussion. In Commonwealth v. A Juvenile, supra, the Supreme Judicial Court limited the definition of disorderly conduct it had previously engrafted from the Model Penal Code

§ 250.2 onto G. L. c. 272, § 53, so as to keep the statute from being used to punish speech expressive conduct protected under the Massachusetts and United States Constitutions. The definition of the offense of disorderly conduct is limited and set forth in that case 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 . . . (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.'

Commonwealth v. A Juvenile, supra at 585-586. As later analyzed in Commonwealth v. Sholley, 432 Mass. at 728, '[w]hat now remains of the definition of 'disorderly' conduct is subsections (a) and (c) of § 250.2 of the Model Penal Code, with any application of subsection (c) restricted to cases not involving protest or other expressive activities.'

While acknowledging the constitutional protections that surround speech, the Commonwealth asserts that the defendant's loud and angry verbal tirade rose to the criminal level of tumultuous disorderly conduct under subsection (a) quoted above. The Commonwealth argues that tumultuous behavior, 'while perhaps not physically violent, may nevertheless be characterized as involving riotous commotion and excessively unreasonable noise so as to constitute a public nuisance.' Commonwealth v. A Juvenile, 368 Mass. at 597. We conclude, however, that on the evidence presented, the defendant's loud tirade could not be prosecuted as tumultuous behavior under this definition.

The Commonwealth concedes that 'there was absolutely no evidentiary support for the hazardous or physically offensive condition prong of the statute. There was essentially no live issue at trial concerning a hazardous or physically offensive condition.' (Com. Br. at 21) Instead, the evidence (including the testimony of the two arresting officers) showed only that the defendant verbally protested his arrest, taunted the officers with possible legal action, and railed about the officers' hurting his neck. Words alone are not sufficient to establish tumultuous conduct. The only exception for a word-predicated offense under G. L. c. 272, § 53, is for 'fighting words,' that is, words, 'which by their very utterance inflict injury or intend to incite an immediate breach of the peace.' Commonwealth v. A Juvenile, supra at 591, quoting from Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). The Commonwealth does not contend, nor could it, that the defendant's speech in this case constitutes fighting words. That the defendant's language was vulgar and unpleasant did not translate the speech into tumultuous, disorderly conduct. 'To be disorderly, within the sense of the statute, the conduct must disturb through acts other than speech; neither a provocative nor a foul mouth transgresses the statute.' Commonwealth v. LePore, 40 Mass. App. Ct. 543, 546 (1996). '[T]he mere use of obscenities in public does not make out the crime of disorderly conduct. . . .' Commonwealth v. Johnson, 36 Mass. App. Ct. 336, 338 (1994).

The Commonwealth further argues that the defendant's nighttime eruption outside the apartment complex was noisy enough to cause people to gather and neighbors to look out their apartment windows and, as such, was extreme enough to constitute disorderly conduct. However, the mere fact that persons may be drawn to a scene because of noise and 'verbal cacophony' does not mean that a defendant has engaged in criminally tumultuous disorderly conduct. See Commonwealth v. A Juvenile, supra at 593, quoting from Cohen v. California, 403 U.S. 15, 25 (1971). On this issue, we note that in Commonwealth v. A Juvenile, supra at 582, 'a crowd of approximately 100 shoppers gathered' to watch the episode. That level of crowd gathering did not qualify the juvenile's verbal tirade as tumultuous, disorderly conduct under that prong of the definition; nor did the lesser assemblage of the estimated ten or so persons who gathered outside the apartments in the instant case. (Moreover, in this case the evidence was mixed concerning the timing of onlookers gathering because certain of the onlookers came outside during the originating domestic violence incident and with the arrival of the cruisers -- both of which events preceded the defendant's arrest and loud verbal protest.)

Finally, the Commonwealth's depiction of an extreme, tumultuous event is not persuasive. In this respect, Commonwealth v. Lopiano, 60 Mass. App. Ct. 723 (2004), is instructive. In that case, the police came upon Lopiano fighting with his girlfriend in a car and ordered him to exit. Lopiano approached the police officer yelling and flailing his arms, protesting that the police were violating his civil rights. The court held this episode did not 'support a reasonable inference that 'the noise and commotion caused by the [defendant's] behavior was . . . extreme." Id. at 726, quoting from Commonwealth v. Sholley, 432 Mass. at 729. Accord Norwell v. Cincinnati, 414 U.S. 14, 16 (1973) (reversing a conviction for disorderly conduct where the defendant's protestations to the arresting officers were protected speech).

The judgment is reversed and the verdict is set aside. Judgment shall enter for the defendant.

So ordered.

By the Court (Duffly, Armstrong & Berry, JJ.),


Entered: June 16, 2008.

Thanks for the superb analysis, which changed my view of the matter. It is now clear to me that the officer acted incorrectly in arresting Gates. The officer is trained to work around a person's yelling and cursing, and can only make an arrest for this when the actions occur in public in such a manner that it might cause general discord. This is why the officer demanded that Gates leave the home.

Deb - Has any conservative legal scholars published anything to say Gates disorderly conduct was justified due to any judicial precedence?

If not, isn't this topic truly dead? It's like two football teams scheduled to play and when one team doesn't show up the fans for that team think if they cheer hard enough they'll still score with no team.

T
K
O

Debra, Thank you for presenting the laws of Massachusetts on what can be considered probable cause for an arrest. It supports mine and some others contention that the officer went overboard in his arrest. After all, after Professor Gates produced his ID, that should have ended the matter.

The question still remains, did officer Crowley act in the way he did because he was confronting a black man?

I believe he did. There seems to be no other motivation for the arrest.

I am not aware of the conservatives claiming that the arrest was justified. Given that the conservatives are big proponents of property rights and also that they are strongly against government intrusion on private citizens I would not expect conservatives to support the arrest.

What about the Conservatives on this message board - several of which have forwarded opinions that the cops WERE justified in arresting him?

If Obama gets these guys to come by for beer, and something positive comes out of it, it will be a major coup for him - watch.

Cycloptichorn

You are not aware.

T
K
O

I doubt anybody on here is aware of all the circumstances.

I think that if you go back you will see that only two of us claimed that the arrest was justified, Foxy and I. She is on the Right and I am om the Left, what we agree on is that police must be allowed the tools to do their jobs. The split is law and order/free speech, and while I almost always come down on the free speech side here I say the free speech is trumped by the collectives interest in supporting the collectives agents.

I have little doubt that the charges would not have brought a conviction, however to me this does not invalidate the arrest. The collectives agent found himself under verbal attack, he had reason to think that arrest was one of the legally valid ways to bring closure to the confrontation, and he took it. He brought the man in to the station and handed the situation over to another of the collectives agents (the DA) for disposition. The problem here is that the law is a very old law and is vague, the courts over time have changed how the law is applied but one can not expect the officer on the beat to know all of the vulgarities of the current use of a particular law. If the officer thinks that he has a situation that falls under the current use of the law then he is justified in making the arrest. He might be wrong, the DA might say to kick the arrested person loose because there is no case that will stick, but the cop still did his job. His job is to protect and defend the public safety under the law as best he knows it, it is not to be an expert on the law.

There is not conscious among the police on how best to handle situations such as the one this officer faced. Some argue that establishing dominance is the best way, others say that letting the abuse slide of their back is the best. I don't think that you will find either cops or DA's tar and feathering this cop, because they know that he has a difficult job, and he had a reasonable belief that he was choosing the best way to end a situation.

hawk, Your assumptions about the rule of law is unfounded as explained by Debra's post. Once Professor Gates produced his ID, the matter should have ended immediately. There was no need for Crowley to call up backups in this situation because Professor Gates was not threatening in any way.

Language should never be a justification for an arrest - especially in this situation that can never be classified as a threat.

I don't think the cop was justified in arresting him...I just don't see his fault as being any greater (or lesser) than Gates.

The cop is a blue collar run of the mill average joe. Gates is a 60 year old Harvard Professor.

Gates was, in my view, trying to incite a response from the officer AND/OR the crowd, there is no other justification for HIS actions (which had begun to occur before the officer had completed his duty). Anger is not justification to insult somebody the way he did to that officer, nor to insult his family. Gates was arrogant ("you don't know who you're messing with!"), disrespectful, and frankly, he behaved is a manner that wouldn't even live up to the expectations of the students he teaches at Harvard. That behavior wouldn't be tolerated in an Alabama grade school, much less one of the Nation's most prestigious universities.

The officer, as has been discussed, abused his power, and probably tried to get a response from Gates as well.

It turned into a pissing contest between a cop who should have known better and a well educated Harvard professor who should have known better.


I do find it interesting that the left-leaning among us view EVERY case where race is involved, on the side of the minority. It's almost like they think minorities can do no wrong, and that EVERYTHING is race related. And conservatives, the opposite. There are few among us who I believe are able to look at things objectively (not claiming that I do).

It's arguable that he was trying to incite the crowd outside his apartment, is it not? If members of the crowd were as equally indignant as Gates was, they could have attacked the cops. I don't think backup was un-justified, if nothing else, then just as a CYA.

Actually I have said that I don't know whether the police overreacted. I am 100% certain that Gates overreacted. And I have noted that the officers' supervisors and witnesses have not accused the police of overreacting and have in fact supported the action, so I think the preponderance of the evidence is on the police side. I do accept that if a police officer gives a citizen a direct and reasonable order in a chaotic situation, and the citizen does not obey the order, the police officer is justified in arresting the citizen. The police simply have to have the authority to control a situation that is out of hand or has to potential to get out of hand.

But I wasn't there and, until they decide to make the recording of the event public, none of us can know for sure what went down that night other than what we read in the paper or see reported on television. But we can be sure that there is insufficient evidence so far to be convinced that the police acted inappropriately or abused their authority in any way.