DISorderly Conduct

Christy's 21-page "brief" was recently posted
"Disorderly (mis)Conduct: The Problem with "Contempt of Cop" Arrests" [ACS 6.7.10]

This Issue Brief first sets out the law governing the enforcement of disorderly conduct and similar statutes. It then explores the widespread and egregious violations of this law in some law enforcement agencies and by some officers. The issue brief argues that the harm caused by improper arrests and threats of arrest for disorderly conduct far outweighs the justification given by some police and pundits for the aggressive (overly-aggressive, some would say) use of these statutes. Finally, the Issue Brief offers a roadmap for legislators, advocates, law enforcement officials, and others seeking to address this problem.

Despite its illegality, the arrest of Professor Gates was not unusual. This scenario – an individual being arrested after responding obstreperously to perceived police misconduct – is one that plays out routinely across the United States, albeit without the Ivy League backdrop or culminating in conflict-resolution-through-beer. And while Gates's arrest may have fostered greater understanding between the Professor and the Sergeant,9 it does not appear that this “teachable moment” went much further. Since the arrest in Cambridge nearly a year ago, there have been few examples of progress in how local legislatures write “disorderly conduct” and similar laws; how police policy incorporates these laws; how law enforcement officers are trained to enforce these statutes; or how these types of arrests are tracked or monitored. Not surprisingly, instances of troubling arrests for “disorderly conduct” and similar infractions continue to abound. Given the entrenched and hyperbolic views expressed during the Gates incident, it is perhaps unsurprising that it did not bring about the sea change some had hoped. This missed opportunity is unfortunate. Change in this area is needed and of vital importance.

There is widespread misunderstanding of police authority to arrest individuals who passively or verbally defy them. There is abundant evidence that police overuse disorderly conduct and similar statutes to arrest people who “disrespect” them or express disagreement with their actions. These abusive arrests cause direct and significant harm to those arrested and, more generally, undermine the appropriate balance between police authority and individual prerogative to question the exercise of that authority. Moreover, setting aside the question of whether any bias motivated Sergeant Crowley‟s decision to arrest Professor Gates, these types of arrests appear to impact communities of color disproportionately and exacerbate tensions between these communities and law enforcement. This might just be another sad fact of police-community relations in a country where poverty and its attendant crime are too often correlated with race, except that it is entirely avoidable. There is no need for police to arrest people for “contempt of cop” and there are ways to ensure that they do not. ...

Inappropriate contempt of cop and cover arrests, and the too-often unnecessary uses of force that accompany these arrests, are a widespread problem. These abusive arrests cause direct harm to those arrested, violate the constitutional rights at the core of our democracy, alienate large segments of our people, and make policing less effective. A meaningful response to this problem requires a number of different approaches, all implemented in concert and to a greater or lesser degree, depending on the breadth and the depth of the problem and the nature of the law enforcement agency in which it is occurring. Changes to policy, and sometimes laws, will be required. Closer supervision, data collection and analysis, and sensible training will also be necessary, as will accountability for officers who make these arrests – and the supervisors who approve them. Where the problem is widespread within an agency, or appears to be a de facto part of agency practice, outside intervention may be required to help the agency make the necessary changes to its culture. Those of us outside the field of law enforcement have a critical role to play: speaking out about misconduct when we see it; teaching others to recognize the many harms of misconduct; and demanding changes in agencies that are not effectively preventing or responding to contempt of cop or cover arrests.##