Obama/Gates/Crowley: Relevant Statutes, Case Law, and Model Code

The first stop on this road is the original police report, and this is the section that directly recounts the arrest.


There are several critical elements in this account which bring it into conformity with the "definition" of disorderly conduct, which comes in three layers:

  1. Statutes
  2. Case law
  3. Model code

The most important layer is the model code, which is likely to be totally unfamiliar to almost everybody, so we might as well start there.

The Model Penal Code is a monstrous document designed to "save the states from themselves" by preventing "consitutional infirmities" in state law, as in COMMONWEALTH vs. KENNETH M. LOPIANO. (60 Mass. App. Ct. 723)

"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)."

So the law against disorderly conduct in Massachusetts is probably constitutional, because it follows the definition of disorderly conduct in the Model Penal Code...

Model Penal Code s. 250.2: "(1) Disorderly Conduct. Offense Defined. 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

"© creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

"'Public' means affecting or likely to affect persons in a place to which the public or a substantial group has access . . . ."

But this language does not appear in the Massachusetts statute under the authority of which disorderly conduct is ordinarily prosecuted in Massachusetts, and a reasonable person might ask how the mere existence of the Model Penal Code can save the Massachusetts statute from "constitutional infirmity."

The relevant Massachusetts statute (G. L. c. 272, § 53) is a relic of the colonial era, and it sounds more like something out of The Old Curiosity Shop than a modern statute...

Section 53. 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.

This baroque language is either explicated or further confused by a mass of definitions and qualifications in a row of subsections, but...

Faced with this monstrosity, judges in Massachusetts have resorted to the useful fiction that G. L. c. 272, § 53 is a hideously clumsy paraphrase of the Model Penal Code at s. 250.2: (1), which I quoted above, and G. L. c. 272, § 53 has been saved from "constitutional infirmity" by interpretation rather than legislative revision.

In other words, constitutional challenges to G. L. c. 272, § 53 are avoided by de facto adherence to the Model Penal Code s. 250.2: (1).

Now it makes sense to ask if the arrest of Professor Henry Louis Gates Jr. matches the criteria of the Model Penal Code s. 250.2: (1), and it seems to me that the most significant sub-section is 250.2: "(1)(b)...

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

If you believe the police report (and this is an essay about matters of law rather than matters of fact), then Professor Gates probably satisfied the criteria of Model Penal Code s. 250.2: (1) by shouting insults at the cop from his front porch, and even though the front porch itself is not a public place, it was sufficiently close to the public sidewalk and street so that "persons in a place to which the public or a substantial group has access" were affected.

That's not the end of the story, and there is never an end to any story involving a charge of disorderly conduct. For example...

Mulvey's conviction was overturned in COMMONWEALTH vs. JOSEPH MULVEY because the location was insufficiently public...

The defendant's mother's property was set back off the road and was surrounded by a variety of different types of fencing. There was a seventy-five to 100 foot long driveway between the road and the house. Entry to the driveway was through a large gate, composed of eight foot high chain link fencing. Green slats had been threaded through the chain link, making it difficult to see through.

The appellate court accordingly overturned Mulvey's conviction, but Professor Gates house is unfenced and adjacent to Ware Street in Cambridge, and the charge of disorderly conduct probably couldn't have been dismissed on the basis of Mulvey, because...

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.

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    Almost correct statement of Mass law (none / 0) (#1)
    by Transor Z on Wed Jul 29, 2009 at 02:00:48 PM EST
    Hi Jacob,

    Subsection (b) of MPC 250.2 is no longer the law in Massachusetts because of its overbreadth for First Amendment purposes. I discuss the relevant law in some depth on my blog:


    -Transor Z

    Thanks for commenting. (none / 0) (#2)
    by Jacob Freeze on Wed Jul 29, 2009 at 03:12:16 PM EST
    I enjoyed reading the discussion of Gates/Crowley on your excellent blog, and although I don't entirely and absolutely agree with every detail, I cannot make my brain return to the infinite vortex of case-law around the Massachusetts statutes and Model Code, and especially not just to quibble.

    Beyond statutory and other definitions of disorderly conduct and disturbing the peace, your diary posed a couple of questions which hadn't occurred to me, and I commented about them on your blog.


    Thanks, Jacob (none / 0) (#3)
    by Transor Z on Wed Jul 29, 2009 at 03:22:55 PM EST
    I don't see your comment so I hope Wordpress didn't eat it. Please try again if it did.

    Yes, a quibble. The only reason I make an issue of it is because a lot of people are taking a free speech angle. Thanks for the kind words.


    I didn't mean YOU were quibbling. (none / 0) (#6)
    by Jacob Freeze on Wed Jul 29, 2009 at 04:27:19 PM EST
    I meant that my minor objections to your discussion would have been quibbling.

    Sorry about that confusion.


    My comment didn't seem to post on your blog, so... (none / 0) (#4)
    by Jacob Freeze on Wed Jul 29, 2009 at 03:46:59 PM EST
    I'll repeat it here, just for the record, and also because your suggestion improves my blog.


    I followed your link back here from my blog on TalkLeft, where I already said all I have to say (and maybe a little more) about statutory and common-law definitions of disorderly conduct.

    But one of your remarks here made a particular impression...

    "Police like to leave a scene with order restored. "

    This rang some bells with me because a large chunk of my adult life has been devoted to street photography in settings where disorder is relatively frequent.

    There a couple of kids mouthing off at each other can quickly escalate into something infinitely more serious, and it isn't enough for the police to separate the angry individuals and depart, because there are always a few more words to be said, and a brawl can instantly flare up again.

    In the case of Gates and Crowley, most commenters seem to assume that anyone walking down Ware Street in the middle of the day is a peaceful Harvard student or professor, but every demographic in the greater Boston metro occasionally passes through Harvard Square, including Southie types who traditionally identify with "Boston's finest," especially in disputes with black people.

    So it wasn't impossible or even vanishingly unlikely that some beefy individual in the little crowd that gathered on Ware Street might have been offended if Gates had continued to shout insults while Crowley drove away, and such a person might have said a few harsh words to Skip, and Skip might have said a few harsh words back, and gotten his neck broken.

    People who spend all day almost every day at a desk or in the suburbs may immediately decide "That could never happen," but something very much like it has happened again and again and again in the greater Boston metro, and on the streets in Sacramento and Los Angeles where I photograph (almost) every demographic category of black America, and where the most dangerous individuals are unquestionably the skin-heads and other white-power enthusiasts who occasionally drift through the scene.


    Found it; it got hung up in the spam filter (5.00 / 1) (#5)
    by Transor Z on Wed Jul 29, 2009 at 04:21:57 PM EST
    I'm sick to death of bad-faith partisan analysis. You nailed it with your characterization of the street-level truths the cops have to deal with every day. People who have no feel for how transactions go in an urban area -- well, I'll break up our little Amen Corner on that note.

    Really glad I found your blog.