Aug 9, 2009

Unpacking the Law: Disorderly Conduct

Disorderly conduct has been in the news recently. Harvard Professor Henry Louis Gates Jr. was recently arrested for it at his home in Cambridge, Massachusetts; and today's Washington Post features a piece from a Washington, D.C. lawyer charged with disorderly conduct after saying "I hate the police."

But this charge is old news to folks in criminal justice circles. Spend a few hours observing criminal court in New York City and you'll see "240.20's" (the penal code for disorderly conduct) come in, one after the other.

So what is it? Why does it exist?

The New York State Penal Code says the following:

"A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior; or

2. He makes unreasonable noise; or

3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or

4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or

5. He obstructs vehicular or pedestrian traffic; or

6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or

7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

Disorderly conduct is a violation. "

This last sentence is important: in saying that disorderly conduct is a violation and not a crime, the Penal Code is describing an offense where the potential sentence cannot be greater than fifteen days jail. What distinguishes a violation from a crime is that, if you plead guilty to a violation, you will not have a criminal record as a result of that particular plea.

According to a Time article about this offense, disorderly conduct "has its roots in the mid-19th century, when police officers needed a way to quell street brawls that erupted frequently between recent immigrants and already established residents, often regarding labor issues. Crowds would gather and cops needed to restore order in public places."

These days, the law leaves a little more room for interpretation, and disorderly conduct is a charge that depends largely on an officer's discretion. The tension most recently highlighted concerns the distinction between free speech (for example, saying insulting things about the police or a police officer's mother) and inciting a crowd with your words. The former, while rude and perhaps unwise, is not a crime; the latter can land you with a disorderly conduct charge, if substantiated by a grouping of people listening to you express yourself.

These issues are hard -- the policing perspective would likely note that disorderly conduct is often used in situations where people are making loud noise on the street or behaving in a threatening way to others around them. In fact, these quality of life issues are what can lead to an overall sense of disorder and lawlessness in a neighborhood. If you ascribe to the broken windows theory, you would believe that the police should make use of the disorderly conduct statute as a tool for maintaining order, to prevent the occurrence of worse crimes.

We would be curious to hear your stories of disorderly conduct.

Have you been arrested for it?
Are you a police officer who has made an arrest for disorderly conduct?
What are your opinions about the use of the disorderly conduct law?