GatesGate has, as anticipated, produced a great deal of conversation, most of which is productive in the sense that it has people talking about the issue of whether a person should be subject to arrest for being belligerent and disagreeable with a police officer. In this comment, Sojourner links to a terrific New York Times article discussing the breadth of police attitude toward dealing with the angry citizen who verbalizes their disagreement.
But the discussion is inhibited by one disturbing factor: Many people have absolutely no idea what constitutes an offense, and the debates has too often involves people inventing crimes from their vague sense of what they either believe the law to be, or think the law should be.
As my posts on GatesGate have found their way into some non-lawyer political blogs over the last few days, I’ve had an opportunity to check out blogs that I had never before seen, and read some of the comments reflecting people’s understanding of the law. Not surprisingly, they often demonstrated a fundamental lack of understanding. It’s hard to talk about a subject when there is no shared recognition of the basics. As comments to these blog posts show, people simply insist that being disagreeable toward a cop is a crime.
In order to facilitate a higher level of discussion, I offer this post to help the non-lawyer better understand the subject of discussion. A crime, whether infraction, misdemeanor or felony, is an offense created by a law enacted by a legislature. There is no such thing as common law crime, a crime that we all kinda agree exists but we just make up as we go along. If it is not expressly prohibited by law, it is not a crime.
Each crime has specific elements, things that must happen in order for conduct to be criminal. If all of the elements of the crime are not met, then the conduct is not criminal. We may think there should be more elements or less, but they are whatever the law says they are, and the crime consists of all required elements regardless of how much you love or hate them. That’s the legislature’s decision, and until it’s changed, and it defines the crime. The reason it’s important that the crime is defined is that we wouldn’t know what not to do otherwise. The law puts on notice of the conduct that is illegal, which in turn is important so that each of us doesn’t get to behave in whatever manner we think appropriate, raising or lowering the bar in accordance with our personal idea of criminality. The bar stays put.
For those commenters who bandy about legal jargon with abandon, there is a difference between civil and criminal law. Civil law gives rise to an award of damages or injunctive relief. Criminal lands you in jail (more or less). They are not two sides of the same coin, and slander, as was discussed in some comments, is a civil concept rather than a criminal one. In other words, there is no crime of slander per se, though in some jurisdictions, there are crimes that involve the use false statements with various additional elements.
And now for one of the most difficult concepts for the non-lawyer, jurisdictional differences. States get to pass their own laws. One state may enact a law making something a crime that is perfectly legal in another state. Similarly, the elements of a crime in one state can differ markedly from that in another. This is counterintuitive, in that one would naturally believe that if certain conduct is wrong, it would be wrong everywhere. That’s not necessarily the case. It’s usually true for crimes that are malum in se, conduct that is evil in itself, but less so for conduct that it malum prohibitum, conduct that is prohibited simply because the state chooses to make it so. For example, there is nothing inherently evil about driving on the left hand side of the road, but states have chosen to have us drive on the right hand side to avoid a lot of nasty crashes. In Britain, they got it backwards.
Adding to the confusion is that fact that laws are enacted using the English language, as understood by politicians. Words require definitions, and people often understand their meaning differently. Consequently, courts spend a great deal of time defining words. The objective is to make their meaning clearer. Courts often fail to achieve this objective, and either make relatively clear words fuzzy to encompass conduct that would not ordinarily be understood to be covered or so broad and vague as to be rendered meaningless. To understand what the words in a law mean, lawyer are constrained to read caselaw, the decisions of judges, and try to make sense out of them. It’s not always easy. It’s not always illuminating.
In GatesGate, Henry Gates was arrested for disorderly conduct (not disturbing the peace, as many seem to think). The New York version of disorderly conduct, contained in New York Penal Law Section 240.20, provides:
§ 240.20 Disorderly conduct.
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.
The law as enacted is remarkably broad, covering a variety of actions that would otherwise appear perfectly lawful, if not constitutionally protected. A key to appreciating the law is the preliminary requirement, that the conduct be done with the “intent to cause public inconvenience, annoyance or alarm.” That means that the person engaging in the conduct desired those outcomes.
If the purpose of a person’s conduct is to express outrage and anger toward a police officer for acting in a manner that the individual believes to be wrong, improper, racially motivated, for example, then his intent is not to cause public alarm. No disorderly conduct.
(Edit: for the reckless version, as opposed to intentional version, at the annoyingly vigilant prodding of my dear Prof. Yabut, whose gnawing concern with precision keeps me on my toes, see the comment below.)
Of course, this is how the law works in theory. On the street, it’s another matter. The police officer, such as Sgt. Jim Crowley in the Gates matter, makes the arrest and it’s then left to the judge to decide whether there is sufficient cause to maintain the charges against the individual. In New York, the time between arrest and being brought before a judge for initial arraignment, at which point a neutral magistrate will have an opportunity to determine whether the allegations o
f fact are sufficient to meet the elements of the offense, is about 24 hours. Those are often the worst 24 hours a person will ever experience.
It doesn’t necessarily matter whether the prosecution proceeds. If nothing else, those first 24 hours will be the price of mouthing off to a cop. It’s a high price for exercising one’s right to speak one’s mind to a overly sensitive police officer.
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Doesn’t the statute make it an offense — regardless of intent — to “recklessly create the risk” of “public inconvenience, annoyance or alarm”?
I just knew some wiseguy would point that out. Of course, but then I would have to explain the meaning of “reckless” on top of everything else, and decided that it was going far deeper than necessary to demonstrate the gist of the post.
Good tutorial.
In the Prof. Gates case it is not clear how the charge was dismissed or if Prof. Gates ever appeared before a magistrate. One of the reports said the City of Cambridge dropped the charge. I suppose that is possible if the city prosecutes simple misdemeanors and the county prosecutes more serious charges.
I guess the police call this type of arrest an attitude arrest and some officers never make an attitude arrest where others do. I think it depends on age and experience and the type of assignment.
My understanding from the news reports is that they declined to prosecute and simply released Henry Gates. I hope to dispel anyone from thinking that this is how it normally happens. Few of us draw the attention that Gates did, and will receive such prompt scrutiny. Or any scrutiny at all.
As for the attitude, the Times article is very informative. Some cops really don’t let an angry citizen bother them, and use an arrest to teach a lesson, or worse still, give a lippy black man a good tuning up just to remind them who’s boss. Others show a temperament less appropriate for someone in whom we repose trust.
. . . but, but, this little wrinkle sure undermines the notion of “no intent, no disorderly conduct” — not to mention your intent of explaining the law to the unschooled or forgetful. The law (and the cop’s discretion) is a lot broader, if the officer doesn’t have to convince the judge of intent but merely of reckless risk of public inconvenience or alarm.
You’re recklessly leaving us at risk of continued ignorance of just what it takes to engage in disorderly conduct.
Thus, if a person does not specifically intend a particular result, but is (a) aware of and (b) consciously disregards a (c) substantial and (d) unjustifiable risk that such result will occur or that such circumstances exist, and (e) that result does in fact occur, the person will then have engaged in disorderly conduct (see elements for disorderly conduct and add to the mental state of recklessness).
Thank you for your vigilance, Professor.
And, thank you for your willingness to be nudged into compliance. I sure hope I haven’t kept you from cutting the lawn this morning.
We prefer to keep the curtilage around the doublewide in a more natural state. I sometimes sit in the old lawn chair and ponder my contribution to the environment, whilst sipping a virgin pina colada.
Hey! Did you know that in a civil case once upon a time the U.S. Supreme Court decided that police officers are expected to “exercise a higher degree of restraint” than ordinary citizens when dealing with belligerent responses, and that the county court where you live referred to it in a decision dismissing a discon? People v. Wharton, 11 Misc.3rd 1085A (Supreme Ct. Nassau Co. 2005), quoting Lewis v. City of New Orleans, 415 US 130 (1974). People v. Wharton, [Defendant not guilty of disorderly conduct in violation of P.L. §240.20(1), (3) or (7) based on trial evidence concerning an encounter at a Dunkin Donuts including the two officers’ testimony that he shouted obscenities and pushed a table into the leg of one officer, controverted by a videotape and testimony of the People’s two other witnesses, employees of the restaurant.]
How did I ever miss this Nassau County criminal court discon decision? I’m so ashamed.
It’s impossible to know everything even in your own backyard, unless of course it made headlines in Newsday. ;-]. And you don’t get assigned to appeal misdemeanor convictions which once in a while I do.
While I may reside in Nassau County, my practice is elsewhere, and never in the local criminal courts. And, I admit that I have never been assigned a misdemeanor, or any other, appeal, since I do not do assigned counsel work.
While this may explain my ignorance, it does not excuse it.
Defendants in local criminal courts are in a good mood because generally speaking they cannot be sentenced to more than a year. That’s just a joke.
I know you don’t do AC work. Someday I will leave it all behind me. Anyway, there is no private market for the quality of work I did in this appeal. An AC client couldn’t pay it and a middle-class person wouldn’t. Not for a misdemeanor.
In fact the county can’t pay it either, not most of the freight, but I will not provide less of a service than is necessary in my judgment. And it helps to be visionary.
“You can beat the rap, but you can’t beat the ride.”
Dam I thought the law was how I thought it should be, you blew that Idea. Thanks for the post I really do think it will help people understand better, it must be irritating to a lawyer to hear all those crazy interpretations of law by none lawyers, my ex wife has that problem also.
I suspect the expungement of the records when a charge is dismissed depends on jurisdiction. In my jurisdiction the charge is expunged from the court records and jail booking record (however copies are distributed daily that cannot be expunged) but the police blotter is not expunged.
If the police blotter is listed on the web then the information is available for anyone to extract and sell to people that want to check up on the persons criminal history.
In other words even if an “attitude arrest” charge is dismissed the long term consequences can continue. I don’t think Prof. Gates has to be concerned but an 18 year old that disrespected a cop and was put in jail to “teach him a lesson” should be.
I pine for the past where all crimes were crimes at common law and legislatures didn’t sit all the time and meet and pass laws and take bribes and screw everything up.
At common law, I think there were only seven felonies: murder, mayhem, robbery, burglary, arson, rape, and Grand Larceny. There were some misdemeanors too. Everything other wrong might be actionable privately but wasn’t criminalized. Oh the sanity of it all.
The crimes at common law had elements that had to be proven, they just weren’t codified. Beginning in the 19th century we started codifying everything.
It hasn’t improved things. Especially with the feds, all kinds of things are crimes you can’t even imagine.
John R.
You said that well however what about ” Issuing Justice” Common Law in England and then abolished here. We have no chance or do we? Check out Issuing Justice it is an interesting law of the past.
It’s my thinking that the cop invited Prof. Gates to step outside his house to enable the disorderly charge. You cannot be disorderly, recklessly or intentionally, if there is no “public.” In my jurisdiction, at least, one cannot be charged with disorderly conduct if that conduct annoys police only.
If a tree falls in the forest. . .
I think the problem is there are so many simple misdemeanors they have set up an assembly line processing system and most arrestees realize the least costly option is to plead guilty, pay the fine and move on. This means the police have full discretion and unless there is a review by the PD (that only happens if their is a complaint) there is no oversight.
As a consequence we have a large number of low level civil rights violations and it is no wonder that people hate cops. Somebody other than the police has to watch what the cops are doing.