Saturday, 25 July 2009

The Disorderly Conduct Law Of The Commonwealth Of Massachussetts That Henry Louis Gates Jr. Was Arrested For Violating Says The Following. . .


Chapter 272: Section 53. Penalty for certain offenses

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.

end quote

Based on the police report description of Henry Louis Gates' behavior on Tuesday July 16, 2009, and independent witness reports of his "loud and tumultuous" behavior, it seems to me that Sgt. James Crowley was within the letter if not spirit of this Massachusetts law when he arrested Henry Louis Gates for engaging in loud and tumultuous behavior. Those people who are arguing that the arrest of Henry Louis Gates Jr. was unconstitutional because it violates the First Amendment and other parts of the U.S. constitution might want to ask themselves if this Massachusetts law, and similar "disorderly conduct" laws in other states, are constitutional. . .

Unless someone convinces me otherwise, I will continue to believe that Sgt' James Crowley legitimately enforced the letter of this Massachusetts state law when he arrested Henry Gates whether the law is constitutional or not. It seems quite clear that Henry Louis Gates was a "common railer" if not "brawler" who with offensive and disorderly language accosted or annoyed persons (whether of the opposite sex or not. . .), and was disturbing the peace. AFAIAC this Massachusetts state law is somewhat problematic if only because it seems to allow people to accost or annoy persons with offensive and disorderly acts or language as long as their victims are not of the opposite sex. . . If Massachusetts can have marriage equality why can't it have equality under the law when it comes to being accosted or annoyed by persons who engage in disorderly acts or language, to say nothing of lewd, wanton and lascivious speech or behavior?

It seems to me that this Massachusetts law *could* be misused and abused in ways that violate the First Amendment to suppress legitimate peaceful public protest by defining protesters as "common street walkers" much like that idiotic Totalitarian Unitarian "Citizens' Police Officer" Peter Kohl tried to pretend that I was "loitering" in front of the Unitarian Church of Montreal. Okay that's admittedly a bit of a stretch but I am trying to make a point, and part of that point is that the letter and spirit of any law can be stretched by police, prosecutors and judges. What about protesters who shout loudly or use megaphones or other voice amplifiers during a legitimate peaceful public protests? It would appear that they *could* quite easily be construed to be "common railers". There is very little to stretch there is there?

Who gets to define what constitutes "offensive and disorderly acts or language"? Doesn't legislation that prohibits or otherwise *abridges* "offensive language" or even "lewd, wanton and lascivious speech" violate the First Amendment of the U.S. Constitution as so many people are asserting? If this Massachusetts law is in fact unconstitutional then maybe it wasn't Sgt. Crowley and the Cambridge police force who "acted stupidly" in arresting Gates but the negligent state legislators of Massachusetts who enacted and have so far failed to repeal a law that violates the First Amendment. . . If however this state law is not actually unconstitutional then it seems to me that the arrest of Henry Louis Gates was a quite legal one albeit not necessarily a very politically correct one.


  1. Robin, while the MA Disorderly Person law is admittedly vague and most likely dates back to the model penal code of England like so many Mass. laws do, the antiquity of the law means that the state appeals courts have ruled on it numerous times and narrowed the scope by their rulings. I don't have time at the moment to cite relevant cases, but I'm certain that yelling from your porch, within earshot of a gathering crowd of onlookers on the public sidewalk, while ignoring repeated requests from police to quiet down, is more than enough to violate the statute. When the crime occurs in the presence of a police officer, like all other MA misdemeanors that amount to a breach of the peace, a police officer can arrest the violator. Key elements here are outside, yelling, attracting a crowd in a public place, and refusing repeated requests to quiet down. It has received scant attention, but before politicians intervened (a real problem in MA) and had the charges tossed, a clerk magistrate ruled there was "probable cause" (PC) to believe that Gates had violated the statute. PC is the standard the officer needs for arrest, and the court ruled that he met it.

  2. Thanks for slicing it and dicing it O-FISH-L. Even before tracking down the exact wording of this statute I too was reasonably certain that Henry Louis Gates' "yelling from his porch, within earshot of a gathering crowd of onlookers on the public sidewalk, while ignoring repeated requests from police to quiet down" was what resulted in him being arrested on the disorderly conduct charge. So do you have an opinion on the constitutionality of this law or on how it might be misused and abused by police to suppress legitimate peaceful public protest?


Slice It Or Dice it. . .