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Gates-gate: What's the Law Say?

As if the controversy surrounding the arrest of Harvard Professor Henry Louis Gates wasn't sufficiently swirling through the media and the blogsophere, the president of the United States had to weigh in, saying during a press conference last night that Cambridge police "acted stupidly" when they put Gates in handcuffs even after he showed proof that he lived in the home where police had come to investigate a report of a burglary.

Of course, Gates was arrested not for suspicion of breaking and entering, but for disorderly conduct after he and a police officer engaged in a confrontation at his home. The district attorney later agreed to drop the charges against Gates after the city of Cambridge, Mass., and its police department jointly recommended the DA not pursue the matter.

Clearly, dropping the charges was the right move politically. But was it the right move legally? David E. Frank, a former prosecutor who is now a reporter for Massachusetts Lawyers Weekly, says it was, given that the charge against Gates was unlikely to hold up under the Massachusetts disorderly conduct statute.

In a 1976 decision, Commonwealth v. Richards, 369 Mass. 443, the Supreme Judicial Court of Massachusetts held that the First Amendment prevents application of the disorderly conduct law to language and expressive conduct, even when it is offensive and abusive. The one exception would be language that falls outside the protection of the First Amendment, "fighting words which by their very utterance tend to incite an immediate breach of the peace."

Jury instructions used by the Massachusetts courts spell out three elements that must be proved beyond a reasonable doubt to convict someone of disorderly conduct:

1. The defendant engaged in fighting or threatening, or engaged in violent or tumultuous behavior, or created a hazardous or physically offensive condition by an act that served no legitimate purpose.

2. The defendant’s actions were reasonably likely to affect the public.

3. The defendant either intended to cause public inconvenience, annoyance or alarm, or recklessly created a risk of public inconvenience, annoyance or alarm.

There are at least two different versions of what happened at Gates' house -- his and that of the arresting officer. But even if one were to assume the accuracy of the police version -- that Gates called the officer a racist and warned him that he had no idea who he was dealing with -- there is no basis for prosecution, Frank concludes.

While the report refers to Gates’ conduct as "loud and tumultuous," there does not appear to be anything there that would allow for a conclusion that they were "fighting words."

The SJC has also said that for a defendant in Gates’ situation to be found guilty, his actions must have been reasonably likely to affect the public in a place to which the public had access. Where much, if not all, of the alleged conduct occurred on Gates’ property, it appears that legal requirement would prove fatal to the DA’s case.

The controversy over Gates' arrest is unlikely to die down anytime soon. But one conclusion seems clear -- the legal ground for his arrest was shaky from the start.

Posted by Robert J. Ambrogi on July 23, 2009 at 12:54 PM | Permalink | Comments (31)


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