DISORDERLY CONDUCT in Massachusetts and how it relates, to Gates' case.

[Care4all]

Under these Massachusetts government instructions and from what you know about the Gates case, do you think that the conduct of mr gates was considered disorderly under massachusetts law and how their Supreme court has ruled on the issue?

Page 1 Instruction 7.160
2009 Edition DISORDERLY CONDUCT
DISORDERLY CONDUCT
The defendant is charged with disorderly conduct. In order to prove
the defendant guilty of this offense, the Commonwealth must prove three
things beyond a reasonable doubt:
First: The Commonwealth must prove that the defendant involved
himself (herself) in at least one of the following actions: he (she) either
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 of the defendant’s;
Second: The Commonwealth must prove beyond a reasonable doubt
that the defendant’s actions were reasonably likely to affect the public; and
Third: The Commonwealth must prove beyond a reasonable doubt
that the defendant either intended to cause public inconvenience,
annoyance or alarm, or recklessly created a risk of public inconvenience,
annoyance or alarm.
See Instruction 3.120 (Intent).
G.L. c. 272, § 53. Commonwealth v. Feigenbaum, 404 Mass. 471, 536 N.E.2d 325 (1989)
(“hazardous or physically offensive condition” branch of the statute cannot be applied to political
protesters who block passage); Commonwealth v. A Juvenile, 368 Mass. 580, 595-599, 334 N.E.2d
617, 627-629 (1975); Alegata v. Commonwealth, 353 Mass. 287, 302-304, 231 N.E.2d 201, 210-211

Instruction 7.160 Page 2
DISORDERLY CONDUCT 2009 Edition
(1967), adopting Model Penal Code § 250.2(a) & (c) (1962); Commonwealth v. Lopiano, 60 Mass.
App. Ct. 723,725-726, 805 N.E.2d 522, 525 (2004) (finding no violent or tumultuous behavior where
defendant, upon being told by police that he would be summoned to court for assault and battery,
began to flail his arms and shout at police); Commonwealth v. Sinai, 47 Mass. App. Ct. 544, 546, 714
N.E.2d 830, 833 (1999) (affirming first element of crime); Commonwealth v. Bosk, 29 Mass. App. Ct.
904, 906-907, 556 N.E.2d 1055, 1057-1058 (1990) (statute applicable to motorist who stood in traffic
lane, forcing vehicles to pass around him, while debating with police officer and refusing to return to
his car).
SUPPLEMENTAL INSTRUCTIONS
1. Prohibited conduct. Our disorderly conduct law seeks to
control intentional conduct which tends to disturb the public
tranquility, or to alarm or provoke others. It prohibits four
separate and distinct acts: It forbids conduct that involves the
use of force or violence. It also prohibits making threats that
involve the immediate use of force or violence. It forbids
tumultuous and highly agitated behavior, which may not involve
physical violence, but which causes riotous commotion and
excessively unreasonable noise, and so constitutes a public
nuisance. Finally, the law prohibits any conduct that creates a
hazard to public safety or a physically offensive condition by an
act that serves no legitimate purpose of the defendant’s.
Feigenbaum, supra; Alegata, supra; Commonwealth v. Blavackas, 11 Mass. App. Ct.
746, 749, 419 N.E.2d 856, 858 (1981).

Page 3 Instruction 7.160
2009 Edition DISORDERLY CONDUCT
2. “Public.” For the defendant to be found guilty, his (her)
actions must have been reasonably likely to affect the public,
that is, persons in a place to which the public or a substantial
group has access.
Alegata, supra. See Commonwealth v. Templeman, 376 Mass. 553, 537, 381 N.E.2d
1300, 1303 (1978).
3. Recklessness. A person acts recklessly when he
consciously ignores, or is indifferent to, the probable outcome of
his actions. The defendant was reckless if he (she) knew, or
must have known, that such actions would create a substantial
and unjustifiable risk of public inconvenience, annoyance or
alarm, but he (she) chose, nevertheless, to run the risk and go
ahead.
Commonwealth v. Welansky, 316 Mass. 383, 397-401, 55 N.E.2d 902, 909-912
(1944); Commonwealth v. Papadinis, 23 Mass. App. Ct. 570, 574-575, 503 N.E.2d
1334, 1336 (1987), aff'd, 402 Mass. 73, 520 N.E.2d 1300 (1988).
NOTES:
1. Offensive language. General Laws c. 272, § 53 cannot constitutionally be applied to language and
expressive conduct, even if it is offensive and abusive, unless it falls outside the scope of First Amendment protections,
i.e. it constitutes “fighting words which by their very utterance tend to incite an immediate breach of the peace.”
Commonwealth v. Richards, 369 Mass. 443, 445-450, 340 N.E.2d 892, 894-897 (1976); A Juvenile, 368 Mass. at 587-
595, 334 N.E.2d at 622-627; Commonwealth v. Sinai, 47 Mass. App. Ct. 544 at 546, 714 N.E.2d at 833. See Lewis
v. New Orleans, 415 U.S. 130, 94 S.Ct. 970 (1974); Rosenfeld v. New Jersey, 408 U.S. 901, 92 S.Ct. 2479 (1972);
Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766 (1942); Blavackas, 11 Mass. App. Ct. at 748-752, 419
N.E.2d at 857-859 (doubtful that public solicitation for sexual activity is “disorderly conduct,” which seems to require

Instruction 7.160 Page 4
DISORDERLY CONDUCT 2009 Edition
proof at least of significant risk of violence or serious disturbance). However, non-expressive disorderly conduct is
punishable even if accompanied by constitutionally protected speech or expressive conduct. Richards, supra;
Commonwealth v. Carson, 10 Mass. App. Ct. 921, 921-922, 411 N.E.2d 1337, 1337-1338 (1980).
2. Annoying and accosting persons of the opposite sex. Regarding that portion of G.L. c. 272, § 53
dealing with annoying and accosting persons of the opposite sex, see Instruction 6.600.
3. Political protesters. The acts that may constitute disorderly conduct fall into two branches: (i)
“engag[ing] in fighting or threatening, or in violent or tumultuous behavior,” and (ii) “creat[ing] a hazardous or physically
offensive condition by any act which serves no legitimate purpose of the actor.” Model Penal Code § 250.2(a) & (c)
(Proposed Official Draft, 1962). A disorderly conduct prosecution of political protesters is maintainable only under the
first of the two branches. “[A]lthough conduct that is designed to call attention to a political cause, and may therefore
have a legitimate purpose, may nevertheless be criminal under the common law or by some statute, it does not
constitute disorderly conduct under [the second branch of] G.L. c. 272, § 53” because it does serve a legitimate
purpose of the actor. Feigenbaum, supra.
4. First Amendment. As to the burden of proof when there is an assertion that the defendant’s acts
were protected by the First Amendment to the United State Constitution, see Commonwealth v. Manzelli, 68 Mass.
App. Ct. 691, 864 N.E.2d 566 (2007).

 

[Diuretic]

First: The Commonwealth must prove that the defendant involved
himself (herself) in at least one of the following actions: he (she) either
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 of the defendant’s;
Second: The Commonwealth must prove beyond a reasonable doubt
that the defendant’s actions were reasonably likely to affect the public; and
Third: The Commonwealth must prove beyond a reasonable doubt
that the defendant either intended to cause public inconvenience,
annoyance or alarm, or recklessly created a risk of public inconvenience,
annoyance or alarm.

From what I've read - and there have been conflicting reports - no. I think it would fail on all three elements not being proven. In essence I don't think his behaviour was extreme enough to fall under the first category; in the second category I doubt if there was a deleterious effect on the public; I don't think he had intention and even though he may have been reckless I don't see "public inconvenience, annoyance or alarm", just a private inconvenience etc to Crowley.

 

[AllieBaba]

Probably not. But give a pig cop points for trying.

 

[xsited1]

Under these Massachusetts government instructions and from what you know about the Gates case, do you think that the conduct of mr gates was considered disorderly under massachusetts law and how their Supreme court has ruled on the issue?

...

Possibly. I'd have to watch the video to be sure.

 

[Missourian]

So now police have to have a the trial too?

Guess the lawyers and judges are out of a job. Too bad.

Here is Officer Crowley's Official Police Report.

http://i.cdn.turner.com/cnn/2009/images/07/23/0498.001.pdf

All requirements fulfilled in the first two sentences.

 

[Valerie]

Link to audio from last week.


http://media.podcastingmanager.com/41383-80817/Media/072309ebpodcast.mp3

 

[Ravi]

So now police have to have a the trial too?

Yeah, it's always a good idea to give the police a free pass. How conservative of you.

 

[Missourian]

So now police have to have a the trial too?

Yeah, it's always a good idea to give the police a free pass. How conservative of you.

weak, with a small w.

 

[Valerie]

Link to audio from last week.


http://media.podcastingmanager.com/41383-80817/Media/072309ebpodcast.mp3

In the first 10 minutes she comments directly on the Gates' arrest and she also specifically addresses the threshold for disorderly conduct.

At around the 34 minute mark a caller asks about the situation again.

 

[AllieBaba]

Moral of the story: Don't yell at cops. Even if you're right.

When my asswipe ex stole the keys to my mother's car, threw them on the tracks, (I was 9 months pregnant) and took my phone then chased me in his mom's car (he left it running while I was calling 911 from a phone booth so he could dance around me screaming and yelling...and I jumped in the car and drove it a block away and left it, lol. Pretty funny, i thought) the cops came and then told me they wouldn't make him leave my house (as in MINE, not his), nor would they make him give them the keys, because it was just petty theft, and advised me to go somewhere else for the night... anyway, I told the cop I'd go ahead and get the keys myself. The cop told me he'd arrest me if I tried. Then he told me I was hysterical (well duh).

I told him he was just saying that because I could talk faster than he could think.

Probably not the smartest move on my part, but boy it felt good.

 

[xsited1]

So now police have to have a the trial too?

Yeah, it's always a good idea to give the police a free pass. How conservative of you.

weak, with a small w.

And these are the people who support bigger, more intrusive government.

 

[Missourian]

Link to audio from last week.


http://media.podcastingmanager.com/41383-80817/Media/072309ebpodcast.mp3

I listened to some of this interview with the Massachusetts Attorney General. Very informative, Thanks Val.

 

[Ravi]

Yeah, it's always a good idea to give the police a free pass. How conservative of you.

weak, with a small w.

And these are the people who support bigger, more intrusive government.

There's no bigger government than the government that allows the police to operate no questions asked. Based on the responses from your compatriots I can only conclude that you and they are the real big government supporters.

 

[Ravi]

Link to audio from last week.


http://media.podcastingmanager.com/41383-80817/Media/072309ebpodcast.mp3

In the first 10 minutes she comments directly on the Gates' arrest and she also specifically addresses the threshold for disorderly conduct.

At around the 34 minute mark a caller asks about the situation again.

What does she say, exactly? From what I read she claimed that the cops did no wrong because they can't.

 

[Valerie]

weak, with a small w.

And these are the people who support bigger, more intrusive government.

There's no bigger government than the government that allows the police to operate no questions asked. Based on the responses from your compatriots I can only conclude that you and they are the real big government supporters.

Who said anything about no questions asked???


Did you listen to the attorney general?

 

[xotoxi]

Moral of the story: Don't yell at cops. Even if you're right.

When my asswipe ex stole the keys to my mother's car, threw them on the tracks, (I was 9 months pregnant) and took my phone then chased me in his mom's car (he left it running while I was calling 911 from a phone booth so he could dance around me screaming and yelling...and I jumped in the car and drove it a block away and left it, lol. Pretty funny, i thought) the cops came and then told me they wouldn't make him leave my house (as in MINE, not his), nor would they make him give them the keys, because it was just petty theft, and advised me to go somewhere else for the night... anyway, I told the cop I'd go ahead and get the keys myself. The cop told me he'd arrest me if I tried. Then he told me I was hysterical (well duh).

I told him he was just saying that because I could talk faster than he could think.

Probably not the smartest move on my part, but boy it felt good.

I personally never yell at anyone.

I'm as fucking courteous and respectful to everyone I meet as I would like them to be with me.