by Chris Bodenner

A reader writes:

You asked for a legal perspective on the Gates incident.  Here are my thoughts, at least from a Maryland perspective:

Most if not all states make it a crime to engage in “disorderly conduct,” or, similarly, to fail to obey an order of a police officer reasonably meant to prevent a breach of the peace.  Generally disorderly conduct means words or actions taken with the intent to disturb another, or incite or provoke another to violence.

Speaking one’s mind, even with the use of profanity or harsh words, is not sufficient to be criminal, as speech is protected by the first amendment.  Instead, language must qualify as so-called “fighting words,” the use of which is not constitutionally protected.  The term “fighting words” means language that tends to provoke or cause an act of violence on the part of the listener.  In the words of one court, “conduct must have advocated imminent lawless action and been likely to incite a breach of the peace in order to be proscribable by the state.”  Where the accused is “not exhorting others to breach the peace”, there is no crime.

The focus here really is on the listener.  Would the language or conduct tend to provoke the listener to violence?  There is different standard for words or conduct directed to police.  Police officers are expected by law not to be as sensitive as members of the general public, and to be able to withstand certain conduct or words that ordinary citizens could not.  Courts also recognize that citizens have a right to protest police action, even emotionally or emphatically.  Again the focus is on whether the words or conduct used would incite others – officers or ordinary citizens within earshot – to react violently.

So here, the questions are:  What did Gates actually say?  If he was addressing the officer, where those statements intended to provoke the officer to react violently?  Could the statements have provokes another bystander to violence?

Of course, the decision as to whether or not a particular incident such as this amounts to a crime happens later, in court.  At the scene, practically speaking, the officer has the discretion to arrest and charge disorderly conduct as he sees fit.  That charge may or may not hold up in court, and often it doesn’t.  Realistically the officer would probably not face any backlash (unless the accused happens to be a prominent Harvard professor.)

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