You are not you today. Today you are someone else. Tabula Rasa.
Today, you are going to jail.
Sometime after noon, you will be handcuffed, arrested, taken from your family, your home, booked, photographed, fingerprinted, and imprisoned before you can bond out after four hours of police custody.
To take this journey, you will need to bring a few things other than a toothbrush. You must bring your imagination. You will have to leave matters of race, politics, and other mind-benders behind that poison the contents of your cranium.
You must make decisions on what is just and fair from behind a veil of ignorance.
In taking up this point of view, we are to imagine ourselves in the position of free and equal persons who jointly agree upon and commit themselves to principles of social and political justice. The main distinguishing feature of the original position is “the veil of ignorance”: to insure impartiality of judgment, the parties are deprived of all knowledge of their personal characteristics and social and historical circumstances.
In this hypothetical journey, forget about politics. Blind yourself behind the veil — a construct by which society can reach reasonable, just, and fair conclusions. Race is irrelevant. Party identity is not and can not be an issue. All we know is you are a person who will be arrested shortly.
High Noon. The chauffeur pulls into your upper class home in Cambridge, Massachusetts after a long trip. On top of the aggravation that comes along with traveling, the damned front door is jammed and you can’t unlock the door. The exasperation is reaching a boiling point.
Don’t fret. While Hopkins, the chauffeur (another witness conveniently left out of the police report as well as the occupants of the home in total), tries to pry open the front door, you remember a way in from the back! After all, this is your own home, and at this point you kind of feel like whacking yourself with the cane you cling to because of a physical disability for not thinking of the backdoor move earlier.
Never mind the petty annoyances of the day. You’re in. Time to kick back, be with your family; maybe watch a Red Sox game. Sadly, you’ll never get around to that.
Out of no where, a police officer comes to the front door. He demands you come outside and identify yourself. You ask him to identify himself. It turns out the police were called to investigate a burglary in progress. Since you live there and can prove it, this gets you upset after the police do not immediately leave upon realizing the mistake. In fact, the police officer comes inside your home, without a warrant or probable cause to believe a crime was ongoing.
After showing the police officer your identification in your own home, you call the cop a “racist.” Further, you call the cop a “prick.” For the grand finale of insults to the boy in blue, you insult the police officer’s “mama,” but, do not say she is fat.
You act boorishly. Without question, you are rude. For a large part of this, you are in your home. The most you do is stand on your porch, by the threshold, as the police officer leaves. On your own property.
The police officer arrests you for “disorderly conduct.” In the officer’s report, not one citizen who was a witness to the alleged crime is listed. Yet, the officer will say many “passer-bys” were affected by your behavior despite not listing a single person who claims as much. As it stands, there is no proof any citizens were affected by your conduct.
You wonder, what is disorderly conduct?
The statute authorizing prosecutions for disorderly conduct, G. L. c. 272, § 53,(5) has been saved from constitutional infirmity by incorporating the definition of “disorderly” contained in Model Penal Code § 250.2(1)(a), (c) (1980). See Commonwealth v. Chou, 433 Mass. 229, 231-232 (2001) (summarizing history of § 53 and its construction). See also Alegata v. Commonwealth, 353 Mass. 287, 303-304 (1967); Commonwealth v. A Juvenile, 368 Mass. 580, 595-597 (1975). “The resulting definition of ‘disorderly’ . . . includes only those individuals who, ‘with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . : (a) engage in fighting or threatening, or in violent or tumultuous behavior; or . . . (c) create a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.’” Commonwealth v. Chou, supra at 232 (citations omitted).(6) “Public” is defined as “affecting or likely to affect persons in a place to which the public or a substantial group has access.” Commonwealth v. A Juvenile … (See, COMMONWEALTH v. JOSEPH MULVEY)
The Commonwealth adopts the Model Penal Code so that the state statute can pass constitutional muster. Without the Model Penal Code, the pertinent Disorderly Conduct statute would not only be unconstitutional as it says in the above case, but it would also read like Milton, or Chaucer, or a combination of them both with bad endings:
CHAPTER 272. CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD ORDERChapter 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.
Here are the facts in your favor: You are not a “common night walker” although you may have insinuated the police officer’s “mama” was. You are not a “brawler” nor are you “lewd to the opposite sex.” You are none of the things listed in the statue except being a “disorderly person.” Are you?
Each and every element must be proven beyond and to the exclusion of each and every reasonable doubt. Standard jury instruction. There must be “probable cause” as to each element as well to arrest. Based on the totality of the circumstances, was there probable cause as to each and every element of Disorderly Conduct? No.
I mean, did you “with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . : (a) engage in fighting or threatening, or in violent or tumultuous behavior; or . . . (c) create a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor?”
The first thing the government must establish to make a prima facie case is that you acted with a purpose. A purpose “to cause” a variety of maladies. We must examine your mens rea. Since causation is an element of the offense that the government must prove beyond a reasonable doubt, one must ask this question: But for the police arriving at your home, would this have happened? Simply, no. There is not sine qua non causation or purpose to cause the proscribed behaviors.
Despite this fact, your wrists are beginning to hurt from the handcuffs.
Ok, did you intend to cause brawling, riots, fighting or other acts contemplated by the statute? Is there any, I mean one scintilla of evidence in the police report, indicating the name of one person (not a police officer swarm called for backup) whose tranquility or peace was adversely impacted? One witness? No. Yet, despite this, you are forcibly placed into a police cruiser, in handcuffs, and taken away.
Did the police officer have a warrant to enter your home after learning you were the occupant? No. Could the police officer have taken the time to get a warrant if he felt a crime was being committed and had probable cause to have a judge sign off on it? Yes. But, there was no underlying crime to speak of after the investigation turned out you were not burglarizing your own home. Therefore, he could not get any judge with a brain to sign anything.
Did you entice others to “fight?” No evidence of that. There is not one civilian named or who has come forward claiming you “create[d] a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor?” No one claims you were “violent” or caused the public to become violent. You did not cause a “hazardous or physically offensive condition.” As it so happens, the police caused that by calling for backup. There is absolutely no proof of this element – that your conduct caused this “hazardous” situation that never happened. There are no “fighting words” as a matter of law nor is there a “clear and present danger.”
Could the officer have walked away once realizing no crime had been committed? Yes. Ought the officer’s “mama” have been insulted? No. Does insulting an officer’s mommy from the porch (at most) rise to the level of a disorderly conduct charge? No. Or calling the officer a racist? No.
The officer swears under oath to protect and serve the community. Part of that is knowing what the law is. Routinely, officers try to track the language in a statute so as to conform to law. However, just putting in the requisite legalese does not make a crime. Or probable cause to believe that a crime has been committed. Here, there is no crime, but, the police force you into the cruiser and arrest you in front of your family.
The ‘cuffs get tight. Sweat beads up on your forehead in the back of the cruiser. The air conditioning is probably off and the stench from other arrests are typically present and not lovely. You were just arrested in your own home — part of which is the porch. Private property. Property you earned though honest work. The place where your wife sleeps, and your children play their games.
You were arrested for doing nothing except insulting a cop who could not follow the law and let his emotions control the outcome of the day. The D.A. drops the charges. They can not proceed in good faith. The police agree in the filing decision and do not push the issue.
The police officer actually caused you to become agitated and affected your peace and tranquility. It’s fair to say the officer caused (purposefully) an annoyance beyond the pale. The government wrongfully arrested you for something clearly not a crime. The government abandoned their oath to follow the law. Candidly, the officer broke the law and let his emotions control. Intentionally. I ask you, would you want to go to jail for a crime never committed on your property?
Think about that. Jail. The smell. The other criminals. Rapists, prostitutes, murderers, drug addicts, pedophiles, and armed jaywalkers. Get in the shoes of the arestee and ask yourself, how would that feel? Are we not a nation of laws? Who came closer to breaking a law once you actually have seen what the law is? Officer Crowley took the liberty away from a citizen without just cause let alone probable cause.
Not knowing who you would be in the original position, would you chance casting yourself into the position of the arestee, Professor Gates? If you did not know where you would land in society from behind this veil of ignorance, would you want to be in the shoes of Gates knowing you would be arrested in this manner? No. No fair or enlightened society would stand for such an arrest. Thankfully, the charges were dropped to buttress that point.
For his aggregious and unforgivable conduct, Officer Crowley should be fired. He broke the law. It’s called a wrongful arrest.
Trivia: Who invented the original position, the veil of ignorance, and what university did he hail from?