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Undernews is the online report of the Progressive Review, edited by Sam Smith, who covered Washington during all or part of one quarter of America's presidencies and edited alternative journals since 1964. The Review has been on the web since 1995. See main page for full contents

August 2, 2009

GATES AND MASSACHUSETTS LAW

Adam Winkler, Huffington Post -[Henry] Gates did not violate any law. Under Massachusetts law, which the police officer was supposedly enforcing, yelling at a police officer is not illegal.

There are clear decisions of the Massachusetts courts holding that a person who berates an officer, even during an arrest, is not guilty of disorderly conduct. And yet that is exactly what Gates was arrested for.

The Massachusetts statute defining "disorderly conduct" used to have a provision that made it illegal to make "unreasonable noise or offensively coarse utterance, gesture or display," or to address "abusive language to any person present." Yet the courts have interpreted that provision to violate the Massachusetts Constitution's guarantee of freedom of speech. So police cannot lawfully arrest a person for hurling abusive language at an officer.

In several cases, the courts in Massachusetts have considered whether a person is guilty of disorderly conduct for verbally abusing a police officer. In Commonwealth v. Lopiano, a 2004 decision, an appeals court held it was not disorderly conduct for a person who angrily yelled at an officer that his civil rights were being violated. In Commonwealth v. Mallahan, a decision rendered last year, an appeals court held that a person who launched into an angry, profanity-laced tirade against a police officer in front of spectators could not be convicted of disorderly conduct.

So Massachusetts law clearly provides that Gates did not commit disorderly conduct.

2 Comments:

Blogger robbie said...

weren't the charges agaisnt Gates dropped within 12 hours or something?

August 2, 2009 9:19 AM  
Anonymous Mairead said...

They always are - this is "punishment without trial", where the hassle, indignity, and pain is the punishment. If the victim sues and wins, it's the public, not the cop, that pays.

We had a text on this subject in grad school 30+ years ago. It's an effective method of social control because it completely deprives the innocent victim of the ability to escape being punished for lawful behavior.

August 2, 2009 11:30 AM  

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