'Disorderly Conduct' Meets Abusive Conduct

Where? Cambridge, Mass., site of Harvard professor Henry Louis "Skip" Gates's arrest for disorderly conduct? No, our nation's capital.

They are citizen complaint cases, adjudicated by the District's Office of Police Complaints in 2008 and 2005, respectively. According to the Police Complaints Board, the two cases contain the same patterns of fact: citizen arrested for disorderly conduct without legal justification.

Unfortunately, they are not isolated events.

A 2003 board study found that D.C. police made far more "disorderly conduct" arrests per capita than cops in other large cities. Sometimes, the board reported, it appeared that the arrests were retaliation for rude behavior by residents during their encounters with the police.

That's a serious error. Disorderly conduct laws apply to a breach of the public's -- not a cop's -- peace.

As the Office of Citizen Complaint Review (its name in 2003 when this ruling was made) noted, echoing the D.C. Court of Appeals, and courts in other jurisdictions such as Massachusetts, a "police officer is expected to have a greater tolerance for verbal assaults . . . and because the police are especially trained to resist provocation, we expect them to remain peaceful in the face of verbal abuse that might provoke or offend the ordinary citizen."

Too many citizens don't know that. They often choose to post and forfeit collateral to end the arrest and avoid having to appear in court, even though the arrest may be improper. True, no conviction. But the arrest stays on the books.

Since the 2003 report, the D.C. police department has modified its arrest procedures for disorderly conduct to make the collateral forfeiture process clearer. It has also provided more training about the law and arrest procedures, and it has stressed that officers must follow the law.

Residents are arrested in D.C. for disorderly conduct in large numbers: nearly 5,000 in 2007, more than 4,200 in 2008 and 4,469 this year as of Aug. 5. Many are probably arrested for good reasons: noise violations, blocking public spaces, etc.

But, as in the Gates arrest, some busts never make it to court.

In response to my request, the D.C. Attorney General's office, which prosecutes disorderly conduct cases in the District, provided data on disorderly conduct charges that were presented for prosecution (or "papered") and those that were dropped (or "no-papered") from fiscal 2007 to 2009 to date. It turns out that the juvenile-offenders section of the office papered 118 cases in that period, while 237 were dropped. (Fifty-six of the cases that went to court were dismissed either for insufficient evidence or as part of a plea.)