'Disorderly Conduct' Meets Abusive Conduct

By Colbert I. King
Saturday, August 8, 2009

She and her fiance (now husband) were unpacking their car. Her dog was sitting across the street, outside the door of their apartment building.

A police canine officer with his dog on a leash encountered the woman's unleashed dog. The two dogs snarled and growled but didn't engage in a physical fight. The woman ran and got control of her dog. The officer told her it was against the law to have her dog unleashed, and he asked for her identification.

She said it was inside the apartment. He told her to get it. She took her dog inside, left it there, and returned with her identification.

She and the officer got into a heated exchange. The officer ordered her to sit on the steps of the building entrance. She refused. He arrested her for disorderly conduct, cited her for having her dog unleashed, handcuffed her, escorted her to the curb and had her sit down until a transport vehicle arrived.

She was taken to the police station and released after electing to "post and forfeit" $50 collateral for disorderly conduct and an unleashed-dog charge.

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He and two friends were in line to enter a restaurant and bar around 1:45 a.m. He made a comment to a friend about a police officer holding and drinking out of a "keg cup."

The officer responded to the comment with the question, "What the [expletive] did you say to me?" The man didn't respond. The officer approached him, physically restraining him from behind, saying, "Hey, you [expletive] punk," and then, "you are a [expletive] punk and you're under arrest."

The officer led him around the corner to a squad car, directed the arrested man's friends to remove his shoelaces and belt. The officer removed $25 from the man's wallet, informing him that it was for bail.

The officer took the man to the police station where he was fingerprinted and photographed. The officer paid $25 bail with the money he took from the man, telling him that by paying the fine, he was admitting guilt to disorderly conduct. The man was released at 4:30 a.m.

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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.)

The criminal-offenders section papered 1,686 and no-papered 666. (These numbers include arrests made by the Secret Service, the Capitol Police, the Park Police and the Metropolitan Police Department.)

How many of the 900-plus "no papered" disorderly conduct arrests in our nation's capital since 2007 were improper and unlawful, slipping by unnoticed? A question worth answering, don't you think?

After all, not everyone is a Skip Gates.

kingc@washpost.com

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