The issue of extralegal police activity targeting non-criminal conduct is of acute concern to LGBT activists. CC on Anti-Violence Project letter to Cambridge officials:
The Anti-Violence Project of Massachusetts is deeply concerned over the recent arrest of Professor Henry Gates on charges of “disorderly conduct,” (G.L. c. 272, § 53) which the Middlesex District Attorney’s Office dismissed this week. The question of racial profiling has already been raised, but we write to request an investigation of whether the arresting officers had probable cause to charge and detain Professor Gates. In addition, we are recommending proactive steps Cambridge can take to bring this matter to a positive outcome.
The Anti-Violence Project urges the City of Cambridge to consider the possibility that the arrest of Professor Gates interfered with his First Amendment rights, and lacked an adequate basis in law. The United States Supreme Court has recognized a First Amendment right of citizens to criticize the conduct of police officers in the performance of their duties. “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Houston v. Hill, 482 U.S. 451, 462-63 (1987).
In Commonwealth v. A Juvenile, 368 Mass. 580, 587 (1975), the Massachusetts Supreme Judicial Court held that the prohibition against “idle and disorderly persons” in G.L. c. 272, § 53 did not reach “expressive conduct.” For police officers to charge “disorderly conduct” there must be a good faith basis in fact to find that the accused “‘with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof …(a) engage[d] in fighting or threatening, or in violent or tumultuous behavior; or (c) create[d] a hazardous or physically offensive condition by an act that serves no legitimate purpose of the actor.’” See Commonwealth v. Chou, 433 Mass. 229, 231-32 (2001) (Cites omitted.) Yet it appears plausible that Professor Gates’ actions were limited to vociferous criticism of police officers, which is protected under the doctrine of Houston v. Hill. Moreover, it is difficult to conceive that a “physically offensive condition” sufficient to disturb the general public could exist where the only complaining “victims” were the arresting officers themselves. If Professor Gates was detained without probable cause to believe that he went beyond vigorous criticism of police activity, and created a public nuisance which rises to the level of conduct required by the Supreme Judicial Court, there has been a violation of his Fourteenth Amendment right against deprivation of liberty without due process of law. See Rogers v. Powell, 120 F.3d 445, 454-55 (3rd Cir. 1997).
A further concern is the effect of a public perception of police overreach on minority communities affected by hate crimes. The AVP is dedicated to improving cooperation between law enforcement and individuals targeted in hate crimes, which disproportionately affect, among others, the African-American and LGBT communities. Episodes like what happened to Professor Gates can potentially poison the well of trust that advocacy organizations like ours seek to cultivate. The danger is that minority victims of hate crimes may perceive, rightly or wrongly, a posture of insensitivity or unfriendliness on the part of law enforcement personnel. If hate crime victims cannot be persuaded to come forward because they perceive the police as hostile, hate crimes go unpunished and justice is denied.
Accordingly, the AVP offers its recommendations on how the City and the Cambridge Police Department could seize this opportunity to build public confidence and strengthen its credentials in the civil rights arena. First, there needs to be an investigation of whether arresting officers had a good faith basis in the elements of G.L. c. 272, § 53 when they charged and detained Professor Gates. If they are found to have made an arrest without an adequate basis in law, disciplinary action should follow. Second, all Cambridge Police Department personnel should get updated civil rights and diversity awareness training. The Office of the Attorney General and the Executive Office of Public Safety are developing updated civil rights training materials. The training sessions would also benefit from the participation of anti-violence educators from affected communities.