When Cambridge, Massachusetts police officers arrested distinguished Professor Henry Louis Gates Jr. in his home last week after a woman reported a suspected break-in, the debate immediately focused on charges of racial profiling by police or misconduct on Mr. Gates part. May I suggest that the problem here is not so much a charge of racism by the professor or a charge of disorderly conduct by the police?
Having read it, I believe the law itself may be the major problem. Cambridge's law is not unique. A similar law exists in my community and most others. Disorderly conduct laws are often used by police when dealing with the public. For example, the New Haven, CT police department made an average of 12.3% of its arrests of persons over the age of 18 on a charge of "disorderly conduct" in the period 1990-2000.
Here is what Cambridge's law says:
"MUNICIPAL CODE CAMBRIDGE, MASSACHUSSETTS Chapter 9.08.010 Disorderly conduct--Profanity and insulting language.
No person shall behave himself in a rude or disorderly manner, or use any indecent, profane or insulting language in any street or public place. No person shall make or cause to be made, any unnecessary noise or noises in any public street, private way or park, so as to cause any inconvenience or discomfort for the inhabitants of the City."
This law is vague and therefore invites what the legal profession refers to as "selective enforcement" (not uniformly applied to all people) or inconsistent enforcement. That is, it allows the officer too much room to interpret what rude, disorderly, indecent, profane, insulting or unnecessary noise mean. Different officers may apply it using personal or differing criteria. Also, the wording of the law seems to belong to an earlier era and doesn't realistically fit today's community standards.
Rudeness, profanity and insults are not pleasant things to witness or endure and are evidence of insensitivity to the feelings of others. But, I think most people today, if they were honest, would not support law enforcement arresting a person for being rude, insulting another person or using profanity. This is, after all, a country with a long history of people having the freedom to "speak their minds". And, while many people might lament this fact, an awful lot of people ( too many to fill the town jail) might let out with a string of "four-letter words" when "Pissed off", injured or frightened.
There should be another component to justify arrest. If the perpetrator was bullying or harassing an individual (repeatedly taunting, cornering, following or intimidating another person) so the person was suffering significant discomfort, couldn't escape, feared for their safety or in the case of the police officer, couldn't do his job; then I think most people would have no problem with an arrest of the perpetrator. In this case, however, the officer did determine that the professor was in his own home and not a burglar. And, nothing in the story suggests the professor once identified was perceived by the officer as a threat to his safety.
That "significant discomfort" component is missing from the first sentence of the Cambridge law, but is present in the second sentence as regards "unnecessary noise or noises". However, it broadly applies the criteria to "any inconvenience or discomfort". It would be better to set a standard with measurable criteria for level of noise based on the time of day.
It seems to me that under the existing law, when Gene Kelly decided to go "Singing in the Rain", he might have been collared had an officer been on that city street. He was all over the street and sidewalk and making a lot of unnecessary noise. He didn't have to be singing. He could have just opened an umbrella, walked down the sidewalk and kept to himself like everyone else. That would have been orderly.
In summary, when a law is vague and doesn't reflect community standards, it can easily be applied selectively or unevenly. In that situation, it would be expected that people may (rightly or wrongly) feel mistreated or discriminated against because of their race, religion or age (especially if there is a history of that kind of treatment). And, in this case, I believe President Obama was correct that "cooler heads should have prevailed" once the professor's identity was established. But, the distinguished professor may also owe the officer an apology for jumping to a false conclusion about profiling, if as the officer states he "flew into a verbal rage when officers asked him for identification". After all, they were only trying to protect the professor's property.