[Iowa_Flames_Fan]

Originally Posted by peter12

Yeah, good point. But in this case... what's race got to do with it?

I think it's pretty clear that race has nothing to do with the issue of whether Gates could or should be arrested for disorderly conduct in this case. Here's a good (to my untrained eye) legal analysis, though:
http://legalblogwatch.typepad.com/le...e-law-say.html

Notable quotes:

Firstly, the specific constitutional limits that convictions under the disorderly conduct law must satisfy.

In a 1976 decision, Commonwealth v. Richards, 369 Mass. 443, the Supreme Judicial Court of Massachusetts held that the First Amendment prevents application of the disorderly conduct law to language and expressive conduct, even when it is offensive and abusive. The one exception would be language that falls outside the protection of the First Amendment, "fighting words which by their very utterance tend to incite an immediate breach of the peace."

Secondly, the specific criteria given to juries in a jury trial, in which it's pretty clear Gates' actions don't meet the standard.

Jury instructions used by the Massachusetts courts spell out three elements that must be proved beyond a reasonable doubt to convict someone of disorderly conduct:

1. The defendant engaged in fighting or threatening, or engaged in violent or tumultuous behavior, or created a hazardous or physically offensive condition by an act that served no legitimate purpose.

2. The defendant’s actions were reasonably likely to affect the public.

3. The defendant either intended to cause public inconvenience, annoyance or alarm, or recklessly created a risk of public inconvenience, annoyance or alarm.

Finally, the porch issue--in which it's quite clear that the fact that the offense occurred on Gates' porch would likely have sunk the whole thing.

The SJC has also said that for a defendant in Gates’ situation to be found guilty, his actions must have been reasonably likely to affect the public in a place to which the public had access. Where much, if not all, of the alleged conduct occurred on Gates’ property, it appears that legal requirement would prove fatal to the DA’s case.

None of these issues is particularly about race. But they do seem germane to a deeper question: what rights do we have in expressing ourselves to police? If we can be arrested because a cop doesn't like us, then that seems to me to impose a drastic and nearly fatal exception on any freedom-of-speech law.

Indiana lawyer Joshua Claybourn has this to say about the disorderly conduct statutes more generally.

Nevertheless, there remains an unfortunate arrest for “disorderly conduct,” and arrests of this nature are far too common. Massachusetts defines the crime as fighting or threatening, violent or tumultuous behavior, or creating a hazardous or physically offensive condition for no legitimate purpose other than to cause public annoyance or alarm.

This sort of definition is relatively similar to that found in most states, and in almost every instance it is fraught with vagaries, giving far too much discretion to police officers. In short, “disorderly conduct” can easily become a euphemism for whatever a particular police officer doesn’t like. That kind of environment runs counter to fundamental ideals of the American system.

http://www.intheagora.com/archives/2..._conduct_laws/

Edit to add:

All of which brings us back to the Cambridge dust-up. Sgt. Crowley was understandably carrying out his duty to investigate the report, and from the quotes attributed to Gates, the professor was unfair in his comments to an officer doing a good job. But being rude, unfair, or disrespectful should not be illegal, and that’s essentially the effect of most disorderly conduct laws. Our American society increasingly hands more responsibility and control to the great Nanny State. Heightened arrests under disorderly conduct laws enable this frightening progression.

President Obama would have been wise to avoid this controversy, particularly since he admits to lacking all of the facts. But ultimately I cannot disagree with the thrust of his statement. Arresting Prof. Gates under the circumstances was stupid and Americans in every state would do well to scale back the reach of disorderly conduct laws.

This may not be about race at all--but it does seem to me that there's a constitutional issue here, or at least the beginnings of one--depending on how common this sort of arrest is.