North Carolina Criminal Law NC Criminal Law

Editor’s note: Much like newspapers sometimes waive the length limit on letters to the editor “to permit a fuller response,” I’m posting in full John Rubin’s detailed counterpoint to my previous post on the Gates case. John’s position is thoughtful and reasonable and I don’t plan to debate the issue further, beyond making the following three points, which interested readers should peruse after they read John’s post: (1) as I noted previously, the volume, tone, and tenor of a person’s remarks may be as important as their content in determining whether they are “likely to provoke violent retaliation,” and news reports suggest that some or all of those factors may cut in favor of a disorderly conduct charge in this case; (2) news reports also suggest that Gates went beyond mere “mouthing off” or being “obnoxious,” and likely “got in [Crowley’s] face,” much like the defendant in Tucker got in the principal’s face, even going so far as to make a comment — “I’ll speak to your mama outside” — that might be interpreted as an invitation to fight; and (3) that John’s suggestion that abusive language directed at police officers is measured against a higher standard than abusive language directed at others is not supported by any North Carolina authority. So I remain of the view that while a disorderly conduct charge on the apparent facts of the Gates case would not be a slam dunk, it might be proper under North Carolina law.

I’m afraid I must express my disagreement with my colleague’s blog post on the Gates case. (You can view Jeff’s previous post here.) I don’t mean to be disorderly. I’m just exercising my civic right and even fulfilling my civic duty. I don’t have all the facts in the Gates case so I can’t speak conclusively about what happened. Nor do I pretend to be an expert on race relations. What I want to talk about is what Professor Gates was specifically arrested for-mouthing off to someone in authority. He wasn’t arrested for refusing to follow orders (other than refusing to shut up) — what we would call resist, delay, and obstruct in North Carolina. He was arrested for what he said to and about Officer Crowley. Before I wax eloquent about the importance of questioning authority in a free society, I want to talk first about why being publicly critical and even verbally obnoxious toward public officials, without more, is not a crime in North Carolina.

Our disorderly conduct statute, G.S. 14-288.2(a)(2), provides that for abusive language to constitute disorderly conduct, it must create a public disturbance and, in the words of the statute, be “intended and plainly likely to provoke violent retaliation.” On this I agree with Jeff, but I think the quoted language deserves further attention. The General Assembly added it in 1971 to deal with a constitutional defect in the previous version of the statute, which made it a crime to use offensive, abusive, and disturbing language alone. In State v. Summrell, 282 N.C. 157 (1972), the North Carolina Supreme Court recognized that the previous version of the statute was unconstitutional, finding that speech, even if offensive, is protected under the First Amendment unless it amounts to “fighting words.” See also Johnson v. Campbell, 332 F.3d 199 (3d Cir. 2003) (analyzing U.S. Supreme Court cases and recognizing that this standard requires nothing less than “an invitation to exchange fisticuffs”). The cases in Jeff’s blog post reflect the “fighting words” requirement now a part of our disorderly conduct statute. All involved more than mere name calling, criticism, or coarse language; they involved threatening, fight-seeking behavior. For example, in the most recent of the decisions (State v. Tucker, 2004 WL 943775 (N.C. Ct. App. May 4, 2004) (unpublished)), the defendant did not just call the principal a “fat ass bitch,” insulting and offensive to be sure, she refused to leave the principal’s office after several requests, necessitating a call to the police, and “aggressively got in [the principal’s] face.” So, my first point is that the First Amendment gives a wide berth to people to speak their minds, forbidding the criminalization of speech except in narrow circumstances. See also Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law and Procedure § 20.40 (4th ed. 2008) (more recent cases indicate that the U.S. Supreme Court does not look favorably on prosecutions for “fighting words”).

Second, in my view the already-considerable protection for speech is even greater when the speech is directed toward public officials. The essence of the First Amendment is to protect the right to criticize the government, even through profanity. See Johnson v. Campbell, 332 F.3d at 213 (defendant’s profanity toward officer was emotionally expressive of his displeasure with the officer’s handling of the situation, did not constitute fighting words, and did not provide probable cause to arrest), cited in North Carolina Crimes: A Guidebook on the Elements of Crime at p. 413 (6th ed. 2007). Relatedly, public officials-representing the state and possessing the authority to arrest, handcuff, and use force-have an obligation to exercise restraint in dealing with criticism, even if offensive. For example, in Lewis v. City of New Orleans, 415 U.S. 130 (1974), the defendant was arrested for allegedly saying to an officer, “You god damn m.f. police-I am going to (the Superintendent of Police) about this.” The U.S. Supreme Court found that the law under which the defendant was arrested, which was similar to the previous version of North Carolina’s disorderly conduct statute, was unconstitutionally broad. The comments of concurring Justice Lewis Powell are particularly instructive (and uncannily appropriate to the Gates case). He observed that it was unlikely “that the words said to have been used here would have precipitated a physical confrontation between the middle-aged woman who spoke them and the police officer in whose presence they were uttered.” Justice Powell observed further that “a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to fighting words.” That has to be true in a free society. I worry at the notion that words could be regarded as “likely to provoke violent retaliation” by government officials if disapproved of by them. See City of Houston v. Hill, 482 U.S. 451 (1987) (“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.”)

One of the cases Jeff cites (State v. Cunningham, 34 N.C. App. 72 (1977)) suggests that a law enforcement officer’s potential reaction to offensive words is to be judged by the same standard as that applied to an average person. I don’t believe this isolated statement reflects the state of our law. The statement wasn’t necessary to the resolution of the case. The defendant in Cunningham, like the defendants in the other cases cited by Jeff, engaged in other disorderly behavior, including threatening to run over the officer in his car. I don’t believe our courts, if faced with a case divorced from the sort of circumstances in Cunningham and in light of the constitutional considerations, would find that a trained law enforcement officer should really be judged by the same standard as the average person on the street.

The bottom line is that our law does NOT permit a person to be arrested for or charged with a crime for, without more, abusive or offensive language toward a law enforcement officer. Now for my feeble attempt at eloquence. The right of free speech under the First Amendment is precious, particularly when compared with the paucity of rights in other parts of the world. Further, for the First Amendment to retain its vigor, we need, for lack of a better word, loudmouths-people willing to risk a confrontation with authority to speak out against real and perceived injustices. See Texas v. Johnson, 491 U.S. 397 (1989) (the First Amendment may “best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger”). We also need hard-working, underappreciated public officials, willing and able to accept constructive criticism, grit their teeth and ignore the less-than-constructive remarks, and intervene with the force of law only when someone’s actions are truly intended and likely to provoke violent retaliation.

I am reluctant to dip my toes into the waters of controversy swirling around the arrest of Harvard Professor Henry Louis Gates, but it provides a useful framework for discussing North Carolina’s disorderly conduct laws, so I’m going to do so anyway.

First, let me provide the disclaimer that I’m not taking sides. The best thing I’ve read about this controversy is this AP article, arguing that Professor Gates and Sergeant James Crowley, the arresting officer, had a very understandable misunderstanding. And the happiest thing I’ve read about the situation is this piece, suggesting that Gates and Crowley may both be willing to bury the hatchet. Folks who want to do further reading about the facts might be interested in the police report and in a lengthy New York Times article on the case.

I’ll assume, for the purposes of this post, that the facts relevant to the arrest — which don’t directly include the facts about Crowley’s treatment of Gates — are as follows: Sergeant Crowley went to Professor Gates’s home in response to a call about a possible break-in. The two didn’t exactly hit it off, but after some conversation, Crowley realized that Gates was the homeowner. Crowley prepared to leave. Gates, who is black, felt that Crowley had treated him differently than he would have treated a similarly-situated white person. As Crowley left the home, Gates loudly accused Crowley of being a racist police officer, and offered to “speak with [Crowley’s] mama outside.” Gates followed Crowley out of the house, and, as passers-by stopped and looked, made additional loud accusations of racism and told Crowley that Crowley had “not heard the last of” Gates. Believing that the onlookers were “surprised and alarmed” by Gates’s behavior, Crowley told Gates that he was “becoming disorderly.” Gates continued to voice his displeasure with Crowley, and Crowley arrested him for disorderly conduct.

The charges against Gates have since been dismissed. This short analysis of Massachussetts law suggests that was the proper course under state law, but I don’t have any special expertise in Massachussetts law, so I don’t have an opinion about that.

I do have a tentative opinion about whether the charges could be sustained under North Carolina law. The starting point is G.S. 14-288.4, our disorderly conduct statute. It encompasses a variety of behavior, including disturbing discipline on any public school bus and interfering with the orderly administration of any funeral (!). But as relevant to the Gates case, it makes it a crime to cause a “public disturbance” by “[m]ak[ing] or us[ing] any utterance, gesture, display or abusive language which is intended and plainly likely to provoke violent retaliation.”

The first prong of the statute asks whether Gates’s conduct amounted to a “public disturbance.” Under G.S. 14-288.1(8), a public disturbance is “any annoying, disturbing, or alarming act . . . exceeding the bounds of social toleration normal for the time and place in question” and occurring in a public place. The definition of “public place” specifically includes “highways” and “any neighborhood.” Although Gates was on his own property, he was outside and pedestrians on the street could see and hear him, so he was probably in a “public place.” Whether his conduct exceeded the bounds of social toleration is a pretty subjective question — and one that’s hard to answer without knowing more about the volume, tone, and exact content of Gates’s remarks — but it’s at least possible that a fact-finder would say that it did. So a disorderly conduct charge against Gates probably wouldn’t be subject to dismissal on the grounds that there was no public disturbance.

The second, and more difficult, question is whether Gates’s remonstrations were “plainly likely to provoke violent retaliation.” One issue that sometimes arises is whether abusive language directed at law enforcement officers is measured by the same standard as similar language directed at civilians. In other words, assuming that law enforcement officers are, by virtue of their training, less likely to retaliate violently when insulted, does that mean that language sufficient to constitute disorderly conduct when directed at a civilan would be insufficient when directed at an officer? Different states may answer that question differently, but in North Carolina, the answer is no. In State v. Cunningham, 34 N.C. App. 72 (1977), the court held that while an “officer . . . would be expected to show restraint when confronted with abusive language and [so] as a practical matter the likelihood of violent retaliation may have been slight,” the defendant was properly convicted because “the jury could reasonably interpret the defendant’s utterances as fighting words likely to provoke the average person to retaliation.”

Measured against the “average person” standard, it’s possible that Gates’s remarks rose to the level of disorderly conduct under North Carolina law. We don’t have much case law in this area, but consider State v. Tucker, 2004 WL 943775 (N.C. Ct. App. May 4, 2004) (unpublished), where a disorderly conduct conviction was upheld against a mother who loudly confronted the principal at her daughter’s school and, among other things, called her a “fat a– b—-.” Is that clearly worse than being called a racist cop? Or consider State v. Raley, 2002 WL 31894939 (N.C. Ct. App. Dec. 31, 2002) (unpublished), where a disorderly conduct conviction was upheld against a man who, among other things, said “f— you” several times to a store clerk, and when asked by police to calm down, responded “f— that s—, I can say what I want.” Again, more facts would be helpful, but one can make a pretty plausible argument that Gates’s behavior towards Crowley was on par with the behavior at issue in Raley.

The bottom line is that if the Gates case had happened in North Carolina, a disorderly conduct charge might well be sustainable. It isn’t a slam dunk, obviously, and the fact that the charge might pass legal muster doesn’t mean that charging Gates would be the right thing to do.