Disorderly Law

When I read about City-County Councilor Joe Simpson’s arrest last week for “disorderly conduct,” I immediately thought about an incident several years ago involving the then-Legal Director of Indiana’s ACLU.

He had been on his front porch when police descended on the house next door, and he took issue with aspects of their behavior which he believed violated the Constitution. He never left his porch, but he did enter into a verbal exchange with the police, who responded by arresting him for disorderly conduct. Being a lawyer–and an ACLU lawyer to boot–he sued for false arrest. For years thereafter, he liked to say that the City provided the downpayment for his new house.

I don’t know the details of the altercation between Joe Simpson and the police–although I do know that the parallels being drawn between his arrest and past legal problems of other Councilors are ridiculous: surely we can draw a distinction between mouthing off to the police and taking bribes. That said, perhaps his arrest was justified, perhaps not.

My problem is with laws that lack specificity. Laws against “disorderly” conduct and “loitering” are widely recognized as invitations to official abuse. Police are notorious for using these catch-alls to arrest people whose “crime” has been to challenge their authority. As I tell my students, the rule of law requires that laws be written with sufficient specificity and clarity to alert citizens to the sort of behavior that is being proscribed.

It is manifestly unfair to legislate against vague categories of behavior, without defining the elements of that behavior. If the legislature passed a measure outlawing “irresponsible” driving, for example, such a law would fail to provide any meaningful direction to drivers and would vest far too much discretion in traffic police. Instead, we spell out the behaviors we want to prohibit: speeding, texting while driving, failing to wear a seat belt, etc. Policymakers and citizens can agree or disagree about the propriety of those particular prohibitions, but we all know them when we see them.

There is no such clarity with laws against loitering or disorderly conduct.


  1. Too frequently the actions of this police department are highly questionable. I hope I have a neighbor as intersted in my welfare as Mr. Simpson obviously was. Whether he should have commented on it or not, he does pay their salary. I could send you the complete horror story about my daugher, 3 granddaughters, 1 great-granddaughter and their dog being abused verbally and physically by two local police officers who found the entire situation funny. They andcuffed and arrested my bloody granddaughter who had been beaten by her ex-boyfriend, handcuffed her sister who asked permission to wipe the girl’s runny nose, refused to let anyone give her anti-siezure medication, threatened to arrest my daughter because she demanded the ex-boyfriend be arrested at least for trespassing on her property, maced the dog inside the house when it tried to protect my granddaughter, told my 12 year old granddaughter to go inside and quiet the dog. She is asthmatic so was having breathing problems and eyes were swollen, this too was funny to the officers who informed them they were all stupid for touching the dog before it had been bathed. They called CPS to take my great-granddaughter to their facility even though she live with her aunt who was there and my daughter is a licensed foster care parent; it took hours to get the terrified 4 year old released. These are just the highlights; when my granddaughter was taken from jail to court, the officers hadn’t even filed any charges. This really is the SHORT version of that event. Need we talk about the Bisard case; police internal investigation found no criminal charges applied, it was all negligence. You all know I could go on and on with instances of abuse of authority, brutality, drunkenness and stupidity on the part of too many local officers. I have also known heroic, caring police officers who fully understand their job and the laws they are trained to enforce to protect victims.

  2. I have read the police report and know it to be grossly inaccurate. Regardless of what was said, unless the unarmed 61-year old Mr. Simpson threatened one of the officers, which he didn’t, they committed a false arrest upon Mr. Simpson for being black, 6’5″ and 280 lbs. It flies in the face of his First Amendment rights. As a City-County Councilman it is his charge to know what is going on in his neighborhood. Another black eye for IPD.

  3. I am interested in your definition of how laws should be constructed. Too many local ordinances of this type seem to be purposefully crafted so as to provide the greatest breadth of discretion to a police officer. In reality, if these types of ordinances were to be applied fairly and broadly, cities would be awash in fines and penalty monies.

  4. those of us who practice criminal law in indianapolis know that resisting arrest means the police roughed someone up for being mouthy, and disorderly conduct is failing to show complete deference to the the police.
    When they can kill people and get away with it, what makes anyone think they don’t use their arrest powers as punishment?

  5. I don’t know, I think it’s pretty clear statutorily what disorderly conduct is:

    IC 35-45-1-3
    Disorderly conduct
         Sec. 3. (a) A person who recklessly, knowingly, or intentionally:
            (1) engages in fighting or in tumultuous conduct;
            (2) makes unreasonable noise and continues to do so after being asked to stop; or
            (3) disrupts a lawful assembly of persons;
    commits disorderly conduct, a Class B misdemeanor.

    It’s much less of a catch-all than some states’ disturbing the peace rules.

  6. Oh my; IC 35-45-1-3, Disorderly conduct sounds exactly like my father’s family’s poker games when I was a child. I had no idea they were committing misdemeanors; I thought they were having fun.

  7. “…they committed a false arrest upon Mr. Simpson for being black, 6’5″ and 280 lbs.”

    Were you there, did the cops tell you this, or are you just clairvoyant?

    There has to be some sort of laws in place to let the cops do their jobs. If your not an LEO, stand back and stay quite. The last thing the cops need are people scream, running within feet of a situation they likely know little, if anything, about.

    Can one imagine the outrage had the cops just let this man get very close to the house, and there was an armed burglar who stepped outside and shot the non-LEO? People would be on here demanding the cops be sued and fired for allowing a civilian to get hurt. Some may even say the cops allowed a civilian to get hurt because of race. Cops can’t win for nothing. If citizens are worried about something, stand back as ordered, pull out your cell phone, and start recording. If the cops go overboard, then do as the guy from the ACLU did and file a lawsuit.

    “As a City-County Councilman it is his charge to know what is going on in his neighborhood.”

    As a City-County Councilman, he has plenty of contacts to get an answer as to what is going on. If CCCers want upfront seats to what is going on, then they should get the Sheriff to deputize them, get a police radio, tell the city cops they are on it and aren’t needed, and deal with the situation themselves. Or, they could use their contacts they have, makes some phone calls, get some answers…likely 1,000x faster than any of us serfs could.

    Last time I checked, the officers also pay CCCers salary. Does that mean taxpayers can just walk into the chamber or officer of any CCCer at any given time of the day to see what is going on? If not, why not?

    “Assuming we all agree about what “tumultuous,” “unreasonable” and “disruptive” mean….”

    Well, tumultuous is defined in the code:
    IC 35-45-1-1 Definitions
    Sec. 1. As used in this chapter:
    “Tumultuous conduct” means conduct that results in, or is likely to result in, serious bodily injury to a person or substantial damage to property.

    Unreasonable only applies to noise, and has been defined many times over through appeals court rulings. Here is what the courts have determined unreasonable:

    “Therefore, in order to support a conviction for disorderly conduct [based on making unreasonable noise], the State must prove that a defendant produced decibels of sound that were too loud for the circumstances.” Johnson v. State, 719 N.E.2d 445, 448 (Ind. Ct. App. 1999) (emphasis in original) (citations and internal quotations omitted). A loud noise could be found
    unreasonable where it distracts medical personnel tending to injured persons, makes medical
    treatment more difficult, or annoys others present at the scene. Whittington v. State, 669
    N.E.2d 1363.”


    “Expression with an excessive volume can be found unreasonable when it agitates others at the scene, interferes with law enforcement operations, or is quite annoying to all present. Id.; J.D. v. State, 859 N.E.2d 341, 344 (Ind. 2007). In Whittington, the defendant cursed and yelled with a volume that could be heard from one room to another during an encounter with law enforcement, and he persisted in a “very loud and angry manner” after the police asked him to be quiet. Whittington, 669 N.E.2d at 1366. The Whittington court affirmed the defendant’s disorderly conduct conviction because his loud speaking agitated others nearby, disrupted police investigations, made coordination of investigations difficult, and was very annoying to those present at the scene. Id. at 1367, 1371. Likewise, in J.D., the defendant persistently yelled at an eardrum breaking volume when encountering the police and persisted to do so after the police threatened him with arrest. J.D., 859 N.E.2d at 343. The J.D. court rejected the defendant’s challenge of insufficient evidence as her yells interfered with a policeman’s function as a law enforcement officer. Id. at 344.”

    Disruptive seems pretty clear to me. I think maybe adding the word “continually” might help, or adding language similar to (2) where a person is asked to stop their disruption, and if they refuse then arrest them.

  8. He was told to leave the scene. Case law has repeatedly defended law enforcement officer’s ability to order people to leave the area of an ongoing criminal investigation, and it has also repeatedly defended officer’s ability to determine the distance at which someone is reasonably and safely removed from the scene (i.e. the suspect can’t walk 5 feet away and think they’re okay, it’s up to local constabulary to make that determination.) The world of jurisprudence is a large one, and I would encourage people interested in criminal law to do their own research as opposed to relying on the Star and tainted local media coverage..

    They were responding to an ACTIVE burglary in progress run and this person not only refused to leave the scene, but attempted to ENTER the same house identified in the police run. Not only did this jackball refuse to leave the scene after being ordered to do so, he clearly met the definition of Refusal to Aid an Officer (think the people who walk through crime scene tape) by interfering with an ongoing investigation and compromising the safety of everybody there in more way than one, and then clearly met the definition of Resisting Law Enforcement.

    I understand this is a liberal blog and he’s a Democrat (and a black one, to boot) so people are going to create these hackneyed defenses for his actions. But seriously, if all folks have to go on is “the police made the whole thing up,” and cannot provide any substantiation to THIS claim, THOSE people are why we have so many ethical problems on our City-County Council.

    Furthermore, ANYBODY who claims his position is a justification for inserting himself into the middle of an ongoing, in progress VIOLENT felony investigation (burglary is a violent felony in Indiana) is not somebody who’s opinions have a place at the table of logical discussion.

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