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.