So. Gatesgate.¹

For as eminently debatable as this week’s arrest of Professor Henry Louis Gates and its aftermath may be for people who are properly qualified to discuss the state of race relations in America, I am not one of those people.² But I have been excited to see how much attention this story has brought to the Commonwealth’s colonial-era disorderly conduct statute, and this is as good a time as any for us to review once again why its continued existence is nothing but an embarassment to us all.

Professor Gates, as we all know by now, was arrested for disorderly conduct on his own front porch in Cambridge last week. Police had been called by a concerned citizen who reported a burglary while watching Gates and his driver attempting to strongarm a door to which Gates had misplaced his keys after a trip to China. The police arrived and established Gates’s identity with a photo ID which included the address in which they were standing.

According to the police report, Gates then became upset and expressed his opinions regarding the injustice of the situation, the Cambridge Police Department, and the treatment of African-American men by police in the United States, at which point he was cuffed and arrested for disorderly conduct as a small crowd gathered. The charge was subsequently killed several days later, together with the usual “not our best moment, not his best moment” statement from the Cambridge PD.

Letting this go was the right move for all concerned, obviously. But what if the case had gone forward?

As I have previously discussed as thoroughly as I cared to, the Commonwealth’s disorderly conduct statute is a facially unconstitutional 400-year-old mess that has been preserved only through willful acts of judicial alchemy. Unfortunately, its many vagaries and moving parts have made it a reliable standby in the collective arsenal of law enforcement officers throughout the Commonwealth and, right or wrong, it is all too common to see this charge brought after an arrest in which the defendant has forgone his Fifth Amendment right to remain silent in favor of his First Amendment right to express his opinion about the situation.

The defense’s first strategy would almost certainly have been to move to dismiss the charge. Looking at only one of this crime’s many possible elements, it is highly unlikely that Gates’s alleged conduct (even assuming that it was just as obnoxious as reported) caused or created a risk of “public inconvenience or alarm.” According to the police report, his confrontation with police began in his own kitchen after he had provided them with evidence of his identity; he was then was invited to step out and continue the discussion on his own front porch. Although the police report alleges that a small crowd was gathering at this point, the fact remains that the officers had no reason to be there once they had established that Gates had not just burgled the place, and it seems highly unlikely that that this gracefully-aging gentleman with a cane, a bronchial infection, 12 hours of jet lag, and a Harvard ID was otherwise likely to pose any risk of “public inconvenience or alarm.”³

The “public” element aside, however, there is the basic issue of a citizen’s right to vocally disagree with the police. While most reasonable people can agree that it’s probably best to keep calm in the face of possible arrest, it is also understandable that, as the U.S. Supreme Court has previously held, your average law-abiding citizen is going to get a little worked up if he feels that he is being treated like a criminal for no good reason. Despite the best efforts of the police to work the magic words “tumultuous” and “served no legitimate purpose” into the affidavit in support of the criminal complaint [page 4], Gates’s conduct closely resembles that of defendants in at least two other Massachusetts appellate cases⁴ in which disorderly conduct convictions have been reversed:

In Commonwealth v. Lopiano, 60 Mass. App. Ct. 723 (2004), police had just witnessed the defendant assaulting his girlfriend before they moved in to arrest him; he then began flailing his arms and yelling loudly about his civil rights and such. In reversing his conviction for disorderly conduct, the Appeals Court noted that his behavior was not “extreme” or otherwise threatening, and was not therefore statutorily “tumultuous.”

Commonwealth v. Zettel, 46 Mass. App. Ct. 471 (1999), my personal favorite in this line of cases, held that a difference of opinion with a police officer is a “legitimate purpose” that may provide a proper defense against a charge of disorderly conduct. Although the defendant in Zettel had actually kicked a cop in the shins following an argument with him over her right to a parking spot in Fall River, the court held that her conduct arose from a “legitimate purpose” for causing a scene. But this is consistent: Massachusetts and other jurisdictions have found “legitimate purpose” for causes as diverse as protecting your water supply and attempting to save your marriage, so why not challenging a police officer who is expressing an intent to arrest you?

For as much fun as this little Gedankenexperiment may be, we are still talking about a criminal offense which carries up to six months of committed time. Disorderly conduct charges are regularly and routinely brought against defendants of every description around the Commonwealth—most of whom do not have Al Sharpton on speed-dial—under nearly identical circumstances. Let’s hope that all of this publicity will finally shame the legislature into putting G.L.c. 272 Sec. 53 out of its misery.

1. Note: Nobody should ever call this incident “Gatesgate,” for any reason. [↩]
2. For what it’s worth, I believe that the heartless and disturbingly insensitive prosecution of UMass Amherst student Jason Vassell is a far better example of the point that Gates and his supporters have been trying to make… it was really only the fact that it happened in Western Massachusetts that has kept it out of the conversation. [↩]
3. This is generally defined as “affecting or likely to affect persons in a place to which the public or a substantial group has access.” Commonwealth v. Molligi, 70 Mass. App. Ct. 108 (2007). So maybe a few people could hear him from the sidewalk—but so what? I just don’t see it. “Public” really should mean “public.” As a policy matter, this statute is supposed to preserve public order, not the sensibilities of police officers. [↩]
4. There are many more, but these are the two that immediately came to mind when I read the Gates police report [↩]

disorderly conduct, massachusetts, stupid laws

This post was current as of June 11, 2009. To see how the AAO has worked under new leadership to specifically address the concerns expressed below, see this update.

The  Administrative Appeals Office (”AAO”) of the United States Citizenship and Immigration Services (”CIS”) may be the most mysterious appellate body in the American legal system. The AAO is tasked¹ with the review of a wide range of immigration-related decisions that have the potential to seriously affect people’s lives, including the denials and/or revocations of visas, waivers, and other basic immigration issues arising from CIS decisions. It is, in short, the unloved little step-brother of the Board of Immigration Appeals, the better-known body which generally handles appeals from decisions of American immigration courts.

Despite this significant authority, the AAO’s opinions are not formally published, rarely binding on anything beyond the case at hand, and are, in certain cases, unreviewable by a higher court. Its decisions are never credited to any particular judge or adjudicator and, to the extent that they are made available to the public, they are clumsily organized by subject matter in groups of annoying PDF files which are not indexed or otherwise easily searchable.

It is also well worth noting that appellants must remit a non-refundable $585 fee² simply for the privilege of having their appeals filed before the AAO. There’s no telling where all of that money is going, though, especially considering that—unlike any other appellate body in the United States of which I’m aware—the AAO doesn’t even have a website.

But you don’t have believe me. Just take it from the CIS ombudsman, who offers the following dismal summary [PDF]:

The lack of published information on AAO standards and procedures leads customers and stakeholders to question the integrity of the AAO decision-making process.

As of today, however, I have reason to question not only the AAO’s “decision-making process,” but its entire existence.

After careful consideration, I have come to the following rather startling conclusion:

The Administrative Appeals Office has no jurisdiction over anything.

The proof is fairly easy to come by, but you’re going to have to bear with me here: I’m about to get all regulatory on you.

This sordid fiasco begins with 8 C.F.R. §103.3, which outlines the contours of the immigration appellate process. 103.3(a)(iv) helpfully defines the “AAU” (a.k.a. “AAO”) as “the appellate body which considers cases under the appellate jurisdiction of the Associate Commisioner, Examinations.” Okay—so far, so well-regulated. But what kinds of cases?

That’s also pretty straightforward. 103.3(a)(ii) states that “[d]ecisions under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in Sec. 103.1(f)(2) of this part.”

Awesome! I love it when federal regulations are this elegantly organized. So there’s a whole section that defines exactly which cases the AAO has authority over. Good to know. Let’s take a look at §103.1(f)(2), shall we?

No, seriously. Take a look. It won’t take long, and you’re never going to believe this next part if you don’t.

There is no Section 103.1(f)(2). It seems someone idly plucked the AAO’s entire reason to live from the regulatory shelf, played with it for a few minutes, and forgot to put it back where it belonged.

Seriously, I’m pretty sure that’s what happened. You can find the pre-2004 version, which lovingly details some 55 different types of cases over which the AAO has appellate authority, here. As far as I can tell, however, this section was never restored or otherwise added to any other regulatory provision once it was removed.³

What does all of this mean? Simply put, the AAO has gone rogue. As of this month’s anniversary of the last amendment, it hasn’t had proper legal authority to review any given case for at least five years.

I know this may all seem unnecessarily fiddly and semantic, a sort of nerdly “gotcha” game. But I submit that this is a hugely significant problem. Subject-matter jurisdiction is one of the most essential foundations of a functioning appellate system, especially on the federal level. A court that doesn’t even know what kinds of cases it’s permitted to consider is really no court at all.

I’ve been poking around to see if anyone more important than myself has actually noticed this astonishing loophole, and the evidence is inconclusive. The 2009 version of the official CIS Adjudicator’s Field Manual still cites the missing regulation (see Sec. 10.8) in its brief discussion of which cases may be appealed to the AAO. The CIS website still enumerates a long list of issues over which the AAO has jurisdiction which appears to be drawn from the missing provision. And the instructions which accompany the I-290B form used to file appeals before the AAO unhelpfully state only that the AAO may review decisions arising from any immigration proceeding “in which the Board of Immigration Appeals does not have appellate jurisdiction.”

If this broad assertion of jurisdiction by exclusion suggests a sort of implicit recognition of the simple fact that the AAO has no enumerated authority whatsoever, the recent ombudsman’s statement quoted above manages to wiggle around the whole issue entirely:

“The AAO exercises appellate jurisdiction over the matters described in 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003)….”

Oh, c’mon. Maybe that was the best they could do under the circumstances, but it’s still undeniably sneaky. If you believe that one, try this:

It is clearly apparent that the Framers of the U.S. Constitution did not intend for women to enjoy the right to vote, and did not provide for any possibility that they would be permitted to do so. There is, therefore, absolutely no Constitutional support for the proposition that women have been granted the franchise. (See Constitution of the United States of America, as in effect August 17, 1920).

See how that works?

I wish I were missing something here, but I am left with three inescapable conclusions:

(1) The AAO has been legally invalid since 2004, but

(2) We’re stuck with it anyway, and don’t really have any choice but to continue to bring our cases before it, because

(3) No one cares.

1. Well, maybe not exactly, but more on that in a minute… [↩]
2. This has to be the most expensive appellate filing fee in the Western world. By way of comparison, this is exactly $475 more than the filing fee for an appeal to the Board of Immigration Appeals [PDF], $135 more than the filing fee for a typical immigration appeal before the First Circuit Court of Appeals [PDF] and a full $285 more than the fee for initial docketing of a petition for writ of certiorari to the U. S. Supreme Court [PDF]. [↩]
3. To be fair, it appears that there is a possibility that the AAO’s appellate authority was taken out of the regulations and “delegated” to the AAO by DHS pursuant to the powers granted it by 103.1(a) in something referenced in several sources as “Delegation Memo 0150.” However, this memo is not available to the general public (I’ve looked), and my position remains that appellants should be properly placed on notice of the AAO’s appellate jurisdiction through regulatory means, especially for as long as 103.3(a)(ii) continues to state that this information is actually available in the regulations and CIS’s official secondary sources continue to reference this defunct provision. Federal regulations are subject to public review and criticism—the so-called “notice and comment” rulemaking process so beloved of administrative lawyers. “We have jurisdiction over your case, and we have this secret internal memo to prove it” is the kind of thing one might reasonably expect to hear before being exiled to a Siberian gulag. If DHS has actually redefined the AAO through such a memo (and, again, there’s really no way for me to know if they have actually done so) apart from the regulatory process, I would submit that this represents an attitude to administrative lawmaking that has no place in a functioning constitutional democracy. [↩]

Immigration Appeals, stupid laws

There’s this amusing phenomenon which may be observed when those with no prior exposure to the weird social/legal/historical/political realities of the Commonwealth first innocently wander into them. I call it Mass Confusion, and it has reigned in the blawgosphere in the last couple of weeks since the First Circuit’s Friday the 13th ruling in Noonan v. Staples, Inc., No. 07-2159 (2009).

I’m just going to voice my respectful dissent on this right up front. This is all just one kid’s opinion, but whatever else this decision may be, it is not “the most dangerous libel decision in decades.” It has not “turned libel law on its head,” it is not a “bizarre twist,” it has not held that “truth is no longer an absolute defense” to libel, and it doesn’t “threaten to overturn” anything.

The boring truth is that in Noonan the First Circuit has merely glancingly condoned (as opposed to having definitively upheld) a highly questionable state law on reasonable procedural grounds. Somehow all of the critics of this opinion seem to have lost sight of the fact that the standard here was not that which would have been used had the court reviewed the case on the merits after trial, but only in terms of a motion for summary judgment: was there a “triable issue of fact” under existing Massachusetts law? Sadly, there was.

This is not to say that I agree with the outcome: At the end of the day, I’m a public-interest attorney, a progressive voter, an ACLU member, and an uncompromising defender and fan of the First Amendment. But this is an appellate, and not a First Amendment, blawg, so the following analysis is conducted accordingly.

The facts are far simpler than the law, so let’s begin at the beginning. Plaintiff Noonan was a Staples employee who engaged in some shady accounting (not a lot, but enough to get noticed) on his expense accounts and such during the course of his employment there. Staples caught Noonan, fired him, and made an example of him in a mass email sent out to all 1,500 of his former colleagues in the company’s North American division. Noonan did not seriously contend that the email as published was not true, but sued Staples anyway on the theory that it was libelous. In Noonan, the First Circuit (Tourella, J.) has agreed that it is possible that a reasonable person could have found the email to have been libel under Massachusetts law, and has remanded to the district court for further proceedings.

This, of course, is the part where every American law school graduate’s head explodes. How could a statement which is empirically true ever constitute libel? Truth is the “absolute defense” to libel, right? Yes. Yes, it is. Everywhere but the Commonwealth.

That’s right: You’re in the jungle now. Welcome to the jungle.

Let’s get to the law: Read more…

1st Circuit, massachusetts, stupid laws

If you need one more reason to take pride in the genius of the American democratic process today, keep in mind that Supreme Court Chief Justice Roger Taney, the last person to administer the Presidential oath of office upon the Lincoln Bible on which Barack Obama will place his hand today, believed that:

…it is too clear for dispute that the enslaved African race were not intended to be included [in the phrase "all men are created equal"], and formed no part of the people who framed and adopted this declaration, for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted, and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

In Dred Scott v. Sandford, 63 U.S. 393 (1857), now known as one of the worst rulings in Supreme Court history, the Taney Court was asked to decide whether African slaves and their descendents could ever become citizens of the United States. The answer was an angry, Ted-Stevens-style, “NO!” After all, wrote Taney, our Founders found Africans to be:

“…beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”

Furthermore, Taney believed that it was essential to the health of the nation that the same Constitutional rights that applied to “real” Americans be forever witheld from Africans and their descendents because:

[Citizenship] would give to persons of the negro race… the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color [in slave states], both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

In an unfortunate attempt to answer the “slavery question,” Dred Scott openly vindicated the “property rights” of slaveowners, vitiated the Missouri Compromise, and forcefully precluded the possibility that African slaves and their descendents could ever call themselves “African-Americans.” It remains one of the handful of Supreme Court opinions that everyone can now agree was just a really bad idea.

Although Barack Obama is the first incoming President to take the oath from a Chief Justice to whose appointment he was opposed, John Roberts is no Roger Taney. Justice Taney was an open supporter of the “rights” of slaveowners to their human “property,” and an avowed enemy of Abraham Lincoln. (Scholars still dispute whether or not Lincoln actually attempted to issue a warrant for Taney’s arrest several months after he took office.) Dred Scott had been in effect for four years by the time that the two men faced each other on the steps of a Capitol built on the backs of slave labor with this Bible between them, and a war that would truly solve the “slavery question” once and for all of American history was only months away.

Dred Scott was legally superseded by the passage of the 13th and 14th Amendments to the U.S. Constitution after the Civil War which granted full citizenship to “all persons born or naturalized in the United States,” but it was never formally overruled by the Court.  With the conclusion of today’s ceremonies, however, one singular man has proven that Dred Scott really is as dead, ugly, and rotting as Taney himself.

Happy Inauguration Day!

U.S. Supreme Court, stupid laws Bad law, Supreme Court

“For preventing disorders, arising in several places within this jurisdiction by reason of some still observing such festivals as were superstitiously kept in other communities, to the great dishonor of God and offense of others: it is therefore ordered by this court and the authority thereof that whosoever shall be found observing any such day as Christmas or the like, either by forbearing of labor, feasting, or any other way, upon any such account as aforesaid, every such person so offending shall pay for every such offence five shilling as a fine to the county.”

From the records of the General Court,
Massachusetts Bay Colony
May 11, 1659

massachusetts, stupid laws Massachusetts law, stupid laws

Now that you, the presumed reader of the foregoing “Idle and Disorderly Statute: Part I,” know more than you ever wanted to know about our embarrassment of a disorderly conduct statute, let us now move on to examine just how unconstitutional its least-constitutional subsection is.

Buried right in the middle of the steaming dog’s breakfast of old-timey criminality that is G.L.c. 272 Sec. 53 is the quaint classification of “persons who with offensive or disorderly acts or language accost and annoy members of the opposite sex.” Although not as widely employed as the “disorderly persons” provision, this may well be one of the stupidest criminal charges in the Mass. General Laws—if not any state criminal code—now in regular active use.

Read more…

massachusetts, stupid laws Massachusetts law, stupid laws

There’s a lot to love about being a licensed attorney in the Commonwealth. I’m proud to be  serving the oldest functioning written constitution in the world (the only state constitution to specifically mention “the duty of legislatures and magistrates… to cherish the interests of literature“!) , and to have taken an Attorney’s Oath which has remained unchanged since 1686. The Boston Massacre took place right outside one of my favorite T stations, where fellow Mass Bar member John Adams secured acquittals for six of the eight British soldiers involved only yards away.

But, like the man said, the past isn’t dead… it isn’t even past. For as much as there is to love about having a constitution and an attorney’s oath that are at least twice as old as most American states, it also means that we sometimes have to live with statutes that are just as old–or older.

Our legislature’s woeful failure to update some of our creakiest and most ancient statutes seems to be driven by the same philosophy that has kept the cult of King James going in certain Christian circles: If it was good enough in 1620, it’s good enough for 2008.

Take G.L.c. 272 Sec. 53 (…please!). Although it’s usually referenced as the “disorderly conduct” statute, it is actually a tasty smorgasbord of old-timey criminality. Namely:

Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure…

There’s a lot to say about this damnably stupid law, starting with this: It needs to die. Just ask our own Supreme Judicial Court:

We note at the outset that G.L.c. 272 Sec. 53 has been saved, although sometimes just barely, by several limiting constructions and we have repeatedly commented that the statute is archaic and in need of legislative scrutiny.

Commonwealth v. Chou, 433 Mass. 229 (2001), FN2.

Which is to say: Boys,  load up yer shotguns, drag this thing out back, and kindly shoot it in the HEAD. Read more…

Criminal Appeals, disorderly conduct, massachusetts, stupid laws appeals, criminal law, disorderly conduct, massachusetts, stupid laws