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Letter to the Honorable Phil Mendelson Regarding Bill 18-425, the “Disorderly Conduct Amendment Act of 2009”

Monday, October 26, 2009

Letter to the Honorable Phil Mendelson Regarding Bill 18-425, the “Disorderly Conduct Amendment Act of 2009”

Statement from the Metropolitan Police Department

The following joint letter regarding Bill 18-425, the “Disorderly Conduct Amendment Act of 2009” was submitted by Peter J. Nickles, Attorney General for the District of Columbia, and MPD Chief of Police Cathy L. Lanier  to the Honorable Phil Mendelson, Chair of the District of Columbia Council Committee on the Judiciary, on October 22, 2009.

October 22, 2009

The Honorable Phil Mendelson
Chairperson, Committee on Public Safety and the Judiciary
John A. Wilson Building
1350 Pennsylvania Avenue NW
Suite 402
Washington, DC 20004

RE: Bill 18-425, the “Disorderly Conduct Amendment Act of 2009”

Dear Chairperson Mendelson:

We are submitting this letter jointly to emphasize the need to carefully and thoroughly review the implications of any proposed changes to the District’s disorderly conduct statutes and to ensure that any amendments to these provisions carefully maintain and enhance public order and safety while safeguarding constitutionally protected activities.  Prior to your scheduled October 23, 2009 hearing, your staff met with representatives of the American Civil Liberties Union, the Public Defender Service, the United States Attorney’s Office, and members of our staffs to begin the process of reviewing current law, to examine issues of potential vagueness, to determine whether other conduct should be included within these provisions, and to see if consensus could be reached on how best to improve these statutes.  The meeting was productive and we urge you to continue that process rather than to enact the Bill 18-425, the Disorderly Conduct Amendment Act of 2009, in its current form.

Disorderly conduct is an exceedingly complex legal and social issue with a wide variety of perspectives within the criminal justice community, and among communities within the District and throughout the country.[1]   In general, disorderly conduct statutes might be characterized as criminal nuisance statutes, which are used to address a broad array of crimes that have a significant negative impact on the quality of life in our neighborhoods. They currently give law enforcement the ability to diffuse situations that disturb the public and which may lead to a breach of the peace.  The District statute addresses issues ranging from urinating in public, fighting in public, uttering “fighting words,” disturbing the neighbors by loud parties or other gatherings, congregating in a way that blocks a sidewalk or an entrance to a private building, and for engaging in peeping tom activity.  With a maximum penalty of 90 days of incarceration, or a $250 fine, or both, the current disorderly conduct statutes are on the lower end of the misdemeanor scale and afford expeditious dispositions.

The critical debate about disorderly conduct hinges on questions such as: when does a nuisance activity rise to the level of a crime against a community?  When do the rights of the community at large supersede the rights of an individual?  Although we can – and should – have lengthy legal discussions about the meaning and implication of each word in this deceptively brief law, the broader policy direction is equally important for the city.  Time and again, we hear complaints from residents and people working in the District about nuisance activity that may – or may not – cross the line into criminal activity.  Identifying the line between the two is challenging.  It is shaped by constitutional law, judicial precedent, local statutes and regulations, and community norms. 

Bill 18-425 significantly alters the existing District law, further complicates and confuses enforcement and raises numerous questions.  For example, it eliminates the noise provisions contained in D.C. Official Code §§ 22-1307 and 22-1321. As you are aware, city officials receive constant complaints about noise from a variety of sources in residential neighborhoods and business areas.  These provisions have been used as a tool to reduce noise which is likely to cause a breach of the peace, and if they are repealed, law enforcement will lose another important tool.  [2] Similarly, the Bill would prevent arrest and prosecutions for peeping tom conduct [3]  and congregating with others on a public street and refusing to move on when ordered by the police.[4]   While section 2 (b) of the Bill would amend D.C. Official Code § 22-1312, lewd, indecent, or obscene acts, to specifically include urinating or engaging in other bodily functions in public, behavior that is currently prosecuted under D.C. Official Code §22-1321(1), there are no similar amendments which would allow us to continue to prosecute these other offenses. 

On another note, on page 2 of the Bill, the government would have to prove that a person was “threaten[ing] or harm[ing] another’s person or property in such a manner that is likely to cause an immediate public reasonable fear of bodily harm resulting from the awareness of being endangered or public violence.”[5]   This would be a difficult burden to meet.  Disorderly conduct rarely rises to the level of “the reasonable fear of bodily harm resulting from the awareness of being endangered.” (There is a separate statute, D.C. Official Code § 22-1322,  for “rioting,” that prohibits five or more people engaging in tumultuous and violent conduct or threat thereof that creates a grave danger to property).   As drafted, section 3 would significantly reduce the ability of the police to address less serious offenses that reduce the quality of life in our city.  

In addition, we would like to briefly address the issue of the arrest of Mr. Pepin Tuma for disorderly conduct. We take the concerns about the validity of this arrest very seriously. Accordingly, MPD’s Internal Affairs Bureau immediately launched a criminal investigation into the matter and subsequently referred it to the U.S. Attorney’s Office for further criminal investigation and prosecution, if appropriate. We would first note that, as with anyone else, the involved officer is presumed innocent unless there is a finding of guilt.  But more importantly, it would be a mistake to let this case in which an officer is alleged to have acted outside both the law and Department policy drive the current discussion about revisions to the law. The Department takes its power and authority to arrest citizens very seriously, and members who are found to have abused their authority are subject to both criminal and disciplinary penalties up to and including termination. These criminal and administrative adjudicatory processes are the most appropriate way to address aberrational behavior.

In conclusion, we request that the Council not adopt Bill 18-425 as written and instead allow the stakeholders to fully examine the perceived problems with the current law, discuss what provisions in the law should be removed, what should be added, and to recommend language that clearly defines the offenses in a way that gives the public a clear understanding of what behavior is illegal and avoids needless litigation.

Sincerely,
Peter J. Nickles     
Attorney General for the District of Columbia 

Cathy L. Lanier
Chief of Police
Metropolitan Police Department

PJN/CLL/dr

cc:     The Honorable Jack Evans
          The Honorable Yvette Alexander
          The Honorable Muriel Bowser
          The Honorable Mary Cheh

FOOTNOTES

  1. There is no national consensus as to what should be included in disorderly statutes.  A sampling of state statutes shows that, in addition to the offenses currently listed in D.C. Official Code §§ 22-1307 and 22-1321, disorderly conduct statutes are used to prosecute people for fighting in public or challenging someone to fight; going on someone else’s property to deliberately look into a dwelling through a window or other opening; engaging in violent acts; preventing people from pursuing lawful business; creating a hazardous condition by an act which serves no legitimate purpose; appearing in public intoxicated, by drugs or alcohol; interrupting  lawful assemblies; intentionally disrupting a funeral, funeral related activities, and places of worship; harassing debtors; building a bonfire; acting in such a way so others reasonably believe that the person has a deadly weapon, or representing verbally or otherwise that he or she is armed with a deadly weapon in a public place in a manner calculated to alarm.  In contrast, the Model Penal Code defines disorderly conduct as:
            (1) Offense Defined. A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

            (a) engages in fighting or threatening, or in violent or tumultuous behavior; or
            (b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or
            (c) creates a hazardous or physically offensive condition by any act [**20]  which serves no legitimate purpose of the actor.

            "Public" means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.... Model Penal Code § 250.2.

  2. Although these provoking statements are loud, they cannot be prosecuted under the noise regulations contained in DC Municipal Regulations, Title 20, Chapter 27, Noise Control, either because they do not meet the decibel levels required in those regulations or without measurements being taken by trained personnel with a decibel meter.  In addition, violations are subject to numerous complex qualifications related to the type of activity, time of day, zoning, and the location from which the measurement is taken.
  3. Peeping Tom behavior is prosecuted by OAG pursuant to D.C. Official Code § 22-1321(1) as activity that is undertaken “under circumstances such that a breach of the peace may be occasioned thereby” which “annoy[s], disturb[s] ... or [is] offensive to others...”
  4. Congregating with others on a public street and refusing to move on when ordered by the police is a delineated offence in D.C. Official Code § 22-1321(2).
  5. The quoted provision is derived from substituting the definition of alarm into the substantive provision of the Bill.