Op-Ed: Disorderly Conduct? How Protesting Became a Crime in NYC

October 26, 2011 at 4:00 am

Police make their way through a crowd of Occupy Wall Street protesters on the Brooklyn Bridge on Oct. 1. That day alone, more than 700 protesters were arrested. The majority of those arrested were given citations for disorderly conduct, police said. AP Photo/Stephanie Keith

The Occupy Wall Street protests began Sept 17.  Nearly all of the 900 people arrested so far have been charged with disorderly conduct. With the defendants’ first court appearances slated for Nov. 3, MetroFocus took a closer look at the surprising roots of disorderly conduct in 14th century British common law — more relevant to the current crop of protests than one might imagine — and at how the NYPD has used the charge of disorderly conduct to different ends since the 1980s.

The disorderly conduct statute stems from 14th century British common law after the end of feudalism. Laws about disorderly conduct were meant to control serfs from wandering about the country to find better wages — surely something those 900 defendants, if not the global Occupy movement itself, would appreciate.

Throughout American history, vagrancy laws, as they are often called, have been used at different times to control the comings and goings of the unemployed and increasingly to control public assembly as well.

Here’s how the New York State’s penal code defines disorderly conduct:

A person is guilty of disorderly conduct when, with intent to cause
public inconvenience, annoyance or alarm, or recklessly creating a risk

1. He engages in fighting or in violent, tumultuous or threatening
behavior; or
2. He makes unreasonable noise; or
3. In a public place, he uses abusive or obscene language, or makes an
obscene gesture; or
4. Without lawful authority, he disturbs any lawful assembly or
meeting of persons; or
5. He obstructs vehicular or pedestrian traffic; or
6. He congregates with other persons in a public place and refuses to
comply with a lawful order of the police to disperse; or
7. He creates a hazardous or physically offensive condition by any act
which serves no legitimate purpose.
Disorderly conduct is a violation.

In New York City, it is worth noting that some public spaces have their own distinct and additional usage rules; for example, a sign posted outside Zuccotti Park, lists prohibited behaviors, including: erecting tents,  laying down on the ground or on benches and placing tarps or sleeping bags on the property. The city’s Parks Department and the Metropolitan Transportation Authority have similar rules of conduct.

Background: The NYPD’s use of the disorderly conduct statute

The origins of the NYPD’s use of the disorderly conduct charge can be traced back New York’s zero-tolerance campaign against so-called quality-of-life crimes.

Occupy Wall Street protesters face police during a march towards Wall Street on Oct. 14. AP Photo/Andrew Burton


NYC’s 1980s fiscal crisis leads to calls for quality-of-life policing: During the 1980s, there was an explosion of public disorder on New York City’s streets.

The fallout from the city’s fiscal crisis in the 1970s combined with federal cutbacks and the movement of the city’s economy away from manufacturing meant major increases in homelessness, prostitution, graffiti and street level drug dealing.

A homeless man and woman sleep in a New York City subway car in Jan. 1994. Although the number of homeless people has risen in the last two decades, the NYPD's selective enforcement of quality-of-life laws makes that population less visible than it used to be in the city's subway system. AP Photo/Mark Lennihan

Many business leaders and community activists demanded that the NYPD take on problems ranging from homeless people in city parks to noise pollution. This was a challenge to the NYPD’s professional crime fighter ethos, which prioritized making felony arrests that resulted in convictions. Initially, many police appeared to view the seemingly mundane quality-of-life issues raised by residents as social problems beyond or even beneath their area of expertise.

NYC’s transition to the broken-windows theory of policing in the 1990s: But by the early ’90s, a new paradigm of policing emerged, known as the broken-windows theory of policing, which emphasized controlling low-level disorder, including quality-of-life crimes, as a way to prevent neighborhood and communities from sliding into more serious crime. This theory, which Malcolm Gladwell also wrote about at length in his bestseller, “The Tipping Point,” created a kind of moral imperative for the police to restore middle class values to the city’s public spaces.

A sign posted outside Zuccotti Park lists prohibited behaviors, including: erecting tents; laying down on the ground or on benches; and placing tarps or sleeping bags on the property. MetroFocus/Sam Lewis

The broken-windows approach, championed by Mayor Rudy Giuliani, was actually already well underway during the Dinkins administration. But it was Police Commissioner William Bratton, a Giuliani appointee, who institutionalized it throughout the NYPD. Police suddenly prioritized arrests for turnstile jumping, public intoxication and panhandling, particularly the sort of panhandling done by “squeegee men,” often homeless men who, unbidden, washed the windshields of cars that stopped in traffic and requested payment from drivers.

Taken one step further, broken-windows policing along with the selective enforcement of the disorderly conduct statute have empowered patrol officers to stop and frisk almost anyone. This is pernicious and pervasive and, according to New York Times editorial just last week, 85 percent of the people targeted by police for stop and frisk are Black and Hispanic.

After the NYPD was criticized for being slow to react to the Crown Heights riots in 1991, pictured here, police officials dramatically changed their tactics for controlling crowds. AP Photo/Joe Major

How the NYPD has policed large gatherings: Following concerns from both inside the police department and outside that police did a poor job of crowd control during the Crown Heights riots in Brooklyn in 1991 and the Yankee’s World Series victory celebrations in 1996, the NYPD increased their use of physical barriers to tightly regulate access to, and movement within, large public gatherings.

Following 9/11, the police also began to give fewer permits for public assemblies like marches and rallies, according to a New York Civil Liberties Union report (of which I was a co-author).

In Feb. 2003, on the eve of the U.S. invasion of Iraq,  the NYPD denied the group United For Peace and Justice a permit to march. The group held a stationary rally near the United Nations. The rally attracted more than 100,000 people, according to the same NYCLU report. In an effort to regulate the demonstration, the NYPD closed off streets and sidewalks leading to the event and used pens to confine demonstrators.

The result of these efforts at tight control was that hundreds of thousands of people spilled into the streets, unable to access the demonstration area because of the areas that were blocked off. In the end, police on horseback and police wielding pepper spray attacked demonstrators. Dozens were injured, 350 people were arrested, mostly on disorderly conduct charges, and hundreds of thousands of people were prevented from exercising their right to protest.


Video footage taken by a protester during the Republican National Convention in New York City in 2004 shows the NYPD arresting Critical Mass bike riders. YouTube/Jfinneburgh

Similar problems emerged in 2004, during the Republican National Convention, which was held in New York City. The NYPD denied permits to protest in Central Park and other traditional protest locations. At those peaceful demonstrations that were permitted, police arrested nearly 1,200 people, many for disorderly conduct. The Manhattan district attorney dropped all nearly all of the charges within a year of the demonstration, suggesting that the arrests were used in fact more to reign in the protesters than to prevent crime.

About 80 people were arrested near Union Square on Sept. 24 when police used large nets to corral Occupy Wall Street demonstrators. Most of the people arrested were charged with disorderly conduct and obstructing traffic. MetroFocus/Sam Lewis

The use of the disorderly conduct charge against Occupy Wall Street protesters: The last few decades have very much laid the groundwork for how the City and the NYPD has handled the Occupy Wall Street demonstrations.

While many of the demonstrations have been disruptive to the neighborhoods in which they have taken place, they have been overwhelmingly non-violent in character. The police response, however, has been to focus intensively on each minor legal violation and respond with heavy-handed enforcement actions, which in some cases exceed their legal authority.

Consider what has precipitated the vast majority of the disorderly conduct arrests in this movement: using a megaphone, writing on the sidewalk with chalk, marching in the street (and Brooklyn Bridge), standing in line at a bank to close an account (a financial boycott, in essence) and occupying a park after its closing. These are all peaceful forms of political expression.

To the police, however, they are all disorderly conduct.

The NYPD’s embracing of the broken-windows theory of policing has meant swift and harsh police enforcement actions that in fact do not serve anyone; the NYPD’s actions certainly are not preventing more serious crime, which is the main justification for the broken-windows approach.

Mayor Michael Bloomberg’s stance on Occupy Wall Street has been consistent since the movement began: as long as protesters “obey the law,” the city will not evict people from the park or prevent demonstrations.  “The Constitution doesn’t protect tents,” the mayor has said. “It protects speech and assembly.”

A new approach is needed that more equitably balances these rights with the NYPD’s legitimate mandate to maintain public safety.

Other cities have done a better job of communicating with demonstrators to avoid unnecessary confrontations. They have also shown more flexibility in dealing with minor legal violations in an effort to maintain the overall non-violent character of the protest.

Local and State police in Albany recently showed that kind of concern in their decision not to evict campers there despite a park curfew. Police commanders said that such a confrontation would destroy police protestor relations, likely inflame the tenor of future protests and possibly dramatically increase their size. The NYPD could learn a lesson from them.

Alex S.Vitale is the author of “City of Disorder: How the Quality of Life Campaign Transformed New York Politics.” He is an Associate Professor at Brooklyn College, where he teaches criminology and sociology.

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