MA.- Disorderly conduct charges called into question.

Lowell police Officer Brian M. Kinney was working the night shift three years ago when he was called to investigate a report of an unwanted person on private property.

He arrived to find Vesna Nuon, 43, a Cambodian father of two, who according to the police report, appeared to have been drinking, was belligerent, and refused to return quietly to his friend’s house.

“You’re a coward, hiding behind your badge,’’ Kinney said Nuon yelled as he stood outside the house. “Get off my property.’’

Kinney arrested Nuon on charges of disorderly conduct, forcing him to spend several hours in a city jail. The following week, the charges were dismissed, but Nuon, a community activist who disputes Kinney’s account, said he was infuriated and humiliated. He filed a complaint, alleging the arrest was without probable cause, and a federal judge this month agreed, finding Kinney liable for false arrest.

City officials defend the officer’s actions, but civil libertarians say the case reflects evolving attitudes about the use of disorderly conduct charges to arrest someone who is behaving aggressively or insulting an officer but not breaking any laws.

To justify a disorderly conduct arrest, an officer should show that the suspect prevented the officer from carrying out his or her duties, caused a crowd to form and possibly to riot, or had gotten too close to the officer, Shane said.

“It’s contextually based,’’ he said. “When John Q. Citizen is getting loud with you at a friend’s house and you say ‘I’m going to lock you up,’ you’re going nowhere with that. It’s a nowhere situation for the government and the police.’’

U. S. Magistrate Judge Leo T. Sorokin said in his summary judgment that he made his decision by looking at the incident from Kinney’s point of view. Even from that perspective, it was clear the officer arrested Nuon without probable cause, Sorokin said.

“Expressive conduct, even of a coarse and vulgar nature, cannot be punished as a disorderly offense,’’ he wrote in the 20-page decision.


Civil Court Filing link:
http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=sorokin/pdf/nuon%2009cv11161%20sj%20decision%20kinney%20and%20nuon%20final.pdf

Link:
http://www.boston.com/news/local/massachusetts/articles/2011/03/30/disorderly_conduct_cases_draw_fresh_legal_scrutiny/