Outlawing Boisterous Liberty: Lessons from Ferguson “The boisterous sea of liberty is never without a wave.” –Thomas Jefferson
In the wake of the “officer involved shooting” of an unarmed teenager in Ferguson Missouri we saw a number of disturbing things. On the one hand protests turned sour as unscrupulous individuals took advantage of the chaos by looting local businesses. On the other hand we saw disturbing uses of police power to disperse peaceful protesters and even credentialed journalists. Such police tactics included firing rubber bullets into crowds of unarmed protesters and the use of tear gas grenades. The takeaway of this and similar incidents is that it is a crime to “fail to comply” with the “lawful” orders of a police officer. This sort of legal arrangement gives to the police nearly unlimited discretion to create rules of conduct on the spot for which officers may then use force in order coerce compliance despite evidence of any other underlying criminal activity. This is frequently the case when citizens attempt to film the police. They are ordered to leave and often cited with disorderly conduct if they refuse.
A local example includes the arrest of a Santaquin man in July who was attempting to fight a brush fire that threatened nearby homes until fire fighters arrived. Once the police officer arrived in advance of the fire department he ordered the man to stop and when the man refused, deciding instead that it was more important to continue dousing the fire, the officer arrested him for disorderly conduct and obstruction of justice.
Public order statutes that first created disorderly conduct offenses had their roots in 19th century laws aimed at breaking up street brawls over labor and immigration issues in industrial towns— hardly at pesky citizens exercising their first amendment rights. The disorder in many modern offenses is usually precipitated by police who bark commands at citizens otherwise acting lawfully. Citizen reluctance to comply with these demands then becomes the basis for a disorderly conduct arrest.
The problem with this arrangement is it shifts the determination of allowed behavior from one of clear statute or ordinance to police officer discretion. While it is important for police to stop crime when possible, especially when protecting the rights of individuals, too frequently the definition of acceptable behavior has become subject to the whims of a police officer even when not substantively unlawful. As we reflect on the events in Ferguson and consider the many other interactions with law enforcement frequently posted in internet videos we need to remember that ours is a country of liberty—sometimes boisterous liberty. Police should not be given wide discretion to abridge the freedom of lawful citizens.
We should be alarmed at the risk to critical constitutional liberties by the misapplication of disorderly conduct statutes and the broad use of police officer discretion. The boisterous waves of liberty are not a reason to extinguish the flames of freedom.