The tyranny of the bigoted

Harvard professor Henry Louis Gates Jr.

“An unjust law is itself a species of violence. Arrest for its breach is more so.” - Mahatma Gandhi

As Harvard professor Henry Louis Gates Jr. recently discovered, one of the greatest threats to the free exercise of civil rights in America is the promulgation of catch-all offenses such as “disturbing the peace” or “disorderly conduct.”

With no clear definition of what constitutes behavior that is “disturbing” or “disorderly”, many in law enforcement use such laws as a way to control and punish citizens for otherwise legal and constitutionally protected behavior.

In Professor Gates’ case, the charges were quickly dropped, but the story doesn’t end there. Hundreds or even thousands of less-prominent citizens, lacking the resources and media presence to fight the charges, allow their rights to be infringed and their behavior to be extra-legally restricted out of fear of repeated prosecution.

And while many law enforcement agencies across the country have taken steps to insure that their officers understand the proper limits of such charges in the wake of the Gates arrest, not everyone has benefited from what the media deemed a “teachable moment.”

The Madison Wisconsin Police Department appears to be one such agency that just doesn’t “get it.” On Saturday, August 8th, Madison police received a call from a “concerned citizen” who reported a “man walking … with a holstered gun on his hip.”

Police responded to find 28 year-old UW-Madison graduate student Travis F. Yates legally and peacefully wearing a properly holstered sidearm. After Yates stated that he was wearing the sidearm as a political statement in support of the open carry and self defense rights recently documented in an advisory opinion by Wisconsin Attorney General Van Hollen, Yates was informed that he was being cited for disorderly conduct because “his actions disturbed other citizens.”

Never mind the fact that this is EXACTLY the type of open carry that Attorney General Van Hollen stated was constitutionally protected and NOT grounds for a disorderly conduct charge.

In his advisory opinion, he stated "The state constitutional right to bear arms extends to openly carrying a handgun for lawful purposes [and t]he Wisconsin Department of Justice believes that the mere open carrying of a firearm by a person, absent additional facts and circumstances, should not result in a disorderly conduct charge from a prosecutor."

Attorney General Van Hollen went on to provide strong guidance to law enforcement as to what additional facts and circumstances would need to be present to justify a disorderly conduct charge against an open carrier. He stated that the totality of the circumstance would need to be such that the actions of the open carrier were "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."

Attorney General Van Hollen has done an excellent job of summarizing just how disruptive a person’s behavior needs to be before the public good outweighs the significant interest of a constitutional right. Applied to this incident, the test shows that the Madison Police Department clearly over-stepped their bounds. In fact, given the recent release and significant media coverage of the Van Hollen opinion, this arrest seems to be a willful act of defiance. I expect that should Mr Yates choose to pursue a federal civil rights action under 42 U.S.C. § 1983, this will be an argument raised by his counsel.

But wait. Maybe we are getting ahead of ourselves in our criticism. Could it be that this is an isolated incident based upon a single officer making a misstep?

That is what I had hoped when I first learned of this incident.  But no …

As reported by WKOW TV, Madison Police Captain Victor Wahl wrote about the issue in a department newsletter in which he stated that despite the clear guidance in Van Hollen’s opinion, Madison police procedure will likely not change. He went on to describe the considerations HE wanted his officers to use when considering a disorderly conduct charge: "To support a disorderly conduct charge it will be necessary to show that the carrying of the firearm -- under those particular circumstances -- was the type of behavior that caused, or tends to cause, a disturbance. The location of the incident, the behavior of the suspect and the reactions of witnesses will all be relevant (sic) to this determination."

“Tends to cause a disturbance” is very different than "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Additionally, by including the “reactions of witnesses” Captain Wahl has insured that any anti-gun person who sees someone exercising their right to self-defense can have that open carrier arrested by simply reacting in a frightened manner.

Clearly, the Madison police are willing to press disorderly conduct charges against a person exercising constitutionally protected rights based upon the unreasonable fear or bigotry of just one witness. As Mr Yates noted in his WKOW interview, this reduces the Wisconsin constitutional right to defend oneself to nothing more than a theoretical right which can never be exercised.

One complaint and otherwise legal behavior becomes “disorderly conduct.” Welcome to the tyranny of the bigoted.

UPDATE NOTE:  Thanks to Andrew Rothman of MADFI for noticing that I had left the 42 off of 42 U.S.C. § 1983.