Carol — In part I agree with you, but I have to say I’ve been surprised by both sides (of the conservative side). As both a libertarian and the son of a (now retired) police officer, I have pretty strong sympathies both ways: I’m just as uncomfortable with cops having some unique right to arrest people for arguing with them as I am with citizens going out of their way to make cops’ lives difficult.

In the Gates aftermath, we’ve seen it asserted by conservatives both that cops should use their arrest power simply to assert their dominance, and that people who disagree with cops should pick fights just because they can. Is it so unreasonable to think that people should, within reason, give cops deference, but also that it should be legal not to?

On a side note, I’ve done a little more reading on Massachusetts’s disorderly conduct law. These laws are always very vague, but almost every state has one, and they vary substantially in how they’re enforced.

Gates’s behavior does satisfy some of the requirements, this from a court decision (citations removed):

It . . . is possible that behavior occurring on purely private property may be shown to affect or be likely to affect persons in an adjacent or nearby “place to which the public or a substantial group has access,” such that a disorderly conduct charge would be appropriate. Still, “[n]othing less than conscious disregard of a substantial and unjustifiable risk of public nuisance will suffice for liability.”
Here, the defendant’s conduct took place on purely private property. Thus, in order to satisfy the public element of the crime, the Commonwealth was required to establish that the disturbance nevertheless had or was likely to have had an impact upon persons in an area accessible to the public. . . . There was no evidence that a crowd, inquisitive neighbors, or passersby actually saw or heard the disturbance. Nor was there any evidence to establish that people could have seen or heard the defendant from any place of public access, such as a nearby sidewalk, publicly used path or road, shopping area or other neighborhood facility.

People did see and hear Gates, so that basically works. (However, note that proving “conscious disregard” is a little harder than proving only that the behavior “was likely to have had an impact,” so I’m not sure which standard applies.)

Where the arrest runs into potential trouble, though, is when it comes to the political-activity exception:

In Feigenbaum, 404 Mass. at 475, the court held that although behavior which was motivated by political purposes could be found to have created a hazardous condition, and might be considered “criminal under the common law or by some statute,” such behavior “does not constitute disorderly conduct under G. L. c. 272, s. 53,” because it has “a legitimate purpose.”

Protesting one’s treatment by a government official arguably falls under that exception.