There are times when it is a good thing justice is blind. Attorney Jeffrey Pollock, 59, was reportedly put out when a metal detector repeatedly set off an alarm at a Pittsburgh courthouse. After being told to remove garments, Pollock eventually dropped his pants in protest. He was then arrested and charged with disorderly conduct. However, there is an interesting question on the key terms underlying such a charge against Pollock.
The Alleghany Sheriff’s Office decided to issue a press release about how the lawyer stood there in just his shirt and underwear.
Pollock said that he asked for an officer to just use a wand rather than asking him to take off his suspenders and any other garments.
Pollock agrees that he used “poor judgment” but insisted that he was “trying to make a point.”
The incident at the Family Division Complex led to another lawyer having to take over for Pollock in a hearing where he was representing a client pro bono.
This is not the first lawyer to drop his pants in public to make a point. We previously discussed an incident involving a Covington & Burling lawyer stripping at a press conference in Yemen.
Disorderly conduct is a favorite of police and prosecutors as a type of catch all crime. I have long been critical of the ambiguity in such provisions. However, the question is which of these state law provisions apply to Pollock:
5503. Disorderly conduct.
(a) Offense defined.–A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
(b) Grading.–An offense under this section is a misdemeanor of the third degree if the intent of the actor is to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a summary offense.
(c) Definition.–As used in this section the word “public” means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, any neighborhood, or any premises which are open to the public.
Subsections 2-3 do not appear applicable. Under subsection 1, Pollock is clearly not engaging in fighting or threatening or violent behavior. That leaves “tumultuous behavior” which is maddeningly ill-defined and could mean anything. My question is whether any protest involving the removal of outer clothing would be deemed such a violation.
The use of tumultuous conduct is part of other disorderly conduct laws in Hawaii, Vermont, and other states. In Vermont, a court noted in State v. McEachin that “[w]hile we have never conclusively defined “tumultuous behavior,” we have relied on the dictionary definition of ‘tumult’ to inform our understanding that it can mean ‘the commotion and agitation of a large crowd’ or a ‘violent outburst.'” I am not sure that Pollock could be alleged to have caused the agitation of a large crowd or that his stripping constituted a “violent outburst.”
In Rhode Island, the court in State v. Russell noted:
“In accordance with its ordinary definition, ‘tumultuous’ behavior is conduct that is marked by violent or overwhelming turbulence or upheaval. Tumultuous behavior is full of commotion and uproar. It is riotous, stormy or boisterous. “Tumult” has been defined as a tempestuous arising, characterized by noise and disorder, commotion and disturbance.”
The other possibility is under subsection 4. It is clearly not a hazardous act but they could allege that it is “physically offense” and “serves no legitimate purpose.” Again, the language is generalized and undefined.
I assume that a court would sign off on the “tumultuous behavior” but such terms are dangerously ill-defined, particularly when people claim to be protesting. In this incidence, as an officer of the court, Pollock will likely receive little sympathy from the court. Most judges will not view the security checkpoint as a place for such spontaneous forms of protest by an attorney.