BY CRAIG CROSBY

Staff Writer

When Cambridge police arrested a Harvard professor in Massachusetts earlier this month, it sparked a firestorm of controversy that has even spread to the White House.

But between the volleyed claims of racism and elitism, the charge against black scholar Henry Louis Gates Jr., disorderly conduct, has gotten little scrutiny. Many people would have a hard time defining what disorderly conduct is, say nothing of whether Gates was guilty of committing it.

"The law, in many cases, is designed to be used by the police to maintain order," said Richard Mears, associate professor of justice studies and executive director of the Maine Institute for Public Safety Innovation at the University of Maine at Augusta. "Basically, what you're talking about is what is going to lead up to a fist fight, or a knife fight, or a gun fight. I think that's the intent of the statute."

The state law that defines disorderly conduct is fairly concrete, but the application is much more subjective, said Mears, who worked many years in law enforcement before joining the university. A person may be charged with disorderly conduct, according to Maine's statute, if he or she makes loud noises or insults and challenges someone with words or gestures that would "have direct tendency to cause a violent response by an ordinary person."

A person may also be guilty of disorderly conduct if he or she continues to be too noisy for neighbors after a police warning.

Anyone who insults or accosts those attending a funeral also can be charged with disorderly conduct.

"It used to be called disturbing the peace," said Evert Fowle, district attorney for Kennebec and Somerset counties. "That's basically what it is. If you insult someone to the point where an ordinary person would be driven to violence, you can be guilty of disorderly conduct as well. It's a common offense."

But Gates, who was accused of yelling at police who responded to a report of someone breaking into a house -- the charges against Gates have since been dropped -- may not have been charged had the incident taken place in Maine. A law court decision dating to the early 1980s, called the John W. decision, raises the tolerance threshold for police and other government agents.

"The Supreme Court of Maine has held that police and law enforcement professionals have to put up with a bit more than the average citizen," Fowle said.

But, if curses being hurled at police are offensive to citizens in the area, the source of those insults may wind up in handcuffs.

"You can go beyond the limits in Maine when you accost a police officer," Mears said. "Maine police officers put up with a lot ... from the public, as do many police officers in many states."

The threshold for a disorderly-conduct charge stemming from insulting behavior or words is much lower when police are not the target of the insults. Police often will use the charge to break up an argument, even when the arresting officer has no intention of following through with prosecution, Mears said.

"They are going to tell them stop it and, if they don't, somebody's going to go to jail," Mears said. "It's a frequently used charge here in Maine. It think that's good because it precludes other (crimes) before they happen."

But because the charge is subjective, it can be overused as a means of solving a problem for a night, said defense attorney Walter McKee.

"It's the well-known catch-all in the criminal justice system," he said. "When in doubt, charge disorderly conduct. Just about anything can be disorderly conduct. It's very subjective."

Thus, there are very few convictions for disorderly conduct stemming from belligerent behavior.

"Most prosecutors have the view that unless the conduct is pretty significant, that charge won't make it court," McKee continued. "If the best thing they have is disorderly conduct, that's usually a sign that the case is not going that far."

Courts, too, are often hesitant to find someone guilty of disorderly conduct for simply using obscene language, Fowle said. Individuals convicted of disorderly conduct for using specific words 20 years ago might well be found innocent for using the same words today.

"It may be a reflection on the coarsening of society," Fowle said.

The majority of disorderly-conduct charges follow repeated warnings by police for loud music or parties, Fowle said.

"The majority of the disorderly-conduct complaints we process are folks making a loud noise late at night and interfering with a good night's sleep," he said.

The city of Gardiner, working with the district attorney's office, has created a blanket, six-month disorderly-conduct warning for those who frequently disturb neighbors with noise.

"If we keep going to the same place for the same complaint ... after the third or fourth time we'll say, 'This is a habit, here's a written warning that's in effect for the next six months," said Gardiner Police Chief James Toman. "It's been effective."

While prosecutors must weigh all the factors when considering whether to go to court with a disorderly-conduct charge, the constitution must remain pre-eminent.

"Sometimes people mouth off," Fowle said. "We have to be very careful that people's basic constitutional rights are protected in this process. People have a right to express themselves in strong, vigorous terms."

Craig Crosby -- 623-3811, ext. 433

ccrosby@centralmaine.com