Consider the case of Timothy Boomer, who went on an expletive-laced rant after his canoe capsized in the Rifle River just north of Detroit in 1999. Unfortunately for Boomer, a mother and child on shore overheard his string of profanity, and the offended woman called the police. Shockingly, a judge found Boomer guilty of violating a Michigan law, dating back to the 19th century — and last reworded in 1931 — which states that anyone using “indecent, immoral, obscene, vulgar, or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.”
It took three years for an appeals court to finally overturn Boomer’s misdemeanor charge and, in the process, invalidate (but, of course, not actually repeal) the antiquated law on both First Amendment and “void for vagueness” grounds. Such a statute, needless to say, also has serious gender-equality problems.
Cases like Boomer’s can distract somewhat from the real menace posed by archaic laws — namely, that they enable police misconduct and the unequal application of the law. It’s no secret that police officers routinely confront behavior that many people consider bothersome or undesirable — a young man talking trash, for instance, or a homeless man ranting to a captive audience in a subway station. “Old laws on the books can encourage law-enforcement officials to target, hassle, and, in some cases, arrest people on the basis of invalid laws,” says Carol Rose, executive director of the ACLU of Massachusetts.
If the cop is later forced to explain an arrest, he could theoretically defend his behavior by citing the vague laws attacked in Rushing’s bill. After all, police officers often don’t care if the district attorney’s office refuses to prosecute a case, as long as the cop is protected for making the arrest. If the law is on the books, it’s hard to charge the cop with violating the citizen’s rights.
As is often the case with matters of police misconduct, the threat posed by archaic statutes is particularly grave for racial and ethnic minorities, gays and lesbians, the indigent, and the politically unpopular.
Statistics on this trend are nearly impossible to gather, but, in theory, who is more likely to be arrested for a crime like spitting: a businessman or a homeless man? The Sarasota Herald-Tribune reported this past month that when local Florida police could not come up with enough evidence to arrest two black men suspected of drug dealing, they instead arrested them for breaking a rarely enforced anti-spitting ordinance. “We’re going to use any tools necessary to get the pressure off these people in the neighborhood associations,” said the (appropriately named) police captain, Bill Spitler. “Obviously, there is a law. When people commit violations in front of us, we act.”
In that same vein, a same-sex couple is more likely than a heterosexual couple to be harassed by police under outdated fornication and sodomy laws that remain on the books in many states. The non-married couple that challenged the Texas sodomy law in Lawrence v. Texas claimed that they were frequently the targets of police harassment. Unsurprisingly, they are not only gay, but interracial as well.