After residing in New York for a few years, and particularly after needing to get through midtown quickly in order to reach an office on time, I find myself with little sympathy for Matthew Jones, who stood on a sidewalk in Times Square talking to a group of friends as pedestrians tried to get around them. My little bit of sympathy derives from Jones's committing this crime on at 2am on a Saturday morning in summer, which means most of the people he was inconveniencing were probably tourists and thus likely not to have been moving as quickly as they ought either. He who is without sin should throw the first stone, preferably as he power-walks past.
A police officer asked Jones to move; he refused. The officer arrested him on the charge of disorderly conduct, a "violation" and thus the lowest level of crime one can commit and still face possible jail time, maximum of of 15 days. Jones's behavior fell well within the text of the law: "He obstructs vehicular or pedestrian traffic; or he congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse." Nonetheless, the New York Court of Appeals appears to be made up of loiterers who are willing to say that there was no basis for his arrest.
Paula-Rose Stark, a Manhattan assistant district attorney, argued that the facts in the complaint were sufficient for the charge of disorderly conduct. Mr. Jonesís reckless intent, Ms. Stark said, was evident from the fact that his behavior was noticeable in the first place "amid the inevitable hustle and bustle of Times Square, the construction, the vehicular traffic." ... And on Wednesday, Mr. Jonesís circumstances appeared to reach a friendly audience before the Court of Appeals.Should the prosecution film what Times Square looks like on a Friday night in June?
"Isn't that lawful conduct?" wondered Judge Robert S. Smith. Later he added, "Your conduct can't be illegal just because an officer noticed it."
His colleague Judge Eugene F. Pigott Jr. questioned what other violations might attract law enforcement attention.
"All I could think of was a bunch of lawyers from the New York City Bar Association standing around trying to figure out where to have lunch," Judge Pigott said. (The association has offices a block and a half from Times Square.)
Chief Judge Judith S. Kaye seemed likewise nonplused. "This is at 2 a.m.?" she asked, wondering how many pedestrians it would have been possible to inconvenience at that hour. "I guess I'm not in Times Square at 2 a.m. very often."