On Conduct Ordered And Disordered

Maybe like Justice Stewart’s description of obscenity they know it when they see it:

Millions of people have paused to stand amid the hustle, bustle and neon of Times Square.

And sure, those who pause — to gawk, talk or eat a gyro — can slow the progress of pedestrians around them.

But when Matthew Jones of Brooklyn lingered on the corner of 42nd Street and Seventh Avenue in the early morning of June 12, 2004, gabbing with friends as other pedestrians tried to get by, something unusual happened: He was arrested for it.

A police officer said Mr. Jones was impeding other pedestrians and charged him with disorderly conduct.

Mr. Jones is not taking the charges lying down (so to speak). After trying twice to get the charges dismissed, he has taken his case to the state’s highest court, the Court of Appeals, which heard arguments here on Wednesday.

In the prosecution’s view, it appears, the innocent do not dawdle. According to the original complaint against Mr. Jones, the officer “observed defendant along with a number of other individuals standing around” on a public sidewalk in June 2004. Mr. Jones was “not moving, and that as a result of defendants’ behavior, numerous pedestrians in the area had to walk around defendants.”

. . .

And on Wednesday, Mr. Jones’s circumstances appeared to reach a friendly audience before the Court of Appeals.

“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.”

. . .

The court is likely to rule on the case next month. Should it rule against Mr. Jones, the available evidence on the scene on Wednesday suggested that the police would soon have their hands full.

Just before 5 p.m., near the corner where Mr. Jones was arrested, stood the following assemblage: a man eating clams out of a Styrofoam container; two men smoking cigarettes together; a man waiting for a woman to finish a phone call; a guy looking at a map; a young woman sending a text message; two men handing out tour brochures; and a family of five, including an infant in a stroller, who stopped to look at the brochures.