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Did Senator Craig Breach the Peace?

Some commenters on The Volokh Conspiracy – - have suggested Senator Craig could have asserted a constitutional privilege in connection with his arrest for disorderly conduct charges based on Article I, Section 6  which provides that “Senators and Representatives … shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same ….”  The question arises because the disorderly conduct charge is a misdemeanor, not a felony (and obviously not treason), which arguably did not constitute “breach of the peace” in the sense of involving violence or the threat of violence.  

            The Supreme Court, however, has held that the phrase “treason, felony and breach of the peace” as used in the Arrest Clause was a  common-law term of art that includes all criminal offenses, including misdemeanors that involve no element of force or violence.  WILLIAMSON v. U.S., 207 U.S. 425 (1908)  Although Williamson involved a serious (but arguably non-felonious) crime, subordination of perjury, its broad language has been understood to limit the privilege embodied in the Arrest Clause to arrests in civil cases.  LONG v. ANSELL, 293 US 76 (1934)  Since the practice of arrest in civil cases (eg, arrest of a debtor until a debt is satisfied) is largely if not entirely obsolete, the Court’s rulings have left the Clause with little practical effect.  

            Although there may remain an issue as to whether the Arrest Clause would prohibit arrest of Members of Congress for minor traffic violations for which no penalty other than a fine is authorized, even there the applicability of the Clause would appear dubious.  HOWARD v. WEBB, 570 P2d 42 (Ok 1977)  The offense of disorderly conduct, in any event, is a crime punishable by up to a year in prison under Minnesota law, 609.72, Minnesota Statutes 2006, and clearly falls within the category of criminal offenses as to which the privilege against arrest is inapplicable under Williamson. 

            Indeed, even if the term “breach of the peace” were used in its narrower sense of an offense involving violence or public disturbance (as was argued in Williamson) or an offense “entailing at least a threat of violence” (as the Supreme Court described it in Atwater v. City of Lago Vista, 532 US 318, n.2 (2001)), one may question whether Senator Craig would have much of an argument.  The offense of disorderly conduct as defined in the Minnesota law is aimed specifically at conduct which will tend to “alarm, anger or disturb others or provoke an assault or breach of the peace.”  Certainly it would be reasonable to conclude that Senator Craig’s alleged conduct, soliciting sex in a public restroom, is the type of behavior likely to create public disturbance and provoke violence.

One Comment

  1. Tricia says:

    My question about “breach of peace” would be, whose peace must be breached? It seems clear (http://www.washingtonpost.com/wp-dyn/content/article/2007/08/29/AR2007082901628.html?hpid=topnews) that the peace of Senate Republicans, the White House, Mitt Romney, and, presumeably, Senator Craig’s marriage have all been breached by his alleged indiscretion, even if his conduct would not have provoked violence or caused a public disturbance.

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