Most of the current yammering by the media, the president, and the civil rights community about the arrest of Harvard professor Henry Louis Gates is missing the point. There is something even far more fundamental than race involved in this little drama. It's time for the civil rights community to sit down and for the civil liberties community to stand up.
We simply don't know and can't know whether this is a case of racial profiling. We have different accounts of what happened given from the biased perspectives of those involved. It's impossible to know for sure whether the police would have arrested Gates if he were white or if the lead police officer on the scene had been black. But, it doesn't matter.
Let's boil the situation down to its human fundamentals and drain the situation of its racial overtones. A concerned citizen sees two men trying to break into a home late one night, and she does her civic duty by calling the police. Police officers promptly appear at the scene, but by the time they arrive, the men who the citizen observed have already gained access to the home. The police go to the front door, knock on it and seek to speak to the occupants. One of the occupants, as it turns out, is the home owner--an older man of small stature and slight build who walks with the aid of a cane-- who is startled to see the police on his front porch. During the course of determining whether the man is the home owner, something that happens early in the interview, the home owner takes umbrage with the police officer. A verbal brawl ensues, and it ends when, after being warned that he is being "disorderly," the police officer informs the home owner that he is under arrest. He places the home owner in handcuffs and takes him down to the police station where he is fingerprinted, photographed and apparently thrown in a holding cell until someone comes to bail him out.
Because the racial overtones of this case are irrelevant, let's give the police officer the benefit of the doubt and accept his version of the facts. In an interview with a local television station, the police officer, Sgt. James Crowley said that
I asked him (Gates) if he would step outside and speak with me, and he said 'No, I will not,' and words to the effect of 'What's this about?' and I said, 'I'm Sergeant Crowley from the Cambridge Police Department. I'm investigating a break-in in progress. And he said 'Why? Because I'm a black man in America? in a very agitated tone, and . . .I thought that was a little strange. . . I then asked him if there was anyone else in the residence. . . I wasn't expecting his response which was 'That's none of your business.' To me, that's a strange response for somebody who has nothing to hide, is trying to cooperate with the police.
From Sgt. Crowley's perspective then, Professor Gates was abusive, uncooperative and acting like a jerk.
Fair enough. From this description I'm sure that we can all imagine exactly what the situation looked like to Sgt. Crowley, who, btw seems to be a calm and reasonable kind of a guy. Anyone interested can see the complete interview here. Taking Sgt. Crowley's statement as the complete and indisputable truth, though, there's still a problem.
That said, police officers should not be able to use the coercive powers of the
In this case three things are clear: (i) before he arrested Professor Gates, Sgt. Crowley knew that Gates was the legitimate owner of the home; (ii) the altercation took place at Professor Gates' home and not on the street or any other public place; and (iii) there was little threat of danger from Professor Gates to either Sgt. Crowley or anyone else. We also know that the charge of "disorderly conduct" is a relatively vague charge that can be used to remove people from public places such as shopping malls, public streets, places of business, governmental offices and parks who are disrupting the activities that normally take place there.
It has long been a basic principle of American law that, as the Fourth Amendment to the Constitution puts it, the people have the right to "be secure in their persons, houses, papers." As a matter of
Sgt. Crowley had a good reason, at the outset. He was investigating a potential burglary. Once he determined that there was no burglary, though, he had no further right to be there. His responsibility was to tip his hat to Professor Gates, bid him goodnight, and walk away, regardless of what Professor Gates was yelling, as long as the probability of danger was low and the probability that Professor Gates w
What it does not protect is a male ego from
Sgt. Crowley is clearly a man of good
As always, your comments are welcome.
Mr. Kobren---
ReplyDeleteYour piece is well written, and your legal logic is pretty much flawless.
This business about testosterone is very similar to a op-ed piece in today's Sun by a UMBC prof Thomas Schaller, where he suggests if the two parties were women, the outcome would have been much different. Probably so.
A couple of observations, though.
~~~The officer, like many nowadays, seemed a bit officious in his approach, but so what: as Prez said, the Prof overreacted.
~~~There's something particularly boorish about a person of high stature, such as a Harvard professor, yelling at the top of his lungs at someone merely doing his job. Accusing the person of being a racist, no less. As the Prez said: the Prof overreacted.
~~~Don't know Mass. law, but a porch, as you said, is a little iffy here; it could be disturbing the peace, but you'd need a civilian complainant for that. An officer's peace cannot be disturbed; note the efforts Crowley made to explain the gathering of the crowd, etc. As the Prez said: the police overreacted.
~~~And yeah, Crowley, could have, should have, perhaps, walked away, but usually that's not gonna happen. If you shout the right things to most officers in the wrong way, you're probably gonna get arrested, dubiously leagal or not. Paraphrasing Lincoln: you can yell at some officers all the time, and you can yell at all officers some of the time, but you can't yell at all the officers all the time.
~~~Besides, why yell: here's my ID officer, thanks for checking things out, I really appreciate it, now I've had a long trip, and would like to rest: is there anything else you need, sir?
~~~Professor Peter Moskos, former city cop, has a "inside" take on it in his blog. (Can't figure out how to link in this comments section.)
So, yes, you're right, but a little common sense would have gone a long way here.