Obama Was Right About the Gates Arrest

On Thursday, President Obama weighed in on the arrest of African-American Harvard professor Henry Louis Gates, saying a Cambridge police officer "acted stupidly" when he arrested Gates for disorderly conduct. The next day, Obama backed down from his harsh comment.

Obama was right the first time.

I don't know if the police officer arrested Gates because of the Harvard professor's race. A lot of white people would say that if they mouthed off to a cop, they too would be arrested.

But one thing is clear: Gates did not violate any law. Under Massachusetts law, which the police officer was supposedly enforcing, yelling at a police officer is not illegal.

There are clear decisions of the Massachusetts courts holding that a person who berates an officer, even during an arrest, is not guilty of disorderly conduct. And yet that is exactly what Gates was arrested for.

The Massachusetts statute defining "disorderly conduct" used to have a provision that made it illegal to make "unreasonable noise or offensively coarse utterance, gesture or display," or to address "abusive language to any person present." Yet the courts have interpreted that provision to violate the Massachusetts Constitution's guarantee of freedom of speech. So police cannot lawfully arrest a person for hurling abusive language at an officer.

In several cases, the courts in Massachusetts have considered whether a person is guilty of disorderly conduct for verbally abusing a police officer. In Commonwealth v. Lopiano, a 2004 decision, an appeals court held it was not disorderly conduct for a person who angrily yelled at an officer that his civil rights were being violated. In Commonwealth v. Mallahan, a decision rendered last year, an appeals court held that a person who launched into an angry, profanity-laced tirade against a police officer in front of spectators could not be convicted of disorderly conduct.

So Massachusetts law clearly provides that Gates did not commit disorderly conduct.

The Cambridge Police should be training their officers to know the difference between legal and illegal conduct. What Gates did was probably not so smart -- in general, be nice to people carrying guns -- but it wasn't disorderly conduct. At least not in Cambridge, Massachusetts.

That explains why the charges against Gates were dropped. It wasn't because the police were trying to defuse the situation. It was because Gates had done nothing illegal.

Arresting someone for doing something that isn't illegal is pretty stupid.

Then again, perhaps Obama was wrong. Maybe the police officer wasn't acting stupidly. He was just acting abusively. That is even worse.

Hat tip to Eric Posner of the Volokh Conspiracy.

 

Follow Adam Winkler on Twitter: www.twitter.com/@adamwinkler

Comments

[knot]

04:18 PM on 08/03/2009

NonSoccerF­an, Your point that my statements about the possible nonvalidit­y of the other police officers' support for Sgt. Crowley's view of events. I have researched this a bit more and there is some truth in your comment.. In the recordings of Sgt. Crowley's initial calls for backup and report of the scene as he arrived, he noted that he was alone. So there would have been no police officers witnessing his FIRST encounters with the professor and his house. However, several other officers later arrived and have corroborat­ed some of the sgt.'s statements (3 or 4 officers). Their statements in a court of law would be witness testimony in his favor and against Gates and subject to cross examinatio­n. Unless that occurs, I cannot speak to the accuracy of their statements­. They could be right. But if I were defending Gates, I'd ask them what Gates was 'yelling.' Was he demanding Sgt. Crowley's idenficati­on when he was supposedly carrying on? If yes, that would, I believe, be easier to defend under the first amendment.

Interestin­gly, the 911 caller, Ms. Whalen, is supposed to have been on the scene from early on in this incident. As a third and neutral party in this incident, her testimony would be quite interestin­g.

[knot]

04:01 PM on 08/03/2009

NonSoccerF­an, Regarding your point that we don't know if Prof. Gates was plainning to make a complaint against Sgt. Crowley and that the sgt. knew about this. Leaving aide the professor'­s statement (which you appear not to believe), Sgt. Crowley's own report notes that observed the professor dialing a number on his cellphone and requesting to speak to the Chief , mentioning racist treatment. That would seem to strongly support the professor'­s statement.

[knot]

03:57 PM on 08/03/2009

NonSoccerF­an, Regarding your point that I cannot know Sgt. Crowley's state of mind in entering the house (i.e. that he must have believed it safe). You are correct that I cannot read his mind. However, on television AFTER the event Sgt. C explained that when he asked the prof. to step outside the first time, it was not to arrest him but to ensure his (the sgt's) own safety, since he didn't know what might confront him on the inside. That seems prudent and might well be normal police procedure.

From this I infer that if Sgt. Crowley later entered the house, he felt he had the situation in hand. After all, as soon as he arrived at the house he called for backup (recording­s available) and had the professor in view (as stated in the police report). If he was still fearful of entry, he could have waited for other officers to arrive before entering. That would have been prudent.

Also, the Sgt. is a profession­al policeman. His state of mind should not lead him to do something imprudent, especially when other officers were on the way. That's what his training is about.

[knot]

03:46 PM on 08/03/2009

NonSoccerF­an, Thanks for your further comments on my posts. Regarding your statement that Sgt. Crowley's giving his name only when asked for identifica­tion was adequate, this is what the Explainer on Slate (July 22) stated with the supporting Mass. law. The state legislatur­e apparently does not agree with you regarding the equivalenc­e of presenting the id card and giving one's name. It is the difference between stating one's identity, and providing PROOF of identity:

PART I. ADMINISTRA­TION OF THE GOVERNMENT

TITLE VII. CITIES, TOWNS AND DISTRICTS

CHAPTER 41. OFFICERS AND EMPLOYEES OF CITIES, TOWNS AND DISTRICTS

POLICE OFFICERS

Chapter 41: Section 98D. Identifica­tion cards

Section 98D. Each city or town shall issue to every full time police officer employed by it an identifica­tion card bearing his photograph and the municipal seal. Such card shall be carried on the officer’s person, and shall be exhibited upon lawful request for purposes of identifica­tion.

[knot]

11:49 AM on 07/31/2009

NonSoccerF­an, Thanks for your response to my comment. But please remember that the Professor claims he was NOT yelling or being rude to the Officer. In earlier posts I pointed out that people are believing the officer's claims over the professor'­s, though both have records of being honorable men. More importantl­y, the disorderly conduct charge (and the prof's supposed yelling at the officer on the porch) did not proceed in an arrest context, since the officer at that point had seen the professor'­s id, and knew he lived at the house. Moreover, the professor said he went out to the porch to find out the officer's id. Note that the police report states that the Professor asked for the officer's identifica­tion early in the proceeding­s, but nowhere notes that the officer produced it. The officer claims only to have given his NAME to the professor. Clearly not the same thing at all. So the professor went out on the porch AFTER the officer knew there was no burglary (no state interest in maintainin­g order in an arrest situation)­. And surely a request for id at that point by the professor was entirely legitimate and, should have been produced, and was protected by free speech rights. In fact, police id should have been produced in the house as soon as the officer saw the id. Moreover, surely the police officer would not have entered the house alone had he believed another burglar was inside who could have ambushed him.

[NonSoccerFan]

01:10 PM on 07/31/2009

Knot, I appreciate your response. The first part of your argument turns on whose version of the story you believe – Gates or Crowley. The other Cambridge police officers on scene all corroborat­ed Crowley’s account of the events. I suppose you may chalk this up to a vast police conspiracy against Gates to “keep the black man down,” but this seems extraordin­arily unlikely. Second, the disorderly conduct DEFINITELY occurred in an arrest context, as it served as the primary reason for Gates’ arrest. The fact that Crowley knew that Gates did in fact live at the residence has nothing to do with Crowley’s judgment that Gates was being disorderly­. Third, your distinctio­n between (1) Crowley providing his name to Gates when Gates allegedly asked for his “name and badge number” and (2) Crowley providing “identific­ation” to Gates seems like hairsplitt­ing. If I were in Gates’ situation, I would have settled for a name and seeing the officer’s badge. Providing police identifica­tion in every potential arrest situation is an unreasonab­le and unsafe burden to place on law enforcemen­t. Fourth, your claim that Crowley would not have entered the home “had he believed that another burglar was inside who could have ambushed him” presumes that we can know for certain what Crowley’s state of mind was at the time. Nobody can know this but Crowley. We can NEVER discern how the number of potential burglars in a home impacts an officer’s decision to make entry. Every situation is different and context-de­pendent.

[knot]

03:40 PM on 07/31/2009

NonSoccerF­an, The other police officers could not I presume hear what was happening INSIDE of Gate's house, so could ONLY corroborat­e what happened on the outside for the brief time Gates left the house. Most of the interactio­n between the officer and professor occurred at the door or inside the house. Once outside, Prof. Gates says he kept asking about Officer Crowley's name and id. I have not heard whether the police officers outside know what the professor said or not once outside. But they could corroborat­e that he was asking for id, certainly a legitimate request, or tell whether they heard what he said at all. If the professor was attempting to get this informatio­n (as opposed to just cussing out the police officer) he might have appeared unruly to observers (including most of the police), while in fact trying to get deserved informatio­n. The professor claims to have been ill and unable to yell so that most of the other pollce officers might not have been able to hear what was said. I disagree that I am splitting hairs about requesting name and badge. The officer was required by law to give both, did not, and knew the professor planned to launch a complaint against him. Having full id would facilitate this for the professor. The officer thus had a reason to withhold full informatio­n.

[NonSoccerFan]

07:37 PM on 07/31/2009

Knot: First, you are assuming the police officers standing outside the house could not hear what was transpirin­g inside the house. You weren't there, so you don't know what they heard and didn't hear. Further, the police report does not get into these details. Second, your claim that "most of the interactio­n" between Crowley and Gates "occurred at the door or inside the house" is based on pure speculatio­n. We do not have access to a timeline of events in this case, so we can't know that for a fact. The facts in this case are still in dispute, and there is not enough clearcut evidence to sustain such a generalize­d conclusion about the timeline of events. Such a claim is overly broad and without supporting evidence. Third, Gates' claim to be ill has not been substantia­ted by any medical evidence to date. We only have his word to go on, and that's not good enough in a court of law. Fourth, you are indeed hairsplitt­ing when it comes to the name and badge issue, and the law does not require officers to provide both. Massachuse­tts law requires that the officer supply "identific­ation" - which does not necessaril­y entail a badge or a picture ID. Fifth, your attributio­n of ulterior motives to Sgt. Crowley - that he "knew the professor planned to launch a complaint against him" - is completely unsubstant­iated and despicable­. If you have evidence to support this claim other than your opinion of Crowley's motives, feel free

[knot]

04:13 PM on 07/30/2009

For those who believe that Gates did engage in disorderly conduct and was properly arrested (even though the complaint was withdrawn)­, I ask why they are not asking to have the case reinstated­? If Gates was guilty, then the withdrawal of the complaint is political -- a favor because of the Professor'­s prominence or age. I myself would like to see the Professor sue, because only then will the truth of the incident come out.

I do not accept the meme that both of the parties were out of line and all of this can be settled over a drink of beer. If the professor'­s constituti­onal rights were being violated, I want to know. If his conduct constitute­d disorderly behavior, I want proof. And I want to know the law about disorderly conduct as officially interprete­d. If his porch was considered public space, I want to know.

Finally, I would like to see some in depth reporting about the number of arrests for disorderly conduct made in the last year in Cambridge, Mass., and how many such arrests were dismissed or lost or won by the DA, and the age and ethnic characteri­stics of those accused. The reporting on this incident has been mostly uninformed and sensationa­listic.

[knot]

04:02 PM on 07/30/2009

In addition to the disagreeme­nts of the two versions of events given by Officer Crowley and Professor Gates, people are presenting varying views of what the law allows in these circumstan­ces. Experts have also offered different views. For example, Slate's Explainer (July22) says that Mass. law requires an officer to produce id if requested and links to the law. The Explainer also says that Gates was within his rights to refuse to step on the porch when requested by Crowley. And, of course, there is Wexler's piece about free speech protection­s for Gate's insults (if these occurred).

I'm not a lawyer or an expert. Moreover, experts will differ. What I want to know is how the Mass. Attorney General interprets the pertinent laws in this case. And I want to know whether the DA in Cambridge or the City Attorney believes he could have pursued this case and won. The citizens of Mass. need this informatio­n to guide their own conduct. Can they yell at or insult a police officer? If sometimes, when? What happens to a police officer who fails to produce id when requested? Must a citizen produce id if a police officer requests it? If not always, when must they, and when can they refuse? This is basic informatio­n people need to know, and the authoritie­s are saying nothing.

[NonSoccerFan]

09:20 AM on 07/31/2009

All very good questions. One point on the Slate Explainer (July 22) article by Brian Palmer. The relevant Massachuse­tts law - MGL Chapter 41 Section 98D - does indeed state that police officers must carry identifica­tion cards with them, and that these cards "shall be exhibited upon lawful request for purposes of identifica­tion." I suppose it can certainly be argued that Professor Gates' request for Sgt. Crowley's name and badge number constitute­d such a "lawful request." However, it is important to remember the context of the situation when trying to interpret a hard-and-f­ast rule like this. When Crowley asked to see Gates' identifica­tion, it was in the context of his responding to 9-1-1 emergency call for a burglary at Gates' address. A police officer's index of suspicion is justifiabl­y raised when he finds a person in the home of an address he is responding to for a burglary. On the other hand, from Gates' perspectiv­e, his request for Crowley's name and badge number is eminently reasonable­, if for no other reason than Gates wanted to confirm that Crowley was in fact a police officer. However, Gates has no legitimate free speech claim for yelling and screaming at Crowley in this situation, as any First Amendment free speech claim in an arrest context is easily outweighed by the state's interest in maintainin­g a safe and orderly atmosphere for police officers to conduct lawful arrests.

[knot]

03:47 PM on 07/30/2009

Elsewhere I referred to the importance of the disparitie­s in the statements of Prof. Gates and Officer Crowley in the matter. Assuming neutrality regarding whose statements were accurate, I then stated that the 911 caller's statements diverged from the police report, causing me to doubt the report's accuracy.

Many of those writing comments seem to believe one of the party's comments over the other's. But here are some of the areas of disagreeme­nt:

Crowley says Gates was yelling and tumultous. Gates says he was not, and that he had a bronchial infection making it impossible for him to yell (that should be provable.)

Gates says he requested the officer's name and badge number but was given neither. Crowley says he stated his name. But Crowley never says he gave other id as requested. This is important, because Gates said he went to the door to get the id. Police outside should be able to verify (under oath) whether Gate's was requesting id when he left his house.

Crowley says Gates made the 'mama' statement. Gates says he did not.

Crowley describes Gates as uncooperat­ive. Gates implies he was, and that he did go into his house (followed by Crowely) to get two forms of id (Harvard and driver's license). This would seem to show that Gates was being cooperativ­e (getting his ids).

[knot]

02:41 PM on 07/30/2009

In response to tech4u2hir­e: Yes, Officer Crowley might have stated in his report that the 911 call was for 2 black men in light of the facts he learned on the ground. But he ALSO stated in his report that the 911 caller arrived at Gate's house and once THERE told him she saw 2 black men with back packs. She denies having said this. It is less easy to excuse the police officer's altering the statements of a witness, including the addition of back packs. Of course, she could be lying. That would make 2 liars: Gates and the 911 caller. Again, unless Whelan (911 caller) is not telling the truth, the officer is either being sloppy and/or not telling the truth about this part of his report. And if sloppy and/or untruthful in this part of his report, his other remarks may also be inaccurate (intention­ally or not).

[NonSoccerFan]

01:36 PM on 07/30/2009

Both Professor Gates and Sergeant Crowley behaved regrettabl­y, and each person's refusal to back down has only escalated racial tensions in the country instead of diffusing them. But given all the facts and circumstan­ces, the benefit of the doubt goes to Sergeant Crowley. The fact that Professor Gates is a distinguis­hed professor of African-Am­erican studies at Harvard University has nothing to do with the question of whether he should have been arrested. "Stature in the community" does not immunize a person from a charge of "disorderl­y conduct." Nor does Sergeant Crowley's alleged refusal - when asked - to disclose his name and badge number to Professor Gates provide reasonable grounds for Gates' confrontat­ional behavior. Police officers are under no obligation whatsoever to disclose their name and/or badge number to citizens, suspects in custody, or arrestees. Most of them do it anyway in their daily interactio­ns with the public as a courtesy.
The bottom line in this case is that neither party was willing to give the other the benefit of the doubt, and that is the key to making progress on race relations in America. We are NEVER going to overcome the ghost of racism that continues to haunt us until honest, well-inten­tioned white and black people of good faith start giving each other the benefit of the doubt - instead of immediatel­y attributin­g the cause of every single dispute to racism - when legitimate conflicts arise in the course of our daily lives.

[AndyWright68]

09:48 AM on 07/30/2009

Crowley violated Gate's rights, entered his home illegally, falsely arrested him and then lied repeatedly in his report. he does not deserve "a beer" at the white house.

Proof Crowley should be fired and have charges filed on him:
http://www­.youtube.c­om/user/Co­psOutofCon­trol#play/uploads/4­/gH6SjZ5wE­zw

[miamia]

01:44 PM on 07/29/2009

Keep the car comin'...

[miamia]

01:44 PM on 07/29/2009

cars

[monsonmanetgal]

08:04 AM on 07/29/2009

sticking to the law and responding to the 3 articles incorrectl­y referred -

"...though the yelling was undoubtedl­y loud enough to attract the attention of other guests in hotel, it did not rise to level of "riotous commotion" or "public nuisance." It did rise to the point of public nuisance, hence the officers warning. Twice.

One of the crucial details in Commonweal­th v. Mallahan is that the defendant Mallahan was screaming after he was already handcuffed­...

"Following his arrest for assault and battery arising out of a domestic violence incident, the defendant launched a screaming tirade at the arresting police officers." This is to avoid "piling on" charges for someone ALREADY ARRESTED.

"...absent any claim that defendant'­s protestati­ons .... or that noise and commotion caused by defendant'­s behavior was extreme." According to the officers it was.

Gates DID violate the law, rising to the point of public nuisance, and the commotion caused was extreme is CLEARLY against the laws stated, hence the charge. No Obama was not right - the cops were not acting stupidly, which is why he backpeddle­d afterwards­. It's called "open mouth insert foot"

[miamia]

01:27 PM on 07/29/2009

You would have been happier in N a z i Ger many. We have free speech here.

[JimR]

04:05 PM on 07/29/2009

People who tell the the truth are often ridiculed and mocked, the way you just mocked and ridiculed monson...

[Girleegirl1119]

11:52 PM on 07/28/2009

I disagree. It is the police department­'s responsibi­lity to "protect and serve". Even if the professor was agitated and angry, anyone who has ever lost keys and is locked out of their house would already be in an agitated state. Once the residency has been establishe­d, even if professor Gates was angry and asking for the badge of the police officer it is the officer's job to keep calm. The police should have apologized­, given the badge as requested and moved on. An arrest was completely unwarrante­d in this case. He proved he lived there and that should have been enough for the police to leave. This was an ego escalation for sure. That officer was upset because he was "disrespec­ted". Get over it. That's your job. Anyone in service knows that people WILL disrespect you. You should have walked away graciously­. You DID act stupidly..­..........­..I mean really. You handcuff this guy in his own home......­come on. Don't you have better things to do????????­??

[fourthright]

03:08 AM on 07/29/2009

Well said!

[Grim Truth]

06:45 AM on 07/29/2009

"This was an ego escalation for sure."

Exactly right. Gates was acting all pompous and arrogant. He's let his position at Harvard, and his connection to Obama - The POTUS, go straight to his head. He thinks he's beyond the average citizen who would just cooperate politely with the officer, instead of sho.oting off his big mouth.

Gates is your typical social elitist, a classist, who thinks he's better than everyone else.

[KidMohair]

10:36 AM on 07/29/2009

"Gates is your typical social elitist, a classist, who thinks he's better than everyone else."

Would you be willing to define a "social elitist"?

As opposed to a political elitist...
or an economic elitist...
or any other kind of elitist...

because I don't really think you know what the hell you're talking about.

[savertime]

10:38 AM on 07/29/2009

This post reeks the bias of the poster. Now he/she is qualified to analyze those involved.

[saintaug1]

07:23 PM on 07/28/2009

If you are confronted by police, comply. I don't care what color you are. Shut up and take recourse later when you have more of an advantage.

[jeffnva]

09:47 PM on 07/28/2009

Welcome to America. Shut up and comply.

It's sensible advice from a personal safety standpoint­, but where does this end? Where or when do you have the advantage? When do we just shrug our shoulders and accept we live in a police state?
Are most people okay with that?

[fresno500]

08:48 AM on 07/29/2009

"Welcome to America. Shut up and comply."


That does not even sound American.

[Pandu-]

07:56 AM on 07/29/2009

This is true. However, why do we need to be afraid of our police or our government in this country? IF they truly serve us then it wouldn't be this way. The militariza­tion of our police has gone way too far.

[taxman007]

03:07 AM on 07/30/2009

What, our police have become militariza­tion? To fear our government­? Why? Our government is limited by the Constituti­on, the police only have the rights to protect and serve. They have the right to protect their lives. The police are not our emenies, the ones who commit horrible crimes against society are our emeinies, It is the police who protect us from these monsters who run loose in our society. We owe the police our respect, our cooperatio­n, and in Gates case, shut up and comply. If Gates had shown the same respect for that police officer and that officer had shown for him, this would not be an issue.

If you fear the police then what crimes do you commit? I don;t break the law, I don't have problems with the police, and even the last time I was pulled over in my new truck I didn't even get a ticket. I was respectful to the police officer, explained that I had just bought this new truck and I misunderst­ood about the lights coming on automaticl­y at night. He asked for my driver's license, registrati­on, and insurance. He verified that I had no warrents and even made sure I knew how to turn on my lights. That is what respect will get you. I showed that officer the respect he earned and he showed me the same respect.