A Matter of No Middle Ground

For the moment, President Obama and many pundits have arrived at a comfortable middle ground: Professor Henry Louis Gates, Jr. and Sergeant James L. Crowley each over-reacted to the now famous events at the Professor's home. The parties are apparently going to affirm that perspective with a beer at the White House. This is a calming resolution, but it sends the wrong message about the proper role of law enforcement under our Constitution.

Professor Gates is not the first person to complain about the way he was treated by a police officer. Many people have done so in language more graphic and more demonstrative than that of the good professor. The law books are full of cases which provide helpful guidance to law enforcement in these difficult interactions. Notwithstanding the issues of race and class that dominate the public discussion of the Gates matter, these cases involve a broad range of people. Some of the cases involve minorities; some do not. They include people from all walks of life and socio-economic background. Many of the cases arise out of the use of vague "disorderly conduct" laws, as was the case with Professor Gates. Other examples involve the enforcement of very specific prohibitions on the use of a particular category of speech in addressing a police officer, like cursing, or obscene or opprobrious language.

No matter the specifics of the law being enforced, controlling principles have become well established in the courts. People, including arrestees, have a right to free speech allowing them to protest their treatment to the arresting officer. According to the Supreme Court, "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." To be certain, these rights are not absolute. The speech is not protected if it constitutes a true threat or "fighting words" -- "those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." Mere vulgarity and humiliation are not enough.

Of course the notion that the police can legitimately respond with force in the face of epithets seems strangely at odds with the concept of the modern law enforcement professional. The courts agree. As Justice Powell wrote in the seminal case, Lewis v. City of New Orleans, "a properly trained officer may reasonably be expected to exercise a higher degree of restraint than an average citizen, and thus be less likely to respond belligerently to 'fighting words'."

So, what should Sergeant Crowley have done when Professor Gates allegedly complained quite loudly of being profiled and made a reference to Crowley's "mama"? To begin, he should not have felt threatened. After all, Professor Gates is of slight frame, has limited physical mobility and walks with a cane. The sergeant was well advised not only to listen to Justice Powell, but also to heed the age-old parental guidance on the potential injury from "sticks and stones," as compared to words. He was bound to conclude that Gate's words were protected because a properly trained police officer acting reasonably would not lose his cool over these comments and use force against Gates. In short, he should have walked away. Police business was over; it was no time to sulk or avenge the alleged insults.

It also was no time to order the Professor out of his own home where the alleged presence of neighbors and the continued harangue by Gates was supposedly additional grounds for arrest. The decisions of Massachusetts' own state courts simply do not allow arrests for disorderly conduct because a person uses loud, non-inciteful language in the presence of a small number of peaceful individuals who gather at the scene of an arrest. This limitation under state law should have been known to a reasonable police officer.

Everyone knows that as prudent people we ordinarily should not get "lippy" with a police officer, but Professor Gates is not guilty of violating that maxim. He was standing up for his rights. The Constitution protects our right to protest injustice, including on those occasions when we are the victims. Gates was exercising his rights and Crowley violated them.

There is no middle ground.

Comments

[podurk]

"The sergeant was well advised not only to listen to Justice Powell, but also to heed the age-old parental guidance on the potential injury from "sticks and stones," as compared to words."

Who would have ever considered that Mr. Grossman would be in favor of deleting speech from the definition of Hate Crimes?

[Banderson61]

Harvey Grossman, is the legal director of the ACLU of Illinois. I wouldn’t expect anything atypical in his article. Grossman says "Gates was exercising his rights and Crowley violated them" is clearly an issue of reality. Crowley and his partner were doing their job. Gates, could have said hello, my home, here is my ID. Thanks for coming by. This was a misunderstanding. End of situation. Gates has been distinguished by intellectual achievement in the humanities. He is highly educated, however EQ and IQ have clashed. Social Awareness, Your ability to accurately pick up on emotions in other people and get what is really going on. Gates was in a prideful state of mind.

[vsign]

What I learned is that a white police officer better not arrest a black man, no matter if he has been uncooperative in a B & E investigation, is out of control in public on his porch and inciting a crowd with racial language.

This does not apply to any other group. Just black men. They might know the President!

This is an article from the Harvard Crimson.


http://www.thecrimson.com/article.aspx?ref=528630

[fredric williams]

Well, if we are to believe those who have commented, the professor is a jerk and/or the cop is a liar. Whichever may be true, we can be certain only about President Obama -- we know what he said. Calling someone stupid when you don't know the facts in the matter is . . . how do I put this . . . STUPID.

And following this up by inviting the arrogant jerk and the police officer (or the abused handicapped black professor and the lying racist) to join you for a beer in order to cover your ass makes you, Mr. President, look weak, foolish, and cowardly.

It is, as the Big O observed, a teachable moment.

[LennyNY]

A lot of posters here seem to be confusing the difference between "polite" & "legal." The issue of whether an arrest was proper concerns *only* what behavior is or isn't legal. Rudeness, even if unjustified, is not illegal unless it comes in a form likely to instigate violence. Whether Professor Gates was in fact rude &, if so, whether it was justified, are completely irrelevant to the question regarding the legality of the arrest.

[fem56]

Perhaps this is class est discrimination. Prof Gates felt he could abuse Sergeant Crowley because he was just a police officer? Maybe Sergeant Crowley was being profiled as another abusing cop? When a police officer responds to a call isn't possible they may be a bit nervous not knowing whether their life may be threatened? Does being African American or any race, of course, really mean being free of biases and prejudices? It is absolutely crucial to see all points of views.

[JimR]

Very interesting comment on disorderly conducts laws from a former public defender:

http://www.intheagora.com/archives/2009/07/stupid_disorderly_conduct_laws/comment-page-2/#comment-22798

[Glocksf21]

If he would have kept his mouth shut and showed his ID it would have been over, but no, lets make it a racial issue. Thank you prof Gates.

[WebForce1]

People kill me with this "defending his rights" bull. Gates was being abusive and before you start pounding that "Crowley made and illegal arrest" drum again keep the timeline in order. Professor Gates was running his mouth and gringing a racial axe so-to-speak well before anyone even suggested arrest.
Defending his rights, O.k. someone could stand out in front of the NAACP and yell racial epithets about black people. Then they could go to a haulocost museum and start yelling about how it never happened, and for good measure stop by a battered women's shelter and yell about how they somehow had it coming.
You can be well within your rights while spewing foul incindiary garbage out of your mouth.
But Gates racial comments were against white men so no foul.

[edgeguy]

You kill me because you still site the police report that's been proven to be filled with lies.
The information you based your opinion on comes from information contained within the police report and nowhere else.
Why are you incapable of seeing what's right in front of your face.
The police report is null and void.
Crowley was caught lying in it.
He said in his report that he spoke to the 911 caller when he arrived and she said "two black males with backpacks entered the house".
She claims she had no conversation at all with Crowley at all!
This is clearly Crowley covering his ass.
The rest of the report must be tossed out the window as well.
All the accusations that Gates was abusive is gone baby gone.
Please reply to my post so I know you got it.
It seems this information has been posted before and still people like yourself don't get it.
Do you now understand why your thoughts on this issue have been distorted by a false police report?

[n5ifi]

A good attitude is an asset in personal, professional life
By Jane R. Elgass
If you’ve got a good one, chances are you brighten other people’s day. If you’ve got a bad one, you may be alienating colleagues at work and even your friends. And a bad one may be costing you a promotion or appointment to a new position. It’s all about attitudes.
“Studies have shown that people want to be with those who have a good attitude, In fact, for some employers, a good attitude is sometimes a more important consideration than skills. You can train for skills, but it’s difficult to work a bad attitude.”
Attitude has a lot to do with interpersonal communications, self-esteem and your perceptions of others and theirs of you.

[Edmonsky]

This case has legs. One, Prof. Gates is going to seek Court order that his arrest was unlawful in order to restore his name and image for posterity. Once, that is done, he is going to seek damages from the City of Cambridge for unlawful arrest and civil liabilities.

Civil liabilities are going to be settled out of court. It depends on the amount, thereafter, Sgt. Cowley’s carrier with the City of Cambridge will be in jeopardy. This matter is no more about Sgt. Cowley but between Prof. Gates and City of Cambridge.

[edgeguy]

I agree.
This case has legs.
It's people like us that need to get those legs moving because there's a lot of resistance to that happening.

The cops want this issue to go away so an investigation might have to be forced on them.
The media isn't interested in exploring the rights issue because to them this is a human interest story.
Gates thinks it's only a profiling case.
Obama already cured them with special powers beer.
No one wants to believe that cops lie.
The only people who win if this case gets explored is an abstract idea called "the People".

We got to get those legs moving.
It's beginning to look like weekend at Bernie's.

[Edmonsky]

Rick390:
Thank you for your 28-yr service as a retired police officer. I read your comments with rapt attention. From your comments, l am not so sure if you read the real police report.

Here is the deal. In the entire report, Sgt. Cowley did not state how he found himself inside Prof. Gates house. As a former police officer, do you think it is appropriate within the law or police code of conduct to enter anybody’s house without permission.

If only what Sgt. Cowley wanted was to verify if Gate was the bona fide resident of the address, he would have stayed outside the front door for Prof. Gate to fetch the requested two photo ids. When Gate went in to get the two photo ids, Sgt. Cowley opened his door without permission and followed Gate in tow. This is why Prof. Gate got angry and wented to report to the police chief by inquiring through a third-party the police chief’s telephone number. Prof. Gate wanted Sgt. Cowley’s name and badge number to make formal complaint. If this type of conduct is permissible by a police officer, then there is no need to seek Court order for search warrant or arrest order authorizing police to enter into people’s house.

[rick390]

I am a retired police officer and many times in my 28 yr. career I had occasion to be in similar circumstances as Sgt. Crowley found himself in. For the most part I realized that nothing good could come out of reacting to the name calling and baiting that occurs on a regular basis in law enforcement.

That's why we were trained how to respond to such verbal assaults using "verbal judo". This is the use of words to defuse the antaganist or to calm him down. Even with this exceptional training I can't say that I was immune to losing my temper.

Everyone in the media that blames Crowley for giving in to his feelings of anger are talking from a position of Monday morning quarterbacking. You cannot know how hard it is to walk away when you are being verbally assaulted and you are being dared to take action yet that was the proper thing for Crowley to have done in this case.

The author of this story is however wrong that Gates was right in his behavior. Simply because he is legally allowed to spout off at the officer it was not "right" or "proper". It was inconsiderate and disrespectful to a fellow human being and one who deserved the common courtesy that we all do.

[jade7243]

As a veteran police officer , surely you know that officers are trained to manage difficult citizens, they are trained to varying degrees as negotiators, and most importantly to avoid needlessly escalating an encounter to the point where the citizen or the officer resorts to physical violence which harms the citizen, the officer or any bystanders.

Crowley, in my humble opinion, failed to handle a citizen who was aggravated at his presence -- particularly at the notion of being a "suspect in his own home," he failed at negotiation in not reaching a reasonable compromise once he determined Gates was no burglar and no real threat, and he failed at not escalating the situation by not giving himself as well as Gates a moment to cool off separately before ending the call.

With Officers Crowley, Figueroa and Lashley in addition to at least 3 more from Cambridge and at least 2 more officers from Harvard, SURELY Crowley could have found someone among the group to talk Gates down, if he couldn't. In fact Sgt. Lashley told Anderson Cooper and the NYT that if he had handled the call, the situation would have ended differently, with no arrest.

[blueken]

I strongly disagree. Getting loud and mouthy with a man in uniform with a gun, taser and pepper spray tells me that person could be a threat to himself and others. Gates wasn't beaten or handled roughly. He was taken into custody because he was not acting civil and the officer didn't want things to escalate. How did the officer know that the person who called in the incident would be safe if he left without Gates in custody? A show of superior force is rule one in preventing an escalation of a situation.

[rjmiller]

This is the absolutely wrong view. The problem is that we view police, and more problematically they view themselves, as better than the common citizen, as opposed to the truth: that they are our servants. This idea is taken from Plato's Republic, which said police must be told a noble lie:

"The noble lie will inform them that they are better than those they serve and it is, therefore, their responsibility to guard and protect those lesser than themselves."

However, it misses the second part. The personality of people that choose to become officers is usually that of someone that desires authority. They want to carry a gun, wear a uniform and flash a badge. They want to tell people what to do, and for those people to do it NOW. These are the exactly wrong people to be in law enforcement, as seen in Plato's next sentence:

"We will instill in them a distaste for power or privilege, they will rule because they believe it right, not because they desire it."

We pay police, and they serve us. They answer to us, not the other way around.

[CelticMajic]

They put their lives on the line for YOU everyday. This could have been one of those situations. What is so hard about supporting law inforcement? What is so hard about cooperating instead of yelling at the person trying to secure your property? Tell you what, next time an officer of the law comes to your assistance, try yelling at him. When he reacts appropriotly at your disturbance then you too can yell victim?

[edgeguy]

Great observation.
You know your stuff.
I'm not talking about knowledge of police par say but rather humans.

Naturally there will be those attracted to the job because it takes care of a lack within themselves and often, becoming a cop is the refuge of the powerless.

Unfortunately, for us, the powerlessness never leaves the cop and problems can manifest in some bizarre behavior like tasing (R) old ladies, slamming young skateboarders on the ground, etc.
To show "I'm powerful!"

The problem I have observed is the testing of cops has changed and become bizarre in it's own right.
The evaluation includes a psychological screening test designed to eliminate free thinkers.
Supposedly, thinkers get board with the job.

Sought out is the ability to follow orders.

So now we have powerless unquestioning cops showing us how powerful they are.
It's a bad combination for us.
And that combination, I suspect, is no accident.

[VirginiaJeff]

I disagree with Grossman in at least one regard: Slandering someone by calling him a racist is at the very least "lippy," and has nothing to do with Gates standing up for his rights. It was meant to hurt -- pure and simple -- and it did. Whoever said, "Sticks and stones may break my bones but words will never hurt me," wasn't being honest about human nature.

[olmossy]

But you don't arrest people for "slander" or "being lippy".
And Sticks and stones will break your bones and are unlawfull to hit people with ( except in hockey)
And Words won't ever hurt you. If they do . Toughen Up!