Another View of the Gates-Crowley Matter

Far too much has been written about the confrontation between Harvard's Henry Louis Gates and Sgt. James Crowley of the Cambridge, Massachusetts, police. In all of the discussion, an important Constitutional issue is being totally ignored.

Assuming, arguendo, lapsing into Latin as we lawyers are prone to do (otherwise how could the hourly rate be justified), that Professor Gates did call Sgt. Crowley a racist, make reference to the officer's "mama", was generally obnoxious did that warrant an arrest for "disorderly conduct"? Assume further, as seems to be the case, that Sgt, Crowley is no racist having a long and unblemished record as an officer who was a leader in sensitivity training.

In a brilliant essay, Vikram Amar, summarizes the basic facts.

I will assume as true the facts that Sergeant Crowley himself alleges in the police report (even though some of those facts are hotly contested by Professor Gates). According to this report, Professor Gates did not readily answer Sergeant Crowley's questions or comply with requests to produce identification from the moment the two men saw each other. However, the report relates that, after some ranting and accusations of racism by Gates and some cryptic references by Gates to what a big-shot Gates was, the Professor did eventually produce some Harvard identification that led Crowley to conclude that Gates was not in fact a burglar.

Here's what Crowley's police report says in its key passages: "With the Harvard University identification in hand, I radioed my findings . . . and prepared to leave. . . . Gates continued to yell at me tumultuous manner Gates had exhibited in his residence as well as his continued tumultuous behavior outside the residence, in view of the public, I warned Gates that he was becoming disorderly. Gates ignored my warning and continued to yell, which drew the attention of both the [many] police officers and citizens [on the sidewalk], who appeared surprised and alarmed by Gates' outburst. [Emphasis mine]

Before going back to the serious Constitutional issue, I digress to note that, to a far lesser degree, I, too, have been called unflattering names. Many of my political and social essays have been greeted with such thoughtful remarks as:

I've been thinking about your column, and the only conclusion that I can reach is that you are WILLFULLY ignorant.

I won't bother addressing your generic anti-gun vomit....

Not surprising that a man who has spent his life as a parasite larding his pantry at the expense of his neighbors would advocate depriving them of any means to resist the tyranny of his employer, the state.

The author even worked for the most vile of all the state's bureaucracies, the tax enforcers. These are men with guns who will kick your door in and take the money you earned with violent force if you resist, and these thieves in combat gear and costume jewelry are paid for with the money they steal from the citizenry.

Another dedicated, anti-self defense, Kool-Aid drinker on drugs.

[C]ity-slicker... You are also

This type of rubbish is to be expected by anyone who expresses an opinion; it is the freedom of expression we enjoy. Police officers are subjected to much worse language and should be expected not to react with handcuffs and arrest. A police officer's behavior is, since he is an agent of the state, restricted by the First and Fourteenth Amendments of the Constitution.

In the Gates-Crowley case, it should be stressed that, at the time of the arrest, Sgt. Crowley had already determined that there had been no burglary or attempted break-in. There came a time, however, when the officer made a judgment call that Professor Gates' behavior had become "tumultuous", in the words of the statute. When did that point occur: when the Professor continued to spew insults at the policeman? This is not a case where a person interferes with a police investigation (that had been concluded). Sgt. Crowley might have arrested Mr. Gates earlier when the latter failed to immediately produce identification, but he waited.

What did Professor Gates do that constituted "disorderly conduct"? Nothing. The Massachusetts courts have held

Defendant could not be convicted of disorderly conduct based solely on his loud and angry tirade, which included profanities, directed at police officers.... even if spectators gathered to watch defendant; defendant did not make any threats or engage in violence, and his speech did not constitute fighting words. Commonwealth v Mallahan (2008)

Defendant's conduct, namely, flailing his arms and shouting at police, after being told to leave area by police, did not amount to "violent or tumultuous behavior" within scope of disorderly conduct statute, absent any claim that defendant's protestations constituted threat of violence, or any evidence that defendant's flailing arms were anything but physical manifestation of his agitation or that noise and commotion caused by defendant's behavior was extreme. Commonwealth v. Lopiano (2004)

Massachusetts has adopted the provisions of the Model Penal Code, but its courts have held one specific provision unconstitutional under the First and Fourteenth Amendments. Thus the following clause is not part of that state's law:

In short, Professor Gates was arrested solely because he had directed words towards the police officer that the latter deemed insulting and that does not constitute "disorderly conduct" in Massachusetts.

The United States Supreme Court has ruled that directing angry or abusive words to a police officer, absent a real physical threat, is protected by the Constitution. Justice Powell, years ago, that a well trained officer cannot over react to such provocation. Years ago, in The Pirates of Penzance, it was noted:

When constabulary duties to be done
Taking one consideration with another
A policeman's lot is not a happy one
When constabulary duties to be done, to be done
A policeman's lot is not a happy one

All very true, but with all that, the Sergeant was wrong.