Gates v. Crowley: Two Losers In Heat

I've taken a good part of the Summer off this year. No blogging. Little news reading. But I'm back in the saddle now, and saddled with the sad, sad spectacle of Gates v. Crowley. How this garden variety dispute became transformed into national news is beyond me.

First, some fundamentals: Professor Gates is a PBMWA, as in professional black male with an attitude. In a public statement released by his lawyer, Charles Ogletree, Gates set the tone for what went wrong in Cambridge last week. Gates had just returned from spending a week in China where he had been filming a new PBS documentary entitled "Faces of America." Translated: "I am so important and impressed with myself that you should be too."

When Gates got home after his global tour the door to his home was jammed. He and his driver worked to force the door open. They were spotted by a passerby who apparently did not know them. She called 911 about a potential break in. A lone officer arrived. The caller was present at the scene and reported that two black men were apparently forcing the door of a private residence.

The officer, whose stilted police report reads like a bad example of someone struggling with English as a second, or perhaps third, language, reflects the demeanor and attitude of a cop who thinks "trust and obey" is written into one of the Constitution's amendments. Officer James Crowley comes off as arrogant. The postscript to his report could easily read: "If he had only followed my orders I would not have had to arrest him."

Pride versus arrogance was on display at the Gates home. This is the sort of quotidian conflict that takes daily in almost every community. And it has nothing to do with race. A little insight on behalf of both parties could have avoided the commotion.

It was broad daylight at the time, so eliminate the uncertainty that comes of the dead of night. Officer James Crowley was still outnumbered. He walked to the home's front door. There is no question that he was well within the scope of his duties to approach cautiously.

Gates saw the officer approach. According to Gates' statement, he refused to step outside when asked to do so by the officer. Gates told the officer he lived there and that, by the way, he taught up the street at Harvard. Lah-dee dah.

Gates turned from the door to go to his kitchen to retrieve his wallet. Crowley followed without objection. Gates provided identification to prove that he resided at the home. Gates then asked the officer for identification, and, according to Ogletree, the officer never told Gates who he was or whether there were charges against Gates. Gates was steaming now. The nerve of this man; investigating a potential crime at my castle.

According to Gates' statement, he followed the officer to the door where he was astonished to see other officers. While at the door, he was placed under arrest. Apparently, the charge was disorderly conduct. Under Massachusetts law, disorderly conduct involves "fighting or threatening, violent or tumultuous behavior, or creating a hazardous or physically offensive condition for no legitimate purpose other than to cause public annoyance or alarm." It is hard to see how Gates' conduct, petulant though it was, rises to that level.

Crowley's police report paints a different picture. Gates accused him of being a racist, did not comply with the officer's request for identification and escalated his rhetoric to the point where onlookers were alarmed. On this version of events, Gates could have been arrested.

Was Gates guilty? We'll never know. Cambridge prosecutors gave him the Harvard kid-gloves treatment and bowed to Gates' wealth and status: Charges against Gates were dropped without so much as a court appearance.

If Gates believes his rights were violated, he ought to bring an action for unreasonable entry and false arrest under Fourth Amendment. But Ogletree is too good a lawyer to believe such a suit would be easy pickings. There is little doubt that Crowley was present at the home in response to a complaint. He had a right and duty to investigate the complaint. Indeed, Gates' decision to ignore the officer's order to leave the home could easily have exposed him to arrest.

Was there justification for the arrest? According to Crowley's report, Gates stood on his porch yelling at onlookers and berating the officers before his arrest. While it is generally true that you cannot breach the peace of a police officer, it is also the case that behaving poorly in public can earn you a set of handcuffs. If Crowley's report is true, Gates' purpose may well haven been to try to create public alarm. The arrest may well have been justified. It is the sort of claim that has qualified immunity written all over it.

My hunch is that Gates will not file suit under 42 U.S.C. Section 1983. He won't because good legal advice will counsel that this case almost certainly would never see a jury: it has summary judgment written all over it. Like it or not, when police officers are called to investigate a potential burglary those present in the home have some minimal duty to comply with police orders. That might not feel good to a globe-trotting Harvard professor grown fat and sassy playing the race card, but it is the law.

Gates was wrong. Crowley wasn't much better. And President Obama ought to refrain from inviting the two men to the White House for drinks. Thousands of Americans face these sort of tense confrontations without a fuss. Why reward what we should consider shameful?


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