Prof. Gates' Unconstitutional Arrest
The now-infamous Gates story has gone through the familiar media spin-cycle: incident, reaction, response, so on and so forth. Drowned out of this echo chamber has been an all-too-important (and legally controlling) aspect: the imbroglio between Harvard Professor Henry Louis Gates, Jr., and Cambridge Police Sgt. James Crowley has more to do with the limits (or breadth) of the First Amendment than with race and social class.
The issue is not how nasty the discourse between the two might have been, but whether what Professor Gates said--assuming, for argument's sake, the officer's version of events as fact--could by any stretch of both law and imagination constitute a ground for arrest for "disorderly conduct" (the charge leveled) or any other crime. Whether those same words could be censored on a college campus is a somewhat different--though related--question.
First, a quick recap. Gates returned to his Cambridge residence from an overseas trip to find his door stuck shut. With his taxi driver's assistance, he forced the door open. Shortly thereafter, a police officer arrived at the home, adjacent to the Harvard University campus--in my own neighborhood, actually--responding to a reported possible burglary.
Upon arrival, the officer found Gates in his home. He asked Gates to step outside. The professor initially refused, but later opened his door to speak with the officer. Words--the precise nature of which remains in dispute--were exchanged. Gates was arrested for exhibiting "loud and tumultuous behavior." The police report, however, in Sgt. Crowley's own words, indicates that Gates' alleged tirade consisted of nothing more than harshly worded accusations hurled at the officer for being a racist. The charges were later dropped when the district attorney took charge of the case.
It is not yet entirely clear whether there was a racial element to the initial decision by a woman on the street--working for Harvard Magazine, no less!--to call the police, although that is looking unlikely. It remains disputed whether Sgt. Crowley treated Professor Gates any differently than he would treat a white citizen in the same position. (In fact, if one accepts Crowley's claim that he dished out to Gates equal treatment under the law, this case stands as a dire warning to all citizens as to the dangers inherent in exercising one's constitutional right to free speech when in an exchange with a police officer--but more on that below.)
Indeed, Crowley did not arrest Gates for breaking and entering, for by then he was clearly convinced that the professor did live in the building. (For one thing, Harvard University Police officers had by that time arrived at the scene, and they easily could have checked not only that Gates was on the faculty, but that he lived in the Harvard-owned residential building. Gates is one of the most widely known faces in the Harvard community.) Instead, Crowley arrested the diminutive and disabled professor (he uses a cane to walk and bears a passing resemblance to the French painter Henri de Toulouse-Lautrec) for disorderly conduct--the charge of choice when a citizen gives lip to a cop.
By longstanding but unfortunate (and, in my view, clearly unconstitutional) practice in Cambridge and across the country, the charge of disorderly conduct is frequently lodged when the citizen restricts his response to the officer to mere verbal unpleasantness. (When the citizen gets physically unruly, the charge is upgraded to resisting arrest or assault and battery on an officer.) It would appear, from the available evidence--regardless of whether Gates' version or that of Officer Crowley is accepted--that Gates was arrested for saying, or perhaps yelling, things to Crowley that the sergeant did not want to hear.
As one of Crowley's friends told The New York Times: "When he has the uniform on, Jim [Crowley] has an expectation of deference." Deference and respect, of course, are much to be desired both in and out of government service--police want it, as do citizens in their own homes or on their porches or on the street. However, respect is earned and voluntarily extended; it is not required, regardless of rank.
Some have posited that Crowley's tolerance for citizen vituperation was lower because the speaker was a black man, or a member of the city's economic and social elite. As a four-decade (and counting) criminal defense and civil liberties lawyer, I can say with reasonable assurance that while there might have been some degree of racial or, more likely, class animus that underlay the contretemps between citizen and officer here, fundamentally the situation can, and should, be analyzed as a free speech case.
Why? Because any citizen--white, black, yellow, male, female, gay, straight, upper or middle or lower class--who deigns to give lip to a police officer during a neighborhood confrontation or traffic stop stands a good chance of being busted. And this is something in police culture nationally--and probably all around the world (I've observed Frenchmen giving lip to Paris flics and gendarmes, also with bad results for the civilians)--that begs for change.
