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The Law, The Media, and Gates-Gate


My inkling has always been that the Gates-Crowley incident in Cambridge, Massachusetts occurred when two gigantic egos – one of brains, one of muscle – went eye to eye and called each other’s bluffs.

That doesn’t really matter now because the media has already framed this as a repudiation of President Obama. All we have is the police report prepared by Officer Crowley, conflicting statements, and the fact that President Obama said the Cambridge police acted “stupidly.”

Well, he was right. Police officers are employed to uphold the law and that’s not what happened.

Let’s back up a little. I’m going to take us through the incident, paraphrased from the police report.

On July 16, Henry Gates returned to his Ware Street home near Harvard Yard after a trip to China. His front door would not open. Gates entered through the back door. He then went back outside and forced the front door open with help from his driver. A 911 call was placed by a neighbor in which the witness reported seeing “two black males with backpacks.” (However, a tape revealed Lucia Whalen, the caller, actually said, “I noticed two suitcases.” When asked of the suspects’ race, she said, “one looked kind of Hispanic, but I’m not sure.”)

Gates called Harvard maintenance to let them know about the lock (he rents the house from the University) and while on the phone, the police arrived. It was 12:44pm. According to the report, Sergeant Crowley asked gates to come outside, and Gates refused, accusing Crowley of racism. He also told Crowley, “I’ll take your mama outside.” After providing his ID, which proved he lived in the house in question, Gates, “continued to yell at [Officer Crowley], accusing [Officer Crowley] of racial bias and continued to tell [Officer Crowley] that [he] had not heard the last of [Gates].” Gates was arrested by Officer Crowley and charged with disorderly conduct. The charges were dropped on July 21. Gates severely refutes this version of events.

So, did the police act stupidly, as President Obama said?


According to Massachusetts law, one can be arrested for being disorderly if he or she is in public, and if his or her behavior is so disruptive that it’s preventing persons who are lawfully present from doing whatever they’re lawfully present to do. As New Jersey State Judge and radio host Andrew Napolitano explained – on Fox News! – “You can’t be disorderly if you’re in a desert because there’s no one else there. And you can’t be disorderly if you’re in your house or on your property because that’s not a public place. So, if Professor Gates was arrested because of the words he used to the police inside his house or on the front porch or on the front lawn, it was an improper arrest.”

Now, “Disorderly conduct” in Massachusetts 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.” However, this provision was overturned, with courts arguing that it was in violation of free speech.

Recently, Massachusetts courts have considered whether a person is guilty of disorderly conduct for verbally abusing a police officer. In a 2004 decision, Commonwealth v. Lopiano, an appeals court held it was not disorderly conduct for a person who angrily yelled at an officer. Being arrested for such meant his civil rights were being violated. In Commonwealth v. Mallahan, a 2008 decision, an appeals court ruled that a person who launched into an angry, profanity-laced tirade against a police officer – in the presence of spectators – also could not be convicted of disorderly conduct.

That’s Massachusetts law. You can’t be arrested for trash talk. And it currently doesn’t matter whether or not you, or Officer Crowley, agrees with it.

Could the police have used a federal law to get around this incident? No.

Unless the police actually witness a felony, or unless the police officer has a search or arrest warrant from a judge saying he is allowed to go into the house, he is not legally allowed in the house. So, when Professor Gates said the police could not come in, and the police went in anyway, Officer Crowley violated federal law.

Now, I concede that talking back to a police officer is stupid. I agree with critics that President Obama should never have gotten tied up in this (mostly because of the phony outrage and ignorant insults he should have foreseen from the right; Glenn Beck actually called President Obama a “racist.”) And I understand Officer Crowley’s motivation on a purely emotional level.

But Professor Gates walks with a cane. He was tired, groggy, just back from across the planet. Who was he going to hurt?

Even if this were technically lawful, it was unnecessary.

At the same time, there was no racial motivation in the arrest, as Jesse Jackson and Al Sharpton have predictably claimed. This was a case of two men with huge egos trying to one-up each other, which shouldn’t have anything to do with the law.

Hopefully, yesterday’s beer at the White House will settle the personal dispute, since the case is no longer pending. But the public outrage will never calm.

Photo: http://thecaucus.blogs.nytimes.com