Wednesday, August 05, 2009

Gates v. Crowley - The Real Lesson

One should not be subject to arrest merely for berating an officer (particularly at one's own home). Disorderly conduct statutes tend to be vague and amorphous, allowing police officers to use them against those who annoy them. This is contrary to the concepts of free speech.
Amid the media circus that played out ad nauseam last week over the Professor Gates and Cambridge Police issue, I've found some little tidbits of wisdom that highlight what I consider the biggest issue that the incident has brought up; the relationship of the incident to the First Amendment right to free speech, and the use of 'disorderly conduct' laws on a punitive basis by law enforcement.

Don't get me wrong; by all accounts, Professor Gates acted inappropriately, and has been called out by many for doing so. The question being brought up in many places is, do we as citizens have the constitutional right to act in such a manner, so long as there is no imminent danger to others?

Judging from many commentators and other media outlets, there is wide latitude available to police when they are attempting to address a problem, and feel the need to resolve the problem by taking someone into custody and charging them with "Disorderly Conduct" or the local equivalent. Here is a sampling of what is out there:

Harvey Silverglate, writing in Forbes magazine:
Today, the law recognizes only four exceptions to the First Amendment's protection for free speech: (1) speech posing the "clear and present danger" of imminent violence or lawless action...(2) disclosures threatening "national security," (3) "obscenity" and (4) so-called "fighting words" that would provoke a reasonable person to an imminent, violent response.

There is a serious problem in this country: Police are overly sensitive to insults from those they confront. And one can hardly blame the confronted citizen, especially if the citizen is doing nothing wrong when confronted by official power. This is, after all, a free country, and if "free" means anything meaningful, it means being left alone--especially in one's own home--when one is not breaking the law.

Sgt. Crowley had every right to check on what was reported as a possible break and entry. But as soon as he realized that the occupant was entitled to be in the house, he should have left. He admits in his own police report that he was indeed able to ascertain Professor Gates' residency and hence right to be in the house.

Vikram David Amar, writing on Findlaw:

...this brings us to the likely real basis for the disorderly conduct arrest: Sergeant Crowley was being yelled at and accused of racism within view and earshot of many other police officers and members of the community, and that kind of disrespect and accusation angered and embarrassed him.

Being angry is natural when a person is being yelled at and accused of evil. But as the Supreme Court has made clear in a number of cases (largely from the 1970s and 1980s), police officers cannot invoke vague and open-ended laws like "disorderly conduct" ordinances simply because police are being unfairly berated.

As free speech champion Justice William Brennan explained for the (U.S. Supreme) Court two decades ago in a seminal case in this line of decisions, Houston v. Hill, "contrary to the city's contention, the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. 'Speech is often provocative and challenging.... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.'"
Grand Junction-area blogger and self-described "individualist" John Wilkenson wrote an exhaustive piece about the incident, and how it illustrates the current nature of freedom in America. One of its subtitles, "Jerk vs. Jerk" seemed to sum the whole thing up nicely, but Mr. Wilkenson made an excellent concise point or two as well:
I suspect Crowley became angry when Gates repeatedly and vigorously insisted that Crowley give Gates his name and badge number. Obviously 4th Amendment probable cause law was on Gates' side, and Crowley, for whatever reason, was unable or unwilling to simply ratchet down and walk away saying, "Thank you. We're glad everything is OK. Have a nice evening." But that's not what cops do. Cops tend not to ratchet down. They most often tend to take control, even if that means making a knowingly unconstitutional arrest in prima facie violation of the 4th Amendment's probable cause requirements and relevant 1st Amendment free speech law.
Over the last week, several mainstream media outlets, from Time Magazine to the Los Angeles Times, have explored the issue of Disorderly Conduct laws and how they are used by police. This was a refreshing change from the knee-jerk litany about racial profiling, class, and beer that dominated most of the reporting I saw.

In any case, the discourse about what is called "contempt of cop" in some circles has generated increased interest in what differences exist between what police are trained to do, what they try to do, and what they actually can do in certain situations.

I hope to explore in greater detail later this week the application of Disorderly Conduct laws in Colorado, with emphasis on some of our local West Slope resources and jurisdictions.

Have a good rest of the week.

1 comment:

ckirksey said...

The Crowley/Gates incident should be viewed from the beginning. Upon arriving at the scene of a "possible B&E in progress" Crowley had the following info: two male suspects possibley inside, one possible Hispanic, suitcases involved, 911 caller on scene outside.

Crowley stated in his police report that Whalen, the 911 caller, told him of "two black men with backpacks on the front poarch". Whalen has publically refuted this statement. Neither Crowley nor the CPD have countered.

Accepting Whalen's account as accurate, Crowley had essentially no first hand knowledge of the situation until he saw Gates in the house behind a glass door. Apparently Crowley did not approach Whalen and simply ask: "What did you see?"

At this point did Crowley view Gates as a suspect? Crowley approached Gates and asked (ordered) him to step outside. Gates refused. Crowley supposely explained that he was with the CPD and responding to a possible B&E. He asked Gates for ID. At some point Gates leaves the front door and goes to retrive his ID as asked (ordered).

The next part is the crucial part. Both Crowley and Gates have stated that Crowley is in the Gates house. Neither Gates nor Crowley have explicitly stated that Crowley was invited in nor have they indicated that Crowley asked to enter and Gates refused.

But the important fact is that unless Crowley was explicitly invited in Crowley had no legal right to be in Gates' house unless there existed probable cause (PC) and exigent circumstances(EC). If PC existed Crowley could have arrested Gates outside his house without a warrant. If EC existed Crowley could have arrested Gates inside his house without a warrant for BE. Crowley didn't. Crowley made no mention of PC other the disputed conversation with Whalen which could be viewed as CYA nor of and ECs.

This situation I believe is an example of an experienced LEO doing a very, very poor job of investigating. If a proper investigation had been done then there probably would have been no confrontation in the house and no arrest for DC.