First of two parts
Amid all the endless media psychobabble about “national conversations” and “teachable moments” — which peaked in the wake of the surreal White House “beer summit” in late July — I have been trying to weigh the established facts surrounding Henry Louis Gates Jr.’s’ arrest from a libertarian, constitutional liberties perspective.
I have come to a conclusion siding with Gates against the officers, but only in a limited sense. Although I disagree that this was a case of racial profiling, I do think the charging of Gates with disorderly conduct for yelling at the officer in Gates’ own home was an improper and likely unconstitutional infringement on both Gates’ free speech and property rights.
Generally, unless a something like a bullhorn is involved, a homeowner cannot “disturb the peace” on his own property, not matter how obnoxious the content of his speech might be. And the Cambridge police made a serious error in the charge against Gates in describing Gates’ own front porch as a “public place,” rather than the private property that it is.
But I also believe President Barack Obama should not have weighed in on this or any other pending legal dispute. In so doing, he broke a longstanding precedent that presidents should not make any comments as to the guilt or fault of individuals in an ongoing or potential legal case, because they could compromise the impartiality of the proceeding.
In fact, as I detail below, Obama’s speaking out might hurt Gates’ chances of prevailing in a lawsuit against the Cambridge Police Department — a lawsuit that I believe would be merited.
If anyone is owed an apology in this drama, it is Gates’ alert neighbor Lucia Whalen
Before I get to the main parts of the Gates controversy, let me say how heartened I am at the vindication of Lucia Whalen, who did what any good neighbor should do: report what she thought might be a break-in at her neighbor’s property.
Whalen’s 911 call, released by the Cambridge Police Department, shows that she never identified the race of Gates and the driver who were trying to force their way in (when pressed by the 911 dispatcher she guessed that one might be Hispanic), and acknowledged the suitcases and the possibility that they could “live there.”
And it wouldn’t rally have mattered even if she had identified race. Black or white or whatever, if people are shoving themselves at a door and trying to force it open, as Gates and his driver were, there is more than a good chance that they are would-be burglars and not the home’s owners. In too many cases, burglaries and other crimes could have been prevented if neighbors had been more alert.
For example, many incidents have been reported of burglars cleaning out houses in broad daylight by posing as movers. A curious neighbor calling the police could have foiled these thefts and saved those homeowners — whatever race they were — much anguish.
If anyone is owed an apology, it is Whalen, who was attacked by Gawker’s John Cook (who called her “racist” - and did apologize after the 911 call was released), Daily Kos blogger BabylonSista (who called her a “nosy bigot,” and so far still hasn’t apologized), and countless others. Before jumping to these conclusions now exposed for the idiocies they are, they just should have listened to Gates, who to his credit had nothing but praise for the watchful neighbor. “I’m glad that someone would care enough about my property to report what they thought was some untoward invasion,” Gates told the Washington Post last week.
(Note: I use Whalen’s name because it is now part of the public record, although it never should have been. Unfortunately, it wasn’t redacted from the police report that leaked out onto the Internet. Her name has been bandied about in blog posts and several news stories, and she has even had to hire an attorney. One of the “teachable moments” from this saga should be that police departments must do a better job protecting the privacy of those who report potential crimes.)
Whatever Gates said to Sgt. Crowley, Gates should not have been arrested for “disturbing the peace” on his own property.
Both Whalen’s call to the Cambridge police and Sgt. James Crowley’s quick response to the dispatch should be praised. Where it gets murky is the exchange of words that occurred after Crowley stepped on Gates’ front porch.
According to Crowley’s police report, Gates immediately responded to Crowley’s announcing that he was investigating a reported break-in by that shouting that he was being targeted because he was a “black man in America.” He then hurled several insults, called Crowley a racist, and, in an allegation backed up by the report of a fellow officer who appeared on the scene named Carlos Figueroa, yelled that Crowley didn’t know whom he was “messing with.”
A major point of contention concerns IDs — both those of Gates and Crowley. Crowley wrote that Gates “initially refused” to show him identification, demanding that Crowley show his police ID first, “but then did supply me with a Harvard University identification card.” But a statement from Gates’ attorney, Charles Ogletree, says Gates promptly handed Crowley his Harvard ID and Massachusetts driver’s licenses. Moreover, the statement says that Gates asked several times for Crowley’s name and badge number, but “the officer did not produce identification nor did he respond to Professor Gates’ request for this information.”
Then Gates obliged Crowley’s request to step out on the porch, continued the yelling of insults (according to Crowley and Figueroa), and was then arrested and placed in handcuffs on his porch — as the picture that has gone round the world shows. In Crowley’s description in the report, Gates “was placed under arrest . . . after exhibiting loud and tumultuous behavior, in a public place.”
But, wait a minute, “public place!” The public place in question was Gates’ own front porch, part of Gates’ private property. And “disorderly conduct” is usually intertwined with the charge of “disturbing the peace,” which require a public to disturb.
Crowley’s report notes that Gates’ “actions” on the porch — the porch that Crowley directed him to — “caused citizens passing by the location to stop and take notice while appearing surprised and alarmed.” But no one forced the neighbors to stand around and watch the drama on Gates’ porch, and they could have been just as easily “surprised and alarmed” by the sight of so many cops there.
If Gates’ were truly yelling loud enough that Crowley couldn’t radio his findings to the police department, there might have been cause to arrest him for interfering with an investigation. But this was not the charge — “disorderly conduct” was, and this charge was dropped by the Cambridge police with good reason. Regardless of the content of Gates’ remarks to the officer — and Gates’ comments seemed pretty obnoxious from the account in the police report — unless there is something like a loudspeaker involved, one cannot “disturb the piece” by yelling on his own property. This lack of knowledge about property rights is unfortunately repeated by government at all levels.
Thus, in my opinion, the arrest not only violated Gates’ free speech rights in the First Amendment, as others have noted, but also the restrictions of the Fifth Amendment’s ”takings clause” against expropriating private property for “public use.”
Having said that, there is no evidence Crowley was influenced in making the arrest because Gates was black. He had taught a course in racial profiling, and black fellow officers have rushed to his defense. He very likely may also have hauled in a white homeowner who mouthed off to him. But the focus on whether racial profiling occurred obscures the important issue raised in this case of constitutional liberties for all citizens: namely the fact that even though Crowley may be a good cop, in this instance, he stepped over the line and made what courts would more than likely find to be a “false arrest.”
Indeed, it is hard to find an expert who has read Crowley’s report — even if they defend him from charges of racial profiling — who argues that Gates’ arrest was justified.
National Review’s Jim Geraghty is hawkish on foreign policy and pretty much what would be called a law-and-order conservative. But on the Gates arrest, he wrote, “Being short-tempered, ill-tempered, shouting, etc., are all bad, but I do not think they ought to automatically trigger an arrest.”
He added that “if Gates’s account is correct and the officer would not provide his name, it is troubling.” He even argued that the Cambridge police “put the officer on paid leave” while it reviewed the incident. I agree.
But now of course, Crowley is Obama’s new best friend, arriving at the White House last week for the ultimate sensitivity session that goes beyond even “South Park” parody (Those readers who have seen the “Sexual Harassment Panda” and “Dr. Nelson” episodes will get this reference. For the rest of you, start watching “South Park”!) After first saying that he “acted stupidly,” Obama refined his remark to say in a special appearance in the White House press room that Crowley was “an outstanding police officer and a good man.” And that while he continued to believe “there was an overreaction” in the arrest, “Professor Gates probably overreacted as well.”
Cross-posted from OpenMarket.org. To see this and other John Berlau articles go here now.
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