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Saturday, July 25, 2009

More on the Gates Arrest

Paul and Dave have both written very interesting posts on the Gates incident, and they have me wondering about policing and class. In particular, I'm interested in how police interact with middle and upper class citizens (and vice versa). My own interactions with police officers have sometimes been quite unpleasant --- not because the officers were wrong to stop me or because I had been subject to any sort of profiling --- but rather because the officers treated me with such a lack of respect that I felt angry and humiliated. As someone who ordinarily encounters, if not respect, than at least politeness, these experiences with police officers have been quite difficult to forget.

I know that police officers have difficult and dangerous jobs, and I'm sure that they have to deal with plenty of rude citizens whoay have engaged in some (not always minor) wrong-doing. But it is easy to conclude that the behavior of some officers is designed as an overt show of authority, thus a citizen's response of "do you know who I am" seems to me a response to the show of that authority -- especially once the officer's authority is no longer necessary for law enforcement reasons.

I don't pretend to know how to solve policing tensions --- sadly, I don't think even Gates and this officer having a beer with Obama will accomplish anything. But I do think it is important to remember that the law in this area -- the "consentual stop" doctrine, permitting officers to demand citizens to show ID, the low reasonable suspicion standard, and even defining "disoderly conduct" as a crime -- exacerbates these tensions and has probably led to countless other unfortunate incidents like the Gates arrest.

[Ed. note by DM: I have taken the liberty of deleting the anon comments here (not Carissa). I did so on Jeff's Cambridge Police post too.)

Posted by Carissa Hessick on July 25, 2009 at 01:03 PM in Current Affairs | Permalink


I don't think it is as simple as most people believe. It seems that everyone believes the officer should have turned around the moment Gates got angry and said he was the homeowner. And ... what if he wasn't the homeowner? Police officers are killed every year because they let their guard down. A few years ago we lost a police officer because he let his guard down when responding to a call at a correctional officer's home. Assuming that a colleague would be no danger, he casually asked if the officer had a weapon. The answer was affirmative and a police officer was lost.

It is easy to sit in our offices and on our couches and to think calmly about all the different ways to handle a situation. But as Obama demonstrated, even with a number of advisors one can make bad decisions about what to say or what action to take. It is easy for us to review our law books and our casebooks and decide whether Gates should have been arrested or whether the officer violated Gates' civil rights. But even as lawyers and judges and professors, we get it wrong. If we never got it wrong, the Supreme Court would have little to write about. And WE get it wrong after months, and sometimes years, of litigation! Yet, Gates and a large number of learned professionals, have decided that the police officer in this situation should have handled the situation differently. After all, he had minutes in which to consider his options, and he should know the law as well as any lawyer, and be able to accurately apply it at a moment's notice.

When we encounter a police officer doing his job, we need to remember what the officer is facing. The officer isn't just showing off his authority. He or she is assessing the situation and establishing a barrier of safety, once the situation is adequately controlled, then there is room for discourse. When we get angry because of the officer's presence or that audacity of the officer to confront us ("Do you know who I am?!?!"), we have taken what is at best an unknown possibly dangerous situation for the officer and heightened it into a unknown PROBABLY dangerous situation.

Gates should have been thankful that the police responded promptly to protect his home. My husband is a police officer. He once put the president of a university up against the wall and patted him down ... in his own office! The president was brand new and had inadvertently triggered the silent alarm in his office. He had yet to meet the police force, and my husband had no idea who then man he encounered was. My husband secured the situation to ensure his and the intruder's safety and then he properly verified the identity of the intruder, by checking the intruder's identification. Upon establishing that the intruder was the president, my husband did not apologize. He was doing his job. Instead of getting angry, the president thanked my husband.

Posted by: Jen | Jul 30, 2009 9:57:26 AM

Gates broke no law. He is entitled in MA to voice his displeasure no matter how boorish it may seem. Therefore, the officer is technically guilty of false arrest. Indeed, the charges were quickly dropped because no law was broken. The discussion needs to be about that fact.

Yes, we've all been told by our parents that you don't yell at the police if you know what’s good for you but,...that rule has no basis in the rule of law. MA courts have already spoken to this matter. What Mr Gates did does not meet the threshold for Disorderly Conduct. His freedom of speech rights trump according to the courts in MA.

So, ask yourself, did this sergeant who ...ehem, instructs other officers not know the law? Doubtful. Rather he did it simply because he can. There are no repercussions to this type of behavior no matter the race of the offender but,.... especially when it involves a black man. He won't be fired or disciplined and they,... the union and fellow Cambridge officers now have the nerve to demand an apology from the President no less ... all after this officer stepped over the line,... the nerve these guys have but it's because they know,....no one will question...? :-)

Posted by: Ron Boyle | Jul 26, 2009 3:00:15 PM

Sigh ... it seems to me that the donning of self-righteous glasses and refusing to understand where the other person is coming from was at the heart of this incident.

Posted by: Russell Dees | Jul 26, 2009 5:09:35 AM

I guess I'm just another out-of-touch academic, but the story here seems to be that a cop who had mistakenly questioned an individual about his right to be in his own home and gotten an earful (for reasons that would have been understandable under any circumstances but were doubly understandable due to the race of the individuals involved and our nation's history) didn't have the good sense to suck it up and walk away. If that isn't what they teach you on the first day at the Police Academy, it should be.

Posted by: Andrew Siegel | Jul 25, 2009 11:41:46 PM

Carissa, I think you're really onto something at the end of your post. The crime of "disorderly conduct" -- why is it a crime at all? Doesn't it just give officers too much discretion and serve as a catch-all when no actual, real crime (such as assault, or inciting a riot, for example) is available for charging? Shouldn't it be declared unconstitutional, as unduly vague, the way vagrancy laws were in the 60s and 70s? There is a fascinating story on the front page of the NYT today, about the idiosyncratic lines officers use in deciding whether to arrest a pissed-off person for disorderly conduct. It seems to me that such discretion should not be available to an officer at all, especially because, given our history of race, it is more likely to be used on an African-American who seems "uppity."

Posted by: Vladimir | Jul 25, 2009 6:34:47 PM

So true, Larry. Gates is a tenured professor at Harvard, and his mayor, governor, and president are all culturally elite African-Americans. Gates felt he could get the police chief on the phone (who among us could do that?), and famously threatened the policeman that "you don't know who you're messing with." All we'd have to do is make the professor white and the cop a black woman and all hell would have broken loose in the academy. Obama, steeped in his elite and academic background, was utterly shocked at how his words were understood all over America. So, yes, let's have a teachable moment. But not one limited to race.

Posted by: plk | Jul 25, 2009 4:21:21 PM

This post says something fascinating about the sociology of the academy. From the standpoint of middle-class academics of either race (including, apparently, both Professor Gates and Professor Hessick), the authority of the police to engage the kind of investigative tactics blessed by recent Fourth Amendment jurisprudence has costs that exceed their benefits. As Professor Hessick puts it, this kind of police authority leads to "unfortunate incidents." Indeed, for most middle and upper-class individuals, think kind of police authority probably has costs that exceed its benefits. For residents of high-crime communities, however, stop-and-frisk tactics have produced dramatic reductions in what were astonishing rates of violent crime, as I argue in a recent paper (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1245402). It is difficult to understand the enormous reductions in violent crime in New York, for example, except by reference to stop-and-frisk tactics. Those reductions in violent crime, however, inured disproportionately to the benefit of lower class, minority residents of New York. It is interesting that in this context the academy is not as concerned as usual about the plight of lower-class minorities -- not when its own interests are at stake. Inconvenience to the middle class is evidently thought more salient than the lives of the poor.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jul 25, 2009 1:15:35 PM

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