My former colleague at In the Agora, Josh Claybourn, has an excellent post that gets it pretty much exactly right in regard to the arrest of Henry Louis Gates. The problem is not that the officer went to the house and demanded to see identification and confirm that Gates was not breaking into the house; that was exactly what he should do under the circumstances.
Nor is the problem that Gates probably berated the cop for being a racist when there’s really little to indicate that he was motivated by racism. That is many things, but it is not criminal. The problem is the arrest for doing something that is only against the law if you define the law so broadly that it means “annoying a police officer.”
Unfortunately for Obama, the press headlines often simply read something like this: “Obama says police acted ‘stupidly’”. But the reality is that Obama supported the officer’s need to verify Gates’ identity and residence. What Obama considered ‘stupid’ was the actual arrest for disorderly conduct, and I couldn’t agree with him more.
Before I go on it’s important to point out that Professor Gates repeatedly leveled charges of racism throughout the incident, often in a demeaning and disrespectful way. Though Prof. Gates may be right that he was investigated and/or arrested for his race, nothing in the evidence would suggest that to be true. Indeed, given the circumstances and the police officer’s outstanding record and history, I’m persuaded that race had absolutely nothing to do with the police’s actions. The police appear to have had every right – and indeed every responsibility – to investigate the matter and confirm Gates’ identity.
Nevertheless, there remains an unfortunate arrest for “disorderly conduct,” and arrests of this nature are far too common. Massachusetts defines the crime as fighting or threatening, violent or tumultuous behavior, or creating a hazardous or physically offensive condition for no legitimate purpose other than to cause public annoyance or alarm.
This sort of definition is relatively similar to that found in most states, and in almost every instance it is fraught with vagaries, giving far too much discretion to police officers. In short, “disorderly conduct” can easily become a euphemism for whatever a particular police officer doesn’t like. That kind of environment runs counter to fundamental ideals of the American system…
Sgt. Crowley was understandably carrying out his duty to investigate the report, and from the quotes attributed to Gates, the professor was unfair in his comments to an officer doing a good job. But being rude, unfair, or disrespectful should not be illegal, and that’s essentially the effect of most disorderly conduct laws. Our American society increasingly hands more responsibility and control to the great Nanny State. Heightened arrests under disorderly conduct laws enable this frightening progression.