Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
As the furor over the arrest of Henry Louis Gates has grown, I have repeatedly offered one simple opinion: it is no more illegal to yell at and insult a police officer than it is to yell at or insult any other citizen. The mere fact that they have the power to arrest you does not mean they can legitimately arrest you for doing something that is legal if done to anyone else. That's why I don't really care what Gates may have said to the cop at his house.
I don't care if he called his mother a whore, accused him of being the worst racist who ever lived or told him he had the world's smallest penis. That behavior may well be rude, crude, wrong, childish or whatever other adjective you'd like to offer for it, but it is not criminal. And the police know it. That's why they quickly dropped the charges. If he had said anything that is even remotely and actually criminal, he'd still be facing those charges.
Andrew Sullivan found a legal opinion written by Alex Kozinski that is an eloquent defense of this basic right to free speech. Coincidentally, Kozinski himself was the target of the anti-free speech crowd over the last couple years because he has been a consistent and passionate advocate of a vigorous and broad First Amendment.
The case had to do with a man arrested for saying insulting things and making insulting gestures to a police officer. Here's what he had to say in that ruling:
Defendant relies heavily on the fact that Duran was making obscene gestures toward him and yelling profanities in Spanish while traveling along a rural Arizona highway. We cannot, of course, condone Duran's conduct; it was boorish, crass and, initially at least, unjustified. Our hard-working law enforcement officers surely deserve better treatment from members of the public. But disgraceful as Duran's behavior may have been, it was not illegal; criticism of the police is not a crime.[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers...
The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state...
Thus, while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.
Inarticulate and crude as Duran's conduct may have been, it represented an expression of disapproval toward a police officer with whom he had just had a run-in. As such, it fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech-such as stopping or hassling the speaker-is categorically prohibited by the Constitution...
No matter how peculiar, abrasive, unruly or distasteful a person's conduct may be, it cannot justify a police stop unless it suggests that some specific crime has been, or is about to be, committed, or that there is an imminent danger to persons or property.
Quote via Balko. And a dead on accurate quote it is.
Politics
Comments
Clearly from the British side of the Atlantic, we do things differently. In a seminal children's book, the Wind in the Willows (probably a bit anthropomorphic for today's tastes) the central character Toad gets banged up for 20 years for car crime including 15 years for gross impertinence to the rural constabulary. That's the way to do it.
Posted by: Richard T | July 29, 2009 4:04 AM
Also on the British side of the pond here, and I couldn't agree with Ed more on this. I'm pretty sure the ECHR agrees too...
Posted by: Dunc | July 29, 2009 4:56 AM
In many European countries it's a specific offence to insult/disrepect a police officer. In the UK, there's the catch-all offence of 'behaviour likely to cause a breach of the peace', under which swearing at, or in the presence of, a police officer and not stopping when requested will likely get you arrested. It's generally applied to loud-mouth arseholes who are out looking for trouble.
I'm all for free speech, but how that translates in a right to abuse/insult someone going about their legitimate business I don't know. In the UK you'll see a lot of signs in shops, banks, government offices, etc., saying that abusive or threatening behaviour will not be tolerated, which I personally think is a good thing. Don't know if that's the case in the US, but if it is, why should the police not expect the same, especially if they're ultimately required to enforce it?
Posted by: Tycho the Dog | July 29, 2009 6:45 AM
Further to Tycho's comment, from my understanding of the Gates case, he may well have committed a crime under MA law, having been enticed outside his house by Crowley. In other words, yelling at a police officer isn't illegal, but yelling at anyone in a public place in a manner likely to cause alarm to other people is. Now I think that's both a bullshit law and the application here was bullshit (is a person yelling when there are multiple police officers standing right there really going to cause alarm?). But it's the fact that he was enticed into (possibly) committing a crime that wouldn't have occured at all absent Crowley's actions that's the real problem.
As I said over Crooked Timber, we (and by that I mean every country) needs a law - similar to entrapment jurisprudence - to the effect that non-violent "crimes" committed by civilians as a result of police action are not crimes. Arguably this should even extend to violent ones - just look at all the trumped up charges of "police assault" when people talk back to cops - but I think it would be harder to generalise in those cases without genuinely threatening the safety of police officers.
"Don't know if that's the case in the US, but if it is, why should the police not expect the same, especially if they're ultimately required to enforce it?"
Well, threatening verbal behaviour is illegal even in the US("fighting words" being the standard), but there's a pretty obviuos reason why the police should tolerate more abuse than anyone else. They're an arm of the state, they're armed and unlike civilians they have the power to throw you in jail. There's a huge power disparity between cops and civilians that simply isn't there in civilian/civilian situations. None of that is to say that yelling at/abusing a cop is morally right (although in some circumstances it probably is). It means that it shouldn't be a pretext for arrest.
Posted by: Ginger Yellow | July 29, 2009 7:10 AM
@Tycho ... the reason that "free speech" translates into the right to "abuse/insult someone going about their legitimate business" is simple and fundamental. Unless free speech includes the right to speak stupidly, boorishly, obnoxiously, insultingly, etc. it is not free, and the result is the loss of the ability to speak wisely, compellingly, critically, daringly, innovatively (is that a word) ... all the reasons we cherish free speech.
Posted by: ecologist | July 29, 2009 7:14 AM
Thanks for that Ginger.
I guess part of the difference is that in the UK policing has traditionally been viewed as more 'consensual', i.e., an unarmed force that relies on public support (respect for the uniform, etc.), underpinned by a sympathetic judiciary, thus verbally insulting a police officer would have been viewed as socially unacceptable.
But this has now changed. For example, it used to be that assaulting a police officer meant an automatic custodial sentence, but now being assualted is seen as part and parcel of the job, hence the police now all carry pepper spray because they can't rely on the courts to protect them by proxy. And this trend is too general to be blamed on the police themselves. The exact same is true in hospitals where assaults on medical staff are now routine, whereas 20-30 years ago they were virtually unheard off.
Posted by: Tycho the Dog | July 29, 2009 7:40 AM
Tycho the Dog #3:
Because then you don't have free speech, you have 'free speech, as long as we like what you're saying'.
Well, if you're carrying out threatening behaviour, that's slightly different. There, your actions apparantly cause danger to someone else, and you could be arrested for it - and rightly so.
However, with abusive behaviour, certainly in the case of shops and banks, I think you'll find that you will simply be asked to leave the premises, and the only way you will actually be arrested is if you refuse - leaving you open to being arrested for trespassing. However, it is more likely that you will simply be forcibly ejected by security personnel.
In the case of government offices, I'm not sure what would happen, but I think it would probably be the same, except for maybe the 'being arrested for trespass' part - in other words, you would be asked to leave, and forcibly ejected if you refuse.
Posted by: Zmidponk | July 29, 2009 7:49 AM
ecologist,
But 'free speech' that is gratuitously offensive/insulting isn't 'free' because it will cost you something - perhaps the denial of services, or being escorted off the premises by security, or some other form of retaliation, legal or otherwise.
Posted by: Tycho the Dog | July 29, 2009 7:54 AM
My boss is a former military police commander and then civilian cop, and has a number of colorful stories. His philosophy was "they can say anything they want as long as they're doing what you want them to do." He carries that to his present position where he is probably the most diplomatic person I've ever known. As a result he routinely gets projects done in record time, because he lets other people feel like it was their idea, or it was to their benefit anyway, etc. Insults just roll off his back. It's like a game to him.
The book he recommends is called Verbal Judo.
Posted by: george.w | July 29, 2009 8:01 AM
Did anyone else see Chris Hitchens's article on the issue over at Slate? He pretty much comes down on the same side -- it should ultimately be a speech/rights issue as opposed to a race issue. However, beacause of the history of race relations in the USA it's also a race issue. Basically, the system is geared against minorities that insist on their rights in a way that you're less likely to see with Anglo-Saxon folk. It was a decent read.
Posted by: Ranson | July 29, 2009 8:07 AM
@ginger yellow: If Gates was lured out so that he can be arrested under different rules, then that is a clear case of entrapment. There is also the issue that Gates had every right to be abusing the officer and attempting to claim that another law should be invoked would only infuriate any sensible judge who would throw out the claims as frivolous. Police shouldn't use their position of authority to harass or attempt to intimidate citizens who have committed no crime.
Posted by: MadScientist | July 29, 2009 8:14 AM
Ginger, I saw an account of the arrest that indicated Gates was definitely not guilty of the disorderly conduct charge in Massachusetts. He was not in a public place, he was on his own private property. There were no others present, so there was no risk of inciting some kind of public disorder. Thus it appears he was not violating Massachusetts' disorderly conduct law; the authorities apparently agreed, since they dropped the charge.
Posted by: Mark P | July 29, 2009 8:43 AM
There is an interesting column in todays' Washington Post, that I will link to, by Kathleen Parker, who is generally considered to be a thoughtful conservative. Based on everything I have read about this incident, it appears that Sargent Crowley was most upset about being accused of being a racist, not surprising considering his exemplary record in regard to this issue. IMHO, it appears to me that both men are to blame for this unfortunate incident and both should be man enough to admit that each of them bear some responsibility. Real men accept responsibility for their actions.
http://www.washingtonpost.com/wp-dyn/content/article/2009/07/28/AR2009072802113.html?hpid%3Dopinionsbox1&sub=AR
Posted by: SLC | July 29, 2009 8:54 AM
But 'free speech' that is gratuitously offensive/insulting isn't 'free' because it will cost you something - perhaps the denial of services, or being escorted off the premises by security, or some other form of retaliation, legal or otherwise.
Tycho-
Free speech only applies with regards to the government. Business owners have the right to kick people off their premises if they are rude. But the government can't lock people up for rude language alone.
Posted by: Boudica | July 29, 2009 9:03 AM
MadScientist: I entirely agree. I thought that was the point was making. Although I'm more skeptical that a judge would view things the same way. People get convicted for flimsy disorderly conduct or police assault charges all the time. Most of them just don't end up on the front pages, because they don't involve Harvard professors and a police force with a history of racism.
Mark P: If you read Crowley's write-up, the justification he gives for the arrest is that the "tumultuous behaviour" was outside and in view of many people (most of them police officers, of course). He didn't arrest Gates for behaviour inside the house, because he couldn't claim it was disorderly conduct. Now I'd dispute the argument that your own porch is a public place, but I don't know what the US law is on that.
I suspect the charges were dropped not because the were no technical grounds for the arrest, but because it was a) politically embarrassing, and b) plainly unjust.
Tycho: "But 'free speech' that is gratuitously offensive/insulting isn't 'free' because it will cost you something - perhaps the denial of services, or being escorted off the premises by security, or some other form of retaliation, legal or otherwise."
Tycho, that's not really what most people mean by free speech. They mean the freedom to air opinions without government restraint. Nobody (well, almost nobody) claims that they have a moral right to say whatever they like to anybody. They claim they have or should have a legal right to say more or less whatever they like (subject to the archetypal "fighting words" and "fire!" exemptions, and sometimes a few more like obscenity or hate speech) without fear of prosecution or state censorship.
Posted by: Ginger Yellow | July 29, 2009 9:10 AM
Not tolerating some abusive jerk and arresting them are really two different things.
Posted by: Owen | July 29, 2009 9:36 AM
* I don't live in Massachusetts, but I’m speaking generally here.
Posted by: WScott | July 29, 2009 9:56 AM
Posted by: WScott | July 29, 2009 9:58 AM
On the one hand, I'm all for free speech, and that includes (duh) freedom to criticize public officials at all levels. OTOH, there are a LOT of valid reasons why "freedom of speech" should not necessarily include abusive behavior toward cops who are doing their jobs.
First, cops depend on respect from civilians, and the ability to command it quickly. It's not just an ego issue, it's a life-and-death issue, and an effectiveness issue. Most of the situations in which they're required to intervene, are very emotional for the civilians involved, and if everyone had a right to vent at the cops, and abuse them to their hearts' content, the cops would simply be unable to get anything done through all the screaming and cursing. And if people are allowed to get away with verbal abuse of cops, then it's all the more likely that someone will cross the line into physical abuse. It is better, and not just for the cops, to be able to shut everyone up BEFORE the emotion and abuse go too far. That's what cops DO: take control of a situation, separate the belligerent parties, and try to get useful information out of whoever seems to have it.
Second, cops on the scene are often forced to judge a situation by how people behave toward them. If a cop is asking you to do something he feels is reasonable, and you start acting uncooperative, you can't blame him for thinking you have something to hide, and pursuing the matter further than he otherwise might have. Cops are forced to play hunches and make quick decisions based on spotty information, and suspicious or uncooperative behavior by individuals is a vital part of that information.
(Once upon a time, I was tripping on muchrooms with several friends, and playing the Grateful Dead rather loud. A cop came to our house and demanded we turn it down, which we did. Then the cop continued to make vague threatening noises while we calmly apologized for the disturbance, obviously hoping one of us would take the bait, get pissy, and give him an excuse to search us and the house for drugs, which he would have found; which is why none of us got pissy with him. He probably knew we were on drugs, and just needed an indication of how wigged out we were likely to get.)
Third, it is perfectly possible -- especially for someone of Gates' education -- to criticize a cop without getting loud or abusive. The rest of us non-Harvard-professor shmoes can do it, because we know we won't have the media on our side if the cops bust us for being assholes.
Fourth, let's face it, Gates was being an asshole, and he was obviously trying to make it a race thing even as they were in the process of verifying his innocence. The cops were protecting HIS HOUSE, ferfucksake, and if the guy they'd caught had turned out to be an actual burglar, he would have WANTED them to kick ass and take names.
Fifth, Gates got the treatment most loud disorderly public drunks and brawlers tend to get: take him to the station, show him the interior of a holding-cell, let him scream and rage till he runs out of steam and realizes it's useless, then drop the charges and let him go so they can go after more dangerous criminals. Yes, the charges were a bit on the trumped-up side, but trumped-up charges tend to be effective in cracking cases that may not otherwise be cracked, which is why cops tend to use them so much.
Oh, and verbal abuse in public places is generally NOT considered protected free speech, especially when it interferes with legitimate public or police business. If you "criticize" a cop, paramedic, social worker, or whoever that way, someone will be along to deal with you.
Posted by: Raging Bee | July 29, 2009 10:09 AM
Tycho @4.
1. The US also has 'breach of the peace' laws. In the Gates case, the police officer asked Gates to step outside his house, then arrested him for making a public disturbance.
2. The reason free speech (in the US) gives you the right to insult someone is that the justification "that insults me" has historically been used to stifle political debate, religious debate, heck even empirical observations of fact. As a country, we choose to defend insults because we want to make sure important speech is not cut off.
3. In the US shopowners also have the right to kick you out of their establishments for bad behavior. What the first amendment protects is the content of your speech - not its volume - and mostly in public places. Had Gates been making a loud political scene in (to use your example) a bank, the bank management would have been completely within the law to ask him to either reduce the volume or leave the premises.
Posted by: eric | July 29, 2009 10:10 AM
I agree with the people from Britain that nobody should yell obsenities at a police officer, when the police officer has done nothing to deserve it. At least you have law abiding institutions, that not always work well but that do their job. Here where I live (a third world country) you don't yell obsenities at the police unless you are a total idiot. You could end in the hospital with broken bones, in the morgue, or worst of all, at prison. And believe me, morgues are more cozy and friendly than the prisons of this country.
Posted by: Cambrico | July 29, 2009 10:19 AM
Raging Bee @19:
No, but we can blame him for doing something illegal during that pursuit. The officer in the Gates case did not decide Gates' yelling was suspicious activity and then search the house for drugs. He arrested Gates.
That is very amusing considering in your next paragraph you use the terms "asshole," "ferfucksake," and you yell. Maybe Gates has the same right to express himself using foul language in a public forum that you do. Just sayin'
Posted by: eric | July 29, 2009 10:32 AM
Gates may be an asshole. I know from having seen him on the news and articles about him in the Boston Globe, over the years that I lived there, that he can be more than a bit full of himself.
Crowley's a dick. I don't give a fuck what justification he attempts to use, he's a dick. In the first place he engineered the situation to get Gates outside of his home (although still on his own property) so that he would have grounds (even if he was wrong in his assumptions) for making an arrest and charging Gates with disorderly conduct. Secondly, he pulls out the pity card, poor Mr. Policeman is being picked on by that professorial rascal AND the president of the U.S.
Crowley could have defused the situation at the house, quite simply, by walking away and letting one of the other officers give Gates the information he had requested. He could have defused the situation by making a statement, of some sort, to indicate that, perhaps, both he and Gates were having a "bad day"; he did neither of those things. What he did was what most cops do in most such situations. Knowing he fucked up he asked his brother officers to close ranks. I don't give a flying fuck how much training he's had or what his previous record is like, he fucked up and then he decided not to man up. Instead he let the police union make it into even more of a circus. Fuck him.
Posted by: democommie | July 29, 2009 10:38 AM
I don't buy that for a moment. In the US, everyone does have a right to vent at the cops, so long as it's merely verbal. If the verbal abuse becomes physical abuse (or becomes active incitement of physical abuse), that's when the cops have cause to arrest.
Furthermore, it is NOT better for the cops to be able to stop legal behavior just because they think it may lead to illegal behavior. We don't give the police the power to decide what actions are allowed in any given situation. That's what laws are for.
Posted by: qetzal | July 29, 2009 10:39 AM
I think the way speech is legislated in the UK and other European countries is wrong. It comes awfully close to an attempt to legislate morality, and that simply does not work. The problem is that we cannot allow the opinion of one person to arbitrarily dictate the actions of another. When legislation includes ambiguous words that is exactly what the situation can lead to. Statements like 'behavior likely to cause a breach of the peace', and 'yelling at anyone in a public place in a manner likely to cause alarm to other people is (illegal)' leave too much to interpretation. The question is, who gets to decide? Laws written in such a manner leave too much leeway to individual police and judges.
Posted by: Steve | July 29, 2009 10:45 AM
Crowley's a dick. I don't give a fuck what justification he attempts to use, he's a dick. In the first place he engineered the situation to get Gates outside of his home (although still on his own property) so that he would have grounds (even if he was wrong in his assumptions) for making an arrest and charging Gates with disorderly conduct.
Yes, that's standard procedure for cops; which is why Gates should have known better than to take the bait. The cop I mentined was being an asshole to me, obviously trying to provoke some sort of resistance, just to see how messed up on drugs I was and how much of a public nuisance or threat I was likely to become. I knew he had no cuase to harass me, but he didn't.
As far as the cops on the scene were concerned, maybe he was breaking in because the door was jammed, or maybe he was breaking in to do violence to a relative or girlfriend who had locked him out, as a result of a fight, for his/her own safety. We know there was no such threat now, but the cops who responded didn't necessarily know it then, and had to cover their asses and make sure they didn't miss something that might come back to haunt them later (which does happen).
No, but we can blame him for doing something illegal during that pursuit.
We can indeed -- AFTER THE INCIDENT, in the form of criminal complaints, motions to dismiss, lawsuits, letters to elected officials, etc. That's what courts are for.
Posted by: Raging Bee | July 29, 2009 10:53 AM
Raging Bee - You are giving bad and dangerous advice here. In reality, cooperation with the police beyond the minimum that is required by law is what can get an innocent person in trouble. In the example you gave, you were in fact guilty (under a stupid law, but that's beside the point); Gates was innocent. That's a big difference. As I wrote in a comment to Ed's earlier post on this matter, I was once arrested completely innocent precisely because I cooperated with the cop. After that I did some research and it is clear-cut: every single attorney will tell you not to cooperate beyond what is legally required.
Posted by: bullfighter | July 29, 2009 10:56 AM
Furthermore, it is NOT better for the cops to be able to stop legal behavior just because they think it may lead to illegal behavior.
It is better for them to stop legal behavior when it interferes with their ability to enforce the law and restore order in a dangerous situation.
We don't give the police the power to decide what actions are allowed in any given situation.
Actually, we do indeed give them that power, to a significant extent, every time we call them to deal with a sistuation and hold them responsible for resolving it.
Posted by: Raging Bee | July 29, 2009 11:00 AM
Raging Bee:
False equivalence. People keep saying that the cops needed to determine if Gates HAD broken into his own house, or if there was a "domestic dispute" in progress. Crowley's own words give the lie to that. He did not search the house, either before or after arresting Gates. It was a fuck job, Crowley's payback to the asshole who had the gall to insult him. He's at the very least a thin-skinned schmuck. As a civilian, I have the right to refuse any request, lawful or otherwise (as long as I'm willing to accept the consequences of my actions. As a public servant, no cop has the right to make an arbitrary, capricious arrest because someone pisses him off. The fact that they do so, is wrong; the fact that they are going to continue to do so is wrong. Such actions, by police, are a large part of the reason that so many people distrust and dislike them. Any cop who cannot do the job that Crowley botched so badly, should not be in a uniform.
Posted by: democommie | July 29, 2009 11:09 AM
Raging Bee
That makes absolutely no sense. If it interferes with law enforcement, it is not legal. But merely doing something a cop doesn't like is not interfering with law enforcement. It's one or the other, you (or a cop) can't have it both ways.Posted by: bullfighter | July 29, 2009 11:11 AM
bullfighter: you really need to read my advice before calling it "bad and dangerous." I did NOT say, anywhere, "Give the cops more cooperatin than you're legally required to give." I merely said "Don't scream insults and accusations at them while they're doing their jobs." Do you really not see the difference?
In the example you gave, you were in fact guilty (under a stupid law, but that's beside the point); Gates was innocent.
Yes, and the cops at the time had to try to ascertain what we know with 20-20 hindsight. Your point...?
Posted by: Raging Bee | July 29, 2009 11:14 AM
"It is better for them to stop legal behavior when it interferes with their ability to enforce the law and restore order in a dangerous situation."
It is never ok for anyone to stop legal behavior, period.
"Actually, we do indeed give them that power, to a significant extent, every time we call them to deal with a situation and hold them responsible for resolving it."
This statement is utter nonsense. A citizen calling the police to resolve a situation in which they really don't have authority does NOT infer any rights or authority. Law enforcement action is dictated by law, not citizens on the spot in any given situation. That would be like making shit up as we went along.
Posted by: Steve | July 29, 2009 11:18 AM
As I understand it, Raging Bee, the cops had ascertained what they needed to know. They had gained access to the residence, and Gates showed proof he had a legal right to be there. Everything in question happened AFTER this, which is what a lot of the stink is about.
Posted by: Steve | July 29, 2009 11:24 AM
Law enforcement action is dictated by law...
Really? Is "law" an all-knowing entity that hovers over a situation and "dictates" what the cops need to do in each instance? Of course not. The cops have no such advance intel, and, like it or not, have to use both their powers and their judgement (within the bounds of law, of course) to find out as much as they can and detain or otherwise restrain whoever they deem to be criminals or immediate threats. Are cops error-free? No. Is there a better way? No, as long as we make sure to hire the most competent cops.
Everything in question happened AFTER this, which is what a lot of the stink is about.
Yes, and whether or not the cops were right, Gates' behavior was inexcusably stupid and useless; and saying he had a "right" to act the way he did does not make it less so, nor does it serve any valid law-enforcement purpose. Public officials have jobs to do, and obligations to the commuinity, and being insulting and abusive to their faces while they're on the job should not be considered a "right."
Posted by: Raging Bee | July 29, 2009 11:42 AM
"It is never ok for anyone to stop legal behavior, period."
Uh, really? It depends on your definitions of "OK" and "stop", I suppose, but there's plenty of legal stuff that shouldn't be done, and should be stopped where possible. Like walking in front of a car without looking.
"Yes, that's standard procedure for cops; which is why Gates should have known better than to take the bait."
For me, the key issue in this whole affair is that, according to Crowley's own self-justificatory record of the event, he solicited a crime. While I'm reluctant to say so until and unless both parties go on the record, it seems that Gates acted inappropriately, though understandably given the context. More or less, depending on how much weight you assign to the versions Crowley and Gates have given. But the fundamental point is that no crime would have been committed, if one ever was, had Crowley not taken actions he had every reason to believe (again, according to his own words) would result in a crime being committed. That can't be acceptable for a police officer, no matter what the legal ramifications are.
Posted by: Ginger Yellow | July 29, 2009 11:45 AM
"Public officials have jobs to do, and obligations to the community, and being insulting and abusive to their faces while they're on the job should not be considered a 'right'."
Well, it is a right, and no amount of moral indignation from you or anyone else will change this simple fact. What you advocate is morality legislation, and it is much too oppressive, regardless of the form it takes, or the lofty intentions of those that try it.
Posted by: Steve | July 29, 2009 11:52 AM
Raging Bee @28
Being insulted by the homeowner did not prevent or reduce the police's ability to determine whether a burglary was in progress. Gates showed him his licence. That should have been it.
And frankly, if you think that confronting a curmudgeonly old professor in his house counts as so dangerous or disorderly that the police are allowed to stop legal behavior, then I can hardly imagine a situation where they wouldn't be allowed to stop legal behavior. If your reasoning applies here, it will apply to practically any police action, because this is a very minor incident.
I can also think of many actions that interfere with police ability to enforce the law which I would not like to see stopped. Most obviously, remaining silent. Demanding a lawyer. Preventing search and seizure. Etc...
Posted by: eric | July 29, 2009 11:56 AM
What you advocate is morality legislation, and it is much too oppressive, regardless of the form it takes, or the lofty intentions of those that try it.
Speaking tactfully to public officials is "too oppressive?" Jeez, grow up and get a grip...
Posted by: Raging Bee | July 29, 2009 11:59 AM
Well, this "free speech for all" stuff is fine and dandy, but if I recall correctly, the law is an institution based on precedent. And by now there must be millions of adjudicated arrests of people simply being abusive or snotty to cops, all based on a zillion local, county, state regulations which are no doubt conveniently vague.
So, getting arrested for cracking wise to a cop is not only likely to land you in jail, it more importantly has legal precedent. Which for most intents and purposes makes it legal, at least in many jurisdictions.
How do you propose that gets addressed?
Posted by: Gingerbaker | July 29, 2009 12:00 PM
eric: I'm not justifying the specific actions of the specific cops in this specific situation. I'm speaking in general terms of this alleged "right" to be needlessly abusive toward public officials, which is what this post is about.
Posted by: Raging Bee | July 29, 2009 12:02 PM
Steve-Not every right should be exercised on every occasion. What's wrong with exercising "a decent respect for the opinions of mankind?". Surely the world isn't going to collapse from an excess of simple human kindnes?
Posted by: JusticeLeague | July 29, 2009 12:03 PM
Silly me, here I thought the very foundation of our free speech was to allow citizens the right to criticize the actions of government officials. What was I thinking!
Posted by: eric | July 29, 2009 12:04 PM
Silly me, here I thought citizens of a nation as advanced as the USA could exercise their basic rights, criticize their government, and hold public officials accountable for their actions, in ways more sensible and effective than screaming incoherent abuse in the faces of low-ranking officials. What was I thinking?
Posted by: Raging Bee | July 29, 2009 12:11 PM
I agree Bee. Gates could have called the media, blogged about his experience, written an Op-Ed and any attempt to shut him down would be justifiably called censorship. Anyone who is married knows that exercising one's right to free speech on every occasion is not a good idea (Yes dear, that dress does make you look fat).
Posted by: JusticeLeague | July 29, 2009 12:17 PM
Three motives for police to interfere in the business of a citizen. Which of these is legitimate? 1. doing their protective duty, that is, protecting life (first) and property (second, and property broadly includes peace and quiet.) 2. Doing their punitive duty, that is, arresting and beginning the process of punishing folks for crimes already committed. 3. Protecting themselves from bodily harm in the pursuit of their duties.
The sacrosanct motive is #1, and #1 alone. Too many Americans accept that 2 and 3 are important enough to overlay and even supplant 1. Except in the most spontaneous and uncertain of situations, that is false. Race isn't an issue to me at all; it's the re examination of the simple requirement that police officers understand their duty and act accordingly, up to and including allowing citizens to say what they please and act as they please within their rights.
Crowley is visibly guilty of allowing #2 and #3 to lap over and interfere with his primary duty and motive. Cops should not be cops if they take it personally, or perceive a threat when one does not exist. To our UK and other brothers, we love you, but that is why we have our own deal over here. We elected for pure freedoms rather than Lockean social contracts, and Officer Crowley needs to get the memo again, or quit the cops and take a safer gig.
Somebody said something like this:
They were both wrong, and should man up...
This is false, as false as anything in the entire case. Not because they weren't both wrong--in close analysis of any conflict, everybody typically gets some share of the blame.
It's false because Crowley is a cop. He has a uniform on. He has a bunch of weapons, and indeed (apparently) brandished his cuffs at a strategic moment. He is the point man of the heavy hand of the state. He has the power to confront and to arrest, which is not (as someone said above) much mitigated by the option to sue or to be bailed out or to be found innocent--that's a separate safeguard.
In this case, the potential for problems with #3 had passed. Oddly, #3 is the only motive I would accept for abuse of the citizen, regardless of race. If Crowley had violently subdued Gates in his house, or even shot him, I would have been more sympathetic, because that might mean that the spontaneous and uncertain situation had led to a mistake, much the same way we can excuse a cop who shoots a kid with a squirtgun in a dark alley. When #3 is legitimately invoked, we have to accept that cops have a tough dangerous job and worry about training and carve up marble monuments to their bravery. But the pressure and uncertainty of exigence and confrontation had passed; Crowley saw the ID, the cop had satisfied #1, #3 was no longer in effect. The key: Crowley could have walked away, but Gates could not and should not have done so.
Nurses get punched by the delirious and the semiconscious and the pain-addled. Teachers get caught between rigor and behavior and are pressured and threatened by parents and students. Cops get yelled at and insulted, and needled by the important, and screwed over by lawyers. It is the job, and not the personality or the luck of the situation. It's the job not because that's what the free market pays for; it's the job because it's backed up by the law and the most basic component of the calling.
ice
Posted by: ice9 | July 29, 2009 12:27 PM
The sacrosanct motive is #1, and #1 alone.
Sorry, you can't separate those three functions and hold only one "sacrosanct" above the others. They all go together in every incident to which an officer responds.
Besides, if protecting life first is "sacrosanct," then why isn't the officer's life "sacrosanct" as well?
Crowley saw the ID, the cop had satisfied #1, #3 was no longer in effect.
Based on the situations cops face every day, and based on what this cop was able to ascertain at that time, can you really be sure of that? Sure, WE can, AFTER getting all the 20-20 hihdsight, but a cop on the scene doesn't have that option.
The key: Crowley could have walked away, but Gates could not and should not have done so.
No one here expects Gates to "walk away" -- he was in his house. But "speaking tactfully" is not the same as "walking away." Gates could have done the latter without doing the former.
Posted by: Raging Bee | July 29, 2009 12:40 PM
I apologize for making the assumption that your argument applies to this case. If we agree that it doesn't, so much the better.
AFAIK this is not an open question. With the exception of slander, in the US people have the right to needlessly insult public officials. Now, if you want to argue about whether they should have this right, we can do that. But AFAIK, they do.
Posted by: eric | July 29, 2009 12:40 PM
Sorry, I meant to say:
But "speaking tactfully" is not the same as "walking away." Gates could have done the former without doing the latter.
Posted by: Raging Bee | July 29, 2009 12:42 PM
What is wrong with "exercising a decent respect for the opinions of mankind" is that it depends on an opinion. What is "sensible" to one is ludicrous to another. Decent respect would be fine for you, as long as YOU decide what is decent and what isn't. I refuse to allow someone else to make that decision for me. Kindness is not objective, it is subjective and open to interpretation, and I again refuse to allow anyone to decide for me what is kind and what is not.
I have nothing against a society in which the inhabitants are civil to one another, but in a truly civil society the members understand the differences between objective and subjective reasoning, and between opinions which can be varied and diverse, and basic truths which are few.
Posted by: Steve | July 29, 2009 12:44 PM
One last comment Bee. You seem to be flipping between arguing that the cops have some legal right to prevent you from insulting them (posts 19, 28, 34) and arguing that insulting a cop is impolite and stupid (posts 31, 43, 46).
Just to be clear, I have no argument with the latter. Insulting a cop is impolite and stupid. I'm only arguing that they don't have the right to jail you for voicing your opinion of them merely because they don't like the description.
Posted by: eric | July 29, 2009 12:54 PM
Kindness is not objective, it is subjective and open to interpretation, and I again refuse to allow anyone to decide for me what is kind and what is not.
Oh great, now we're in Randroid Perpetual Teenage Rebellion territory? Sorry, but that's just not true: there are indeed basic objective and verifiable rules of decent adult conduct, which are accepted and practiced (or at least expected) by the overwhelming majority, based on more-or-less-rational calculation of what is likely to cause offense in ourselves and others. If you want to live in a bubble-verse where rules don't exist, then go ahead -- but that's not the world the rest of us have to deal with every day.
Posted by: Raging Bee | July 29, 2009 1:01 PM
Where did I say cops have "some legal right to prevent you from insulting them?" Never. I merely said that cops respond to how you treat them, and take your cooperation, or lack thereof, into account when assessing a situation in which they do not (yet) have the complete picture. Cops play hunches, and there's nothing we can do about that because they very often have to; and abusive behavior will give them a hunch you really don't want to give them, whether or not you're guilty of anything.
It is important to remember that cops responding to a call simply do not initially know who's guilty or innocent of what; they're there to find that out, and until they've completed the task, they're pretty much forced to judge the people they deal with by the data they have. And if you give them the wrong data, by abusive behavior, they probably will act on it.
Posted by: Raging Bee | July 29, 2009 1:14 PM
Crowley's report says that he told Gates he should step outside of his home in order to get his badge number.
Crowley had apparently already been insulted by Gates, inside the house. Crowley knew two things, apparently. Too wit, he could not arrest Gates for being verbally abusive in the house; he could arrest Gates--for something else entirely--once he stepped outside.
I could well be wrong on this point, but I don't think that Crowley could arrest Gates for using abusive language, therefore the verbal abuse must not have been actionable. If I'm wrong, why didn't he arrest Gates in the house? If he couldn't arrest Gates for cursing and verbal abuse, inside his home, then the ploy to get him to come out of his home is that much more odious.
I used to be a directory assistance operator and I was subject to abusive language on a daily basis. I and my co-workers had no legal recourse, unless and until someone threatened us with physical violence.
Bottom line, I think a lot of cops look at civilians the way we look at our dogs. When we bark, they have no clue or interest in the "why", only in how to shut us up.
Posted by: democommie | July 29, 2009 1:22 PM
Raging Bee @31:
"NOT" - you keep using that word. I do not think it means what you think it means:
Raging Bee @19:
Posted by: bullfighter | July 29, 2009 1:23 PM
I was at the fireworks in NYC on the 4th of July. The west side was under police lockdown with thousands of officers on OT waiting to watch the fireworks.
They had all the piers shut for the big shots, the park was closed, the walkway shut, they had all of the southbound lanes and we had about 2/3rds of the northbound lanes. Cops all over the place. Later they moved the barricades where we were to accomodate more people. our view was fair, but lower stuff was blocked by the trees and the park.
anyhoo.. walking home with a lot of other people I came upon this guy walking a bicycle and a guitar on his back (probably a DFH) and he had said something to this cop, who had most likely told him to get out of the street and over to the bike lane.
So the cop is going: "What?! what did you say!? Open your mouth again and I'll run you in! Go on! get going!" The man quickly moved to the bike lane and got out of there.
The point was there was this black guy with the kids, who must have heard the whole thing and he is saying to the kids: "I would have arrested that asshole! He was talking back! and for what! He deserved to get arrested!"
I can only think he was conditioning his young childred so they would never talk back and thereby lessen their chances of getting beaten/shot/arrested by the cops.
Posted by: Kevin (NYC) | July 29, 2009 1:27 PM
So the cop is going: "What?! what did you say!? Open your mouth again and I'll run you in! Go on! get going!" The man quickly moved to the bike lane and got out of there.
On the one hand, maybe the cop was being too thin-skinned. OTOH, if I were a cop on that particular duty, I'd probably expect a lot of people to be drunk, and would want to deter them from getting rowdy BEFORE things got out of hand (since I'd be outnumbered if they did and would then maybe have to shoot someone). Even if the cyclist wasn't drunk, if other drunks had seen him getting in the cop's face, they might have had a notion to join in and make an otherwise non-threatening situation bad.
This was just one brief confrontation, after a large public gathering where many people are likely to be drunk and/or overly-energetic; so the burden on that one cyclist was very small relative to the need to keep order in that time.
Yes, I'm speculating here, but only to say that these are the kinds of situations that cops have to try to anticipate, and prevent where possible, because we all know they do happen sometimes.
Not all people are disorderly dangerous assholes, but cops have to deal regularly with those who are; and many times, in that jungle, such arbitrary assertions of authority are necessary to command respect and keep the peace.
Posted by: Raging Bee | July 29, 2009 1:42 PM
eric said:
Raging Bee said:
You're BOTH RIGHT. Okay? There's a difference between having the freedom to do something and that thing being sensible. We have the freedom to do all sorts of insensible things, and that's great. It doesn't mean we should do them. It just means we shouldn't get locked up for them.
Posted by: Gretchen | July 29, 2009 1:47 PM
I said:
The sacrosanct motive is #1, and #1 alone.
Bee said:
Sorry, you can't separate those three functions and hold only one "sacrosanct" above the others. They all go together in every incident to which an officer responds.
I say:
Can too. And easily, too. Why not? Cops are very thoroughly trained folks. Do they draw their gun for every traffic stop? Cops triage their risks continually; otherwise they'd explode. Is there always risk? It's patriotic to say so, of course, but practically speaking no, there is not. Once the risk of personal harm is resolved for a cop, what is the next motive? Revenge on an arrested person for making the cop fear for his life? We can see how that might happen...and do, on the TV every night, a la Rodney King. But it is not sacrosanct, and not inextricably bound up in a cop's process for minimizing the risk in his job. The next step there would be to excuse racism, or profiling, or perhaps to blink at cops targeting jews or atheists or young people. Clearly that's right out.
Consider the Gates case. At first the cop is at risk, no doubt; he's poking his head into a 459. It's there that #3 is most pressing, and there that a mistake is in some ways permissible. It's tense. The cop is the guy we send. He volunteered; he's armed, ready, backed up, trained. But once that situation is resolved, #3 no longer applies. Even if the adrenaline is flowing. Good cops--maybe Crowley, maybe not--get to #1 as fast as they can, because it is sacrosanct. Incidentally, that's why when cops make an entry or confrontation, it's typical for a later arrival or a partner to step in and do the next step; when the jag is still juicing, even well trained cops can go too far so they get a chance to step back and breathe.
Of course, that's tough for human beings to do. Too freakin' bad. For every occasion where some cop arrested a blowhard for 'disturbing' or 'interfering' there's one who risked himself to help a citizen, putting #1 ahead of #3. That's noble and all, but also proof that it's a decision--a tough one, but a decision.
I'm reminded of the film 'Traffic' in which a racist cop risks himself to save an Asian woman from a flaming wreck. In a different situation the cop had harassed and insulted the same woman. Did he change? No, the situation changed.
Crowley did the opposite--he indulged himself to punish a blowhard asshole. That asshole had the nerve to criticize Crowley, who had just done what cops do--put himself at risk to investigate a crime in progress. Sure, it's understandable, and Crowley is human. He deserves a bunch of benefits of the doubt, and the facts on the ground are uncertain, and it isn't by any stretch an offense or crime on his part any more than a residue of various messy collisions between pure freedoms and human nature. But it ain't right, either.
But, in an abstract discussion of the roles in this situation (as well as thousands of satisfactory interactions on the streets every day) it's clear that the goal is for cops to meet their essential obligation--my #1--and to put aside the rest.
Furthermore, other constituencies are constantly telling us--and cops--the same thing you are. Police unions want #3 to be more integral to the essential duty of a police officer, for obvious reasons--they are trying to serve their clients. Politicians find that arguing (overtly or indirectly) for more of the punitive #2 gets them votes. Hence the republicans coming to Crowley's defense. Law-and-order voters don't mind that cops break heads, until of course it's their head being broken. Hence 'three strikes' laws and mandatory sentencing and a thousand little chips in the fourth and fifth amendments that rednecks gleefully embrace, with the bonus that they get to hate the ACLU even more.
I'm reminded of the new straw dog of crime fear, the sex offender. Governors and legislatures who pander to fearful constituents would have sex offenders half-hung, gutted, burnt, drawn, and quartered if they could, because sex offenders are a vulnerable point in any pure freedom argument. What wins? It's a tangy point, no doubt, but if you protect anyone less than anyone else, the job is not being done right.
ice
Posted by: ice9 | July 29, 2009 1:56 PM
R Bee... you must not know NYC.
first, everyone is afraid to drink in public because the cops would be all over you. We have 40,000 police in this city.
second, we had to wait 2 hours with nowhere to pee to see the fireworks. Nobody was drinking anything where I was. didn't see anyone who appeared drunk the entire night. It was early, the crowd was family, cops were bored.
Posted by: Kevin (NYC) | July 29, 2009 2:25 PM
Of course, that's tough for human beings to do. Too freakin' bad. For every occasion where some cop arrested a blowhard for 'disturbing' or 'interfering' there's one who risked himself to help a citizen, putting #1 ahead of #3.
And has there never been an instance where a cop had to do the former to accomplish the latter? Some of those blowhards got arrested because some cop decided (rightly or wrongly) that he had reason to consider said blowhard an immediate threat to someone else's life or safety. And some of them get arrested on a bogus charge to give the cops a pretext to get evidence for a more serious charge. (Remember the big sweep of the squeegie-guys in NYC? Some of the guys they caught had outstanding warrants for much worse crimes.)
PS: IIRC, the movie you're thinking of is "Crash," not "Traffic;" and the woman the cop rescues is a black woman whose husband the cop had humiliated earlier as a lark.
Posted by: Ragingg Bee | July 29, 2009 2:30 PM
"And some of them get arrested on a bogus charge to give the cops a pretext to get evidence for a more serious charge."
This is blatant advocacy of illegal search and seizure. Unbelievable.
Posted by: Steve | July 29, 2009 2:38 PM
"Kindness is not objective, it is subjective and open to interpretation, and I again refuse to allow anyone to decide for me what is kind and what is not."
Then I will posit, Steve, subjectively of course, that I want as little to do with you or the type of society you envisage as possible.
Posted by: JusticeLeague | July 29, 2009 2:44 PM
I didn't say I advocated it; I merely said it was done, and done for reasons the cops (rightly or wrongly) consider good. And no, it's not always illegal (I should not have used the word "bogus"); sometimes it's perfectly legal, or at least bending the law without breaking it. One minor example from my own experience: threatening to arrest me for being "drunk in public," even though I was not creating any disturbance, in order to deter me from driving away drunk.
Posted by: Raging Bee | July 29, 2009 2:49 PM
Bee @52:
Why, in #19. "verbal abuse in public places is generally NOT considered protected free speech"
But that's probably a quibble. Based on the number of times you repeat it, your main point seems to be that the police should have that right.
#19:
"there are a LOT of valid reasons why "freedom of speech" should not necessarily include abusive behavior toward cops who are doing their jobs."
"It is better, and not just for the cops, to be able to shut everyone up BEFORE the emotion and abuse go too far"
#34:
"Public officials have jobs to do, and obligations to the commuinity, and being insulting and abusive to their faces while they're on the job should not be considered a "right.""
So to be more accurate in my responses, I should say that I disagree with you because I do not think police should have the right to decide when your speech is so insulting towards them that they can prevent you from making it. There may be good reasons to limit speech in specific circumstances; because you find the content insulting is not one of them.
Posted by: eric | July 29, 2009 2:51 PM
I'm sticking with my original answer
Posted by: Ice T | July 29, 2009 2:59 PM
This "breach of the peace" law does not include abusive or nasty speech even when done on public property. When I worked in downtown Manhattan back when Mayor Koch was in office, a man used to come to the park outside of City Hall at least once a week during lunchtime and insult and curse at Koch. He attempted to get the crowd to rise up against Koch and toss him out of City Hall. He was generally ignored except for a "Yeah, you tell him!" or a "Shut the fuck up, already!" thrown out mostly as a joke. Police were always in the park but no one ever bothered this guy or attempted to stop him.
Posted by: Tom | July 29, 2009 3:08 PM
I live in Ireland, and I am amazed. A cop who arested someone for breaking into his own house would be a laughingstock. To have arrested the houseowner because he felt "insulted" would make him be seen to be a wuss as well. Clearly this cop gains added penis-inches because of his job.
Posted by: Toby | July 29, 2009 3:13 PM
Tom: Did this guy actually get in the Mayor's face, or incite or commit any threatening acts against the Mayor's person directly? There is a difference between insulting speech and harassment. I can insult you publicly, but it's not illegal unless I get right up in your face, physically block your movements, enter your home or office, or interfere with your ability to enjoy a public space that you have a legal right to enter ('cause it's public).
Posted by: Raging Bee | July 29, 2009 4:02 PM
You'd think a cop who teaches classes on racial sensitivity would be better equipped to deal with an upset black man. Gates was no longer a suspect -- he'd provided proof that he was the homeowner. But he said some things that upset the cop, and all that vaunted training flew right out the window. Just what does he teach in those classes?
Posted by: Chayanov | July 29, 2009 4:44 PM
Okay stop.
Gates was arrested for disorderly conduct and a prima facie (a police officer’s understanding) reading of the statute indicates, that was proper “tumultuous” in the complaint was the indicator.
Here is the current Mass. appellate interpretation of the statutory basis (G. L. c. 272, § 53) upon which Gates was arrested:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ma&vol=appslip/appMar04v&invol=1
If Lopiano’s actions did not violate the statue, the actions of Gates, as reported, certainly did not, which is why he was neither formally charged nor prosecuted.
Heaping verbal abuse on police officers in the course of the performance of their duties is a distraction and will be regarded as interference with official process. You will be arrested, properly charged and prosecuted.
Once you start you may cut loose in a place that has statutes or municipal ordinances against profanity or blasphemy and you may be subject to a civil suit for slander (libel if your words are broadcast to a sufficiency of witnesses to constitute publication).
Please stop giving each other bad legal advice.
Please stop giving each other bad general advice (don’t flip off Texas State Troopers, really!).
I have had a conversation with Professor Gates, he is a quick wit and a thorough scholar and he is possessed of an absolutely captivating style that could charm the birds from the trees. He is also an admitted African and African American ethnocentrist who is very publicly derisive of European ethnocentrism. I am convinced he could teach anything effectively and confused at what he concluded was the best use of his power. At the time I just attributed it to the fact that, only by being controversial, can you gain traction as a literary critic.
I am not sure how I feel about these events and feel that a jaundiced eye should be turned to both parties rather than beers all round.
Posted by: Epithemeus' smarter brother | July 29, 2009 4:51 PM
@Epimetheus's dimmer* brother #70:
Gates was not arrested for "interference with official process" (whatever that may be). he was arrested for tumultuous behaviour. Mallahan is the most recent authority on that; and according to that authority, absent fighting words there is no crime in words.
Without reasonable suspicion of crime, any arrest is not "proper", still less any charge or prosecution; and Crowley's own report shows that the facts as he understood them do not support a reasonable suspicion of crime - he relies upon tumultuous behaviour but records only non-fighting words.
-------
*I won't (without very good cause) deliberately misstate someone's given name - but you don't get to give yourself airs.
Posted by: Robin Levett | July 29, 2009 5:29 PM
"Gates was not arrested for "interference with official process" (whatever that may be). he was arrested for tumultuous behaviour. Mallahan is the most recent authority on that; and according to that authority, absent fighting words there is no crime in words."
I assume you mean Com. v. Mallahan (2008) 72. Mass.App.Ct. 1103, 889 N.E.2d 77, 2008 WL 2404550
Lopiano is a looser standard and probably factually closer, my point was that Gates' actions did not violate even that standard. You did not read my post properly.
I did not imply that Gates was arrested for "interference with official process", merely that it will be the basis for the arrest of people using abusive language when they encounter a police officer.
"*I won't (without very good cause) deliberately misstate someone's given name - but you don't get to give yourself airs."
It's a reference to Frankenstein i.e. The Modern Prometheus i.e. I'm a monster i.e. the opposite of airs.
Posted by: Epithemeus' smarter brother | July 29, 2009 5:43 PM
I'll quote the slactivist here (http://doghouseriley.blogspot.com/2009/07/well-thanks-for-sharing.html)
"I'M a civil rights absolutist--or what I like to call 'an American'".
Is it impractical to give the bird to Texas state troopers? Sure, in the short run. It was also impractical for black men to let the sun set on them in Philadelphia, Mississippi. It was impractical for Scopes to cover Unit 3. In the long run, thought, those moves were quite practical, since giving the finger to a state trooper is perfectly legal, and fuck them if they can't take it. I know my rights, and I'm not afraid of cops regardless of whether I have kids with me or not. It's sad that so many Americans are afraid of cops (or senators or presidents, for that matter.) I'll be the judge of whether they are noble or corrupt. On a personal daily level, I like to give them the benefit of the doubt but they do not have that benefit automatically.
Same with Crowley. How come he got to cuff a man and take him in, for a while? If that man hadn't been a prominent figger, he might have been arraigned, charged, tried, and convicted, too. He might have lost a job, gotten a few lumps on the way to the cells, been sodomized once there. Robin's wrong, pure and simple. The charge was bogus weight-throwing, a carefully engineered Cambridge-style roust. Are such rousts productive for cops? Oh, yeah. Are the ends occasionally worth it, as in the lame-ass example of a squeegee-man roundup? Sure, if you are only dealing with squeegee men. You don't see too many general roundups of Harvard professors. How would you feel if everyone who had commented on this blog thread got a visit from aggressive Feds who hadn't quite got around to getting a FISA warrant? You'd get all first-amendment on they ass, I'm guessing. If the run-of-the-mill American hadn't been coached for a generation to smile and massa the cops because the cops are Patriots Sacrificing for Us, then the cops wouldn't be allowed to roust folks at will to make their jobs easier. They'd have to play by the rules (which rules are a pain in the ass; tell me something I don't know and believe to be proper and correct)
Note the proper use of 'proper', Robin. No such of a thing as a 'proper' arrest. Innocent until proven guilty, another troubling, inefficient relic of the good old days of constitutional awareness.
'heaping verbal abuse'...all well and good--nice touch on 'official process,' by the way, another enshrinement of what cops do on the street as some kind of sacred ritual. If a cop wants to arrest me, he can. If I want to argue with him, I will; it's my right. To assert that argument or abuse is a separate charge means that about 80% of every arrest includes that charge; it does not.
And the slander/libel claim you make is beneath contempt. If you permit searches and argue that cops can move in to my basement when I'm arrested, you've trod on amendments 1-6. (OK, an exaggeration, but I never pass up a chance to demonstrate that I'm conversant with Amendment III.)
ice
Posted by: ice9 | July 29, 2009 6:09 PM
It may be legal, but it sure ain't smart.
Posted by: BaldApe | July 29, 2009 7:00 PM
True, but police officers know full well they'll be getting into encounters with people who aren't happy to be talking to them. A cop who can't cope with that situation is about as useful as a surgeon who vomits at the sight of blood.
Posted by: Chayanov | July 29, 2009 7:06 PM
@Epimetheus's dimmer* brother #70:
Note my use of scare quotes around "proper", and the fact I was referencing Edb's use of "properly". "Lawful" would be better.
Posted by: Robin Levett | July 29, 2009 7:31 PM
@Epimetheus's dimmer brother #72:
You implied that "interference with official process" was a lawful basis for arrest, charge and prosecution (see your use of the word "properly") of someone who is seen as "Heaping verbal abuse on police officers in the course of the performance of their duties". That won;t fly.
Separately, you did imply to any reasonable observer (or even me) that Gates could properly have been so arrested and charged.
Yes, I did mean Commonwealth v Mallahan. The terms of the judgment are clear - words are protected, and hence not illegal, unless they are "fighting words". Closeness of facts is neither here nor there, given that clear statement of principle.
Posted by: Robin Levett | July 29, 2009 7:38 PM
@Gingerbaker, #39:
I propose we use the provisions of Article V of the Constitution of the United States of America to amend said Constitution. Let's add something like "Congress shall make no law abridging the freedom of speech." Then, to make clear that the state and local governments aren't allowed to do this either, we can add something like "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
How does that sound?
Posted by: Douglas McClean | July 29, 2009 8:00 PM
And yes, yes, I am aware the consensus doctrine on incorporation relies on the due process clause. I simplified for expository purposes. ;)
Posted by: Douglas McClean | July 29, 2009 8:03 PM
Douglas: Of course, a Supreme Court with balls would make that type of charge void for vagueness. Not too likely to happen without your amendments, of course.
Posted by: kehrsam | July 29, 2009 8:31 PM
Dudes! You're all really harshing my buzz!!
This blog is peopled, ordinarily by a fair smattering of liberals, Big "L" libertarians and the odd knee-jerk reactiorevisionistrepublitard scum. Now, that latter category I would expect this sort of dialogue from, but I am a bit, well, amazed that so many people are ready to defend what is a fairly clear cut case of a cop overstepping the bounds of his authority to get a little revenge on the uppitty professor that insulted him.
Does this mean that it's open season on all of thosed people who protest our government's policies in both the foreign and domestic arenas?
It seems that most of the folks who've commented here are convinced that Skip Gates is an asshole. I can't say that he is or isn't, but I can say that if he's not it wouldn't be the first time someone who pissed off a cop was accused of being one.
I've walked picket lines where management employees who crossed the lines were vilified in very, very strong terms. The cops who were on duty never batted an eye, unless someone uttered a threat or actually became physically involved with someone. And in those cases (thankfully few and infrequent) where that occurred, people were separated and "talked to". Nobody was arrested. The company did try to come back and discipline some folks later, but since there was no police report they didn't have much chance of getting any traction in the courts.
Police have a duty to serve and protect. They have no right to take it upon themselves to mete out justice, as they see it, because they are insulted.
Posted by: democommie | July 29, 2009 8:34 PM
About 10 years ago I got into it with a cop. They had traffic blocked for over 15 minutes. I knew why of course, it was so the Chief of Police could get his ass home and not have to run into traffic. So I laid on the horn.
Cop comes up and says "Knock it off before I arrest you." I said "What, because you have to keep the road blocked so your Chief can get home faster?"
Cop had a good laugh on that one. He didn't think anybody would know about that.
Posted by: Tony P | July 29, 2009 8:47 PM
There is something missing from all this: the consequences to the arrested person for THE REST OF THEIR LIFE, regardless of whether the charges were dropped or made to go away any other way. To wit: the most common background question in a job application is "Have you ever been arrested?". Note it does not ask "Have you ever been convicted?" - that may come later, but a 'yes' to the first is usually damning regardless of the reason or outcome. Also, re travel, Canada does not permit entry by any person who has any kind of record, including arrest without conviction. And the record of arrest never actually goes away. Prof. Gates is no longer able to legally visit friends in Canada, at least not without special (and probably expensive) dispensation. And he will be lucky to keep his job. Only his eminence protects him there. Even though he is the wronged person, and innocent of actually breaking any law.
So it's not just a "night in jail to cool your heels". Even that apparently small inconvenience can destroy your life. Cops with an axe to grind seem to ignore this little consequence of their actions towards their employers (We the People). I believe this really needs to be taken into account when balancing the punishment against the crime. Before the arrest is made.
This is not armchair theory. This is direct knowledge of the impact on friends' lives who have similarly suffered. I do not know if the Law intends these outcomes, but it is what actually happens.
Posted by: Gray Gaffer | July 29, 2009 11:00 PM
I have a question about the whole leading him outside so they could arrest him gambit. Don't people who scream on their porches usually get charged with some sort of noise violation rather than arrested?
Gray Gaffer- I'm pretty sure most applications ask about felony convictions or charges rather than arrests or anything about misdemeanors. That's over here in the Seattle area though so it could be a local thing.
But are arrests even on your record, if you just said no, could anyone find out? Seems like a pretty clear lawsuit if cops are telling employers about crimes a person was once suspected of but never charged with. Are you saying that if you were arrested on suspicion of murder, but later released and the actual murderer convicted of the crime, you would have to explain that to every potential employer?
Posted by: Drekab | July 29, 2009 11:26 PM
"I'm all for free speech, but how that translates in a right to abuse/insult someone going about their legitimate business I don't know."
My understanding is that verbal abuse is a speech *act*, and beyond a certain point is actionable assault. What that "certain point" is, of course, depends on the judge.
Posted by: Paul Murray | July 29, 2009 11:40 PM
As to #83,
This is true even of involuntary job applications, if a certain amusing if extremely long song/poem/speech/performance-art-piece/lecture is to be believed.
Then again, I'd imagine at this point that Prof. Gates might prefer sitting on the Group W bench with the father-rapers to a friendly beer with Pres. Obama and Sgt. Crowley.
Posted by: Douglas McClean | July 29, 2009 11:53 PM
@Epimetheus's dimmer brother #72:
The Baron was highly intelligent; as, indeed, was the monster he created. But the Baron wasn't a "monster".
Posted by: Robin Levett | July 30, 2009 2:57 AM
@Epimetheus's dimmer brother #72:
The Baron was highly intelligent; as, indeed, was the monster he created. But the Baron wasn't a "monster".
Posted by: Robin Levett | July 30, 2009 3:30 AM
Drekab @84:
I suppose if you are being really loud in public the police could charge you with diorderly conduct and violating a local noise ordinance. But the two charges are not the same.
I can't speak generally, but I'll give you a for instance. The noise ordinance where I went to school (and with which my frat house became very familiar) was based on decibel level at the property line. It didn't matter how orderly or disorderly you were acting, or whether you were inside your house or on the porch, or the content of the noise.
So to answer your question: depending on the local Cambridge noise ordinances they possibly could have charged him for that, but they arrested him for something else.
Posted by: eric | July 30, 2009 9:36 AM
Sorry to have attempted to contribute based on about 20 years practicing law.
My mistake.
You go back to telling people how to interpret test constructs in appellate opinions and I'll go back to actually trying cases.
Bye.
Posted by: Prometheus | July 30, 2009 11:10 AM
There is something missing from all this: the consequences to the arrested person for THE REST OF THEIR LIFE, regardless of whether the charges were dropped or made to go away any other way.
This is simply not true. Gates has NO record from this incident as it was expunged when the charges were dropped. Otherwise a smart ass cop could arrest people just because he doesn't like them knowing that the charges would be dropped but it would cause trouble. Go check the Canadian visa website. It clearly states that a conviction or a pending trial is all they care about.
Posted by: Tom | July 30, 2009 12:40 PM
Sorry to have attempted to contribute based on about 20 years practicing law. My mistake.
I have several hundred years practicing law so bite me.
Posted by: Tom | July 30, 2009 12:43 PM
#97
Pro se bestiality defense cases don't count.
Posted by: Prometheus | July 30, 2009 1:25 PM
Prometheus@90:
Prometheus, #90 was your first post. When on this thread did you previously contribute?
Posted by: eric | July 30, 2009 1:39 PM
Mr. Brayton,
There was a time when police officers were obscure individuals that few people had contact with, and therefore little was known about them. In the last few decades, more officers are on the street and contact with these people has escalated for a variety of reasons.
Since there are more officers, there are more people who are friends with them and these friends, together with relatives, makes it more likely that any certain officer will have lots of supporters.
If your daughter were an officer, or your wife, son or brother were in law enforcement, and if it were your brother who had arrested the Professor (of Nothing) Gates, you might see this event differently.
Personally, I don't have a lot of use for the police, I can take care of myself. On the other hand, weaker members of society do have need of them, so the police are a necessary evil. And so, if some loudmouth brings the wrath of the police down upon himself, acting in a manner that would earn him a smack in the chops by any other citizen, and is arrested, so be it.
Posted by: Terry | July 30, 2009 4:27 PM
Terry:
Various sorts of perverts and crooks also have families and friends. Should we then accept that their wrongs are okay?
If someone smacks someone else in the mouth for being a loudmouth, then I would hope the cop on the scene would arrest the smacker for simple battery.
Posted by: democommie | July 30, 2009 4:32 PM
Terry, #95: If your daughter were an officer, or your wife, son or brother were in law enforcement, and if it were your brother who had arrested the Professor (of Nothing) Gates, you might see this event differently.
And if your son or brother were Prof. Gates, you might see it differently, so I fail to see your point. Basing our moral reactions on how closely we identify with one or the other of the parties involved may work for a pre-industrial society, but I think it may (and does) pose problems for one as complex and densely populated as ours.
Posted by: Chiroptera | July 30, 2009 4:35 PM
Terry - your arguments might carry more weight if this was truly a public altercation. But the fact is, a man was in his own home, committing no crime and with no warrants out for him, and he was hauled away in handcuffs. It's not acceptable.
Posted by: Taz | July 30, 2009 4:47 PM
You had a good start, but then you tipped your hand, there.
That's just stupid. An attitude like that virtually guarantees multiple encounters with the police.
Posted by: Chayanov | July 30, 2009 5:06 PM
Tom
That's not true. You have to take positive legal action to expunge your arrest record. In most jurisdictions it means going to court and proving (by preponderance of evidence) actual innocence.Posted by: bullfighter | July 30, 2009 5:29 PM
Hi Ed,
In case you hadn't seen it here is a prime example of the insane world we are living in:
http://www.huffingtonpost.com/2009/07/29/disorderly-conduct-conver_n_246794.html
Up front: Pepin is one of my closest friends so take this for what it's worth.
It wasn't surprising that he, Luke and Dave (again - all friends I've known for years) would get in to this kind of mess.
The best part about all of this: Pepin is a HUGE Libertarian/leaning Republican. I can't wait for the NR, etc, to try to paint him as some commie pinko.
Best,
Shawn
Posted by: shawninPhx | July 31, 2009 1:24 AM
shawninPhx:
I like this one:
http://www.huffingtonpost.com/warren-goldstein/why-this-white-guy-was-no_b_247565.html
Posted by: democommie | July 31, 2009 6:13 AM
Drekab - yes, tom - no, bullfighter - thanks.
As I said, I speak from knowledge of actual outcomes, not from shaky lay person legal theory. And Drekab yes, the question here in Seattle is often "Have you ever been arrested". I would also note that even eventually being 'successful' at getting your record expunged does not make it actually go away. I am unsure about the details, but we were told that some inquiries, especially those from government authorities, can find out even after 'expungement'. So while it is possible lying about it may escape detection, it is not certain to do so. And being caught at that particular lie is a Real Bad Thing. I would also add the reason for the arrest is not part of the question. Enlightened potential employers, otherwise eager for your services, might go into that, but that won't happen if you are going through a regular pre-interview background check in the HR dept.
BTW, my most recent experience concerns an acquaintance of mine who was also arrested in her own home, for similar reasons. Race was not an issue, but possibly the nice home was better than the cops could afford so they wanted to take her down a peg or two. "while being richer" seems also to be a crime, if one is not ridiculously rich. So that little experience, one night in jail etc, cost >$10K (and that without any trial costs, which would be unrecoverable regardless of outcome!) to make 'go away'. And it never really will. She is marked and scarred for life, and will never, ever, dial 911 again, for any reason, because she does not trust the responding cops to be courteous or helpful. She would rather die, and in fact came close at least once already. This is a petite woman in her 50's, no physical threat whatsoever to anybody.
Posted by: Gray Gaffer | August 1, 2009 8:18 PM
@Prometheus #90:
Assuming you are Epimetheus's dimmer brother, and that was aimed at me; stop trying to pull rank - you have none. Only 20 years?
Posted by: Robin Levett | August 2, 2009 5:52 AM