http://www.nytimes.com/2009/08/02/opinion/02rich.html?ref=opinion

Excerpts:

The president’s subsequent apology for his news-conference answer was superfluous. But he might have used it to acknowledge the one exemplary player in Cambridge, Lucia Whalen, the white passer-by whose good deed of a 911 phone call did not go unpunished. In his police report, Sgt. James Crowley portrayed Whalen as a racial profiler by saying she had told him that the two men at Gates’s door were black. She denied it, and the audio tape of her original call backs her up: she had told the dispatcher (only when asked) that one of the men “looked kind of Hispanic” and that she couldn’t see the other. Yet Whalen, who was pilloried as a racist because of Crowley’s report, received no apology from him and no White House invitation from Obama. That’s stupid behavior by both men.The escalating white fear of newly empowered ethnic groups and blacks is a naked replay of more than a century ago, when large waves of immigration and the northern migration of emancipated blacks, coupled with a tumultuous modernization of the American work force, unleashed a similar storm of racial and nativist panic.

*******

As Eugene Robinson of The Washington Post and Helene Cooper of The Times have pointed out, a lot of today’s variation on the theme is class-oriented. Some whites habituated to a monopoly on the upper reaches of American power just can’t adjust to the reality that Obama, Sotomayor, Oprah Winfrey and countless others are now at the very pinnacle, and that they might sometimes side with each other just as their white counterparts do. Threatened white elites try to mask their own anxieties by patronizingly adopting working-class whites as their pet political surrogates — Joe the Plumber, New Haven firemen, a Cambridge police officer. Call it Village People populism.Sometimes the most revealing expressions of this resentment emerge in juvenile asides — Bill Kristol (on The Weekly Standard’s blog) ridiculing Gates for writing a flowery travel magazine article about his privileged vacation home of Martha’s Vineyard, or Heather MacDonald (in National Review) mocking Gates as a “limousine liberal” for his supposedly hypocritical admission that he has a “regular car service” and a “regular driver” to fetch him at the airport. Who does Henry Louis Gates Jr. think he is, William F. Buckley Jr.?

“both of which Gates endured for basically being a tired, crotchedy old man at the end of his rope”

No. Listen to Gates’s Gayle King interview. Listen to Crowley’s radio conversations. All the stuff about Gates yelling, talking about Crowley’s mama, accusing Crowley (before the arrest) of racism, that is all lies. Gates was arrested for demanding Crowley’s name and badge number. Crowley’s excuse for not giving the information was that Gates was yelling. This is a lie, because he was supposed to give the ID card, not give the information orally. Crowley doesn’t give the information, falsely accuses Gates of being the obstacle for giving the information, then arrests Gates. q.e.d.

Gate’s account of the events makes sense. Crowley’s account makes no sense, and conflicts with known external facts.

It’s fine to say that Crowley was guilty of false arrest even taking the police report as true, but don’t forget that the police report is all lies and that Gates DID NOT DO the stuff Crowley accuses him of doing.

http://cityroom.blogs.nytimes.com/2008/09/08/the-legality-of-drinking-on-your-stoop/?scp=2&sq=brooklyn%20porch%20public%20place%20beer&st=cse

Yet Gates clearly did not cause a public disturbance, nor did he exhibit tumultuous behavior in a public place. At worst the police officer caused a crime to occur, because he was irked he had no legal grounds for arrrest, by inviting Gates out onto his own front porch.

As has been repeatedly pointed out, with reference to the statute, Crowley had no grounds for arrest without the public being disturbed, inconvenienced or riled up in some way. Mr. Crowley had to contrive that. Nobody was disturbed by Mr. Gates’ mode of living in his own home. No one was disturbed by Mr. Gates expressing dissatisfaction with Mr. Crowley in his own home. And most important, no one was disturbed by Mr. Gates’ vocal objections, on his own front porch, upon being handcuffed and arrested. Gates behavior was provoked by the police and the public setting was contrived by the police. Neighbors gathered because the police had made a scene, rather than protect the homewoner they were ostensibly concerned about.

At some point, even Mr. del Pozo and Mr. Crowley have to concede that even Mr. Gates, even angry American citizens, have “the right … to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, [which] shall not be violated.” You can argue til you’re blue in the face that various judicial interpretations have sucked the life outof the 4th Amendment and eviscerated it in practice, but the fabric of the social and legal contract is still intact, and for damn good reason.

If Crowley, in the course of his duties, cannot behave such that Gates is secure in his person, let alone his house, from unreasonable search and seizure—both of which Gates endured for basically being a tired, crotchedy old man at the end of his rope—then somethings’s very wrong. Seriously, deeply fckd; if not with Crowley, then with the overall state of things. If it’s now a crime to be irritable in the privacy of your own home, or express that irritation in an annoying way—and of course offensive speech is not a criminal offense— then can the consent of the governed be taken for granted? If even intelligent, skilled, well-intentioned officers like Crowley and del Pozo cannot yield even an inch to common sense, then we can only rely on ourselves to build an orderly public space and a society civil enough to uphold the rule and build a better society.

Brandon del Pozo can’t know our overall interior states of mind, nor how we’d weigh the preponderance of evidence as a jury, nor the composition of this board—any more than we can know Mr. Crowley’s interior frame of mind. He can’t have it both ways.

Though Michael H. Schneider wrote—I get the very strong sense that if the commenters here were a jury, it’d be almost unanimous against the legitimacy of the arrest.—and Brandon del Pozo replied—Given the general composition of the participants in CT, I had to smile when I read this.—producing a grin only at his own preferred assumptions; but unable to summon a response to Schneider’s informed comment that the law makes judgments about an individual’s state of mind all the time.

Brandon del Pozo can’t talk about that. It’d be an admission that the philosophically unknowable interior life of Mr. Crowley does not apply to the pragmatic question of whether Crowley’s behavior deviated from his duty to uphold rather than abuse the law. That’s as eminently knowable as whether a wobbly suspect holding an empty quart of Jim Beam is publicly intoxicated or whether Henry Louis Gates can trespass in his own home. It doesn’t really matter of the drunk or Crowley meant well if that’s a test of racial bias or false arrest; most racial bias is performed by folks not cognizant of what they’re doing or who refuse to be cognizant of what theyr’e doing.

Anyway—I highly recommend reading Officer Barrett’s letter, linked upthread. Barrett was fired from the Boston PD for sending it out in an email. He subsequently denied he was a racist, but ah, just read the letter. Barrett knows his audience and obviously feels quite free to speak his mind. Problem for del Pozo and Crowley and colleagues is that it exposes a cultural hostility to those you’ve sworn to protect, and strict adherence to the blue code of silence protects the Barretts of the world as long as they keep their mouths shut about how they really feel. When Brandon del Pozo asserts that Henry Louis Gates “is the last person” who’d chum around with local cops, lest they learn to recognize him and “get to know him by face,” he’s contending Gates is hostile and has something to hide, even though he admits he doesn’t know Gates. Brandon said his attack wasn’t about liberals, or Harvard faculty, but never said it wasn’t about race. And it may not be about race. It’s just that, in the context of this racially-charged incident, you’d think that smearing Gates as hostile, uppity and bent on avoiding socializing with Cambridge cops because he’s got something to hide would be out of bounds, and a fatal error in this discussion—even for Brandon.

Given the general composition of the participants in CT, I had to smile when I read this.

I’m a forensic scientist, Brandon. In that capacity, I’ve been involved in law enforcement longer than you have.

I can’[t speak for everyone, but I don’t think this is the important point. Yes, it’s public. Yes, there were some civilians there.

However, another essential element is this (quoting from, and relying on, your link): “… if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:…”

I don’t see any evidence to suggest that Gates’ purpose was to cause public inconvenience, annoyance or alarm. If he’d been out stopping traffic, or doing his amplified Elvis impression at 3 am, okay. But that’s not what he did. His evident purpose was to convey his opinion to the officer, and to get information from him.

Did he recklessly create a risk of causing public inconvenience, annoyance or alarm? Again, I don’t see it. There were certainly enough police, and few enough people being tumultuous, that nobody should have worried about a riot breaking out. Nor was there a real risk that the yelling would make people scared to walk down the sidewalk, or drive down the street, nor was anyone likely to be awakened by it. So I don’t see the risk, let alone a reckless disregard for such risk.

Without that element – without purpose or reckless risk of public inconvenience, annoyance or alarm, you don’t have the crime no matter how public the spot or how tumultuous the activity.

On the other hand, speaking personally, I’m not a bit like him. I had to stop upsetting the neighbors with my tumultuous conduct on my porch when I hit 50. He’s far more energetic than am I. I’m sure that many other commenters, too, haven’t been tumultuous (outside of department meetings) in a long time.

On the third hand, prejudice based on similarity aside, I also think that most of the comments here show reasonable judgement rationally based on available evidence; that the general opinion is not simply prejudice but is reasoned.

Gates’ porch is a public place. It’s adjacent to the sidewalk and the police report states that eight civilians were present. A legal discussion of the case law that supports this can be found here:

http://www.open.salon.com/blog/jacob_freeze_x/2009/07/25/obamagatescrowley_statutes_case_law_and_model_code

On another point, does anyone think this is interesting: this discussion thread, which is essentially an encounter between a police officer and a bunch of civilians, reproduces in its tonalities the police version of the Gates affair: i.e., the cop, Brandon, is uniformly (heh) polite, professional, levelheaded and thoughtful, while a good number of the comments are provocative, antagonistic, sometimes veering over into personal attacks which create more heat than light.

Um, Brandon, how do you know what the composition of this board is? On what basis are you making this judgment? Aren’t you falling into the trap that Officer Crowley fell into? Some of us may be very different from what you think.

I smiled too.

Given that your peers have so ably navigated the thicket of rhetoric generated by this highly contested incident, Mr. Crowley would be lucky to have them as a jury. No one has leapt to indict him without knowing all the facts; rather, given what we do know, reasonable assessments are readily available, and offered contingent upon whatever light that any new information might shed. In the appropriate venue, which doesn’t include baseball stadiums.

Looking forward to reading your responses, brandon, directly addressing the issues raised, rather than depending on inapplicable metrics or faulty assertions borrowed from the wrong profession. I appreciate you hanging in there, but don’t you feel a brother-in-blue need to get away from the rhetoric and the philosophical tactics and just level on some of the issues. Like any officer needs to know a suspect’s interior mind to conclude a crime’s been committed. Get real. How do you reconcile your position on Crowley with standard police procedure?

Given the general composition of the participants in CT, I had to smile when I read this.

Mike Toreno @ 08.01.09 at 9:45 pm @ 681

One way you can tell an arrest is a false arrest is if the police report of the incident is a lie. Crowley says Ms. Whalen said two black men with backpacks; that didn’t happen. Says the acoustics in the kitchen and Gate’s shouting wouldn’t let him use the radio; that isn’t true. Said Gates’s shouting kept him from giving his ID, that isn’t true. The requirement is to hand over the ID card, no amount of shouting keeps somebody from handing over an ID card. The description of the supposed “tumultuous behavior” is carefully chosen to avoid describing what Gates was actually doing and instead to just say “Gate was doing something tumultuous”. Honest people give full and clear descriptions; liars don’t. Police who are making justified arrests file accurate reports, police who are making false arrests lie.

As mentioned to Henry, ex post facto descriptions don’t count for much when you’ve got a lot of explaining to do. Using Crowley’s police report as valid evidence is a lost cause. Nothing prevented Crowley from verifying the resident was in control of the scene and unharmed—and then having resolved the call, leaving.

I especially like the comment upthread that posted that relevant statute.

It’s critical to understand this that Crowley carefully cited “tumultuous” as his reason for making the arrest. Omitting to note that the “public” must be involved to violate that statute—or to make an arrest under that statute—strongly indicates that Mr. Crowley knew he did something wrong. It was a bullsh!t arrest, and you don’t need to rely on a fragment of a statute and decontextualize that statute’s meaning, or omit the relevant language from that statute as well as its judicial interpreatation, to document the basis of a legitimate arrest. Crowley’s surgically self-defensive explanation is telling—report whatever excuse appears to work, omit every piece of the legal statute that exposes your mistake/abuse.

It’s sad. But hey—if lots of baseball fans sympathize with you, abuse of power must be legal and A-ok! Next time I’m in the public eye or up on charges, I guess I’ll follow Crowley’s lead and go on sports talk radio shows to gin up my storyline. That’ll make it more treu. That’ll show really great judgment, and lots of integrity and personal character.

The absolutist idea that we must know Crowley’s state of mind before assessing his behavior is, of course, ludicrous. Philosophically and legally. Equally disturbing, Mr. del Pozo has refused to address his continual substitution of philosophical arguments for the legal, common-sense, moral and pragmatic questions that are at issue.

But Brandon del Pozo’s position is also wholly self-contradictory and, if you prefer, hypocritical. Think: police officers are never required to know a suspect’s interior state of mind or unknowable intention before making an arrest. They compare the actions of the suspect against the relevant statute and, if a violation has occured, make the arrest.

The same process is more than possible, and just as reasonable, in assessing the legality and rightness of Mr. Crowley’s actions.

Mr. del Pozo is intent on enforcing a double standard when it comes to judging Crowley’s behavior. And since state of mind is unknowable, del Pozo’s supposition is that proving Crowley made a mistake or took unacceptable and abusive action is impossible. This is, of course, not remotely true. We can use the same method and standards that the police use to assess whether a crime has been committed. And in stating that the incident was “regrettable and unfortunate,” it seems Cambridge PD did not have any basis for maintaining or defending Crowley’s decision.

Bottom line here: Mr. del Pozo’s willingness to push a double standard when it comes to the behavior of a police officer strikes me as entirely corrosive to civic discoure and antithetical to the American principle of equality before the law. Beyond that, it’s not simply a disingenuous contribution to the discussion and thus a waste of time, but also a blatant abuse of logic. Philosophy is not a tool to evade the law or rationalize abuse of power. And whatever PR campaign Cambridge PD chooses to wage at baseball games and in the media, constant prevarications cannot be allowed as the default position of PDs, police unions and union legal reps. The law cannot be used as an excuse to violate basic rights and liberties, including 4th Amendment protections and the security of citizens in their own homes or as they exercise free expression. del Pozo says people ‘cannot be allowed to scream at officers’; unfortunately for him, that is not the issue and we all recognize that: the issue is that the default position of police powers cannot be that no citizen has the the right to exercise free speech or get angry or otherwise interact with police, without facing arrest as the baseline reaction. That position is utterly unacceptable.

Now, as much as I sympathize with the very reasonable observations Mr. del Pozo’s offered up, his silence on the core issues at hand here, and on the points brought to his attention, really speaks volumes. He’s clearly got some reassessing to do, and I wish him the best of luck

First, this is the sort of inference our legal system is in the business of making. The law is always facing these questions: when defendant did X, was he intending to cause harm to the complainant? Did the defendant’s acts indicate assent to the terms of the contract? These may be difficult questions, but they’re sometimes also quite simple, and they’re precisely the sort of questions we expect 12 of our peers to answer.

Second, I thought that probably cause required not merely a subjective belief, but evidence from which a reasonable person could conclude that a crime had been committed. That is, even if Crowley subjectively believed he had pc, that’s not sufficient unless a reasonable person knowing what he knew could also come to that conclusion. Also, as a civil matter, I’d expect false arrest to require proof by a preponderance, not beyond a reasonable doubt. (I hope a real lawyer corrects me if I’m wrong).

So while the propriety of the arrest may be a matter of opinion, it’s not a matter on which every opinion is as good as the next opinion. There are people here with legal experrtise, and people here with expertise in language and reasoning, and we have a lot of evidence from the tapes and the police report etc. I get the very strong sense that if the commenters here were a jury, it’d be almost unanimous against the legitimacy of the arrest.