Summer 2009’s heated nationally discussed, racial-tinged “Gates-gate” flopped as a significant “teachable moment” in part because inadequate attention was focused by some of the nation’s most respected media on a citizen’s constitutional rights in such disorderly conduct arrest cases.
The Gates-gate incident started July 16, 2009, when veteran Cambridge, Mass., police Sergeant James Crowley responded to a call that mistakenly suggested a possible illegal break-in at the residence of Henry Louis Gates Jr., director of Harvard University’s W.E.B. Du Bois Institute for African and African American Research.
What too much of the major mainstream media failed to share with their large audiences in a timely and issue-related manner is that courts have ruled in great detail on what does and does not constitute disorderly conduct.
In brief, what the courts have held is that if nothing else of significance occurs, American citizens don’t commit disorderly conduct by calling an officer a name, by yelling at him or her or by requesting an officer’s identification, the things Sgt. Crowley cited in his report – which ran on the Internet.
As Supreme Court Justice William Brennan described that significant requirement in Houston v. Hill (1987), it must be sufficiently severe as “likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”
Although long-established legal criteria exist in this area, citizens who believe they are victims of improper police treatment have been publicly and repeatedly advised by lawyers that the wiser and safer course is to consult an attorney rather than be confrontational.
No threat of physical violence came up in Gates-gate. In fact, when Prof. Gates, who uses a cane, said he couldn’t make it to a police car for the trip to jail with his hands handcuffed behind his back, the cuffs were moved to the front.
Responding to a walk-away question at a July 22 press conference focused on health care, President Barrack Obama, a former college instructor in constitutional law, said the police had “acted stupidly,” a remark that stirred renewed public discourse. The president later said he could have “calibrated those words differently.”
Things eventually seemed to have cooled after Obama hosted a well-publicized White House Rose Garden meeting attended by Crowley, Gates and Vice President Joe Biden.
Iowa Republican Rep. Steve King stirred up the still simmering aftermath of Gates-gate last June when during a radio talk show he claimed, “The president has demonstrated that he has a default mechanism in him that breaks down the side of race, on the side that favors the Black person in the case of professor Gates and officer Crowley.
Early in 2012, a PAC raising money for Arizona Gov. Janice Brewer linked the Gates issue to Brewer pointing her finger at President Obama on an Arizona airport tarmac. Brewer said she was reminding Obama he had just one more year in office.
A number of polls taken in the wake of the original dust-up showed President Obama’s approval rating among white voters dropped by several points.
Without learning through usually reliable media how bad an arrest Crowley had made, many people appeared to have accepted the view of critics who suggested the nation’s first Black president — without legal justification — had taken the side of a Black professor.
What actually prompted the 911call was Gates, on returning from China where he had worked on a documentary, trying with the help of his driver, to force open a jammed door to his Ware Street residence.
What ensued next – without violence — was what an Oct. 20, 2009, USA Today cover story called “one of the most potentially combustible scenarios in America: a confrontation between a Black man and a White officer.”
According to the officer’s report, Gates called Crowley a racist cop, repeatedly yelled at him and demanded identification; Crowley had to ask more than once for Gates’ photo ID; and after asking Gates to come out onto the residence’s porch, charged him with disorderly conduct and arrested him when the yelling continued. Gates denied making some of the statements Crowley attributed to him.
The disorderly conduct charge was dropped in a matter of days. Some media never told their audiences why the charge in such a high profile case was dropped.
Crowley’s report was not enhanced by the false claim that the woman who made the 911 call to police, Lucia Whalen, told him she had “observed what appeared to be two Black males with backpacks on the porch.” Whalen denied ever using the “Black” racial description and a recording of her call supported her.
Many legal experts say there was nothing in Crowley’s report to justify a disorderly conduct charge and, furthermore, they say Crowley should have left Gates’ residence once he saw his ID.
Prominent Baltimore attorney A. Dwight Pettit, who has won a number of police misconduct cases, agrees that Crowley should have departed after the professor proved he was in his residence as Gates “had complied with the lawful request of the officer.” .
Other attorneys, including Jose F. Anderson, professor of law, University of Baltimore School of Law, agreed the incident at Gates’ home should have been over after Crowley said Gates had supplied him a Harvard University ID card.
A Fox News legal analyst, Andrew Napolitano, said Sgt. Crowley made an “improper arrest.” But Glenn Beck, then with Fox, said Obama’s statement proved he “has a deep-seated hatred for White people.”
Adam Winkler, UCLA law professor, not only said “Gates did not violate any law,” including those in Massachusetts, but added, “Arresting someone for doing something that isn’t illegal is pretty stupid.”
John F. Banzhaf III, law professor at George Washington University, was among lawyers who urged Professor Gates to sue the Cambridge police department so that it would be clear to the public that the arrest was unwarranted.
Gates refused to sue, saying he wanted to use the situation as a teachable moment.
Massachusetts Gov. Deval L. Patrick was quoted as terming what happened to Gates as “every Black man’s nightmare.”
Gates’ attorney, Charles J. Ogletree Jr., Harvard law professor and director of the Criminal Justice Institute, told Washington Post columnist Courtland Milloy that the available facts “did not justify an arrest for disorderly conduct.”
Crowley was supported widely by police groups.
Cambridge Police Commissioner Robert Haas commended Crowley and said his actions were in line with his training.
Others included Stephen Killion, president of the Cambridge Police Union, and Thomas J. Nee, president of the National Association of Police Organizations, Inc.
Generally, media coverage of the incident seemed to roll with the emotional views expressed by much of the public.
Cable channels and blogs seemed to do a better job in citing court rulings than did some mainstream media.
Among the media giants that failed to link court rulings to the issue in a timely manner in their story coverage were the prestigious Washington Post and the New York Times.
In its July 25, 2009, issue the New York Times started two side-by-side stories at the top of Page 1 in the right-side columns but never provided perspective by mentioning how pertinent court rulings related to the disorderly conduct charge against Gates.
The Supreme Court and lower court rulings in recent decades have spelled out what constitutes disorderly conduct, tumultuous behavior, fighting words, permissible yelling and how various words or acts must affect members of the public before they become criminal by trespassing allowable rights granted by the
First, Fourth and Fourteenth Amendments.
Chaplinsky v. New Hampshire (315 US 568 1942) notes that “vulgar, profane, offensive or abusive speech is not, without more, subject to criminal sanction…”
In 1967’s Alegata v. Commonwealth, the Massachusetts Supreme Judicial Court, adopting Model Penal Code 250.2, commented regarding policemen: “(I)t is an unfortunate but inherent part of a police officer’s job to be in the presence of distraught individuals; and to the extent that the theory behind criminalizing disorderly conduct rests on the tendency of the actor’s conduct to provoke violence in others, one must suppose that (police officers), employed and trained to maintain order, would be least likely to be provoked to disorderly responses.”
Attorney Pettit said the facts that a Black policeman at the scene, Sergeant Leon Lashley, said he supported Crowley “100 percent,” and a Black former police commissioner, Ronnie Watson, chose Crowley to help other officers avoid racial profiling, “would not be legal cover per se” for the officer although they might offer him some “public relations benefit.”
Professor Anderson said “a very few cases (against police misconduct) are successful.”
During an August national convention of the Fraternal Order of Police in Long Beach, Calif., Crowley made a brief appearance, and according to the Associated Press, received a standing ovation from thousands of policemen and dozens of the 3,000 present left their seats to take snapshots of him.
Anderson’s reaction: “The sergeant was bound to be a ‘star’ after taking on the President.”