Did we settle for peanuts?
The Definitive Analysis of the Henry Louis Gates Arrest
Learning the Wrong Lessons
We are now a million words deep into our national analysis of the arrest of Prof. Henry Louis Gates. Like a media-created prism, Gates’ arrest and our reaction to it have been enormously revealing of the diversity of American political perceptions.
As usual, the lessons that most Americans are drawing from the event are superficial or just plain wrong. The emerging consensus is a mushy wash of opposing viewpoints: 1) Yes, racial profiling is a serious problem, but...2) Not in this case, which was more a matter of two grown men over-reacting to a minor conflict.
Did Crowley violate Gates’ constitutional rights?
This incident provided the perfect opportunity for Americans and their police to come to a greater understanding of how the Fourth Amendment works in practice. As we will see, the courts have witnessed a long history of official police misunderstanding of Fourth Amendment requirements. Sgt. Crowley committed a clear and obvious violation of Gates’ Fourth Amendment rights, but neither Crowley nor the Cambridge Police Department, nor indeed any other police department or policeman’s association, has admitted the obvious illegality of Crowley’s entry into Gates’ residence. The Fourth Amendment gives Americans an astonishing level of protection from government intrusion into our homes. Many Americans – including our police -- find it truly hard to believe we Americans really have that much freedom. We really do.
A second constitutional lesson is related to the First Amendment, which protects our freedom of speech. Both citizens and police should take this opportunity to learn that insulting and abusive words alone are virtually never sufficient to justify a disorderly conduct charge.
Our police officers are often acting in good faith when they follow “standard police procedures” but that is no justification when these procedures violate the constitution. We need to better police our standard police procedures – they must be brought in line with the Constitution. Not most of the time -- all the time. The Constitution is not optional.
Was Crowley guilty of Racial Profiling?
The next set of teachable moments relates to race. Sgt. Crowley was indeed guilty of racial profiling, as is established by the discrepancy between his police report and witness Lucia Whalen’s recorded 911 call.
The emerging consensus view that Crowley was not guilty of profiling is based on the fact that the event was widely discussed in the media before Ms. Whalen’s tape was finally released. Most people had already made up their minds by then, and the “Beer Summit” had already been scheduled. Crowley’s fellow officers, blacks and Latinos included, had already come out in his defense. It was widely known that Crowley taught a course on how to avoid police profiling. Crowley had made his deep admiration for Obama patently clear. Crowley came across as a good guy. Could such a guy really be guilty of profiling? Unequivocally, yes.
Crowley’s profiling was arguably of a very minor, tenuous sort. It’s not as if he wouldn’t have responded to the call if the alleged burglar were white. As Crowley approached Gates’ residence it seems that Crowley was thinking “I have to be careful, there may be armed burglars within the residence. It seems likely that they are black.” The problem is that Crowley had no reason for assuming that the alleged perpetrators were black. Where did that come from?
It came from a place beyond the reach of logic, or even awareness. The most common kind of racism in America, and indeed in the world, is known as “implicit racism,” which means that it is sub-conscious. If you don’t believe in the possibility of such sub-conscious bias, I urge you take some of the tests on the Implicit Associations Test available at the Harvard web-site. Most of us harbor some kind of racial bias, black people and Latinos included. It’s silly for all of us to pretend to be perfectly un-biased. Anyone who has grown up in a multicultural environment acquires stereotypical thinking. The trick is to learn to monitor our authorities – such as our police – to make sure that they do not act on their implicit judgments.
I believe that when Crowley and Gates first made visual contact, there was something about Crowley’s expression that communicated the following to Gates: “You are a suspect and since I can see that you are black you are now a serious suspect.”
The ability of the human face to communicate nuance is rather prodigious. Of course, it may also have been the case that Gates merely imagined such a negative attitude on the part of Crowley, and that is what set Gates off. But then how can we explain the discrepancy in the police report? Until Crowley and the Cambridge P.D. come up with any explanation at all (they have totally ducked the issue), we are forced to assume that Crowley was guilty of some level of racial profiling. Whether it was minor and unobtrusive, or evident and obnoxious, is impossible for us to judge given the current data.
Did Gates’ over-react?
Shouldn’t we all simply cooperate with police officers respectfully? Yes, Gates over-reacted. He was guilty of what Daniel Goleman calls an “emotional hi-jacking.” However, here it is useful to recall Aristotle’s classic homily:
"Anybody can become angry, that is easy; but to be angry with the right person, and to the right degree, and at the right time, and for the right purpose, and in the right way, that is not within everybody's power, that is not easy."
There is such a thing as righteous anger. Had Gates failed to react with anger, the country would have been deprived of this national learning opportunity. Rosa Parks was angry, too, though maybe not as angry as the perpetually-enraged John Adams. Our country was founded on righteous anger at the British. Sometimes, anger is justifiable.
If we adopt a Kantian or Utilitarian perspective, though, we must be less charitable with Prof. Gates. Although Crowley may have been guilty of unacceptable behavior, Gates had more productive avenues of protest available to him. He could have simply filed a complaint after Crowley left. When a citizen refuses to assist a police officer in that police officer’s conduct of duty, the citizen creates a workflow bottleneck that absorbs police energies which might be more usefully employed for our fellow citizens. It would have been horrible if Crowley had been late to a rape or domestic violence report because he was stuck arresting Gates. In the ordinary course of business, as a sort of Kantian imperative, we should simply comply with police requests, no matter how obnoxiously phrased. The problem is, it seems that the interaction between black citizens and our nation’s police officers cannot be described as “ordinary.” As long as African-Americans can be stopped and interrogated for Driving While Black, our police officers must be prepared to deal with AWQ – Attitude While Questioned.
In fairness to Crowley, all humans have their breaking point when it comes to disrespect. For some reason, we can tolerate an insult when it comes from one person but not another. Prof. Gates is well-known to irritate a lot of people, black as well as white. His ego is said to be Rushmore-sized. Some portion of Crowley’s over-reaction was perhaps due to his inability to endure Gates’ patronizing hectoring. There may have been something about Gates’ tone of voice that communicated to Crowley, “I’m rich and educated and you’re not.” That’s not a good reason to arrest someone, but it is an explanation.
Are African-Americans sometimes over-sensitive and paranoid when it comes to racism?
Yes, but they would have to be saints otherwise. American culture is so hyper-conscious of race (witness the 911 operator’s obsession with finding out the race of the suspects) that our sensitivity to racism is understandable. However, that does not make it any less annoying when it is unjustified or exaggerated.
One teachable moment for African-Americans is to begin to understand why so many white Americans felt that Gates’ had over-reacted. It is too simplistic to attribute the negative white reaction purely to racism, there is another important dynamic going on.
Discrimination in American is far more pervasive than racism, a fact which is routinely under-emphasized in the black community. The axes of discrimination in America are, in descending order of importance: class, IQ, physical health, mental health, beauty, gender, race, educational status, weight, height, religion. Race is a very important factor of discrimination, but it is only one amongst many.
What African-Americans sometimes fail to appreciate is that large numbers of their fellow white Americans are born with substantially greater inherited social impediments than black skin. These white people become understandably impatient at media reports of African-American complaints about the consequences of racism. If a short, obese, working-class white person with a stutter, bad acne, Asperger’s syndrome and an IQ or 90 reads or hears about the sufferings of poor little rich and famous, world-traveling, Harvard-teaching Prof. Gates, he can surely be forgiven for a lack of sympathy.
“Give me a break,” we can imagine such a person saying, “He’s upset that the police treat him badly. Everybody treats me badly, but people like me and our problems don’t ever get into the newspapers. How is that fair?”
Was Obama’s intervention appropriate?
President Obama apologized for his own much-criticized first remarks, offering the Beer Summit as a sort of olive branch to the nation’s police. This has led to the widespread conclusion that Obama was wrong when he said that the Cambridge police had acted “stupidly.” The press, and the nation’s police officers, pointed out that Obama had spoken before he had all the facts, and that he had waded into a local matter. However, Obama’s first comment was not mistaken, merely impolitic. The media chose to forget that Obama was a professor of constitutional law. The Fourth Amendment is very clear: absent a warrant or exigent circumstances, you stay out of someone’s house. Obama knew that Gates had been arrested without a warrant. He was therefore justified in criticizing the arrest, and absolutely correct that the Cambridge P.D. had acted in violation of the law.
Obama’s mistake was to use the word “stupidly.” The word “stupid” is a word on the politically-correct death-watch list, as it should be, along with its cousins: lazy, ugly, fat, crazy, short, etc. Most Harvard professors scored higher on their SAT’s than most Cambridge P.D. officers, but that doesn’t make them better people. A police officer deserves the same respect as a Ph.D. When Obama used the word "stupidly", he accidentally communicated to the nation’s police officers that he felt superior to them. As the nation’s Commander-in-Chief, Obama is the ultimate police authority in the United States. If it should ever become necessary for the nation’s police to be ordered to enforce martial law, it would be the President giving that order. It was therefore unacceptable for Obama to disrespect the nation’s police. It was like a general insulting his own infantry.
What if Obama had used the word “unwisely” or “unconstitutionally”? Some people have argued that the President should not have waded into a local matter at all. That viewpoint does not hold water. The President is the leader of the whole nation, not just its federal apparatus. Any political issue of public concern is a matter for the President’s input. During the Civil Rights era it was necessary for Eisenhower, Kennedy and Johnson to make strong public statements criticizing racist southern governors.
Given the importance of the issue of racial profiling to black Americans, and given further that 95% of black Americans voted for Obama, his interest in the arrest was perfectly understandable. Obama was right to comment on the matter, but he should have chosen his words more carefully.
Was the Beer Summit a good idea?
The Beer Summit was a good opportunity for the nation to bring the issue of racial profiling to the forefront of national attention. However, it does not seem likely that too many minds were changed by the event.
Given Sgt. Crowley’s legal exposure, outlined above, the Beer Summit was a good tactical decision for him. Were Gates to file suit now he would seem churlish. So how are we to bring the constitutional issues in the case to a clear test? It seems that they will not receive the hearing they deserve, and this is paradoxically due to the defusing of tensions resulting from the Beer Summit.
However, the symbolism of the Beer Summit was so powerful that it is difficult to criticize. The film of the men talking proved something to all of us: it is not impossible to talk about our differences. Sure, it takes an invitation to the White House to get us to do it – but it’s not totally impossible. I bet Crowley would love to be Gates’ friend, though the reverse is less likely. Maybe they will end up attending each others’ barbecues. Unfortunately, that won’t clarify the constitutional issues.
Have our reactions to this event been colored by partisan or cultural bias?
As always, yes. This event was a fascinating cultural touchstone precisely because it divided America along cultural fault-lines. Predictably, liberals supported Gates while conservatives supported Crowley.
The lesson to be learned here is that our partisan bias has deep biological and cultural roots.
Conservatives are people who have an innate and culturally-reinforced bias in favor of authority figures and strict obedience to rules. Liberals tend just as overwhelmingly in the other direction – they love to challenge authority and set limits on its exercise. Neither side is inherently right or wrong. A society needs obedience to authority and rules, and the rules also need a number of exceptions and limits. Political wisdom will come from finding the right balance in each individual case.
The Legal References
Many of the posts to my blog have evidenced a strong belief that Crowley was legally justified in entering Gates’ residence. The logic behind these posts seems to be that it is “obvious” that the police may enter a residence to investigate a burglary. It would be crazy, holds this point of view, for police officers to hesitate in investigating burglaries -- that is precisely why we employ police officers.
Such writers misunderstand proper police procedure. I urge readers to begin their research by reading Hopkins v. Bonvicino, No. 07-15102 (07/16/09 (Ninth Circuit Court of Appeals), a recent case which clearly spells out the constitutional limits breached by Crowley:
1. When a police officer has received an uncorroborated witness report that a crime has occurred, the police officer MUST conduct a further investigation prior to concluding that he has probable cause to enter a residence. Without such further investigation, the officer may not enter a residence without a warrant. The investigation may be quick and expedited, but it cannot be skipped. Note also that no investigation is needed if the officer visually observes a criminal in the act of breaking or stealing (as through a window), or if the officer hears cries of pain or alarm from inside. However, absent such imperatives, the officer is obliged to conduct a preliminary review. In this case, this case Crowley could have called the base and asked them to obtain the name of the legally-registered resident. Let’s say the base had radioed back the information, before Crowley had approached the residence. When Crowley asked for Gates name, Gates’ answer would have been enough to dispel any suspicion of a break-in.
2. Consent searches. Crowley’s intrusion into Gates’ home cannot be justified as a consensual search. Looking at the totality of circumstances, as the law requires, a reasonable person would not conclude that Crowley’s intrusion occurred with Gates’ permission.
Skeptical posts to my blog have revealed that many Americans find it hard to believe we really have that much freedom.
The Fourth Amendment is bold in its clarity: “The right of the people to be secure in their …houses…shall not be violated.” Absent “exigent circumstances,” an American’s home is a legal sanctuary beyond the reach of any police officer not armed with a warrant.
In US v Payton, 445 US 573 (1980), a suspected murderer was known to be within a private residence. During his arrest, police discovered a bullet-casing matching the murder weapon. The defendant moved to suppress the evidence, and succeeded at the U.S. Supreme Court. Writing for the Court, Justice John Paul Stevens held that the police were not permitted to enter the premises without a warrant even though 1) they had probable cause that 2) a suspected violent felon was within the premises.
Thus Prof. Gates was within his constitutional rights to refuse Sgt. Crowley access to Gates’ residence. Crowley’s entry without Gates’ consent violated Gates’ Fourth Amendment rights.
In Minnesota v. Olson, 495 US 91 (1990), a suspect in a robbery-murder was arrested inside a home which had been surrounded by police officers. Ruling the warrant-less arrest to have been unconstitutional, the Supreme Court pointed out that the home was surrounded by police. The Court held that this precluded any need to enter without a warrant. Prof. Gates’ case is stronger than the defendant’s in Olson, because Gates voluntarily presented himself at the door and claimed legal residence. Once the risk of flight has been eliminated, officers may not enter a private residence without a warrant.
People lose their keys and force their own doors all the time. When a resident in such a case claims legal residence, the police have to stop at the front door until they get a warrant, no matter how frustrating that may be.
Now, let’s return to the First Amendment freedom-of-speech principles involved in a charge of “disorderly conduct.” Disorderly conduct statutes have been frequently challenged on constitutional grounds as overbroad and prohibitive of free speech. In 1975 the Massachusetts courts were forced to bring their “disorderly conduct” provisions into accord with an emerging line of Supreme Court decisions. Specifically, it was held that abusive and profane speech in and of itself could not constitute disorderly conduct. The Massachusetts courts subsequently adopted a factual approach which focuses on whether the allegedly disorderly behavior threatened an imminent breach of the peace (e.g., “tumultuous” behavior).
What kind of behavior is sufficiently “tumultuous”? Case law from a number of states, including Massachusetts, has held that speech is only tumultuous if it rises to the level of “fighting words.” In a New York case interpreting similar statutory language, Stephen v. New York, 581 NYS2d 981 (1992), the defendant was arrested for “clutching his genitals and shouting obscene remarks at a police officer.” The court dismissed the charges as unconstitutional, noting that the defendant’s behavior was “not violent, tumultuous or threatening, but merely loud, derisive, taunting and vulgar…” Were the witnesses to the Gates’ incident really frightened that Gates was about to attack a dozen armed officers? Did any of the witnesses fear personal bodily harm? It does not seem likely. If the onlookers had perceived Gates’ statements to be merely “loud, derisive, taunting and vulgar,” then Gates’ arrest would have to be ruled doubly unconstitutional.
Although I do not doubt that Sgt. Crowley acted sincerely, ignorance of the law is no excuse, especially when the law we’re talking about is the Constitution. Although Crowley legitimately invoked “standard police procedure” as his defense, such procedures are sometimes unconstitutional in practice, as in this case.
Admittedly, the Bill of Rights is a huge pain in the neck for our nation’s police officers. It frequently permits criminals to escape the reach of the law. Its only justification is that it preserves our freedom, which is why it is our greatest national treasure. The Bill of Rights needs our continued support and understanding if it is to remain a living document, as the Founders intended. That would be a sufficient national lesson to derive from Prof. Gates’ and Sgt. Crowley’s unfortunate afternoon
Guillermo C. Jimenez
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