Gatesgate: They've All Got It Wrong.

The case has forced Americans to look at the issue of policing from the perspectives of African-Americans and cops themselves. If we're smart we'll learn from this.
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When Henry Louis (Skip) Gates Jr. was arrested by Cambridge Police Department Sgt. James Crowley on July 16th, it was a glorious day for talk radio and commentary in general because it dealt with everyone's favorite subject: race. No subject invigorates national discussion like it, especially when the subjects included: (1) an intellectual Harvard "elite" black studies firebrand, who's a northeastern liberal of color; (2) a tough Cambridge Irish cop just trying to investigate what was reported as a residential burglary in progress; (3) allegations of racial profiling; (4) Forty-four weighing in then not, then retracting, then clarifying, then recalibrating, but never apologizing; (4) and virtually every black actor, commentator or person of note from San Fran's Willie Brown to Bill Cosby weighing in on the subject. There were discussions about sit-downs, summits and powwows. The erstwhile combatants now plan to meet at the White House for the proverbial beer.

(NOTE: I predict Sgt. Jim Crowley will be the next national pitchman for Blue Moon beer. Watch its stock to rise exponentially. I prefer the Belgian White.)

In the mean time any discussion on any other topic such as, say, Iran, Iraq, Afghanistan, North Korea, Russia, health care, homeland security, the economy . . . well, as you saw, we all went amnesic. The good news was it took our minds off Michael Jackson for a moment.

But while the case will surely be forgotten shortly (the initial criminal charge of disorderly conduct having been dismissed), it has nonetheless inspired a vigorous debate on myriad and derivative subjects. It's also forced Americans to look at the issue of policing from the perspectives of African-Americans and cops themselves. If we're smart we'll learn from this; we'll sit down and actually listen to the issues vis-à-vis each other's prism and frame of reference.

This may also be a good time to learn something about rudimentary criminal law, police practices, the system and the realities of the street of which most are unfamiliar until a case like this comes about. Crim Law 101 is now in session.

My bona fides.

In a prior life I was a prosecutor and criminal defense lawyer, the former for the 13th Judicial Circuit in Hillsborough County Florida. Before trading it in for celebrity, fame and Brobdingnagian success in New York (ahem), I worked all divisions of the State Attorney's Office and saw a significant number of disorderly conducts while in the misdemeanor division. I heard the cops' perspective and then, when I went to the dark side and defended the very miscreants I had previously tried to incarcerate, the viewpoints of the hapless innocents, those unfairly and unjustly accused, who, more often than not, wore facially the results of having been discourteous and disorderly to Officer Not-so-Friendly.

The crime itself.

Before anyone utters a peep anent an opinion on this matter, it is imperative that you read the actual statute that The Skipster was alleged to have contravened.

First, we must refresh our recollection of the provisions of the Massachusetts General Laws.


Chapter 272: Section 53. Penalty for certain offenses

Section 53. Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment.

Massachusetts courts have used a multiplicity of terms and descriptions to define what conduct is disorderly: that which causes public inconvenience, annoyance or harm; engaging in fighting or violent, tumultuous behavior. The term "public" refers to any site or place where a substantial number of people have access. To add to criminal policing arcana, throw in "riotous commotion" and "public nuisance." I suggest "noisome and noxious obstreperousness."

So what exactly is "disorderly conduct"? As a law professor once instructed me as how to answer every and any legal question posed by a lay person: It depends. In my humble opinion, it's a catch-all crime to silence the drunk at three in the morning playing an accordion in the middle of the street. But it's not intended to stifle speech, noise or thoughts that are subjectively annoying. There's a lot that's annoying to you and me that is protected First Amendment speech. One of the most annoying things I've encountered makes no noise at all: the dreaded mime. But, I digress.

Hearkening back to and paraphrasing Mr. Justice Stewart's oft-cited formula for defining pornography: You'll know it when you see it.

Gates's conduct was not criminally disorderly.

Crowley's arrest of Herr Professor wouldn't survive a motion to dismiss. Gates's behavior may have been contumacious, rude, discourteous, name it. He was in and at his own home, as the law has doctrinally defined as his castle, a unique place that provides safe harbor and from where retreat is not legally mandated upon certain threat.

He was not "publicly" disorderly and thus not criminally disorderly either. Granted, when asked by Crowley to step outside Gates's home to further discuss the matter, the incident report notes that Skip responded, "ya, I'll speak with your mama outside." Not the best choice of words, mind you, and certainly not designed to endear an officer, they are protected speech. Boorish and discourteous, but nonetheless protected.

The police/incident report.

Incident Report #9005127 is available online and much has been made of it by all sides. I've read thousands of police reports and will tell you now one absolute fact: They never say anything good or exculpatory regarding the accused perp. Never. They are absolute in their certitude and clear as to the alleged scofflaw's transgressions.

They are not accusatory instruments, they're not indictments or complaints. If anything, they're intended to refresh the recollection of the officer when he testifies in court, ofttimes a year or more later. One liberal blogger reviewed the report's allegations and alleged that Sgt. Crowley was lying. That's a serious charge. I'm not suggesting that cops don't lie or "testi-lie" as is often noted. But what you have, as I have seen, is a unique admixture of two perspectives and frames of reference, both contaminated and defined through the prism of two different and very PO'd people.

You have very few rights after all.

Defendants and arrestees, who've watched too much "Law & Order," have created this myth that they have certain "rights." Gates believed that he had a right to know the Sergeant's name. The report is replete with references to Gates demanding this information as was his believed right. I have to laugh. Just read the name tag pinned to uniforms. And believe me, incident reports will have every name and badge number of anyone within a three-mile radius.

While we're at it, two more "rights" believed: (1) the guaranteed phone call and (2) having Miranda warnings read when not being custodially interrogated.

The Prof had a right to remain silent. Too bad that right wasn't exercised. But be not mistaken, he was not guilty of anything other than discourtesy and disrespect.

You can beat the rap but you can't beat the ride.

I heard this on more than one occasion from cops. It stands for the proposition that if you tick off a cop, especially in front of a crowd, mouth off, curse, cuss, insult, pester or heckle a law enforcement officer and/or his brethren, you will be cuffed, taken into custody, arrested and transported to the hoosegow or precinct. "Tell it to the judge," you will most likely hear. You will be taught a lesson no matter who you are.

The charges may indeed be dropped later, but you will suffer the indignity of a pinch if you sully the dignity of a cop by raising hell or refusing to shut up when told. As Bruce Hornsby reminds us, "that's just the way it is." And was. And will be. I don't condone it. It's wrong. It borderlines on a civil rights violation. Whether you're black, white or calico, giving lip to a cop is not tolerated.

Now this varies somewhat from jurisdiction to jurisdiction. Smaller town cops may be more loath to retaliate against truculence than, say, a Brooklyn beat cop. The New York Times investigated the various tactics used by cops nationwide in dealing with hostile encounters with hostile citizens. But for the most part it's wise to zip it during dealings with the local gendarme.

Racial profiling? Nah!

Second only to "conspiracy theory" is the overuse and misapplication of "racial profiling." It has become an almost patellar reflex when discussions arise over a (usually) white cop stopping, detaining, interrogating or arresting a black criminal suspect. Attendant topics, e.g. "DWB" (Driving While Black), are too often confused with racial profiling and the two topics are inextricably entangled.

First, racial profiling is indeed constitutionally verboten as is stopping a motorist merely because she is black. True. But profiling and stopping people and motorists who happen to be black are not.

Profiling is a valid and much-used criminal justice tool. Just ask FBI forensic profiler John Douglas, the inspiration and model for the Scott Glenn character in "The Silence of the Lambs." The Supreme Court in Sokolow held that "probabilistic" facts describing "personal characteristics" of drug couriers -- such as the cash payment for tickets, a short trip to a major source city for drugs, nervousness, type of attire, and unchecked luggage may in fact be relevant in certain investigations of ongoing criminal activity.

When the police employ DWI checkpoints, this is a form of profiling . . . or dragnet. Everybody driving is stopped. And that's okey-dokey. So long as it's systematic, neutral and non-specific or discriminatory. When the FBI is charged with prosecuting members of the Mafia or LCN, would it make sense to target Swedes? Of course not. But that's profiling. It's also good police work.

The reality remains, however, that black citizens are treated differently in many circumstances than whites in police encounters. White folks don't want to hear about it; they often relegate the suggestion to baseless bellyaching. But like it or not, a significant number of black citizens happen to repeat this charge, and they aren't hallucinating. The irony is that disproportionate attention paid to African-Americans by police is just as likely to come from a black officer. Theirs is a brotherhood, a fraternity, a very special confederation that cops enjoy. Whites, blacks, men, women, Latino and Latina, those in uniform all enjoy a special status. Look at the officers in support of Sgt. Crowley.

Look, I'm not a knee-jerk cop lover. I respect them, am glad they're here and support them. If I called 911 at three in the morning, I'm not going to request a particularly sensitive peace officer to investigate some home invasion burglar trying to get inside my abode. I want a contingent of badass cops instanter. Fine. And God only knows what these "finest" have seen and encountered on their shift and careers. We have no idea.

But with the responsibility cops assume is concomitant courtesy, professionalism and respect (CPR as seen emblazoned on NYPD cruisers). They've pistols, mace, Tasers and billy clubs. Dogs, cuffs and the mightiest of weapons, the badge. The badge that we entrust them with.

I'd be a lousy cop. I don't suffer fools gladly nor do I inebriates who puke in the back of my patrol car. I'd make Vic Mackey look like Barney Fife.

Shooting from the lip.

Not since Mick Taylor left the Stones have I ever asked more sincerely, "What were you thinking?"

At a July 22 press conference the forty-fourth President of the United States, the leader of the free world gave his opinion on Gates's arrest.

"I think it's fair to say, number one, any of us would be pretty angry. Number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home. And number three - what I think we know separate and apart from this incident - is that there is a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately, and that's just a fact."

Mr. President, what indeed were you thinking? You said the CPD acted "stupidly." There could very well be civil litigation pending not to mention departmental or administrative investigations. It's improper for you to weigh in and potentially contaminate a potential jury or create the impression that you'd like to see a certain result.

Now, just say you're sorry and move on. No nuancing, please. Put this behind you, them and us.

So, fine. Skip and Jim will share some suds with POTUS. They'll kiss and make up. But the dialogue must continue. Honestly. Everyone needs to understand each other's frame of reference, perception and reality.

And for background, ambient music, may I suggest Tom T. Hall's classic tune: "I Like Beer"?

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