a citizen’s journal by Thomas Nephew

A teachable moment in which little was learned

Posted by Thomas Nephew on August 1st, 2009

The “beer summit” is history; were Obama’s hopes of the Gates-Crowley incident becoming a “teachable moment” realized?  I think it’s unlikely — and whatever small amount of worthwhile learning occurred was despite Obama’s intercession and retreat, not because of it.

The incident
In my view, Obama was right the first time in saying that Cambridge PD officer Mark Crowley “acted stupidly” in arresting Henry Gates.  Of course it was also right and reasonable for a passerby seeing an apparent break-in to report that, and it was reasonable for the Cambridge PD to investigate that report — and it was unreasonable of the Harvard professor to object to that, if that’s what Gates was objecting to.  Despite all that, however, Crowley’s own incident report shows he believed early on that Gates was lawfully in the residence:

While I was led to believe that Gates was lawfully in the residence, I was quite surprised and confused with the behavior he exhibited toward me. I asked Gates to provide me with photo identification  […] Gates initially refused, demanding that I show him identification but then did supply me with a Harvard University identification card.

Once Gates presented ID sufficient to establish he was a rightful occupant of the house, that should have been the end of the story; instead, when Gates followed Crowley out onto the porch — likely still yelling, though accounts differ — he was arrested with the arch comment,Thank you for accommodating my earlier request.”

Yet it was Gates’s home and his porch; while there — actually, while anywhere, but certainly on his own property — he could be rude to and shout at whomever he likes,  including police officers, by the ancient principle of “my home is my castle,” by the First and Fourth Amendments, and even by specific Massachusetts case law.**  In one of her typically excellent analyses, digby of “Hullabaloo” sums up (emphasis added):

“Henry Louis Gates may have acted like a jackass in his house that day. But Sergeant Crowley arresting him for being “tumultuous” was an abuse of his discretion, a fact which is backed up by the fact that the District Attorney used his discretion to decline to prosecute. Racially motivated or not he behaved “stupidly” and the president was right to say so. “

Race as red herring, citizen as peon
It’s possible that Crowley was more likely to arrest an ‘uppity’ black man than an ‘uppity’ white one under the same circumstances; we’ll never know.  But I think it would have been a much more interesting discussion to take Crowley’s own documented (some would say alleged) anti-profiling expertise and/or the testimonials of his black colleagues at face value — because that would have led directly to the question why Crowley felt entitled to arrest anyone under the circumstances he described.  Unfortunately, that discussion was short-circuited first by Gates and then by Obama, both describing the case as an incident of “racial profiling” when it never really fit that label per se.

The subsequent events illustrate the damage done.  Obama, eager to change the subject back to his health care reform proposals, wilted under pressure from the police union and public opinion, both of which disapproved of his characterization of the arrest as “stupid.”  For its part, the police union was at some pains to present African American officers who would corroborate Crowley’s reputation as a “non-racist.”  Yet assuming that to be true, “swaggering authoritarian” still seems rather too close to the mark for comfort, and that description (or some nicer mainstream version thereof) was never debated amidst the narrower debate about whether he was a swaggering racist authoritarian.

And of course this is not some isolated instance of police thinking themselves to be entitled to obedience and deference, and thinking themselves charged with something other than enforcing the law.  And of course that is a matter of more than theoretical concern, given that they’re armed with guns and supplied with hand held Taser torture devices.***

But it doesn’t have to involve either one, as Gates (fortunately, in that respect) can attest.  A Wisconsin sheriff arrested a man in Wisconsin for flying his flag upside down on the July 4 parade route; according to a report, he reasoned “it was not illegal to fly the flag upside down but people were upset and it was the Fourth of July. “It is illegal to cause a disruption,” he said.”  In the District of Columbia last week, lawyer Pepin Tuma decided to test whether he could say “I hate the police” to their face, and was arrested.  Was Tuma unwise?  Impolite?  Unnecessary?  Sure, all of the above — but he wasn’t breaking the law.

But tell that to Crowley’s nearby Boston PD colleague Justin Barrett, who delivered himself of a particularly ugly tirade ‘defending’ Crowley.  To be sure, his email mingled racism and authoritarianism — to be sure, the two are intertwined.  But look at what it means for everyone (emphases added):

Your defense … of Gates while he is on the phone while being confronted [INDEED] with a police officer is assuming he has rights when considered a suspect. He is a suspect and will always be a suspect. His first priority of effort should be to get off the phone and comply with police, for if I was the officer he verbally assaulted like a banana-eating jungle monkey, I would have sprayed him in the face with OC deserving of his belligerent non-compliance.

Tell that even to philosophy Ph.D. candidate and no doubt sterling police officer Brandon Del Pozo, who in a guest post at Crooked Timber wrote,

It cannot become commonplace for people to be allowed to scream at the police in public, threatening them with political phone calls, deriding their abilities, etc. Routine acts like rendering aid to lost children, taking accident reports and issuing traffic violations could be derailed at any time by any person who has a perceived grievance with the police. […]

But in the end the mere presence of the police cannot be seen as an acceptable reason for disorderly conduct, and should therefore not spur the police to leave a scene simply to de-escalate it. A police strategy of “winning by appearing to lose” emboldens citizens to attempt to get the police to lose in more and more serious matters, including walking away from situations where a person is genuinely guilty of a crime.

Again, digby:

This is a form of blackmail similar to the CIA threatening to let terrorists kill us if they are held accountable for lawbreaking. It says that the police will not be willing to rescue lost children if they have to put up with yelling citizens. That is an abdication of their duties and the idea that they should then be given carte blanche to shut up all citizens by means of arrest, because it creates a social environment where someone might cause a distraction in the future, is Orwellian double talk.

And it makes a mockery of the first amendment. If police are to be shielded from public criticism when they are acting in their official capacity then we have an authoritarian state. If yelling at the authorities is a crime then we do not have free speech.

What happened to Gates wasn’t wrong because he was a black man in America, it was wrong because he was a human being with inalienable rights in America.

Come together, over me
Serious issues, deserving a serious hearing — and they nearly got that hearing when Obama first took on the question.  But of course they did not.

Obama, instead, ultimately provided another data point about himself that fit two patterns.  The first pattern, of course — seen in issues ranging from the FISA Amendment Act to Iraq — is that of saying a true, bold thing …and then rather quickly backing down on it when that seems expedient.

The second pattern on display was Obama’s need to shoehorn Americans into getting along, whether or not they do get along, whether or not they have anything to get along about — even whether or not it makes sense for accomplishing his own agenda.  Exhibit A in this respect had been Obama’s fetishization of “bipartisanship”, even at the cost of, for example, a health care reform plan that makes any sense.  But that image may now be forever supplanted, at least in my mind, by that image of Biden, Obama, Crowley, and Gates sitting together at a table, smiling foreachother and for the distant cameras, and accomplishing nothing of value in the name of a “teachable moment.”  John Kenney’s satire in the New Yorker may sum up what little Obama achieved with the “beer summit”:

OBAMA: What have we learned?
GATES: That we like beer.
OBAMA: What else?
GATES: If you’re going to break into your own house go in through the back door?
CROWLEY: If you’re going to arrest someone on false charges plant something on them to make the charges stick?
OBAMA: Good. We’ve made progress here today.

That’s funny; this isn’t — a Washington Post writer summing up his deepest reaction to the Gates-Crowley incident this way:

One of the common-sense rules of life can be summed up this way: Don’t Mess With Cops. […] The police, when they show up at a residence or a liquor store, don’t know what’s what or who’s who. The good cops are there to have people (a) cease and (b) desist. The bad cops still have a badge, a gun and the legal authority to haul your butt downtown.


EDIT, UPDATE, 8/7: Balko and Coates links added below, list rearranged to bullets, quotes added.

  • Mick Arran (“fact-esque”): “Crowley Taps Obama’s Chest and Growls, O Man Bows”
  • Maureen Dowd: “But the strong guy with the gun has more control than the weak guy with the cane. An officer who teaches racial sensitivity should not have latched on to a technicality about neighbors — who seemed to be outnumbered by cops — getting “alarmed” by Gates’s “outburst.””
  • Christopher Hitchens: “Professor Gates should have taken his stand on the Bill of Rights and not on his epidermis or that of the arresting officer, and, if he didn’t have the presence of mind to do so, that needn’t inhibit the rest of us.”
  • David Corn: “The Crowley-Gates beer, though, is not likely to signal much more than that Obama can clean up a mess quickly. That’s actually a good trait for a commander in chief to possess. It was refreshing to see a president acknowledge in a mature manner that he had screwed up.”
  • Bob Herbert: “Most whites do not want to hear about racial problems, and President Obama would rather walk through fire than spend his time dealing with them.”
  • Mark Kleiman: “Read Crowley’s report and stop on page two when he admits seeing Gates’s Harvard photo ID. I don’t care what Gates had said to him up until then, Crowley was obligated to leave.”
  • Andy Famiglietti: “There has been a lot of good commentary on this, but one thing I’ve been surprised by is the constant drumbeat of “responsible” advice dished out by many well-meaning commentators, white and black alike, who stress the importance of never, ever raising your voice to a Police officer.”
  • Frank Rich: “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.”
  • Radley Balko: “Put the race talk aside: the issue here is abuse of police power, and misplaced deference to authority.”
  • Ta-Nehisi Coates: “I feel pretty stupid for going hard on this, and stupider for defending what Obama won’t really defend himself. I should have left it at one post. Evidently Obama, Crowley and Gates are talking about getting a beer together. I hope they have a grand old time. The rest of us are left with a country where, by all appearances, officers are well within their rights to arrest you for sassing them. Which is where we started. I can’t explain why, but this is the sort of thing that makes you reflect on your own precarious citizenship. I mean, the end of all of this scares the hell out of me.”

I’ve collected other relevant articles under the “gatescrowley” tag on my ‘delicious’ list.

* While the Harvard University ID Gates could display appears not to have listed his address, it either immediately or quickly sufficed for Sergeant Crowley, perhaps after confirmation with a phone book.
** References to “Just what is disorderly conduct, anyway?” (Posner, Volokh Conspiracy) and “Arrest as punishment,” (Ristroph, Balkinization). From a ruling: Defendant’s conduct, namely, flailing his arms and shouting at police, victim of recent assault, or both, after being told to leave area by police, did not amount to “violent or tumultuous behavior” within scope of disorderly conduct statute, absent any claim that defendant’s protestations constituted threat of violence, or any evidence that defendant’s flailing arms were anything but physical manifestation of his agitation or that noise and commotion caused by defendant’s behavior was extreme. Com. v. Lopiano (2004) 805 N.E.2d 522, 60 Mass.App.Ct. 723.
*** In what is merely the latest in the inevitable series of disturbing power trip stories associated with Tasers, a Boise police officer literally pushed one against a suspect’s anus recently because the handcuffed man was struggling — struggling for breath, as it turned out, and begging for mercy. The ugly audio file is here.

5 Responses to “A teachable moment in which little was learned”

  1. Patrick Says:

    Wasn’t Orwell originally a cop (constable)?

  2. Thomas Nephew Says:

    Yes — with the Imperial Police in Burma. He hated it, judging by his “Shooting an Elephant” essay.

  3. RobertNAtl Says:

    From sporadic conversations with police officers, I am reasonably certain that the authoritarian behavior modeled by Sergeant Crowley is actually official police protocol; in other words, he might have faced internal discipline if he had ignored Gates’ shouting. Of course, this would vary from jurisdiction to jurisdiction, and it would be interesting to see if anyone can find out police protocols in their juridiction. I think the police departments are very reluctant to divulge this info, but maybe it is subject to FOIA.

  4. Thomas Nephew Says:

    The Lopiano case (2d footnote, link) argues against that a bit, I think — at least in Massachusetts, where this took place. (Also AZ, judging by this). Maybe things are different in your state. It’s important, I think, that no law was broken at any time by Gates, not even in some incidental way like double parking or not wearing a seat belt. It simply should not be arrestworthy to yell at a cop. In my opinion, anyway. They are not nobility, we are not serfs, and I think Gates should sue, though I suspect he won’t.

    At any rate, I think knowing what constitutes disorderly behavior shouldn’t be closely held information. And I agree that learning what police departments believe about the Gates case and about “disorderly” conduct in general would be worthwhile.

  5. » Blog Archive » Reservations about *this* black president Says:

    […] paper or a journal article by University of Pennsylvania’s Daniel Gillion. ** See “A teachable moment in which little was learned” on this […]

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