The Arrest of Henry Louis Gates

by Mark Kleiman

It's been a year since the "beer summit," and Barack Obama's popularity has yet to recover from having called the arrest of Henry Louis Gates "stupid." It seems that a lot of people voted for Obama on what they thought was the understanding that he would never take the part of a black person against a white person, and especially not a cop.  

So it's worth pointing out that Obama was entirely right, though he might have used a stronger word than "stupid." At the jump is an analysis of the event by Lowry Heussler, based entirely on the cop's own report. Unlike any of the reporters who covered the story and any of the talking heads who opined about it, it was written by someone who actually understands both Massachusetts law and police behavior. 

Heussler shows, in detail, how the cop set Gates up for a completely unjustified bust. That's not to say that Gates didn't contribute his own quota of irascibility to the transaction, but of the two proud and resentful men who confronted each other that day, one had a professional obligation not to let his wrath get the better of him.  He failed, quite dramatically.


by Lowry Heussler

A couple of years ago, my neighbor locked herself out and figured she could save the locksmith charge if she could get to an unlocked door on her second floor porch. A Cambridge police officer happened by and helped us carry an extension ladder across the street from my garage. He even held the ladder steady while my nimble neighbor ascended to the porch. The police officer never asked two laughing Caucasian women to prove we were not burglars.

We all know that race and sex explain the difference in the way Sgt. James Crowley treated Professor Gates, but I'd like to leave that to the side for now. The incendiary issue of race in policing diverts public attention from examining the foundation of Crowley's misconduct. When addressing basic errors in law and fact can solve a problem, we should start there before tackling the enormous and slippery issues of race and crime investigation. We're all talking about whether Lucia Whalen should have called the police and whether race was a factor in Sgt. Crowley's deplorable treatment of Gates, but so far, I have seen no straightforward analysis of Crowley's own account of his actions.

Sgt. Crowley's report almost certainly contains intentional falsehoods, but even accepting his account at face value, the report tells us all we need to conclude that Crowley was in the wrong here, and by a large factor.

The crime of disorderly conduct, beloved by cops who get into arguments with citizens, requires that the public be involved. Here's the relevant law from the Massachusetts Appeals Court, with citations and quotations omitted:

The statute authorizing prosecutions for disorderly conduct, G.L. c. 272, § 53, has been saved from constitutional infirmity by incorporating the definition of "disorderly" contained in § 250.2(1)(a) and (c) of the Model Penal Code. The resulting definition of "disorderly" includes only those individuals who, "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... (a) engage in fighting or threatening, or in violent or tumultuous behavior; or ... (c) create a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.' "Public" is defined as affecting or likely to affect persons in a place to which the public or a substantial group has access.

The lesson most cops understand (apart from the importance of using the word "tumultuous," which features prominently in Crowley's report) is that a person cannot violate 272/53 by yelling in his own home.

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. He had identified Gates. Any further investigation of Gates' right to be present in the house could have been done elsewhere. His decision to call HUPD seems disproportionate, but we could give him points for thoroughness if he had made that call from his car while keeping an eye on the house. Had a citizen refused to leave Gates' home after being told to, the cops could have made an arrest for trespass.

But for the sake of education, let's watch while Crowley makes it worse. Read on. He's staying put in Gates' home, having been asked to leave, and Gates is demanding his identification. What does Crowley do? He suggests that if Gates wants his name and badge number, he'll have to come outside to get it. What? Crowley may be forgiven for the initial approach and questioning, but surely he should understand that a citizen will be miffed at being questioned about his right to be in his own home. Perhaps Crowley could commit the following sentences to memory: "I'm sorry for disturbing you," and "I'm glad you're all right."

Presented by

Ta-Nehisi Coates is a national correspondent at The Atlantic, where he writes about culture, politics, and social issues. He is the author of the memoir The Beautiful Struggle.

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