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.
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
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."