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."

Spoiling for a fight, Crowley refuses to repeat his name and badge number. Most of us would hand over a business card or write the information on a scrap of paper. No, Crowley is upset and he's mad at Gates. He's been accused of racism. Nobody likes that, but if a cop can't take an insult without retaliating, he's in the wrong job. When a person is given a gun and a badge, we better make sure he's got a firm grasp on his temper. If Crowley had called Gates a name, I'd be disappointed in him, but Crowley did something much worse. He set Gates up for a criminal charge to punish Gates for his own embarrassment.

By telling Gates to come outside, Crowley establishes that he has lost all semblance of professionalism. It has now become personal and he wants to create a violation of 272/53. He gets Gates out onto the porch because a crowd has gathered providing onlookers who could experience alarm. Note his careful recitation (tumultuous behavior outside the residence in view of the public). And please do not overlook Crowley's final act of provocation. He tells an angry citizen to calm down while producing handcuffs. The only plausible question for the chief to ask about that little detail is: "Are you stupid, or do you think I'm stupid?" Crowley produced those handcuffs to provoke Gates and then arrested him. The decision to arrest is telling. If Crowley believed the charge was valid, he could have issued a summons. An arrest under these circumstances shows his true intent: to humiliate Gates.

No one who is familiar with law enforcement can miss the significance of Crowley's report. As so often happens with documentary evidence, a person seeking to create a false impression spends lots of time nailing down the elements he thinks will establish his goal, but forgets about the larger picture. Under color of law, Crowley entered a residence to investigate a possible break-in, and after his probable cause had evaporated, he continued to act under color of law, but without any justifiable purpose. And he covered it up with false charges. Figuring that his best defense was a criminal charge, Crowley did what bad cops do. He decided he would look better if Gates looked worse. Perhaps one day cops will figure out that trumped-up charges worsen a case of investigating something that turns out not to have been a crime. It is horribly wrong when police officers falsely accuse an injured arrestee of A&B PO ("assault and battery on a police officer," a felony) but at least there is some logic to the lie. If a disorderly conduct charge follows an investigation of a non-crime, chances are pretty good that the cop handled himself badly. Pursuit of charges should be strongly disfavored.

The lying matters. I'm afraid that part of the decision tonolle prosse the case stems from the CPD's reluctance to have Mr. Ogletree produce evidence contradicting Crowley's statements.

I'm not surprised that the CPD backed away from this, but I take a hard line on completing an investigation, regardless of whether Gates pushes for one. I've detailed what I think are serious abuses of authority by Crowley, even if his report is taken as true, but I am also very concerned about "testilying" in police reports. Most of us would be fired for giving our employer a false report, even if it concerned relatively minor matters. Employers need to know they can trust us. When a person is prosecuted in the name of the Commonwealth, a testifying police officer is essentially the eyes and ears of the citizenry. Don't lie when you're my agent.

If Crowley lied about Gates' statements, he should not be permitted to investigate crimes ever again. Investigation for the government is a sacred responsibility. Unless Cambridge investigates and acts properly, we're ratifying his actions. We're also putting the public at risk of false arrest and police persecution. Lying cops are like biting dogs. After the first bite we can't say we weren't warned. Conservatives love "zero tolerance" for crime. Could we have zero tolerance for testilying?

People scoff at the idea of disciplining a cop for lying in a report, let alone firing a cop for a single episode of lying. Complete truthfulness in the police may be an impossible dream. But the goal of policing is a crime-free community, isn't it? The police have to keep working toward the unattainable goal of eliminating crime. The rest of us should be uncompromising in our efforts to eliminate police misconduct.