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Monday, July 27, 2009

Some housekeeping and airing of comments

I was tempted to confine the discussion of Friday's post to the comments board, but several people offered feedback that deserves a more public forum.  Obviously I haven't shared all the comments here... just a few from different points of view that I thought deserved to see the light of day.

Needless to say, if you haven't read Friday's post, go do so (including the comments) so you will know what we're discussing here.

Issue #1: Trusting the Police:

Ber wrote: "Could the police officer not have "adjusted" the story when he made the report to make himself look better?"

Jordan Hirsch wrote:  "I find it incredible that you take a Police report at face value. It is true that many Police officers are brave and honest, but it is also true that there is a longstanding practice on Police departments to shade the truth to create favorable reports when confronted with gray situations."

My responses: To the two of you I would ask a simple question:  How can we allow thousands of people to walk around armed and empowered with tremendous discretionary powers that could impact our life and liberty... who we don't trust to tell the simple truth?    Before you answer, ask yourself also: Would society be better off without these armed/empowered people in our midst?

It is worth pointing out that a police report requires the same level of corroboration that any witness statement would.  We don't accept it as true just because a cop wrote it.  But by the same token, if you want to impeach a witness statement, you need to bring some evidence.  Impeaching a statement based only on the profession of the witness is risky at best and reprehensible at worst.  

Just as an afterthought I wanted to add that police are (ostensibly) better trained as observers and reporters than the average citizen, and because of their daily responsibilities have become adept at organizing their thoughts in such a way as to present the most cogent information to a case.  This can cut both ways.  A cop might leave out a detail that he/she feels is irrelevant which later becomes critical.  Again, this comes down to matters of both discretion and intent.

In our case, the responding officer presented a well organized time-line of events and his statement was corroborated by a second officer who arrived on the scene mid-incident.  So while I get the healthy distrust you both seem to have of 'the man', I am wondering what alternative you can offer to the present system of law & order other than anarchy.

Problem # 2: Mincing Words:

Mike Spengler wrote:  "First, your quote of President Obama is wrong. He did NOT say "the officer acted stupidly." He said "it appears the Cambridge Police Department acted stupidly."

My response:  OK, let's try this little test:  Go into any biker bar in Jersey and walk up to the biggest guy in the place.  Now tell him that he and his friends appear stupid.  Do you think he is going to give you the benefit of the doubt that you didn't actually say he was stupid?  Get back to me on that one.   I love you like a brother, Mike... but I'm not going to sit by while you excuse another Democratic president who wants to argue over what 'is' means.  At least with Bush we had a reasonable doubt regarding his grasp of vocabulary.  :-)

A cop (Karl) weighs in:

First of all, David is right about responding to a possible burglary. When responding to any felony in progress, we don't play around. Gates can scream racism all he wants, but due to the totality of the circumstances, the responding officers have a responsibility to secure the scene and do so in a manner that minimizes the risk to themselves. Gates wasn't ordered to get on the floor at gunpoint or cuffed until he could be identified, so that tells me that Crowley kept things very cool.

Second, if the police are conducting an investigation and they ask you who you are, you must tell them. The Fifth Amendment does not apply in this situation. Crowley asking Gates for ID while investigating a possible burglary to a structure was reasonable.

Third, the US Supreme Court has ruled that the police are expected to have thick skins. So Gates can scream and yell all he wants at the cops. However, he may not do so in the presence of others, that is Disorderly Conduct/Breach of Peace. There were civilians out on the street in front of Gates' residence. If the Prof had kept his temper-tantrum inside, he would have been OK. But when he took it outside and threw his fit in public and after he was warned by Crowley, then that completes the offense. It was a proper arrest. The charge was most likely dropped due to political reasons, not because probable cause for an arrest did not exist.

A former prosecutor (aliyah06) weighs in:

The police received a report of a burglary-in-progress. The officer responded and made contact with the complaining witness, who is apparently a neighbor of the professor and yet did not recognize him. Burglars often carry duffel bags and/or backpacks to make it easier to carry looted items from the residence. The officer went to the home without cover, assuming a crime in progress with two suspects, and not knowing whether or not they were armed. He made contact with a Black male inside the home who CLAIMED to be the homeowner yet became belligerent when asked to prove it. There is ample law stating that the police don't have to take your word for it--you can claim to be the homeowner, to be the brother of a suspect wanted on a warrant, to have an alibi for a crime. etc., but they still have a duty to investigate your claims. What everyone seems to (deliberately?) miss is that the party escalating this conflict is the asshole professor, who seems to think the being a "black man in America" is an excuse to berate a police officer responding to protect HIS property.

There is another aspect of this, as a police officer's wife and prosecutor in my own right, that you've all overlooked---too many people (regardless of race) belong to a snotty elitist upper class socio-economic group that truly believes that cops are beneath them--mere blue-collar workers who get paid to take their abuse because (as my husband and I have both heard many times) "Do you know who I am? I pay your f%$# salary!!"

Professor Gates suffers from the "I'm a professional and I don't have to answer to people who don't have a post-graduate degree" syndrome--the idea that some mere high school graduate DARES to question him is what set him off. This wasn't "racial profiling" -- stopping a random black man for being in a white suburb with no other probable cause. This was a report of a burglary in progress by a neighbor who presumably would recognize the homeowner if she saw him. He was properly arrested for public disturbance when, instead of letting it go when the cop retreated, he followed him out the door and continued the confrontation in front of witnesses. Personally, I'm glad the arrogant SOB got booked, just like any other citizen would have been for this kind of behavior. Welcome to the real world, you jerk!

A lawyer and former cop weighs in:

A Minneapolis attorney writes to add a note in the matter of Harvard Professor Henry Gates. When asked to come out of his house to talk to the police in connection with the report of a possible break-in, Gates exclaimed: "Why, because I'm a black man in America?" Our correspondent suggests otherwise. He writes:

I know that this Gates incident is getting plenty of play in all quarters right now, but I have yet to see the proper context set out for the police response. In a past life (both before and during law school), I was a Minneapolis cop for eight years. I left in 2002 as a Sergeant supervising a dogwatch shift (9:00 pm -7:00 am), to take my first legal job at a Minneapolis firm.

In the Gates incident, the police were not dispatched to simply "check on a couple of guys acting suspiciously around a home." They were almost certainly responding to a report of a "burglary of dwelling in progress." This is typically one of the highest-priority calls that an officer will encounter during a shift.

Let me explain, and I know this will require a huge leap of faith for certain segments of the population. The vast majority of police officers are deeply, deeply committed to protecting the public from the type of criminal that would force their way into someone else's home. When a "burglary of dwelling in progress" call comes over the radio, officers literally drop everything (yes friends, even doughnuts . . .) and risk life-and-limb driving as fast as possible to get to the scene as quickly as possible.

Cops don't do this simply out of desire to catch "bad-guys." They do it because -- due to prior experience -- they assume that the "dwelling" in issue is occupied, and they have seen first-hand the devastation left behind when an innocent family is confronted with a violent home-invasion, burglary/rape scenario, or something similar.

Sergeant Crowley responded out a desire to ensure the safety of Gates's home and its inhabitants without regard to the race of the homeowner. Period. In return, he was subjected to abusive race-baiting from a purported "scholar" that apparently didn't rise above the intellectual level of a playground taunt. Gates is, quite simply, a jerk.

As our correspondent suggests, Sergeant Crowley's report on the arrest indicates that Crowley was responding to an ECC broadcast for a possible break-in in progress at Professor Gates's address. But why did Sergeant Crowley ask Professor Gates to come out of his house and speak with him? A reserve police officer from Texas writes:

It's done so that the officer can be more certain that the person being interviewed is not being coerced to say that everything is alright. Last year in Hewitt, Texas, we went to a hostage situation. Lady would not come out of the house but kept telling us all was OK. After a couple of hours, we said if she came to the door to tell us all was OK, we would pack up and leave. She came to the door, we pulled her out, and found the hostage taker hiding in a closet with a hunting knife. Another renter had called this in, by the way.

On other occasions on domestic disturbance calls, the wife tells us she's OK and wants to stay home. We ask her to step out of the house to talk, she gets outside and asks us not to force her to go back in.

All we want to do is make sure the person being interviewed is in a safe place to tell us whether he or she really is OK or not.

I have to admit that I was extremely angry when I wrote my original post on Thursday night... and given some time to think I may have toned down the personal invective.  But as many have pointed out, it seems odd that a President who is reluctant to weigh on many pressing issues in the national and international arena seems to have no trouble expressing an opinion that he himself admits that he is ill equipped to offer.  Yeah, ok, he didn't volunteer the opinion...he was asked.  But he seems to know perfectly well how to say 'I don't think it would be appropriate for me to comment about that at this time'... so why didn't he do so here? 

Last but not least... another lawyer weighed in (via email) and since I'm not sure if he'd want his name published, you'll have to take my workd for it that this is for real.  I don't agree with much of what he writes, but out of fairness - and for the sake of balance - I'll give him the last word:

I am a lawyer and at one time did some criminal law work.

I enjoy your blog, but you are way over the top on this one.  Let's take your points in order

"But instead, upon seeing a police officer in his home and being asked to identify himself and provide some proof that he was the owner of the home, the Harvard Professor allegedly responded angrily 'This is what happens to a black man in America."  When the officer asked him to step outside the residence, the scholar continued (according to the report), "I'll speak with your mama outside'."

Prof. Gates wisely decided he was safer in the house than on the porch.  The police were not going to enter if he produced ID.  I think that is what I would have done.  BTW, I disagree with Prof. Gates, I don't think race was deciding factor it was the lip.  This may have been town v. gown situation.  The Cambridge Police called the Harvard Police, other than the accused being an off campus Harvard professor, it is hard to see why the call was made.  A Harvard professor lording it over a townie cop seems to be the problem. However, maybe Professor Gates is right. I don't know how to be sure.

"I think it is safe to say that it would have taken a fair bit of lawyering for the average citizen to get the charges dropped after pointedly refusing to cooperate with a police officer in such a potentially dangerous situation."

No, you are wrong. Your are assuming that the police wanted him tried. The Pittsburgh Police operated under a Judge's supervision for years because they picked people up  who gave them lip, filed bogus low level criminal complaints and the charges were dismissed. This resulted in holding people for a couple of hours during the week and a couple of days on the week end without ever appearing in court. Eventually, they were sued repeatedly and the city started coughing up hundreds of thousands of dollars because the police refused to be supervised. The cops then tried to get people to agree not to sue in exchange for immediate release.  Eventually, the US Justice Department stepped in and it ended in court ordered supervision.   The lawyering to get get the charges dropped is  minor to non-existent.  The police only wanted him held.  They know that  yelling at a cop is not a crime. 

I won't go into your confidence in police reports except to say if it wasn't for the reports lawyers would have a near impossible task to cross exam. The reports, to be charitable, are selective and frequently inventive. 

I have known many police and respect most of them.  However, there are problems. The problems are made worse by the inability to discipline cops. Good cops know it and are embarrassed.

Professor Gates assumed that class would trump race. He is a Harvard professor, his appearance is upper middle class with an intellectual's vocabulary. He guessed wrong. Again, I don't think it was the race that did him in, but the assumption that class would protect him, bad call.


In Israel if I substituted Border Police for the Cambridge Police and Amona for Professor Gate's house do I get the same result?  My Israeli friends have bemoaned the brave Israeli police that are out to get  uncooperative settlers. I think they are right about police abuse. Don't you? Or do you believe that the settlers are unfit gravediggers?

Commenters have already covered that the President did not jump into this, but answered the question put to him. He flat out stated he was not objective about his friend. For some reason this President has inflamed people from the election period forward. It has been everything from he is a moslem, radical christian, foreign born, naive, slick, a traitor, Jew hater and on and on. This is just from my Israeli friends and friends in my Orthodox community.  I have to confess to some fatigue.

Finally, you rant:

"IMHO, this president isn't worthy to dig the graves of the brave police officers who give their lives every year to defend the very same constitution he swore to uphold at his inauguration."

My copy of the constitution says:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. "

In this case I choose to side with the President. 

I concede that reasonable minds can differ about this President. Maybe he is the monster that is being complained of, but I don't think so. I am certain he will be wrong from time to time on the issues.I think he wrong about Israel, but also thought the Presidents Bush, Clinton and Bush were wrong.  However, I think under extraordinary circumstances he has been more right than wrong.  In a civil society, being wrong does not make you a monster. 

Posted by David Bogner on July 27, 2009 | Permalink

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Dave-

First, your suggested "test" is apples and oranges in the context of this discussion and what occured.

As a great writer and wordsmith yourself, you must recognize the difference between claiming that Obama stated an individual "acted stupidly" and what he really said. Sorry, but there's a difference.

And in the context of the questions I raised concerning the police report, maybe he wasn't that far off. Even if it was for the wrong reason. What the Cambridge policy procedures are may be different from where I used to live.

But I'm pretty sure that if an East Orange NJ police officer did what Crowley did PREVIOUS to the on-the-porch confontation, (ie- tell the civilian caller to meet him at the scene of a crime in progress that's he's responding to alone) he might have verbally, if not officially, had his head handed to him by both the Chiefs and fellow officers...

This kind of ties in with Jordan's comment about how much one can "trust" police reports. This one raises at least the question I cited above and in my initial comment. I'm not knee-jerk mis-trusting the report, I just find it curious.

I'm not "excusing another Democratic President." I wrote that I felt President Obama's "generalship was lacking" in his comments.

Re-read my post. I, too, love you as a brother. But I cannot let a misquote stand without comment, especially when done by someone I have a ton of respect for. (You too, Psachya :-)

We can agree to disagree on this one, but I stand by my post...

All the best,

Mike S

Posted by: Mike Spengler | Jul 27, 2009 7:31:42 PM

"I won't go into your confidence in police reports except to say if it wasn't for the reports lawyers would have a near impossible task to cross exam. The reports, to be charitable, are selective and frequently inventive."

I take issue with this. Perhaps your lawyer friend worked in an extremely corrupt jurisdiction, but in nearly 30 years of reading police reports and watching trials in progress, I have found that they are usually neither selective nor inventive. They usually don't need to be. I think this comment bespeaks either a lack of experience in criminal law or a strong anti-police bias or both.

Police reports are not admissible in court. They are hearsay. They are used soley as a note-taking device so that when months later, after dozens of other intervening calls, when the office is called to testify, the notes will jog his memory of the events. They are no more sacrosanct than my mother's to-do list which could remind her of what she did last Wednesday, but needs her testimony based upon her recollection of last Wednesday to be accurate. Cross-examination is based on both the police report and the defendant's and witnesses' statements to the defense. Oftentime, they clearly don't agree: most DUI arrestees recall having two drinks and passing the field sobriety tests whereas most experienced officers see the arrestee as too under-the-influence to drive safely.

The final say is not had by the police, by the police report, by the defense investigator's investigation, by the prosecutor's case or the judge's demeanor. The final say, thank goodness, is in the hands of the jury. I think, after many years of experience, that a well-chosen jury of 12 sensible people with no hidden agendas, will give you an excellent result because they bring the entire process down to earth. And given that most jurisdictions have an 90% or better conviction rate (this is after prosecutors, defense attorneys and hearings weed out the nonsense), that should be the measure of how accurate and professional your police force is.

Posted by: aliyah06 | Jul 27, 2009 7:40:57 PM

You're right. My cynicism about police reports comes from what I mentioned about reports being lost/unfiled in my neighborhood. That is mostly a political thing which only benefits the leadership so they can claim crime is down.

I have a lot of respect for the police, and, as I said in my first comment, I really do appreciate them being there to protect us. The leadership of the police dept. is another story.

Posted by: Ber | Jul 27, 2009 7:46:21 PM

Missed this first time:

"My copy of the constitution says:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. "

Very pithy--and my copy of the Constitution says the same thing. But if you've been a criminal practitioner, then you know that the key words here are "UNREASONABLE search and seizure" and that there are a million exceptions to the warrant requirements for arresting and searching, including the well-known "warrantless arrest."

Here, there was no unreasonable search and seizure and hence no violation of the Constitution, and for your correspondent to blithely suggest otherwise by means of his quote is disingenuous. The citizen contact was lawful based on the circumstances; there was no search or seizure, as asking for photo identification is lawful even when no crime is being committed, which itself wasn't at all clear to the officer; and the warrantless arrest took place in public, following the officer's warning to the suspect that he was violating the law by his behavior.

And I have to add something to your anonymous lawyer's riff: cops don't write police reports unless they absolutely have to. They hate it. They're time consuming and if a call can be handled in a simple manner without generating a report, cops prefer that. Having to spend the time transporting and booking a suspect on a minor beef because he's out of control strikes most cops as a waste of time--then having to write a report on it, ditto.

Posted by: aliyah06 | Jul 27, 2009 8:00:37 PM

First of all, congratulations to Trep on moderating his tone. I think this is a case where reasonable minds can differ. It is a tribute that he would include my remarks although we disagree in this case.

I'm the lawyer who aliya06 is complaining about. I am no longer a criminal defense lawyer, moving on to barely more socially acceptable work. First, as I wrote to Trep, I share her opinion that this was caused by a professor lording it over a police officer and not race.

Turning to the police reports, they are written in an argot that just screams to be challenged. As I wrote to Trep, I find most police honorable. I think the problem here is one of perception. The world looks differently from the defense table.

The police report in this case for example reports that Professor Gates was "tumultuous". I give the officer points for vocabulary, but he would be abused on cross examination. He meant that Professor Gates raised his voice and waved his hands. However, complaining loudly probably would not be a crime while tumultuous fits the statute or some court decision.

I don't disagree that most police play it straight, but I would not reflexively call the reports complete or accurate. It is an adversarial system and the reports are perceptions that are naturally filtered towards a conclusion that the action taken was proper. That is all I meant to convey.

This report has some other gems like quoting Professor Gates as giving a political speech from his porch, "This is what happens to a black man in America." This is protected speech.

To Karl, it would not have taken political pull (apparently, Karl also is familiar corrupt jurisdictions) to end this case. If I could do it, then imagine what a competent criminal defense lawyer could do. I know that I put away more than my fair share of people as a criminal defense lawyer.

In my jurisdiction this case just is not a crime.

Aliyah06 is right about the 90%+ conviction rate, but that is aided by a natural desire to trust the police and punish the bad guys, not necessarily accuracy. I think the DNA exonerations in capital cases have opened some eyes. However, Aliyah06 and I again agree more than we disagree.

Finally, why did the President defend his friend in a public forum? Because he was defending his friend. If he had said nothing it would have been reported that he had "thrown his friend under the bus". I think to make more of it than that is an error.

Posted by: lrg | Jul 27, 2009 8:59:43 PM

I need to add a couple of comments in light of Irg's post above (since I initially zeroed in on David's reply to me):

Yes, it IS a tribute to Dave that he gave Irg the last word, even though he may disagree. Dave's basic sense of fairness is one of the reasons that I regularly visit and read "Treppenwitz."

Irg wrote above that he is "no longer a criminal defense attorney, moving on to barely more socially acceptable work..."

My immediate humorous reaction (possibly shared by Dave and Psachya since we've all been on the same bandstands) was, "What, you became a musician???" ;-)

Be well all... Mike S

Posted by: Mike Spengler | Jul 27, 2009 9:27:58 PM

Well, saw this and thought I'd pass it along. So based on what the woman told the dispatcher, if this information was passed on to the policeman (and I have no idea whether it was), then he would have had some idea that it might not have been a break-in.
http://www.nytimes.com/2009/07/28/us/28cambridge.html?_r=1&hp

It sounds like the neighbor very reasonably called out of understandable concern, but she also made it very clear that she thought the men might live in the house.

Posted by: Caro | Jul 27, 2009 11:14:18 PM

Thanks Trep for this new post on the subject and for the honesty you display here by putting up things you disagreed with in the first place.

Posted by: Ilana-Davita | Jul 27, 2009 11:22:54 PM

Michael S.: Worse, a patent lawyer.

In response to Aliyah06. My 4th amendment quote was in response to Trep's comment about defending the constitution. I had in mind his initial comment about Professor Gates not exiting his home to the porch. I was unclear. In my defense I am very ingenuous.

To all who are reading, Aliyah06 is correct that the arrest did not require a warrant if in the presence of the officer, assuming a crime had been committed. There are many other exceptions to the warrant requirement. The 4th amendment is not what it used to be, but wow those guys knew how to write a bill of rights. BTW, no police forces when the Bill of Rights was adopted.

Posted by: lrg | Jul 27, 2009 11:38:22 PM

I just found out from an item by P.J. Gladnick at Newsbusters posted on July 23 that the Boston Globe, after removing Officer Crowley's arrest report from the Web early last week (as I told about here),


posted what it calls a redacted revised docket although it is described as a "police report" at the left side link on its site. And redacted it certainly is since it has redacted out almost the entire narrative section of the original report.
Gladnick then links the copy of the original report that I saved and posted at VFR (which has caused my traffic to increase so much I'll have to switch to a new hosting plan).
Most of the substitute pdf document, called an "incident supplement," is an arrest form. On the fourth and last page is a brief paragraph signed by Officer Crowley simply stating that Gates exhibited "loud and tumultuous" behavior which "surprised and alarmed" people on the street in front of his house. This barebones paragraph, giving none of the chronological narrative leading up the arrest, is what the Globe (a subsidiary of the New York Times) deemed Fit To Print. In other words, the Globe tried to fool its readers into thinking that this one-paragraph statement was the "police report" they had been hearing about that contained the real low-down on Gates.

And the liberal media bridle when we call them Communists. But does not the behavior of the Globe show a Comminist mentality? Would these people not be at home working for the old Pravda and Izvestia?

Gladnick also quotes the main part of Crowley's report, which he must have typed by hand. It's convenient to have this on the Web in html form where it can be read more easily and the text can be copied.

Here it is, in html at last!


On Thursday July 16, 2009, Henry Gates, Jr.---, of Ware Street, Cambridge, MA) was placed under arrest at Ware Street, after being observed exhibiting loud and tumultuous behavior, in a public place, directed at a uniformed police officer who was present investigating a report of a crime in progress. These actions on the behalf of Gates served no legitimate purpose and caused citizens passing by this location to stop and take notice while appearing surprised and alarmed.
...When I arrived at Ware Street I radioed ECC and asked that they have the caller meet me at the front door to this residence. I was told that the caller was already outside. As I was getting this information, I climbed the porch stairs toward the front door. As [reached the door, a female voice called out to me. I looked in the direction of the voice and observed a white female, later identified {} who was standing on the sidewalk in front of the residence, held a wireless telephone in her hand arid told me that it was she who called. She went on to tell me that she observed what appeared to be two black males with backpacks on the porch of• Ware Street. She told me that her suspicions were aroused when she observed one of the men wedging his shoulder into the door as if he was trying to force entry. Since I was the only police officer on location and had my back to the front door as I spoke with her, I asked that she wait for other responding officers while I investigated further.

As I turned and faced the door, I could see an older black male standing in the foyer of {} Ware Street. I made this observation through the glass paned front door. As I stood in plain view of this man, later identified as Gates, I asked if he would step out onto the porch and speak with me. He replied "no I will not". He then demanded to know who I was. I told him that I was "Sgt. Crowley from the Cambridge Police" and that I was "investigating a report of a break in progress" at the residence. While I was making this statement, Gates opened the front door and exclaimed "why, because I'm a black man in America?". I then asked Gates if there was anyone else in the residence. While yelling, he told me that it was none of my business and accused me of being a racist police officer. I assured Gates that I was responding to a citizen's call to the Cambridge Police and that the caller was outside as we spoke. Gates seemed to ignore me and picked up a cordless telephone and dialed an unknown telephone number. As he did so, I radioed on channel I that I was off in the residence with someone who appeared to be a resident but very uncooperative. I then overheard Gates asking the person on the other end of his telephone call to "get the chief' and "whats the chiefs name?'. Gates was telling the person on the other end of the call that he was dealing with a racist police officer in his home. Gates then turned to me and told me that I had no idea who I was "messing" with and that I had not heard the last of it. 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 so that I could verify that he resided at Ware Street and so that I could radio my findings to ECC. Gates initially refused, demanding that I show him identification but then did supply me with a Harvard University identification card. Upon learning that Gates was affiliated with Harvard, I radioed and requested the presence of the Harvard University Police.

With the Harvard University identification in hand, I radioed my findings to ECC on channel two and prepared to leave. Gates again asked for my name which I began to provide. Gates began to yell over my spoken words by accusing me of being a racist police officer and leveling threats that he wasn't someone to mess with. At some point during this exchange, I became aware that Off. Carlos Figueroa was standing behind me. When Gates asked a third time for my name, I explained to him that I had provided it at his request two separate times. Gates continued to yell at me. I told Gates that I was leaving his residence and that if he had any other questions regarding the matter, I would speak with him outside of the residence.

As I began walking through the foyer toward the front door, I could hear Gates agai,n demanding my name. I again told Gates that I would speak with him outside. My reason for wanting to leave the residence was that Gates was yelling very loud and the acoustics of the kitchen and foyer were making it difficult for me to transmit pertinent information to ECC or other responding units. His reply was "ya, I'll speak with your mama outside". When I left the residence, I noted that there were several Cambridge and Harvard University police officers assembled on the sidewalk in front of the residence. Additionally, the caller, md at least seven unidentified passers-by were looking in the direction of Gates, who had followed me outside of the residence.

As I descended the stairs to the sidewalk, Gates continued to yell at me, accusing me of racial bias and continued to tell me that I had not heard the last of him. Due to the tumultuous manner Gates had exhibited in his residence as well as his continued tumultuous behavior outside the residence, in view of the public, I warned Gates that he was becoming disorderly. Gates ignored my warning and continued to yell, which drew the attention of both the police officers and citizens, who appeared surprised and alarmed by Gates's outburst. For a second time I warned Gates to calm down while I withdrew my department issued handcuffs from their carrying case. Gates again ignored my warning and continued to yell at me. It was at this time that I informed Gates that he was under arrest. I then stepped up the stairs, onto the porch and attempted to place handcuffs on Gates. Gates initially resisted my attempt to handcuff him, yelling that he was "disabled" and would fall without his cane. After the handcuffs were property applied, Gates complained that they were too tight. I ordered Off. Ivey, who was among the responding officers, to handcuff Gates with his arms in front of him for his comfort while I secured a cane for Gates from within the residence. I then asked Gates if he would like an officer to take possession of his house key and secure his front door, which he left wide open. Gates told me that the door was un securable due to a previous break attempt at the residence. Shortly thereafter, a Harvard University maintenance person arrived on scene and appeared familiar with Gates. I asked Gates if he was comfortable with this Harvard University maintenance person securing his residence. He told me that he was.


Gladnick then remarks:

Not a very pretty picture of the highly abusive Gates was painted here. And this is probably why the Boston Globe felt it had to remove the police report from its website.

Posted by: Mal | Jul 28, 2009 12:28:49 AM

I find it odd that wackos are throwing soiled diapers at police officers in Jerusalem and this is the conversation people are having in Israel.

Posted by: Shmuel | Jul 28, 2009 4:32:32 AM

Shmuel... And here I was thinking it was odd that with all the possible things you could have added to this discussion you have now posted two comments reminding us that you dislike Haredim.

Posted by: treppenwitz | Jul 28, 2009 6:27:50 AM

Stupid indeed.
This cop should be fired or at least suspended.

This report confirms my posts in other thread---

Assuming Crowley filed an accurate police report, we see a narrative of police misconduct, and borderline illegal and unreasonably risky behavior.

1) He asks that the person calling in the possible break-in meet him at the front door of the residence. Nice chance for collateral damage.
2) Before ascending the stairs, he does not call for backup.
3) He enters Gates' house. How did I know this? I had to piece it together since surprisingly, Crowley never explicitly mentions this crucial detail in his Megillah of a report. After a couple of long paragraphs where the reader is left thinking that Crowley and Gates were facing off through a front door, Crowley disingenuously states "As I began walking through the foyer toward the front door." (translation--he is exiting the house)

Begging the question---when did Crowley enter?
Did he enter right in the beginning of the encounter, which would probably be legal if he had probable cause to believe a crime maybe being committed?
Did he enter after Gates opened the front door, which would be a legal (though rude) entry?
Or did he do so without invitation, with the door closed but after he had already established Gates' identity, and absent a warrant?

From the report's narrative, it seems like he entered sans warrant or invite once Gates opened the door. Which may be fine. Except that

4) Crowley then does explicitly state/confess that "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 so that I could verify that he resided at Ware Street and so that I could radio my findings to ECC. Gates initially refused, demanding that I show him identification but then did supply me with a Harvard University identification card."

The key here is the first sentence. This explains everything happening after. Once Crowley believed that Gates was lawfully in his residence, Crowley's 'surprise and confusion' should not be of any importance. He should have left the residence at that time. And he had no right to request identification, once the status of the encounter had changed from probable cause to no probable cause. Instead, Crowley loses his cool and is 'surprised and confused' by Gates' actions.

5) Holding Gates' Harvard ID card in hand, Crowley calls in Gates' identity to ECC while still in Gates house. Does Crowley then give back the card? We don't know from the report. My educated guess would be that again Crowley omitted a crucial detail from his report because it is damning to him. And he omits stating that he returned said card to Gates inside the home. Keeping the card would be illegal of course.

6) Crowley then leaves the house and tells Gates that if he wants to speak to him, he should speak to him outside of the residence. Gates then does step outside and yells at Crowley. Crowley then warns him twice that he should cease his yelling. In the time Crowley took warning Gates, he should have been leaving the situation. Instead of swallowing his pride, he arrested Gates.

Leaving aside the fact that political speech is protected, Crowley had in any case, no right to arrest Gates. Or at least he had as much to arrest himself as he did to arrest Gates. For without Crowley's presence and 'warnings' to provoke Gates, Gates would have not conducted himself in a disorderly fashion. Once the issue of Gates' identity had been established, Crowley had a duty to leave the premises, house and yard included. Crowley, by his own admission, knew that Gates was incensed already when they were both inside the house. Once Crowley left the house, any statements Crowley would make, short of an apology, would obviously lead to further angry behavior and comments by Gates. Any disorderly conduct that may have occurred would actually be two-sided.

Arresting someone and then dropping the charges after might seem like a harmless series of actions, like a 'catch and release' of a 15 pound bass. But depriving someone of their liberty is not to be taken lightly.

Ironically, everyone would have probably been better off if Crowley had 'profiled' the suspected burglar. Not that many 58 year old black men with canes doing b and e's these days.

Posted by: norm depalma | Jul 28, 2009 8:41:40 AM

norm depalma... I think you're on to something here. With just a little more connecting the dots I bet we could reveal the conspiracy surrounding the Kennedy assassination and maybe even find Big Foot. Nice work. I only wish you would have the opportunity to ride one shift with a real live policeman so you could see the world through different eyes for just 8 hours.

Posted by: treppenwitz | Jul 28, 2009 8:51:16 AM

treppenwitz:
i have full sympathy and even love for the police forces. And i am not faulting officer crowley for anything here besides the arrest. But unfortunately, as i stated before, the police are forced to act as de facto prosecutor, judge and jury--and they are not sufficently trained to do so.

officer crowley can afford to make the mistake of erroneously arresting someone. the arrested man cannot. and if the arrested man isn't well connected and able to secure a lawyer who can properly represent him, he will suffer at the very least an unlawful detention.

and this happens all the time...i know of at least one friend to whom a very similar incident happened recently...

Posted by: norm depalma | Jul 28, 2009 9:52:18 AM

Found an interesting quote in your archives:

http://bogieworks.blogs.com/treppenwitz/2008/10/just-my-two-cen.html

"Yet once again the Israeli police have decided to ignore their promise of a new era of 'community policing' and have instead opted for the most heavy handed 'solution' by arresting the Arab driver for allegedly speeding during his Yom Kippur drive. Idiots!"

Posted by: Dave (Balashon) | Jul 28, 2009 11:24:59 AM

Found an interesting quote in your archives:

http://bogieworks.blogs.com/treppenwitz/2008/10/just-my-two-cen.html

"Yet once again the Israeli police have decided to ignore their promise of a new era of 'community policing' and have instead opted for the most heavy handed 'solution' by arresting the Arab driver for allegedly speeding during his Yom Kippur drive. Idiots!"

Posted by: Dave (Balashon) | Jul 28, 2009 11:25:00 AM

Dave (Balashon) ...[glare] You know perfectly well that there is a big difference between a cop responding to a report of a crime and arresting someone who is being uncooperative (not to mention violating an existing statue), and a cop who decides to arrest someone driving on Yom Kippur (for which there is no statutory offense that I know of) just because it upsets someone's religious sensitivities. What's more, it troubles me that you went looking in my archives in search of something that might make me appear to have contradicted myself. Why was this important for you to do? I own up to my fickleness without any outside oversight, but in this case there is absolutely no inconsistancy in my views. Everybody is capable of being an idiot... including cops. My problem was with Obama taking sides with his friend against an entire police department without having any of the facts before him. That is troubling in a President.

Posted by: treppenwitz | Jul 28, 2009 11:53:42 AM

I wasn't looking for something that would make you look like you contradicted yourself. I was curious to see if you had a similar approach to the Israeli police and the US police. I just did a search in your archives for the word "police" to see what would show up.

I can say that I was surprised to see you call the Israeli police "idiots". I'm not really sure anyone deserves to be called idiots (and I work in the Knesset!). But particularly cops, since as you say, they "extremely dangerous and difficult job to do".

I do wonder though, if you maybe have a different view in regards to the US and Israel because of how "persecuted" we feel. Maybe as settlers/religious we feel that the "man" is always out to get us, so that impacts our view of the local police.

Posted by: Dave (Balashon) | Jul 28, 2009 12:19:35 PM

I wasn't looking for something that would make you look like you contradicted yourself. I was curious to see if you had a similar approach to the Israeli police and the US police. I just did a search in your archives for the word "police" to see what would show up.

I can say that I was surprised to see you call the Israeli police "idiots". I'm not really sure anyone deserves to be called idiots (and I work in the Knesset!). But particularly cops, since as you say, they "extremely dangerous and difficult job to do".

I do wonder though, if you maybe have a different view in regards to the US and Israel because of how "persecuted" we feel. Maybe as settlers/religious we feel that the "man" is always out to get us, so that impacts our view of the local police.

Posted by: Dave (Balashon) | Jul 28, 2009 12:19:36 PM

Dave, perhaps Shmuel doesn't have a problem with Haredim, just dirty diapers.

BTW, your response to Norm DePalma was ad hominem. Not maliciously on your part, but addressed who he was (or wasn't), not the fact that lawyers, whether they represent small time suspects or big time mob bosses, look at accounts such as these to find flaws. And often they are able to make a convincing counter argument. Your dismissing with the back of your hand the comment of someone who is taking your concerns seriously enough to do their own analysis undermines your credibility.

Posted by: Jordan Hirsch | Jul 28, 2009 6:47:56 PM

Seriously? I used to really like reading your blog b/c I found it insightful...but lately your blogs on american politics have been anything but...

You seem to have that knee-jerk democrat (bad), republican (good) reaction. Having read and enjoyed countless numbers of your posts...i've been disappointed in how you will defend anything to the "right" (as in everything Israel does for security is good---even if it's not (and yes, I personally am a "right-winger" who lives in Israel) and disparage things to the left (i.e. obamam is bad). Shame!

Posted by: Leah | Jul 28, 2009 7:07:44 PM

To Jordan:
Thanks

Posted by: Norm Depalma | Jul 28, 2009 10:33:53 PM

Michael -
You know what? I totally missed your "generalship is lacking" comment vis-a-vis Obama the first time around. No, you were not offering a knee-jerk defense of a Democratic president, but an actual (if subtle) criticism. Of course, my criticism is more, um, robust. But then again, I'm sure there were times when your criticism of Mr. Obama's predecessor was quite robust, where I would have simply said, "His generalship is somewhat lacking." I guess it depends whose axe is being ground.

Still friends? :)

Posted by: psachya | Jul 29, 2009 5:27:28 AM

See this collection of citations, compiled by a right-leaning law professor:
http://volokh.com/posts/1248465451.shtml

And this interpretation in plain English:
http://www.huffingtonpost.com/adam-winkler/obama-was-right-about-the_b_244888.html

It's not clear at all that Gates committed any crime under Massachusetts law.

Posted by: Isaac | Jul 29, 2009 6:54:30 AM

Oh, good grief! Read PLAIN English, or is that a lost art?

"While I was led to believe that Gates was lawfully in the residence.." Not that HE BELIEVED but that someone (presumably Gates) led him to believe that Gates had a lawful right to be there. At the risk of repeating myself, cops don't have to take your word for it, hence the line: " I asked Gates to provide me with photo identification so that I could verify that he resided at Ware Street and so that I could radio my findings to ECC."

This does not merit your conclusion that: "Crowley believed that Gates was lawfully in his residence..." Crowley never said this. Don't make things up.

"And he had no right to request identification, once the status of the encounter had changed from probable cause to no probable cause."

You are totally incorrect. First, an officer can request identification absent probable cause at any time. Read Terry v Ohio and its progeny--an ARREST requires probable cause, not a contact, and when a citizen alleges that you are illegally in a house, the officer has a duty to establish WHO you are. Second, it's not at all clear that UNTIL GATES PROVIDED PHOTO ID that there wasn't probable cause---until Gates has identified himself as the homeowner, AND PROVIDED PROOF HE IS WHO HE SAYS HE IS, the officer has no obligation to accept his self-identification. Crowley doesn't know Gates personally--he needs some evidence that the guy in the house is who he says he is.

"Does Crowley then give back the card? We don't know from the report. My educated guess would be that again Crowley omitted a crucial detail from his report because it is damning to him. And he omits stating that he returned said card to Gates inside the home. Keeping the card would be illegal of course."

Reports are nothing more than memory aids. The fact that you write down in your day-timer, "Pick up kids from school" doesn't mean that you forgot the names of your kids, or lied because you didn't mention the neighbor's kids by name who you also picked up, or deliberately omitted that one child is in college and didn't need picking up. This is errant nonsense.

Keeping the card is NOT illegal -- often the cops take such documentation to the station, photocopy it and attach it to police reports because it is evidence. Cops keep evidence and they get in trouble with their sergeants and local prosecutor if they don't do things like photocopy documents that go the central issue of things like the IDENTITY of the guy inside the house who is reported to be a burglar. Many cases have copies of photo ids like driver's licenses. The cop did nothing illegal ASSUMING he kept the ID. Again, this is YOUR assumption based on nothing.

"In the time Crowley took warning Gates, he should have been leaving the situation."

He DID leave--he went outside because he was trying to inform his department of what was happening and Gates was screaming so much, he couldn't be heard over the radio. Gates CHOSE to follow him and break the law. Gates got two warnings which was one more than he deserved, and persisted in his very public screaming fit. The office isn't required to leave the vicinity--Gates is required to abide by the law, which includes not making a public disturbance.

Political speech is protected only when it doesn't conflict with public order. There are a ton of cases on this--political speech is not protected at all costs. You are not permitted, for example, to stand outside a synagogue and shriek, "Kill the Jews because they support Israel!" as political speech--it is, in all jurisdictions I'm familiar with, a form of disturbing the peace and/or incitement to riot. I recall a case where someone wrote scathing poetry on the side of a public building protesting a city council decision. The charge was vandalism. The jury convicted him, finding that his right to write political speech was trumped by a public interest in not having graffittti on public buildings.

"For without Crowley's presence and 'warnings' to provoke Gates, Gates would have not conducted himself in a disorderly fashion...Crowley, by his own admission, knew that Gates was incensed already when they were both inside the house. Once Crowley left the house, any statements Crowley would make, short of an apology, would obviously lead to further angry behavior and comments by Gates." You're making things up again. How do you know that a warning "provoked" Gates since you admit he was out of control before the warnings? The police report makes it plain that Gates' behavior inside the house was egregious -- it became a crime when he carried it outside. Anglo-Saxon-origin law provides a lot of leeway for what you do inside your own home, BUT draws the line at public order. Public order, historically, has trumped the right of individuals to act out. That's why demonstrations, for example, require permits.

I read the report--it is clear Crowley entered BEFORE Gates provided him with photo ID, so Crowley had probable cause to enter and as it was a reported crime in progress, the circumstances were exigent and hence he did not need a warrant.

Nice Monday-morning quarterbacking, but you've mostly established that you are clueless about police work, law and prosecution. Everyone is entitled to their own opinion -- but you're not entitled to your own invented facts or the substitution of assumptions and personal conclusions for fact.

Posted by: aliyah06 | Jul 29, 2009 10:24:57 AM

This could never happen in Israel. Here police wouldn't show up in the first place, only after 10 calls or so. If there is was no crime committed, everyone would get a big lecture not to waste police resources followed up half a year later by a huge bill from the district HQ with all names spelled wrong and probably mixed up.

Posted by: Abu Zibby | Jul 29, 2009 3:06:37 PM

Aliyah06:

I appreciate your effort, but respectfully disagree.

1) 'led to believe' could have both meanings. A defense lawyer would have a field day with the statement.
2) if Crowley did 'believe', then his remaining in the house could be construed as illegal absent a warrant. A policeman cannot stay endlessly in a person's house. And in a quasi confinement status like above, there is law that Gates would probably have to be Mirandized at that point. He wasn't.
3) The ID card also cannot be kept indefinitely unless evidence of a crime. It is not evidence of disorderly conduct. For all we know, Crowley took card outside and thus provoked Gates to exit his house and further incensed him.
4) 'Leaving the situation' means at the very least leaving Gates property, including the driveway, yard etc. Otherwise, at the very least it is trespassing. I think if Gates has a possible right to shoot Crowley, he at least has the right to scream at him. Perhaps Gates' screaming at Crowley could be construed as a warning to Crowley before Gates will shoot him.
5) political speech advocating immediate murder is probably not protected. Saying that a policeman or by extension all police are racists is protected.

6) I am not clueless about police work. I am thinking as a defense attorney would think and as a policeman and DA should think.

In short, Obama was right. Arresting Gates was stupid. It was borderline illegal. And it could have easily provoked Gates to sue the police, city etc and win a large award of damages.

Posted by: norm depalma | Jul 29, 2009 5:18:31 PM

Reply to Psachya here (since I was awol from the computer for a day or so):

Of COURSE we're still friends... Always...:-)

A couple quick points (in the overall context of "depending on whose axes are ground"):

David headed his reply to me under the title "Mincing words." Both my folks were writers- dad a newspaperman. So I hold myself to the strict journalistic standard of "get it right." Saying an individual "acted stupidly" is different than saying an organization did so. And therefore quoting someone is different than a paraphrase. "Paraphrasing" is the first big step in the old game of "telephone."

Anal? Perhaps. But arguments have been made that Pearl Harbor might not have occured had both the US and Japan gotten their translations right in October/November 1941...

As far as my being more "robust" in whatever past treatment I gave Bush & Co., you might be surprised.

One of Dave's (and mine) favorite writers, Anna Quindlen, wrote an essay some years ago about how liberals should respond to Bush et. al. (including Rush, Coulter, Hannity, etc). She felt that no, they should not be responded to in a like manner. Liberals should make their counter-arguments based on facts, truths, realities, and so forth. Strongly, but civilly.

Now that the "shoe is on the other foot," too many folks who call themselves "liberals" are behaving in the same snide manner that Coulter, Limbaugh, and Hannity have and continue to engage in. A reason that my main media news source is PBS's "Lehrer Report." NOT CNN, or MSNBC.

Which is why, compared to other blogs, forums, and websites, "Treppenwitz" is somewhat of a haven for arguing an opinion NOT to "win" or "convince" others to a point of view. But hopefully to make some folks think "hmmm... interesting take. Maybe I don't buy it, but an interesting take..."

As well as being a valuable source of info (for me) about life in Israel. And catching up on an old friend's activities & viewpoints...:-)

Posted by: Mike Spengler | Jul 29, 2009 8:58:21 PM

According to the Los Angeles Times, James Crowley has agreed to go to the White House on Thursday evening for a social get together with the alien-in-chief and America's most prominent black scholar. I say to Officer Crowley, don't do it. Read the commenters at Lucianne.com about this. They're all telling you not to go. You can only be hurt by buying into Obama's message that all three of you stepped over the line and now a little friendly chat can settle things. You didn't step over the line. You acted properly. Gates behaved abominably and Obama's statements were also outrageous. They owe apologies to you. You owe nothing to them. If you, who have done nothing wrong, allow yourself to be cast as the moral equivalent of these two misbehaving individuals, you will not only be destroying the clear moral distinctions that this event has established, you will be handing these unworthy men a victory over you. Don't go.

Posted by: Mal | Jul 29, 2009 9:04:58 PM

1) 'led to believe' could have both meanings. A defense lawyer would have a field day with the statement.

No, it doesn't have both meanings. One is present tense, first person active; his own belief. The other expresses the idea that the information came from outside of the self. Plain English.

2) if Crowley did 'believe', then his remaining in the house could be construed as illegal absent a warrant.

No--if the initial entry was lawful, he doesn't need a warrant to enter the home. Warrants are specifically for the seizure of persons or things, and strictly construed with regard to homes. A crime in progress is often an exigent circumstance that permits a warrantless entry into the home. Note also there was no request by the homeowner that Crowley leave--only that Crowley identify himself.

(2) A policeman cannot stay endlessly in a person's house.

This is a red herring. No one is suggesting this is what happened.

(3) And in a quasi confinement status like above, there is law that Gates would probably have to be Mirandized at that point. He wasn't.

This is incorrect. A person is read their Miranda rights ONLY when they are a suspect AND have been taken into custody, oftentimes defined as "not free to leave." The case was still in the investigative stage since there was a question as to whether a burglary was committed and who Gates was--and questions are permitted during the investigatory stage.

There really isn't any such thing as "quasi-confinement" -- you're in custody (not free to leave) or not.

(3) The ID card also cannot be kept indefinitely unless evidence of a crime.

Indefinitely is an element you've newly interjected here--it's not what you said before. No, documents generally are not kept indefinitely. They can be retained in these circumstances for documentation, to copy into the police report, or even to hand to the Harvard cops who were on their way to take over the call. If you've ever been stopped for a traffic ticket, you know the cops take your driver's license, walk back to their patrol cars, and hold onto it while they take notes, and radio the information to their dispatchers. This is perfectly legitimate as part of the investigative process. (BTW, even evidence of a crime isn't kept "indefinitely.")

(3) It is not evidence of disorderly conduct.

No, it's evidence that the guy in the house is (1) either Gates or (2) a burglar who stole it from Gates' wallet or drawer while inside the house, but in either event is being used as part of the investigation at this stage.

(3) For all we know, Crowley took card outside and thus provoked Gates to exit his house and further incensed him.

That's the point -- we don't "know" this and it is an tri-part assumption on your part: 1) that Crowley took the card outside and 2) Crowley's action in taking the card outside "provoked" Gates to exit the house and 3) provoked Gates to break the law with his subsequent conduct. I submit that Gates was already angry and abusive before he was even asked for identification inside the house, based on the police report, so your assumptions here are patently incorrect.

4) 'Leaving the situation' means at the very least leaving Gates property, including the driveway, yard etc.

Says who? You have some law on this? The Constitution protects your home--there are some protections for curtilage but not much any more....those have gradually been whittled away as we've gone urban and suburban, so a front yard where other people are gathered may not have the same level of Constitutional protection as your home. Besides, how do you know the "sidewalk" referred to in the report isn't the public sidewalk?

4) Otherwise, at the very least it is trespassing.

Not if he entered the property for a lawful purpose to start with, and there is no subsequent request by the (alleged) owner to leave.

4) I think if Gates has a possible right to shoot Crowley, he at least has the right to scream at him.

WHAT makes you think Gates has a right to shoot Crowley? He doesn't. There is no night-time break-in by an unidentified person (which is justification in some jurisdictions but not all and I would bet not in Mass.) and there is no threat of the use of deadly force which could invoke self-defense.

These are apples and oranges, anyway -- Gates in no way has a right to shoot Crowley, but aside from that, the right to shout abuse at someone is unlimited inside your own home (or apartment) but once it enters the public domain, you no longer have that right if it rises to the level of public disturbance.

4) Perhaps Gates' screaming at Crowley could be construed as a warning to Crowley before Gates will shoot him.

No, you have to consider content of the shouting. It did not contain a warning, or claim of trespass or demand to leave or anything about shooting or force -- it was simply a reverse-racist rant by an arrogant, elitist jerk who felt like abusing a white cop. Construe it as elitism and racism and you're closer to the truth.

5) political speech advocating immediate murder is probably not protected. Saying that a policeman or by extension all police are racists is protected.

But that's not what happened. If Gates had walked outside and said, "Y'know what? I think you're a racist pig," in a normal, or even hostile tone of voice, you have protected speech. There is a distinction in the law between "speech" and "conduct" which is covered extensively in Federal Courts where this question has frequently come up. You can "say" what you like up to a point, but when your speech becomes a public disturbance or incitement to riot, public policy holds it is no longer protected AND if the accompanying behavior violates a statute prohibiting certain conduct, then it's prohibited CONDUCT, not merely speech.

Arresting Gates was lawful. As to whether or not Obama was right or wrong.....my feeling is that the POTUS should be involved in stopping Korea and Iran from nuclear development, addressing the economy and jobs, dealing with national health care. Comment on a local crime involving a friend was, well, uncalled for. Just my opinion.

Gates will sue the city anyway. He'll also lose because the cop didn't do anything illegal. Gates is that kind of belligerent jerk who won't feel vindicated until he has his pound of flesh.

Posted by: aliyah06 | Jul 29, 2009 9:50:25 PM

aliyah o6:

1) google the phrase 'led to believe'. count up and do a ratio of usage according to your definition and according to mine.

2)not a red herring. if crowley exceeded a reasonable time to stay in gates' house, he was in effect conducting a warrantless entry, search etc. at that point, he could also be said to be detaining Gates: the armed Crowley has the position of complete power and Gates is powerless---at that point, Crowley has to Mirandiaze Gates if he persists with questioning him etc.

3)yes, i am making a 'tri-part assumption'. on the other hand, if Gates would state that this is how it happened, you are making equally as many assumptions. it's a 'he said she said' situation. difference being crowley has already discredited himself with his other statement---i.e. with the 911 caller coming forth and disputing his version of events already, crowley's 'he said' is looking more and more porous.


4, 4) 4) my assumptions vs. your assumptions. As well, re use of force, i would think an armed intruder trespassing on your property could be considered threatening... as well, you have no idea what the content of gates' invective was. again, he said she said.

5) you are assuming gates' speech rose to that level of disturbance...again he said she said...and more importantly, as i stated before, if he was provoked and prodded into it, Crowley would probably be guilty of disorderly conduct himself.

obama did not bring up the gates case originally. he made an off the cuff remark in response to a press question. perhaps he was not diplomatic. perhaps he slipped up. but he has made a history of slipping in his personal agenda into seeming slip ups. his personal agenda here would be that after 8 years of messing with the constitution, i.e the extraordinary rendition program which makes a mockery of the agency concept and is patently illegal, it is time to start paying attention to the law, no matter how niggling the details.

as for dealing with iran, korea etc, he is. I dont think he is necessarily doing a great job on any and all of those issues but he is not chopping wood on his Crawford ranch or getting hummers from fat interns.

gates should sue the city. the woman who called 911 should sue the city too. they would both 'win' settlements from the city if they did. however, obama will convince gates not to sue and the woman caller is too sweet to be litigious.

as for gates being a belligerent jerk, im going to assume here you havent read any of his books, havent heard him speak and havent considered what life in his shoes is like. there---another tri-partite assumption.

Posted by: norm depalma | Jul 30, 2009 1:19:49 AM

aliyah o6:

1) google the phrase 'led to believe'. count up and do a ratio of usage according to your definition and according to mine.

2)not a red herring. if crowley exceeded a reasonable time to stay in gates' house, he was in effect conducting a warrantless entry, search etc. at that point, he could also be said to be detaining Gates: the armed Crowley has the position of complete power and Gates is powerless---at that point, Crowley has to Mirandiaze Gates if he persists with questioning him etc.

3)yes, i am making a 'tri-part assumption'. on the other hand, if Gates would state that this is how it happened, you are making equally as many assumptions. it's a 'he said she said' situation. difference being crowley has already discredited himself with his other statement---i.e. with the 911 caller coming forth and disputing his version of events already, crowley's 'he said' is looking more and more porous.


4, 4) 4) my assumptions vs. your assumptions. As well, re use of force, i would think an armed intruder trespassing on your property could be considered threatening... as well, you have no idea what the content of gates' invective was. again, he said she said.

5) you are assuming gates' speech rose to that level of disturbance...again he said she said...and more importantly, as i stated before, if he was provoked and prodded into it, Crowley would probably be guilty of disorderly conduct himself.

obama did not bring up the gates case originally. he made an off the cuff remark in response to a press question. perhaps he was not diplomatic. perhaps he slipped up. but he has made a history of slipping in his personal agenda into seeming slip ups. his personal agenda here would be that after 8 years of messing with the constitution, i.e the extraordinary rendition program which makes a mockery of the agency concept and is patently illegal, it is time to start paying attention to the law, no matter how niggling the details.

as for dealing with iran, korea etc, he is. I dont think he is necessarily doing a great job on any and all of those issues but he is not chopping wood on his Crawford ranch or getting hummers from fat interns.

gates should sue the city. the woman who called 911 should sue the city too. they would both 'win' settlements from the city if they did. however, obama will convince gates not to sue and the woman caller is too sweet to be litigious.

as for gates being a belligerent jerk, im going to assume here you havent read any of his books, havent heard him speak and havent considered what life in his shoes is like. there---another tri-partite assumption.

Posted by: norm depalma | Jul 30, 2009 1:19:52 AM

aliyah 06:
also, have an easy fast

Posted by: norm depalma | Jul 30, 2009 1:22:23 AM

Thanks, Norm -- you, too.

You asked in another thread for some law on this, so when you get a chance to do some outside reading, consider these:

Commonwealth v Erickson, 74 Mass. App. Ct. 172 (2009): (1) a warrantless entry was justified because there was reasonable cause to believe than an emergency existed at the time of entry; and (2) an emergency exception to the warrant requirement applies when the purpose of the police entry is to respond to an immediate need for assistance for the protection of life or property (as in a burglary in progress, for example).

Commonwealth v Swan, 73 Mass App Ct 258 (2008): a person is disorderly if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk therof, he creates a hazardous or physically offensive condtion by an act which serves no legitimate purpose of the actor.

Alegata v Commonwrth, 353 Mass. 287 (1967): The "public" element of the offense is satisfied if the defendant's action affects or is likely to affect persons in a place to which the public or a substantial group has access.

Abraham v Nagle, 116 F.3d 11 (1st Cir. 1997): a federal case addressing the Mass. statute--held that a person, upset by his friends arrest, circled the officers while shouting and refused to obey them, and that given the potential for serious violence and injury to both the police and the suspect, his behavior fell within this statute and the police have probable cause to arrest him. This court went on to point out a number of other Mass court decisions where disorderly conduct arrests were upheld in similar situtations, although I didn't take the time to read all of them. It cites another Supreme Court case wherein a conviction for disorderly conduct was upheld where the suspect simply refused to move on after being directed to do so by police, and that his conduct was not protected by the First Amendment. This case also distinguishes between protected speech and disruptive conduct, stating that the latter is not protected by the Constitution.

Commonwealth v Mulero, 38 Mass. App. Ct. 963 (1995): holding that the defendant's actions of removing his hands from the police cruiser, flailing them in an agitated and belligerant manner while berating the officer with loud profanities, and then shoving his hands into his pockets (he had a previous gun charge) constituted tumultuous or threatening behavior beyond protected expressive speech or conduct.

Commonwealth v Sholley, 432 Mass. 721 (2000): held a defendant violated the disorderly conduct statute by yelling and screaming in an angry tone of voice at a prosecutor in a courthouse hallway after apparently losing a family law case; the court noted that his behavior and words, as well as physical actions (accosting the prosecutor and pointing his finger in her face while standing only inches from her), coupled with advice to "watch out" amounted to disorderly conduct under the term "tumultuous" -- "Tumultuous conduct, while perhaps not physically violent, may neverthelss be characterized as involving riotious commotion and excessively unreasonable nosie so as to constitutes a public nuisance."

Many cases discuss the "public" and "tumultuous" elements--public is any place where the public can be found, is open to the public BUT it cannot be "public" if ONLY police officers are present--public means citizenry. "Tumultuous" varies on locale--tumultuous behavior in a courthouse hallway or busy street is unlawful; at a town hall meeting where hot debate is taking place or at a local ball game, it is acceptable.

I would, BTW, not use Google as a grammar source since it is only as reliable as the sources: garbage in, garbage out. Any high school grammar book can distinguish between "I believe..." and "I was led to believe.."

"if crowley exceeded a reasonable time to stay in gates' house, he was in effect conducting a warrantless entry, search etc. at that point, he could also be said to be detaining Gates: the armed Crowley has the position of complete power and Gates is powerless---at that point, Crowley has to Mirandiaze Gates if he persists with questioning him etc."

This is all so hopelessly legally incorrect that I'm not even going to try to unravel it. Besides, I already gave you the law on warrantless entry and Miranda--you can chose not to believe me, but you're legally incorrect here.

"re use of force, i would think an armed intruder trespassing on your property could be considered threatening"

There is no jurisdiction anywhere I am aware of that holds that an armed police officer responding to a call at a residence is "an armed intruder" -- quite the contrary--a lot of law makes it plain that officers have a duty to respond. An "intruder" is one who has no lawful business on the property--by definition, an officer being dispatched to a burglary has a lawful business there.

"if he was provoked and prodded into it, Crowley would probably be guilty of disorderly conduct himself."

No, Crowley's behavior doesn't fit the statute or the case law defining the prohibited behavior.

"as for gates being a belligerent jerk, im going to assume here you havent read any of his books, havent heard him speak and havent considered what life in his shoes is like. there---another tri-partite assumption."

One has nothing to do with the other. His behavior is what makes him a belligerent jerk. He could be another Einstein in terms of what he's published but that doesn't excuse his racist, elitist, ugly behavior--he's still a jerk.

Posted by: aliyah06 | Jul 30, 2009 9:10:17 AM

aliyah06:

thanks for taking the time on a hot fast day. thanks for citing cases too, though they are all easily distinguishable, even with just looking at your summaries. So easily actually, that I wouldnt think Id have to list reasons on a case by case basis, but would be glad to do so if you ask me.

As for the utility of google, versus legal research, go ahead and please do both or check the dictionaries or any other source.

As for deeming gates' behavior as 'racist, elitist, ugly', I can see you listen to Rush Limbaugh and his ilk. Not sure exactly when 'elitist' replaced 'uppity n____' as a pejorative, but maybe i'll google that too. whoops, forgot about that damn GIGO problem.


Posted by: norm depalma | Jul 30, 2009 9:57:05 PM

All cases can be "distinguished" from each other because no two are exactly alike, but legal distinctions are not the same as factual distinctions. The cop had probable cause for the arrest, so Gates will lose his lawsuit.

I loathe Rush Limbaugh and never listen to him, have never listened to him, or his "ilk." Sometimes people just reach conclusions opposite of yours without being Right Wing Neo-Con Nut Jobs.....I think Gates deserved his trip to jail, you don't. Reasonable minds can differ.

Posted by: aliyah06 | Jul 30, 2009 10:33:50 PM

Michael -
A very thoughtful reply, and one I appreciate. People should be able to "agree to disagree," and to discuss their differences of opinion in a civil manner. I've heard of Anna Quindlen, but I've never read her articles. I'll have to check her out.

Having said that, I wish some of her fellow-travelers would take her advice to heart. Conservatives have their Rush, Anne Coulter, etc. Liberals, on the other hand, have nice folks like Al Franken and Whoopi Goldberg (remember her lovely campaign slogan, which I will not repeat in this venue? I don't recall Rush or Sean Hannity stooping to that level, but I could be wrong). And they were doing that stuff long before "the shoe was on the other foot".

Maybe the loudmouths on both sides should be put in separate corners and be given a time-out.

Posted by: psachya | Jul 30, 2009 11:44:18 PM

Empty Suits Enjoy Intellectual Diplomatic Immunity
Joseph Kay

The "professor gone wild" episode involving Harvard professor Henry Lewis Gates, Jr. has generated enormous media attention, but few, if any, commentators have tried to explain why this distinguished African American professor "lost it." Having personally encountered numerous black affirmative action professors first hand, let me offer an explanation that transcends this particular incident. First, Gates is the classic black "empty suit:" the articulate, well-attired, well-credentialed, superficially scholarly African American who is really an impostor, an actor playing a role. Gullible white outsiders (but not professors in "real" academic departments), are just easily conned by fancy vocabulary, name dropping and similar ruses.

Second, empty suit impostors enjoy what I call intellectual diplomatic immunity on all matters touching on race, a sense of intellectual entitlement that probably began in college, where "compassionate" white professors knowingly tolerate stupid class comments and shoddy papers to "help" strugglers admitted by affirmative action. Of the utmost importance, well-socialized whites simply learn that it is impolite, even potentially dangerous, to dispute these dubious assertions. It is as if empty suits were cars with "DPL" (diplomat) license plates and therefore immune from speeding tickets. Indeed, the more transparent the mendacity, the higher the speaker's social standing, and the greater the white acquiescence in both.

For example, how many times have these empty-suit black "experts" glibly explained away black crime by insisting that police disproportionately target African Americans, or that blacks perform poorly on standardized tests, since all tests are culturally biased? Or opine that African Americans are virtually debilitated psychologically by white-held "dangerous" stereotypes about their IQ, work habits, or impulse control? Or that corporations and universities still refuse to hire capable blacks despite intense government pressure? Much of Black Studies is little more than such fabrications dressed up in academic jargon. It is not the mere foolishness of these pronouncements that draws our attention; what is remarkable is that whites seldom, if ever, confront the outrageous assertions from the empty suits, let alone defend themselves against baseless charges.

Observing the race-related double standard can be painful for whites. In a public debate over dreadful African American SAT scores a black expert might rave and rant about invisible racism, a Euro-centric curriculum, the lack of black role models and mentors in schools, inattention to the unique learning style of blacks and similar explanations, but it will be a rare day if he or she is called upon to offer any scientific proof. By contrast, his debate opponent will immediately be excoriated if he even dares hint at IQ differences, though copious, detailed citations are immediately provided. Our empty suit impostor will predictably respond with "How can you possibly say that? We all know that no such evidence exists!" The counter-charge--where is your scientific evidence?--will be casually side-stepped, since how can a white tell a well-credentialed black about the black experience.

This immunity has two major consequences. First, the absence of rebuke only strengthens the pontificator's flawed version of reality. An entire class of people will now occupy a fantasy land; blithely making it up becomes a way of life, a barely noticed habit. Recall President Obama telling his Cairo Muslim audience about how Muslims contributed so much to the building of America, including sports and the civil rights movement. And even that there are seven million Muslims in America. Surely somebody must have read this speech beforehand, but who will bell this cat? To differ in such circumstances is not just the normal give and takes of intellectual argument; objections indicates disrespect ("dissing"), and the stronger the "disrespect" the more vehement the outrage. The process feeds on itself--savvy whites learn that to disagree with those possessing diplomatic immunity only invites avoidable trouble, and like a creature without any predators, the empty suit grows increasingly self-confident, pompous and addicted to deference.

Second, the physical presence of these self-possessed experts renders public intellectual honesty virtually impossible. The empty suit is a human intellectual neutron bomb--his very presence kills off all disagreeable ideas while leaving physical reality intact. At most, a few whites hearing crackpot assertions may sarcastically whisper disagreements to close-by friends or, more likely, later express bewilderment to trusted confidants. Public disagreement is always muted, most likely a quibble than a direct challenge. If the empty-suit, diplomatically-protected speaker states that white suburban schools out-perform black inner city schools because since they spend more money (a bald-faced lie), the typical "challenge" during Q and A might be, "Is money the only factor in academic accomplishment?" The well-socialized white would never, ever say, "Your statistics are hogwash, many black-dominated schools far outspend white schools, and the worst performing but well-funded schools are in places like Washington, D.C. and Newark, N.J. where nearly all the students, teachers and administrators are black. What about Utah where whites perform well despite about average school funding? How do you explain that?"

No doubt, such a "hostile" question would bring an embarrassed silence and scowls from blacks in the room. Rather than receive a serious, detailed answer (probably beyond the speaker's ability in any case), the questioner would be chided for his impudence. Thus understood, public "Dialogues on Race" or "Conversations" where these protected empty suits assemble are ceremonial professions of faith, cathartic events in which educated blacks gain a modicum of psychological satisfaction by berating hapless white devils. It is no accident that these speeches often occur in black churches and have a revivalist "Amen, brother" flavor. Speakers also gain opportunities to "be important," burnish professional resumes, practice their impersonation skills and otherwise gain legitimacy as a race spokesman (an achievement far more important than getting the facts right).

To return to Gates and his "gone wild" confrontation, it is no wonder that some working-class, uniform-wearing white who earns a small fraction of his Harvard salary is instinctively judged stupid, disrespectful, and impudent--even a racist cracker--when questioning the highly self-esteemed, often honored professor in his own house. This is not about law enforcement; it is about an artificially inflated ego that has gone unchallenged for decades. Of course Gates said to the cop, "Do you know who I am?" That somebody, let alone a white policeman, might question him and demand his ID, assaults his very persona, like giving the Pope a speeding ticket. What's next? A lowly Harvard undergraduate demanding Gates supply statistical evidence that the U.S. is hopelessly mired in racism or that the legacy of slavery explains the poor academic performance of blacks? This is all about proper deference, not a burglary investigation. Recall the similar "how dare you?" fury when Harvard President Lawrence Summers told Cornel West, another empty suit professor with DPL plates, to stop trying to be a rap star and do serious scholarship. West was outraged over this dissing and quickly decamped to Princeton where he once again enjoys immunity from reality.

Is this a problem to be corrected? Should whites try to speak knowledge to stupidity? Might roving "truth squads" shadow these black pseudo experts and publicly confront them? This might be tempting, even beneficial for public debate but silence is best. On balance, white anguish aside, these exasperating rituals may be socially beneficial, the best way of coping (odious though it may be) with a hopeless mess. The black intellectual class is kept happy, at relatively little cost (notwithstanding high university salaries for their airhead pontificating), convinced that they are respected serious "scholars," while whites continue on, doing their own, legitimate academic work. In any case, intellectually upgrading these empty suit scholars would be a waste of time--there are no remedial Ph.D. programs.

Openly challenging these diplomatically protected persons can even be disastrous. Just imagine the social damage if the immunity from criticism were withdrawn, that is, if there occurred an onslaught of rock-solid rebuttals when a putative black scholar claimed once again that blacks are unfairly targeted by racist cops. Or if affirmative action university job candidates were grilled about their research, in the same way that white or Asian candidates are hauled over the coals. Such intellectual challenges to the empty suit would indisputably demonstrate that he is in over his head, a fool who cannot master logic, let alone statistics and scientific evidence. This would cause public humiliation ("disrespect"), the puncturing of an inflated ego, and, worse, a public demonstration that blacks cannot intellectually measure up to whites. The charade would be exposed and the upshot could only be yet more anti-white anger and resentment, as well as increased litigation against various institutions for failing to meet minority recruitment targets.

Thus, on one hand, the Gates episode brings to the surface what has been occurring for decades--intellectually sub-par blacks endlessly shielded from a disconcerting reality in a well-intentioned effort to create racial diversity. On the other hand, accepting that unpleasant reality may be a more prudent course of action than fighting it.

Posted by: JK | Aug 8, 2009 7:49:28 PM

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