Crowley vs. Gates

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BoV ,
for the n-th time - Gates had any right to do what he did when he did it and how he did it. He did not commit anything illegal, much less disorderly conduct, and thus he was not to be arrested. Alas, he was, and that's a problem.

And yes, we do hold people to different standards all the time. People are not just people. The standard applied depends on which function they're holding.

Cops (or any other public servant) that take money to perform, say, favours, that (almost always) conflict with their duties, are being punished. When private citizens agree to perform favours to each other it is called a contract, and entirely legal. Cops are not allowed to embrace political candidates when on duty (iirc a Florida cop, who introduced McCain on a campaign event in uniform was disciplined for doing that). Ordinary citizens are entitled to embrace any candidate whenever they choose to do so. Unlike cops, ordinary citizens are not subject to disciplinary rules and punishment if they violate these rules. Cops, or soldiers, are obliged to, if necessary, risk their lives for others whereas citizens might in a same situation enjoy the entitlement of cowardice, as long as it doesn't amount to failure to render assistance in an emergency. I could go on.

To keep it short - citizens are far less limited in what they are allowed to do than cops. They are held to a different, lower, standard than cops. You might want to figure out why.

T2,
the much narrower definition of disorderly conduct than in the legal code is with near certainty the result of what I will call for lack of a better (English) word 'reduction to constitutionality' (i.e. verfassungskonforme Auslegung), an interpretation that reduces a law to what is constitutionally allowed, without killing it as a whole. Obviously, there are instances in which disorderly conduct is not problematic and can thus be punished, just not in reaction to protest against police action, for the reasons I lined out earlier. The entire law wasn't unconstitutional, just the particular application. The courts couldn't just ignore or nullify an otherwise legitimate law enacted by the Massachusetts legislature (-> separation of powers!). So they limited the scope of its application by narrowing the interpretation. That is judicial self restraint.

Such a narrowing of the definition in order to meet constitutional limitations has great and imminent implications for the everyday work of police. These decisions are subjects of training (be it only to reduce the risk of litigation against the Police Department), and they are written about in law enforcement magazines. I thus find it implausible that Crowley wasn't aware of that. That is why I assume intent, and him baiting Gates.

 

That is clearly only an opinion on your part and not what is represented in the case at all. That the prosecution chose to narrow the scope of the charges to "threatening or tumultuous" behavior (and the judge further supported it in his instructions to the jury) in no way limits the statute -- the use of such a narrow definition is most likely a mistake made by the prosecution. There is no ruling which limits the statute and until there is such a ruling the police will continue to arrest based on the statute. Until firm guidance is set forth by either the legislators or the courts, the way the police department does business will not change.

IMO, Crowley did nothing wrong if he was following the department's procedures.

 

I would say the courts made quite a pointed statement and gave explicit and clear guidance when they called the application of 'disorderly conduct' against vocal protest against a police action, as covered by the broader definition, unconstitutional.

The prosecution didn't narrow down their definition - the court refused the prosecution's broader interpretation and narrowed it down. The prosecution, the Commonwealth, very much wanted Lopiano punished for disorderly conduct as well, which the court rejected.

 

Well the topic has got more serious, but I do feel the need to lighten the mood. In listening to a comedian this weekend, he made this joke: "Well we had the beer summit yesterday. Gates had a Red Stripe, Crowley had a Blue Moon, and Obama - just to screw with the conservatives - had a 40 of Bud. When Gates heard that Obama had 40 of bud, he pulled out his pipe."

 

Ragusa, you are probably right the judge limited the prosecution to the specific part of the statute -- it may not have been an option for the prosecution. But it appears the guidance was limiting because that's the only part of the statute which applied to that particular case. It was narrowed by the events of the case, not by anything else -- the judge may not have wanted the jury confused by other portions of the statute.

A man walking away, having already shown himself to be passive, who turns after ten paces and states "why are you doing this" and "you're violating my civil rights" is slightly different than an agitated man who is following and belittling a police officer -- surely you can see differences in the cases.

 

T2,
sorry for the late reply. I wiki-ed a little, and found this quote from the legal encyclopedia American Jurisprudence:

To call a law or an action 'unconstitutional' is the highest possible degree of illegality (nationally). Unlike plaintiffs, courts don't use such that term easily. If the court would have wanted to make a statement specific to Lopiano only they wouldn't have used the term 'unconstitutional' but rather something like 'disproportionate' or 'unlawful'.

When a court makes a finding that a particular application of the law (and not the law in its entirety) to a given set of circumstances is unconstitutional (i.e. immediate and unrestricted protest of the addressee against a current police action), then it will always be unconstitutional when these circumstances are met. If the particular application of the law results from an overly broad definition of what 'public disturbance' is, then a narrowing of the definition reflects and addresses that. It is then aimed on excluding the unconstitutional use of 'disorderly conduct' from the application of the law by setting the definition straight - not just for this case but for the future as well.

To recapitulate: The narrowing of the definition reduces the scope of application of the public disturbance law by excluding immediate and unrestricted protest of the addressee against a current police action, and so reduces the application to the extent that is constitutional.

 

I could be wrong here, and perhaps one of the US attorneys can clarify, but I believe a judge can focus the jury on applicable aspects of a complex law without drawing question to the aspects of the law he or she excluded from the jury. Hence, the other portions of the law remain intact and are valid.

I agree the under a given set of circumstances application of the law will always be unconstitutional -- I content that the circumstances are varied enough that application of the law against Gates was not unconstitutional. In Commonwealth v. Lopiano the defendant was clearly not a threat (he had walked ten paces away from the police) and his loud statement of 'why are you doing this to me' and 'you are violating my civil rights' were not intended to cause alarm or disturbance. Gates, on the other hand, followed the police closely and used insulting, degrading terms which are known to cause alarm in others. The circumstances were different and so the arrest was valid.

As I mentioned before, had the case gone to trial perhaps the constitutionality of the law could have been further clarified.

 

I disagree with you. I find that it is a stretch to say that Gates posed a threat to anyone, only because his choice of words and him following (Crowley practically asked Gates to follow him out of the house) Crowley could potentially cause something that might be dangerous to the police.

You interpret him following the police as potentially threatening. You appear to have changed your mind on that.

Mind you, that was an elderly, if irate, professor they were confronted with, and choice of charged words in an, from what it looked to me up scale, neighbourhood is highly unlikely to draw an angry crowd that might harm the police at the scene. People are punished for what they do, not for what they could have done.

Also, I don't think Crowley was in fact leaving. Crowley wanted to go outside so he could better radio with ECC. Whether that assertion of intent is truthful or not, clearly Crowley and Gates weren't finished clearing the matter when Crowley stepped outside. Certainly Crowley didn't want to just go back on patrol; he could have done that without telling Gates that he would speak with him on the outside.

From what I read it has some basis in life that black Americans are more often being asked by police to identify themselves than white Americans. It is unsurprising that this is interpreted by black Americans as a sign of police bias. Gates, seeing racist bias as the reason for him having to identify himself, calling the white and in his eyes racist cop to identify himself in return is actually reacting in a very straightforward way. It is quite obviously psychologically an act of reciprocal self-assertion - if I have to show you, you have to show me - and not a threat.

That also explains Gate's 'unreasonable', that is, emotional, reaction. It is pretty apparent that Crowley, by denying Gates his self assertion, kept the kettle cooking. Crowley telling Gates his name and ID would probably have appeased Gates by re-asserting Gates status. Instead Crowley asked Gates out - kept on denying Gates his name and ID, and re-assertion - and then arrested Gates for disorderly conduct because he wouldn't settle down. Curious, that is, I still suspect that Crowley baited Gates.

 

I don't believe he was a threat -- the use of threat was from the precident you cited and I stated it specifically to show the defendant did not meet any requirements for disorderly conduct (threat being only one, but one the judge specifically mentioned to the jury). I specifically stated Gates was acting in manner to cause alarm in others -- by following the police closely and shouting accusations of racism. His comments were meant to be inflammatory. Such actions are clearly within the scope of the statute for disorderly conduct.

You are jumping to a conclusion. I would agree that Gates clearly wasn't finished, there is no basis in any report that Crowley was still wanting engagement. The reports I've read have Crowley leaving when identification was presented -- Gates was not asked to follow. Crowley also said his name and badge number multiple times (both were clearly visible on his uniform as well) -- but Gates was too busy arguing to listen. The protestations of Gates for a name and badge number were clearly argumentative -- anyone who has ever seen a police uniform would realize that (I understand how you might not know the name and badge number is displayed on uniforms). Perhaps I missed something.

Your last three paragraphs have nothing to do with the legal argument. You are also assuming that Gates' account is complete truth and Crowley's (along with the other officers present) is complete fabrication. I have asserted over and over that both sides are wrong and that both stories are biased. Only by looking at both sides do you get a reasonable idea of what happened. I believe you are showing obvious bias.

 

I don't think so. How, if not vocally, is a citizen to complain about a current police action? I delved into that here.

I understand you. But I think you don't correctly grasp the legal argument I made why the application of disorderly conduct law on what Gates did is unconstitutional. That may be because you don't trust my assessment because I am a German lawyer looking at this through my German law prism.

The other thing is that especially in the second and third of said three paragraphs I laid out, plausibly I think, why Gates would act the way he did. That was indeed not about law, but about psychology. I think it is not surprising that people who feel their rights are being violated, and who aren't mollified, react in an argumentative way. Most people react strongly on such matters. In that sense it is one thing to be able to read ID and Name of the officer from the badge (ignoring the light and the point that Gates iirc wears glasses; and of course, that Gates getting closer to the officer to be able to read name and ID could have been interpreted as Gates threatening him physically) - if this is about self-assertion, then that doesn't suffice. This isn't about utility, but about exacting a compensatory action from the officer - Crowley actively identifying himself, just as Gates had to actively identify himself.

As for bias, my (perhaps erroneous) understanding of the law tells me that Crowley exceeded the scope of the law because Gates did not commit disorderly conduct. I know that policemen are being schooled on aspects of the laws they apply, especially about definitions because they define their mandate for intervention. I think that applies to Crowley too. I presume that Crowley knew about the precedents in Massachusetts and so knew he was overstepping his bounds. From there to assume that Crowley probably baited him to teach him is plausible, considering Gates previous, obnoxious, behaviour.

I have no claim to truth. Of course it is entirely possible that Crowley simply erred in applying the law. To me it is just implausible, even though that at first glance violates Finagle's law: "Never attribute to malice that which can be adequately explained by stupidity." Here, it is not far fetched to assume malice. While I don't believe that Crowley acted in a racist way, he must have been angry about Gates reaction. It would give him a plausible motive. Can I prove that? No, I can't look into his head. But is it plausible? Yes, it is.

 

I don't trust your assessment because you are broadly interpreting a court case where I believe a narrow application is implied. The court narrowly defined a specific set of circumstances where disorderly conduct does not apply -- it did not widely interpret a broad scope of situations where disorderly conduct was unconstitutional. I believe most police forces would see the ruling in the manner I'm presenting (the department decides the line in the sand, not the officer) -- had Gates openly questioned about the incident violating his civil rights, and not used abusive and inflammatory language specifically intended to incite others, he would not have been arrested. He crossed a line by the words and actions he intentionally chose (this is his area of specialty, he knew what he was doing and saying and the impact it would have).

I have very few doubts that police officers are NOT schooled on every ruling of every law and statute they enforce. Police officers are trained to follow guidelines set forth by the leaders of the force, those guidelines are determined by the district attorney's interpretation of the court case -- since the department and DA's office have publically stated Crowley did nothing wrong it is obvious he was following the departmental guidelines. You're painting him to be a criminal and I believe you are wrong in this (both morally and legally).

I see where you are coming from in your argument and understand your interpretation -- I just believe the assumptions you've based your argument on are false. I also understand where Gates was coming from and that Crowley's actions clearly did not make the situation any easier for Gates. Crowley failed in his responsibility to put the home owner at ease and diffuse the situation before it got out of hand -- but that is not illegal either.

Both sides share blame here: had Crowley adequately addressed Gates concerns, Gates would not have gone too far. Had Gates chosen a more appropriate means to address his displeasure he would not have been arrested. I believe, in this instance, you are violating Finagle's law -- both men acted a bit stupidly.

Is it plausable Crowley baited Gates? Yes.

Is it plausable Gates was using the incident for his own gain (i.e., baited Crowley)? Yes.

 

I do think that we are in agreement that both Crowley and Gates fell prey to human weaknesses - Gates by losing himself in his prosecution complex and Gates by retaliating against Gates for being a jerk

And I am not painting Crowley as a criminal. I say that he acted unlawful. That's several degrees lesser, even though the unlawful arrest did indeed violate Gates rights.

Police had a couple of days ago unlawfully towed away my sisters car. That doesn't make them criminals. It simply means she has to challenge that, if necessary in court, and that she doesn't have to pay her bill in the end because she did nothing wrong.

 

I think that I can agree with that one, though it would be a persecution complex, especially since he was never prosecuted for disturbing the peace!

 

If Crowley retaliated against Gates -- he was being criminal. Our opinions differ on the interpretation of the incident and precedent. I don't believe the arrest was unlawful, nor do I believe it was retaliation. I do believe Crowley did an extremely poor job of diffusing the situation (or didn't even try).

 

Well, lookie here it seems they've got over it and can laugh about it. Can the rest of the United States? Can the rest of the world? Wouldn't it be nice if the PLO and the Knesset could all just settle their differences over a nice lunch somewhere and laugh about the whole stupid pissing contest?

 

I think that was the way to handle it. Everyone in this situation acted like an ass - even Obama. I think it was settled the way all race-related issues should be settled: sharing a meal and enjoying company while laughing about how silly the whole thing was. Like grownups. Nice to see.

 

Arrest of Harvard's Henry Louis Gates Jr. was avoidable, report says:

In don't agree on the last thing, since that makes public order laws applicable that Gates isn't subject to in his home, but that is .

 

That pretty much sums it up for me.

 

Yup.