Copyright 2009 by Jay B Gaskill
As posted on “The Out-Lawyer's Blog” -- http://www.jaygaskill.com/blog1/
Author contact via email: law@jaygaskill.com
PROFESSOR GATES AND THE POLICE – BUBBLES IN COLLISION
Harvard Professor Henry Louis Gates Jr. was arrested last week on a charge of disorderly conduct.
Piecing together the various accounts, I glean that this prominent African-American scholar had just returned from China (a fifteen hour air ordeal) and was dropped at his rented and alarmed Cambridge residence, accompanied to his front door by the limo driver.
CBS48 Hours first reported that Professor Gates had ”returned from a trip to China on Thursday with a driver, when he found his front door jammed. He went through the back door into the home — which he leases from Harvard — shut off an alarm and worked with the driver to get the door open. The driver left, and Gates was on the phone with the property's management company when police first arrived.”
“Cambridge police say they responded to the well-maintained two-story home near campus after a woman reported seeing 'two black males with backpacks on the porch,' with one 'wedging his shoulder into the door as if he was trying to force entry.'”
“By the time police arrived, Gates was already inside. Police say he refused to come outside to speak with an officer, who told him he was investigating a report of a break-in.”
The CNN account, omitting the reference to the alarm, reiterated the essential details:
“Charles Ogletree, a professor at Harvard Law School who is Gates' lawyer in this case, told CNN on Tuesday that Gates -- the director of Harvard's W. E. B. Du Bois Institute for African and African American Research -- had returned from China on Thursday to his Cambridge home and discovered his front door jammed.
He opened his back door with his key and tried unsuccessfully from inside his home to open the front door. Eventually, Gates and his driver forced the door open from the outside, Ogletree said.”
“According to his lawyer, Gates told the officer he lived there and showed him his Massachusetts driver's license and Harvard University identification card. The officer followed him into his house and said he had received a report of a possible break-in, the lawyer said.”
The police report indicated that “Gates initially refused to show the officer identification, but eventually produced a Harvard identification card, prompting Crowley to radio for the Harvard University Police. Gates followed the officer outside and continued to accuse him of racial bias, the report said. After Crowley warned the professor twice that he was becoming disorderly, the officer wrote he arrested Gates for 'loud and tumultuous behavior in a public space'."
Predictably the charges were dropped today.
I have no opinion about the allegations surrounding this unfortunate incident, but a personal experience comes to mind.....
Once upon a time, when I was a working public defender in Oakland, CA, I drove my family from the Bay Area to visit my parents in Idaho. On the way, I was ticketed for speeding by an Idaho constabulary two jurisdictions away from my destination. The practice back then was that out-of-state drivers were required to pay the tickets in cash within hours at the local police station. But after a short discussion, I was allowed to pay at the station in my destination town.
We rolled into the parental driveway at 2:30 AM, with sleeping kids, bags under eyes, luggage stowed in every spare cranny. So I took my mother's car at 3 AM to find the police station -- it had been relocated to a new building since my last visit. One wrong turn led me to an unlit dead end street near the railroad tracks. Immediately, a patrol car lit up in front of me and a siren blared. I backed up, assuming the officer was responding to a call.
My mistake. He was responding to me. Moments later, I was directed to exit the car in the glare of headlights and ordered to produce identification. This was at gunpoint. My first, sleep deranged thought was, “Where in the h.ll did Mom hide her vehicle registration?” It soon became clear that the officer was proceeding on the outrageous theory that I was a prowler. [Yes, I was unshaven, bedraggled and out of place, but no matter, I was innocent!]
When he asked for my ID, I angrily slammed my California Drivers' License down on the hood of the car.
Fortunately, during the ensuing conversation, we both calmed down. The gun was holstered and I was given amiable directions to the brand new police station. In the follow up conversation, I was allowed a rare glimpse of this officer's point of view. He was frightened. There were reports of recent burglaries in that area, and he was doing a slow prowl when he spotted my car at 3 AM. When he asked me to step out of the car, he couldn't see whether others were hiding in my vehicle nor whether I or they were carrying guns. [It's actually a big deal for a police officer to draw his weapon, and an even bigger deal to fire it. An overwhelming percentage of all police officers go through an entire career without ever firing their service pistols except at the range.]
The fourth amendment requires a warrant for a residential search, with all of the obvious hot pursuit and emergency exceptions. Over the years the 4th has been interpreted to loosely govern other police contacts like mine. Police are entitled to briefly detain and question suspects without a warrant, provided there is a reasonable suspicion of actionable wrongdoing. We citizens can then be required to produce ID and answer reasonable questions. Had I chosen to run or to physically resist the officer that night, he could have taken me into custody for resisting an officer in the performance of his duties. I have defended many of these cases over the years, winning some and losing others.
I was 'out of uniform' that night, still in my early 30's, wearing tee shirt and jeans, tired and unshaven. A white male like myself fit the appearance, attitude, time and place profile of a suspect. The officer was entitled to stop and question me and I was obligated to cooperate.
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These two incidents, my own encounter with the law years before and Professor Gates' recent experience each represented the intersection of cultural bubbles.
We all live in our respective bubbles. In Professor Gate's bubble, he was a well known scholar living in a racist country...but respected in spite of his race. In the officer's bubble, he was acting on a credible citizen report, one that had to be handled “by the book.”
When we are confronted with an undignified situation, we all tend to become celebrities in our on minds. “How dare you!” we tend to think. My thoughts were exactly that on that long-ago Idaho summer night. But there is no celebrity exception when street crime is under investigation.
When a policeman aimed a loaded gun at me at a dark dead end road, I was on a first name basis with every judge in an urban California jurisdiction and several Idaho judges. I knew I had done nothing wrong. “How dare you!” I (foolishly thought). The perspective within the officer's bubble was temporarily invisible to me. But we finished the encounter on a first name basis, and I was the wiser for it.
The prosecutor's decision to drop all charges against the professor was the right one. Professor Gates' first reaction to his arrest was totally understandable, but the charges of police department racism may or may not be borne out. As today's Wall Street Journal reported, a second officer at the scene heard the professor yell:”This is what happens to black men in America!” I believe that is an accurate assessment. Many are stopped, few are charged.... And I will add, very, very few police departments are corrupted by racism.
JBG
