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by Peter Moskos

August 2, 2009

Bob Herbert on Gates

Bob Herbert, a very good columnist has a powerful op-ed attacking the police sergeant and defending Gates' behavior. It is worth a read even if--especially if--you don't agree with it.

By saying that Herbert is a good columnist doesn't mean I agree with everything or even most of what he says. But whatever Herbert has to say, he says it well. I like reading him and thinking about his perspective.
The message that has gone out to the public is that powerful African-American leaders like Mr. Gates and President Obama will be very publicly slapped down for speaking up and speaking out about police misbehavior, and that the proper response if you think you are being unfairly targeted by the police because of your race is to chill.

I have nothing but contempt for that message.
Those who defend police behavior (as I often do) focus on the legality of specific situations. If the sergeant's report is correct as written, I have no doubt the arrest was legally correct.

Those who attack police behavior (as I sometimes do) see this one arrest as symbolic of a greater pattern of racist police behavior. An arrest can be legally correct but morally wrong.

Your opinion on the Gates' arrest probable depends on which perspective you like starting with. If you say, "What in the hell does slavery, Jim Crow laws, and a history of racism have to do with Gates' arrest?!", then you're on the side of Sergeant Crowley.

If you heard about this arrest and said, "Here we go again," then you agree with Gates.

Think of it this way: police are trained to think about "the totality" of the individual circumstance.

But society is more likely to judge collective circumstances in their totality.

Later in his column Herbert says, "While whites use illegal drugs at substantially higher percentages than blacks, black men are sent to prison on drug charges at 13 times the rate of white men."

One can look at all the individual cases of men in prison and say that each one is OK. But collectively, something is wrong.

Let's assume, for the sake of argument, that all men in prison are guilty as charged. Is that enough? Is it enough to say there's no problem with the racial disparity in prison simply because all the black drug offenders behind bars are guilty? Or does it matter that blacks are 13 times more likely than whites to be in prison for the same crime?

Now personally I think it's a stretch to link, as Herbert does, Gates' arrest to institutional racism in the entire criminal justice system. But I do agree that something about our criminal justice system is racist (mostly the war on drugs) and that is terribly terribly wrong.

50 comments:

AMac said...

Herbert makes some good points, but he is a polemicist, making the situation fit his politics. He's acting like a lawyer arguing for his client. OK--but then why should I view Herbert the way he wants to be seen, as an impartial seeker of truth?

For instance --

"Professor Gates did absolutely nothing wrong. He did not swear at the officer or threaten him. He was never a danger to anyone. At worst, if you believe the police report, he yelled at Sergeant Crowley. He demanded to know if he was being treated the way he was being treated because he was black."

No, Bob Herbert, anyone who's been paying attention knows that is not what happened. Sgt. Crowley came to investigate a B&E, and Prof. Gates immediately started yelling at him, based on Gates' conviction that Crowley was a racist, acting out his racist impulses. Yo Mama and all that.

An observer might believe that even under these circumstances, Crowley shouldn't have arrested Gates. Gates was not a threat, he was just acting like an obnoxious, loudmouthed ass in his home. (This is my own opinion.)

But this eliding of the facts of the case by media commentariat and the left-wing intelligensia--black and white--grows tiresome.

Let me illustrate with a counterfactual. Suppose that the homeowner was rightwing white-supremecist Harvard Professor (ha!) Setag, and that it was Sgt. Lashley who investigated. Prof. Setag immediately begins berating Lashley as an uppity Negro, yelling at him to get his ni**er butt outside. The upshot: Lashley arrests Setag for Disorderly, followed by a prompt release.

If these had been the circumstances, who believes that Bob Herbert would have complained about Setag's arrest?

Bueller? Anyone?

Here's my assertion: Rightly or wrongly, Gates would have gotten the same treatment if he had been an arrogant, entitled, white intellectual elitist showering contempt upon the investigating cop.

Herbert has offered only his preconceived notions to support his race-based view of the arrest. His column can get in line behind all the other p.c. selective retellings of the incident in mainstream media organs.

10-8 said...

I agree with AMac.

Here's a great blog post written by a Northern California motor officer that makes a fantastic rebuttal to Herbert:

http://preview.tinyurl.com/n2mmjt

Funny how the left seems to think the Gates arrest was a bad thing. Opinion polls are 2/3rd's in favor of Sgt. Crowley, 1/3rd to Gates. Roughly 2/3rd's thinks Obama misspoke in his remarks about the Cambridge PD. He also did a bodyslam on his own health care plan by doing so, knocking it off the front page.

Seems like the left is unhappy that the middle and the right aren't buying their agenda on this one.

Anonymous said...

Better Herbert:

The message that has gone out to the public is that any person, even non-violent people like Mr. Gates and President Obama, will be very publicly slapped down for speaking up and speaking out about police misbehavior, and that the proper response if you think you are being unfairly treated by the police is to chill.

I have nothing but contempt for that message.

Anonymous said...

Question for PCM:

If you were Gates would you bring a 1983 action some time in the next year?

JVN said...

I read "If You Got Stopped" every day. It's a fantastic blog.

Bob Herbert needs to learn about something called facts. There was no police misbehavior in the Gates arrest. Gates was not speaking up either. He was acting like an obnoxious entitled jerk playing the "do you know who I am" game while disobeying an officer of the law.

Anonymous said...

Yeah, it was pretty sad when his boss made him take out the more inflammatory stuuf, like the "why seniors shouldn't drive photo." Oh, no, wait . . . that was kind of cool.

Big Bill said...

Look, we cannot expect (as the author of this blog clearly recognizes) that people of African descent are going to need, want or tolerate the same kind of policing that works with white Anglo-Saxons.

They come from a different political, moral, gender and cultural traditions which necessitate different kinds of policing.

And it isn't just Africans. Muslims collectively want Shariah policing, Mexicans want Mexican policing, African expect African policing, and Anglos have a different policing.

It is fundamentally racist to deny black folks, Mexicans and Muslims the policing they need, they want, and they demand (in their home countries).

If we are not willing to have different rules with different police styles and practices for all the major ethnic groups in this country, we ought to simply recognize that fact and send them home to their homelands where they can build the kind of culture, courts and police they want and deserve.

It is not racist to bust white boys for dealing dope. It is fundamentally racist to bust black boys for the same crime.

Likewise, it is right and proper to bust a white Minnesotan for chopping his daughter's genitalia off. It is simultaneously perfectly acceptable for the Minnesota doctors, police and social workers to ignore the exact same genital chopping (and they do -- by the hundreds!) when conducted by Somali-refugee-Minnesotans.

The author points to a fundamental reality of any multi-cultural and multi-ethnic society. You must have two, three, five, (hell, even ten!) different policing standards and procedures, laws and cultural norms.

Black people will always get special rules, because they are at heart African, not American, not European. The author is correct.

In Belgium, for example, male police have been ordered not to ask for identity papers of any person who is wearing a burkha or other gunny-sack-like covering.

In Britain, lady cops are being issued gunny-sack like head coverings to be worn whenever entering a Muslim cultural establishment.

PCM said...

Wow, Big Bill, that's offensive for so many different reasons. Also, as racist statements often are, factually wrong.

But the part that bothers me most is the claim that blacks aren't Americans. Shame on you. Having lived and died for this country since the Revolutionary War and that's not good enough for you?

I wrote an article a long time ago arguing that American culture is a combination of afro and anglo culture. It's something for you to consider.
http://petermoskos.com/media.html#afroangle

Dave H. said...

Big Bill:"Mexicans want Mexican policing"

WTF!!!! Have you been watching the news from Juarez Pat Buchanan Jr.? Who wants that kind of policing? Peter, excellent smack down of Mr. Bill. The populist right just makes it so damn easy.

leonardhatred said...

"Let me illustrate with a counterfactual. Suppose that the homeowner was rightwing white-supremecist Harvard Professor (ha!) Setag, and that it was Sgt. Lashley who investigated. Prof. Setag immediately begins berating Lashley as an uppity Negro, yelling at him to get his ni**er butt outside. The upshot: Lashley arrests Setag for Disorderly, followed by a prompt release.

If these had been the circumstances, who believes that Bob Herbert would have complained about Setag's arrest?"


Your counterfactual doesn't compare. Herbert wouldn't debate Lashley's actions, because Setag's arrest wouldn't have the weight of discrimination and decades of profiling behind it. I get that you believe this case has nothing to do with racial profiling, and that Crowley was right to arrest Gates. Just don't make false equivalences when trying to prove your point.

LibFree said...

I've always thought justice should be blind.

I just don't understand why the President commented on it.

PCM said...

I agree with leonardhatred. As a theoretical counterfactual, no doubt that hypothetical would be a non-event. Not only for the historical reasons (I mean, there are still a lot of people alive in America who remember 1st-hand police enforced racial segregation). But also because it's probably the counterfactual that hasn't happened. That, to some extent, is Herbert's point.

LibFree,
We all think justice should be blind. But it's not. It tends to favor those with money. And if money is equal, probably whites over blacks.

Why did the president comment? Because his friend was arrested. Why shouldn't he comment? (but I'm sure if he could do it all over again he wouldn't have.)

My Bush-loving friends (yes, I have a few of them) always tell me they liked Bush because right or wrong, he said what was on his mind and you knew what he meant. No Clinton "depends what 'is' is." So why is it so wrong from Obama to do the same?

AMac said...

I skimmed through Big Bill's comment, assuming that it was heavy-handed parody. Maybe not--who knows.

leonardhatred wrote (10:53 pm) --

> Your [AMac's] counterfactual doesn't compare. Herbert wouldn't debate Lashley's actions, because Setag's arrest wouldn't have the weight of discrimination and decades of profiling behind it. I get that you believe this case has nothing to do with racial profiling, and that Crowley was right to arrest Gates.

(1) I get that you believe this case has nothing to do with racial profiling -- Not exactly. The circumstances as published strongly suggest that this case had nothing to do with racial profiling. Gates and his supporters have offered no evidence pointing the other way. That Gates (and his daughter, etc.) believe that this is an instance of profiling isn't evidence. Why are so many people willing to suspend their skepticism in certain circumstances?

(2) [AMac believes that] Crowley was right to arrest Gates -- Higher in the thread, I stated the opposite. I think Crowley was in the wrong. The two points of difference seem to be --

(a) Was Crowley's racism the cause?

(b) Was the arrest a "mortal sin" (calling for IAD, written reprimands, etc.) or a "venial sin" (calling for a verbal "Crowls, be slower to slap on the cuffs when dealing with obnoxious elitists, next time")?

Re: False equivalences -- comparisons are always a case of YMMV. Here's a first-person anecdote to make the point.

For many years, I worked in Fells Point, Baltimore. One afternoon, I rolled through a Stop Sign while driving though a nearby, somewhat dodgy neighborhood. Lights and siren behind me–pulled over. In my mirror, I saw the scowling, buff, buzz-cutted, blond cop running my tags–nothing to find there. He exited the patrol car, unsnapped his holster, laid his hand on his gun and warily approached me.

This was for going 2 mph through an empty intersection, mind.

A very tense, very hostile call-and-response followed between the Officer and the Suspect. Hands in full view on the steering wheel, only slow movements, all that. Thanks at least in part to the politeness of the Suspect, no harm was done. In the end, we went our separate ways.

--- end of anecdote ---

The point of this story is as follows: as a White Male suspect encountering a White Male cop, I did not have White Racism available to me as an explanation for the incident. Something else accounted for the blond cop's behavior. He might have had excellent reasons to have been so hostile towards me. Or, he might have just broken up with his girlfriend. I'll never know.

Imagine that Prof. Gates had had the role of Suspect in this vignette. How would his account likely have run?

Yes, there is a long history of racism in the U.S. Yes, as PCM will attest, this sin--among others--taints policing in Baltimore City.

The problem is that Racism serves some people as the explanation of first resort. To them and their political allies, it's non-falsifiable. As with GatesGate, there are often more ordinary reasons behind why people act as they do.

10-8 said...

Here's a great Daily News editorial by a retired NYPD detective freely admitting he used racial profiling:

http://preview.tinyurl.com/n9be9j

leonardhatred said...
This comment has been removed by the author.
leonardhatred said...

"The problem is that Racism serves some people as the explanation of first resort. To them and their political allies, it's non-falsifiable. As with GatesGate, there are often more ordinary reasons behind why people act as they do."

lol...it's ironic that Crowley, himself, is the victim of profiling. What you see as the essential problem, AMac, informs the relationship between many minorities and the police: you're guilty until proven innocent. I think both sides are looking for the benefit of the doubt.

I believe that PCM hit the nail on the head. One's judgment of this case depends on the perspective one starts with.

AMac said...

leonardhatred,

I don't agree with you (or PCM) about all aspects of this incident, but I appreciate that you are making the effort to see the perspectives of the different parties. I try and do the same.

Here's my thought. To the extent that Racism Itself is a terrible thing--and the Left, Center, and many on the Right agree that it is--why aren't False Accusations of Racism terrible, as well?

When this story hit the wires, many people jumped on Crowley, accusing him of Racist actions and Racist Motives.

Was there ever any convincing evidence that Racism motivates this particular man, or accounts for his actions in this particular instance?

If so, what is it? The mere fact of Prof. Gate's arrest shouldn't count, as there are other, more plausible explanations. See, for instance, Sgt. Lashley's letter.

Crowley stood firm on his own behalf and got some powerful support from colleagues, so this story seems to be ending fairly, with the media circus moving on. Had the circumstances been slightly different, Crowley's reputation would have been unjustly and irreparably smeared.

My own opinion is that it is dreadful to deprive other people of opportunities because of Racism, and that it is also dreadful to accuse other people of Racism in the absence of clear and convincing evidence.

At the present time, the two sentiments don't seem to go together, in popular culture. If they did, Crowley's mailbox would be overflowing with apologies.

leonardhatred said...
This comment has been removed by the author.
leonardhatred said...

"My own opinion is that it is dreadful to deprive other people of opportunities because of Racism, and that it is also dreadful to accuse other people of Racism in the absence of clear and convincing evidence."

That's the rub. What is clear and convincing evidence? The vast majority of racism that i have been confronted with has been in its polite and nebulous form.

When I was cub scout, my father and I were briefly detained because someone called the police and reported that we were begging for food. Though my father tried to explain--through clinched teeth--that we were on a canned food drive and that we lived in the (majority white) neighborhood, we weren't released until another father and son in my troop, who happened to be white, vouched for us. Throughout this whole ordeal, the officers, who happened to be white, were professional. I cannot remember if they apologized for the "misunderstanding," but it was obvious to my father that racism was the reason behind our stop, though there was no "clear and convincing evidence." At 8 years old, I had my first teachable moment.

Most of the people that I know, including my father, would never call a cop a racist to their face. Lodging a complaint is seen as futile in that there's usually no way to prove it.

Confronting racism is difficult, because no one wants to admit that they may be guilty of it. Even the Boston cop who called Gates a jungle monkey doesn't think of himself as a racist. Jay Smooth, a hip hop journalist and radio deejay, comes the closest to offering a fair and balanced solution:

http://www.youtube.com/watch?v=b0Ti-gkJiXc&feature=player_embedded

AMac said...

leonardhaatred,

Thanks for recollecting what happened to you as a Cub Scout on a canned food drive. Your point about clear and convincing is a good one.

I think "the rub" and "the teachable moment" are somewhere in between your anecdote and the story of my traffic stop. Both happened, and both exemplify things that happen but don't end up in the paper or on the news.

Sgt. Crowley shouldn't have to answer for what the cops did in your case, or for what the cop did in mine. Or should he?

leonardhatred said...

AMac,
He shouldn't have to answer for it, but he also shouldn't arrest people in their own homes when they aren't a threat. Was breaking out the handcuffs the only way to diffuse the situation?

Because of this blog, I've learned what "contempt of cop" is, and where/when/why it is used. Much like Herbert, I find it kind of hard to swallow the notion that I can't question a cop's authority. Nevertheless, I try to remember that there is a time and place.

That said, Gates-Gate shouldn't be the teachable moment on race.

AMac said...

> He shouldn't have to answer for it, but he also shouldn't arrest people in their own homes when they aren't a threat.

Agreed.

10-8 said...

Peter Moskos, have you read Heather MacDonald's book "Are Cops Racist?" about racial profiling and if so what did you think of it?

ckirksey said...

Prof Moskos:
Surprised that you are a professor of law after you state:
"The officer had every legal right to be in the house and needed to investigate a possible burglary."

To me Crowley did a very poor job of investigating a POSSIBLE BE. He apparently did not talk to the 911 caller before confronting Gates. At that point he had no probable cause period. Only indication that a possible BE might be in progress. If there was PC then what were the exigent circumstances that would justify entering Gates home?

PCM said...

Chirksey,

It might not be smart, but it's rare for police to waste (er, spend?) time to talk to the caller in such a case. Right or wrong, it's S.O.P.

The main exigent circumstance was the fact that a possible felony suspect was walking away. Period. That's really it.

Related to that is officer safety. Plus the fact that it was assumed there were two suspects.

It's strange to me there's such debate on this because as a former cop (and as current officers have pointed out), the basic legality of this isn't even in debate isasmuch as police act.

If the courts want to decide otherwise and change the rules, fine. But it's hard to imagine that police are behaving unconstitutionally as standard operating procedure without being challenged or questioned.

I know it's not the most convincing position, but I am, in effect, saying it's legal because that's how it's done.

I do not have legal background, so I'm hesitant to answer questions about specific cases because I don't know which cases are precedent setting and which have been overturned in whole or in part. (though as a former police officer and current professor, my ignorance of these facts is in itself revealing).

Don't we have a Constitutional expert here to chime in?

PCM said...

10-8,

I have read her book and though I don't have my notes here (yes, I do keep notes on all police-related books I read), I remember thinking it should have been summed up in one word: No.

If I remember correctly, I found the book simplistic (both as literature and academically) and not likely to convince anybody who didn't already agree with the thesis.

She failed to address (or did so poorly. I don't remember) the very legitimate concerns of those like Bob Herbert. The criminal justice system is, at some very basic level, racist.

Institutionally.

Racism without (or maybe without) racists. I really don't think that is in doubt.

So to say that cops aren't racist kind of ignores the real question of justice and incarceration for blacks.

And I also think we need greater discussion about the relationship between personal beliefs of police officer and the professional actions of the same officers.

I think most police are able to separate the two--and not just regarding race but regarding all prejudices. That would make an interesting book, but I don't think she addressed that.

PCM said...

10-8,

I read that the first part of the Daily News piece on profiling against white people.

I did the same. I think I talk about it my book. Profiling against whites usually isn't a big deal. But I also think for historical and demographic reasons, profiling against whites is not the same as profiling against blacks (though legally I may not have a leg to stand on).

I'm not going to get into the historical reasons here (though they're important). Just consider demographics: if you're a minority, you "don't fit in" to most areas. That's what being a minority is all about. If you're part of the majority, there are much fewer areas where you stand out.

Yes, if you were white and driving through my post at 4am, you got my attention (though other factors mattered: like looking like a heroin addict and slowly circling a drug block over and over again). And if I could (and I usually could), I gave you a ticket. I would even tell you it was a sin tax. And that this neighborhood had enough problems without you coming in here to buy drugs. Go mess up your own neighborhood.

And to those tender few who were honestly lost, they tended to search me out, not vice versa.

Jaguar said...

I'm hesitant to answer questions about specific cases

I just responded in detail to his three case citations in the "Last Word" thread of 7/28.

Two of the three cases he cited do not even deal with law enforcement responses to a crime in progress. They deal with visiting the residence of a known suspect for the specific purpose of arresting him -- irrelevant precedent for the Gates matter.

The third case he cites, McClain, was overturned. He's apparently relying on the lower court decision, which was reversed by the US Court of Appeals. In McClain, the court upheld the officers' entry into the property, and the defendants were convicted. The appeals court later denied the defendants' motion for en banc reconsideration.

Jaguar said...

I just checked the US Supreme Court docket, and they denied the criminal defendants' appeal in McClain. Team Blue scores for the win.

Anonymous said...

*ay yi yi* Jaguar playing lawyer again. The appeals court overturned the district court because it did not believe that the exclusionary rule was the correct remedy for the unConsitutional search. However, the appeals court did agree that the entry into the home violated the Fourth Amendment because it was NOT SUPPORTED BY PROBABLE CAUSE (as the law requires warrantless exigent circumstances entries to be). PCM is wrong about probablt cause not being required, as the appeals court in McClaim clearly explained as follows:

We first address the legality of the warrantless search of McClain’s residence. . . .
the police may not enter a private residence without a warrant unless both “probable cause plus exigent circumstances” exist. . . . There is no dispute that the warrantless
search of McClain’s home on October 12, was “presumptively unreasonable” under the Fourth
Amendment. Payton v. New York, 445 U.S. 573, 586 (1980). . . .
. . . both probable cause and exigency must be present for the police to make a warrantless entry and search of a home. . .
But neither Johnson nor Rohrig helps the government here because the government’s argument is premised on its claim that the officers had probable cause to believe a burglary was in progress at 123 Imperial Point. As we explain below, the undisputed facts in this case demonstrate
that the police did not have probable cause to believe that a burglary was in progress; hence there was no exigency as a consequence of the possible burglary such that Johnson would support the warrantless entry.
. . .
However, the “mere possibility” that a crime could be occurring
within a home is not sufficient to justify a warrantless search;
the police must have an “objectively reasonable basis for their belief” that a crime is being committed. . . . mere speculation that a crime could be occurring is insufficient to establish probable cause. . . .
In our view, a neighbor’s phone call indicating that the owners had moved out of the house
at 123 Imperial Point several weeks earlier and that there was a light on in the house that had not
been on before, even coupled with the officers’ discovery of a slightly ajar front door, does not
present the type of objective facts necessary to establish probable cause that a burglary was in progress at the house.
. . .
We understand that these officers were responding to a “suspicious incident” call and, and we find no evidence that they acted in bad faith when, after finding the front door to McClain’s
home slightly ajar, they went inside to ensure that no criminal activity was afoot. Sometimes the
line between good police work and a constitutional violation is fine indeed. Here, however, the
officers’ own testimony at the suppression hearing reveals that they had no objective basis for their concern that a burglary was being committed at McClain’s residence. . . .
the officers’ hunch that a burglary could be occurring inside the residence was mere “speculation.” Speculation does not equate to probable cause. . . .
Because the government must demonstrate both probable cause and exigent circumstances
to justify the warrantless entry, we need not reach the issue of exigent circumstances. . . .
Because neither probable cause nor exigent circumstances justified the officers’ warrantless
entry and search of McClain’s home on October 12, 2001, we find no error in the district court’s
conclusion that the entry and search were in violation of the Fourth Amendment.

Anonymous said...

Further comments on McClain:

1. If you want to read the whole decision, it is here:

http://www.ca6.uscourts.gov/opinions.pdf/05a0463p-06.pdf

I wanted to excerpt more of it, but there is a dumb 4096 char post limit.

2. Even though PCM is completely wrong about the law in this area, his botton line advice is still basically good, and the McClain shows why. When PCM says to be careful about the Constitutional rights of people like Mr. Gates, what he is really saying is be careful of the Constitutional rights of the kind of people who might sue for a "minor" violation of her First or Fourth Amendment right by a cop. I wouldn't say that the person has to be intellectual or elite, and I think those are just code words anyway. I think a better description would be to be careful of the rights of people who are: (i) innocent; and (ii) have some extra money. Gates certainly fits this description, and that is why Crowley's course of conduct was "dumb." If Gates had been a drug dealer, like McClain then it is okay to ignore the Constitutional rights, just like it turned out good for the police in the McClain case.

3. The exclsionary rule is dead (good riddance!)and we just haven't had the funeral yet. Hopefully, the Fourth Amendment will not die with it. Sue, Gates, sue.

Dave said...

I'm coming to this commentary quite late; however, I see a great deal of misinformation from people using inapplicable legal theories. McClain, Payton, et al are not guiding precedent here. Dr. Gates's arrest raised no search-and-seizure issues. Reliance on such cases as a means to challenge an arrest where neither a search nor seizure occurred is leading to an erroneous conclusion. In all honestly, such a claim would likely produce loud guffaws from the bench.

Dr. Moskos is correct; the law enforcement officer's entry into Dr. Gates's home was valid. There is no question that the exigent circumstances test was satisfied because the officer had a reasonable belief that a crime was occurring.

If the arrest had raised Fourth Amendment concerns, one would see extensive discussion about it in the legal press as part of the rather exhaustive coverage about the event. An utter lack of any mention of a Fourth Amendment challenge underscores the fact that the legal community on the whole did not find fault in the arrest qua arrest.

(I have been a member of the California bar for 26 years with experience both as a prosecutor and in criminal defense.)

Anonymous said...

Uh, no Mr. Prosecutor. A warrantless entry into a home is presumed to be a Fourth Amendment violation:

http://www.ca9.uscourts.gov/datastore/opinions/2009/07/16/07-15102.pdf

I think the reason you don't know this is lack of experience with section 1983 cases.

Gates so needs to sue. There are so many with such grave misunderstandings about the law.

PCM said...

Thank you, Dave. (But please, call me professor, or Peter. As my father, a PhD, used to say, "I'm not a real doctor. Doctors can tell you to take your clothes off. ... And you'll do it! ... And don't think I haven't tried!" )

Anonymous, I appreciate you comments, your enthusiasm, and your contribution to this discussion. But is there anything or anyway you would ever consider the possibility that you're, well... wrong?

Sometimes the voice in the wilderness is correct. If you are right, it would mean that every police officer and most lawyers are wrong. That is indeed a possibility.

But if that were the case you need to do your thing and bring a case through the courts. Because as it stands now, your interpretation simply is not practice or law in these United States.

Anonymous said...

Anonymous, I appreciate you comments, your enthusiasm, and your contribution to this discussion. But is there anything or anyway you would ever consider the possibility that you're, well... wrong?

sure. two ways. a cite to a case that says probable cause is not needed for an exigent circumstances warrantless home entry. or a cite to a case that found probable cause on facts similar to the Gates / Crowley incident.

gotta be a case though. when it comes to the Fourth Amendment, it is the cases that are the authority. not pundits, not prosecutors and defo not policemen.

PCM said...

Fair enough.

When I get back to New York (right now I'm in Campeche), I'll go through my criminal justice textbooks and see what I can come up with. It's in there. If not, I'll certainly have to update my lecture notes.

Maybe somebody else can help out in the meantime.

AMacc said...

Anon, PCM has the Comments set up so that under "Name/URL" you can pick a pseudonym that doesn't track back to a Blogger login (I did it for this comment).

That would help readers to follow the conversation.

Or, you could just close with a signature.

Thanks,
AMac

ckirksey said...

PCM:
I totally agree with Anon again. My previous reference to McClain was on point. I still believe Crowley did a very poor job of investiagting a possible BE. He gathered no info on his own. He chose to confront Gates as a suspect. Why? Clearly if Crowley had talked to the 911 caller (Of course I am assuming Whalen is telling the truth. Why would she lie?) then a different perspective could have been put on the dispatch to a possible BE.

I do not want to get into the whole racial thing but I am wondering if Crowley didn't view Gates as a suspect because he was black. I really prefer to ignore this and concentrate on the PC aspects. But in Crowley's mind did Gates' race help provide PC?

Jaguar said...

cite to a case that says probable cause is not needed for an exigent circumstances warrantless home entry

Here you go -- West v. Commonwealth, 2009 Va. App. 305 (decided July 14, 2009). You may read the decision in its entirety here with a nice summation of probable cause and exigent circumstances in a case involving warrantless home entry:

http://www.courts.state.va.us/opinions/opncavwp/1486081.pdf

For those not wishing to read the entire decision, in the West case I cited, police officers called upon a residence to question a possible suspect. The suspect answered the door but refused the officers' entry. They entered nonetheless and arrested the suspect. Suspect moved to suppress, claiming no probable cause or exigent circumstances existed. The trial court denied the suspect's motion, and the appellate court affirmed the lower court's ruling.

Jaguar playing lawyer again

Sometimes, my friend, police officers are also lawyers. ;)

Anonymous said...

From Jaguar's West case:

"We agree with [the criminal] that the police needed both probable cause and exigent circumstances to enter without a warrant."

Popos playing lawyer *ay yi yi*

ckirksey said...

Jaguar:
Your cited case has absolutely NO similar facts to the Crowley/Gates incident. The assaulted lady gave a good description of the perp along with other pertinent facts cuts etc. LEO encounted West at his home and West appears to be the perp. PC established. The possibility of the DNA evidence being destroyed is a possible EC. However, this case could very likely be heard in federal court and over turned. Every case like this is decided by the facts of the case. Crowley had zero, nil nada facts to enter the Gates house.

Jeff said...
This comment has been removed by the author.
Flynn said...

Ckirksey + Anon: you keep repeating over and over ad nauseam there was no probable cause in the Gates situation. Says who? You? You apparently think your opinion is some kind of Delphic pronouncement.

You've both admitted you're not lawyers. You're clearly not cops either. Yet you're trying to tell lawyers and cops they don't know what they're talking about and you somehow know everything.

I hope if you ever need surgery you don't use this same strategy with your surgeon.

Frequent Poster said...

Ckirksey + Anon: you keep repeating over and over ad nauseam there was no probable cause in the Gates situation. Says who? You? You apparently think your opinion is some kind of Delphic pronouncement.

Actually, most of our posts have been aimed at getting the policemen here to believe that there IS a probable cause requirement.

I have discussed a bit why I think the probable cause was not met. It is primarily because of the relative lack of probable cause supporting facts noted in the report. That is a serious problem with the report. IN THE REPORT, that is all there really is for probable cause is the 911 (which was extremely equivocal for a 911 call). Maybe the weak report would be good enough to establish PC at a suppression hearing, but . . .

In the context of a section 1983 suit, a mere 911 call (and especially an equivocal one like here) is not going to be sufficient for PC in and of itself. Now, if there is a 1983 suit here, and I hope there is, then Crowley can try to add facts beyond what is in his police report. He can say that he saw a rip in the screen door. He can say that he waited to go in until Gates was retreating into the house and was about to disappear from view. He can say that the witness he encountered out on the street appeared to be terrified and in mortal fear. He can say that Gates had a cel phone, and that, in his training and experience, many armed robbers and drugdealers and terrorists have cel phones.

However, there are some problems with Crowley adding these facts later: (i) even these added facts are still pretty weak (at least in the context of PC in a 1983 suit); and (ii) they weren't in the report (hurts cred). Again, I perceive these problems because I have read section 1983 cases and seen that these kinds of things are considered problemmatic in 1983 cases. These things might not be problemmatic at all in the context of a suppression hearing.

Now, a court might decide that Crowley has qualified immunity for the Fourth Amendment violation, but even this is somewhat unlikely. In both Reardon and the 1st Circuit case I cited, the courts said no to qualified immunity on the grounds that police are supposed to know when they can go in a house because that is a well-developed area within Con Law. I find that kind of ironic given the doings here at the Moskos blog.

I don't mind so much when policemen here think there was probable cause, because, if this were a suppression hearing, it might very well be considered be probable cause. Frankly, at a suppression hearing almost anything is probable cause. Probable cause has become something next to meaningless in suppression situations. But don't let that fool you into thinking that the probable cause requirement has lost its teeth when you are entering the home of an INNOCENT man. Too many policemen (PCM included) seem to have fallen for this sirensong. Hopefully the exclusionary rule can be got rid of now that Prosecutor Sotomayor is on the Court.

I like it when police have the power, authority and equipment so that they do not fear criminals. Still, there is something that every policeman in America should fear with all his heart and soul and that something is . . . AN INNOCENT SUSPECT. THe mere thought of such an encounter should fill the policeman with apprehension of lawsuits -- lawsuits that he will lose. Why? Because that is how popos learn their manners.

Patapsco Jones said...

Great blog and great post.

The entire Gates ordeal has been a fascinating look as to where American attitudes toward both race and relations between African-Americans and police stand in 2009. And it's a much murkier picture than we had been hopeful of when Obama won the Presidency last fall.

The fact of the matter is that a very prominent African-American intellectual was arrested for entering his own home and then mouthing off to the cops about disturbing his right to property and privacy - again, in his own home.

This man was not a threat to anyone and to suggest so is disingenuous to this discussion. He's a 58 year old Harvard professor who walks with a cane. It's also disingenuous to argue that he could possibly be "disturbing the peace" in his own home; the bogus charge he was eventually arrested on.

Gates was arrested for talking back to the cops and questioning their authority. Plain and simple. Again, it's a bogus arrest, and the case being swiftly dropped by the DA will tell you as much. But I wouldn't say it was necessarily a racial issue on the part of the Cambridge police. While I'm sure it didn't help Gates that he was a black man dealing with Boston area cops when they decided to haul him in, I also think plenty of white guys would get brought in on trumped up charges if they talked back the same way Gates did. Basically most people know you need to kiss a cop's ass when dealing with him or her if you want to be treated right. And if you intentionally antagonize a cop, often he or she will exact retribution in the form of minor BS charges against you. It's petty, but it's how cops maintain authority in America, right or wrong. And it could be worse. In Mexico City they'll just outright steal from you on the spot.

When race really came into play was in the general public's reaction to the event. I believe that if this had happened to a white professor at Harvard with the same amount of prominence as Gates that the amount of sympathy for the man, particularly amongst white people would have been much, much greater. I also think the Cambridge police would not have felt as emboldened to defend their bogus arrest in that sort of media environment. (Although admittedly, without the racial element, it probably would not have been as big a story.)

But many people, particularly the Republican party, were happy to use this situation as a proxy race fight. Defending the cops to the hilt for arresting the uppity black man. "He shouldn't have talked back like that." was the common charge. Ignoring that if the police had done the same to them or someone they loved - or even someone who looked more like them - they would have taken a much different approach to the event.

PCM said...

Enlightened commentary coming from the banks of the mighty Patapsco. Thanks.

ckirksey said...

PCM:
I am interested in trying to understand this idea of the right for Crowley to enter Gates' house without explicit permission. Under the scenario in the Crowley/Gates incident I find it impossible to believe that PC AND EC existed.

If this is allowed then the fourth amendment is meaningless. A bogus 911 call could give a LEO the right to walk into anyone's house.

Do LEOs REALLY believe this is the case or are they just defending Crowley?

If this is deemed legally correct maybe you could cite a passage from any SOP booklet or such. Or as Joe Friday always: "Just the facts maam.".

PCM said...

chirksey,

I assure you we really believe this. In legal precedent and standard operating procedure, it is correct.

If this is allowed then the fourth amendment is meaningless.

Indeed, mostly because of 100 years of prohibition--starting with alcohol prohibition and now with the war on the drugs--the fourth amendment has been so chiseled away that it is all but meaningless.

Jack said...

Another Harvard scholar had a very interesting take on the arrest of her friend Dr. Gates, printed in the Harvard Crimson:

http://www.thecrimson.com/article.aspx?ref=528630

PCM said...

That's a great piece.

And very bold of her to write!