Prosecute the torture.

July 28, 2009

Too clever by half

I thought with the upcoming Happy Hour scheduled between President Obama, Professor Gates and Officer Crowley that this was all over, but I still hear the issue being debated on the cable news shows this morning and today on Pittsburgh Now with Chris Moore. I called into the latter show and got on the air but I was up against a hard break and was cut off.

The reason that I called in is because I can't believe that there are people who are still acting like it was a righteous arrest -- it wasn't.

First, let's say for the sake of argument that the police report is 100% accurate. You can read it here.

From that report you will see that Gates was not arrested inside his home -- as many keep saying -- he was arrested on his porch. This is an important distinction.

The report says that the officer initially asked Gates to step outside. This is perfectly understandable as the officer at that point was without backup; didn't know who was in the house; and Gates could have had a gun being held on him or others by real burglars. However, as you read the report, you'll see that at some point the officer is in the house (curiously in such a detailed report he doesn't note entering the premises).

While the officer is in the house Gates does eventually produce ID, but the officer writes that Gates keeps asking him for his name and the officer says that he's provided it and that Gates isn't listening. The officer in part blames Gates for yelling and in part mentions bad acoustics (huh)?

Now there should be an easy way to resolve this and it's by Massachusetts code:
Chapter 41: Section 98D. Identification cards

Section 98D. Each city or town shall issue to every full time police officer employed by it an identification card bearing his photograph and the municipal seal. Such card shall be carried on the officer’s person, and shall be exhibited upon lawful request for purposes of identification.
The officer does not mention producing his ID in his report -- he doesn't even say he gave Gates his badge number.

Now, here's where the "too clever by half" part comes in.

According to the officer's own report, he's in the house and one assumes assessed the situation (non burglary, non-hostage, etc.); he's had Gates produce ID; and he's provided (at least) his name to Gates. The officer was called to investigate a burglary and has established that no crime has taken place.

He can walk away.

But he doesn't. Instead, he repeatedly tries to get Gates to leave his home.

Why?

The officer has stated that Gates has not acted in a manner that he expected. The officer has stated that Gates was less than cooperative; that he's yelled, that he's threatened to go up the chain of command; that he's thrown in accusations of racism. Hell, Gates even threw in a yo mama.

So here's the pissing match (I said "testosterone contest" on my call to the show).

The reason why the officer has to get Gates out of the house (and win the contest) again comes back to Massachusetts code. This time it's the law on disorderly conduct (what Gates was charged with):
Here is the Massachusetts statute under which Gates was arrested, Mass. G. L. ch. 272, s. 53:
Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment.
Here is a recent gloss by a Massachusetts court (adopting Model Penal Code s. 250.2(a)):
A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior.... ‘Public’ means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.
Massachusetts courts have rejected MPC s. 250.2(b) as a violation of free speech rights. So this provision is not part of Massachusetts law:
(b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present.
The officer knows the law to the extent that he's careful to put the words "tumultuous behavior" in his report (behavior, of course, that you'd find happening at any gathering of Steelers fans). He also declares that the "tumultuous behavior" took place in a "public place."

The officer had to get Gates out on the porch to meet the statute. He couldn't arrest Gates for "tumultuous behavior" in his own home. Let's face it, you can cover yourself in glitter and do naked somersaults in the privacy of your own home and the police can't tell you boo. The officer has to get Gates outside to even attempt to get a disorderly conduct charge to stick.

So, the officer gets Gates outside and Gates is still yelling so the arrest is gold and the officer wins the pissing match, right?

Wrong.

Again, according to the law -- even in public -- the act of "makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present" does not count as "tumultuous behavior" or disorderly conduct.

That makes this a false arrest. Period.

And ya know, the charges were dropped -- even before Obama got involved.

Now you know why they were dropped (Ruth Ann and others).

So whatever else occurred that day a crime was not committed and Gates was wrongfully arrested and charged.

As to whether they both overreacted: yeah, looks like it. But here's the difference:
When a private citizen, as in this case, overreacts by yelling the officer is made to suffer from unwarranted abuse (just like you might from your boss or spouse or that jerk in the next car on the parkway, but when a police officer overreacts by arresting a citizen, the citizen loses their liberty.

No contest on which abuse is worse.
NOTE: This post is in no way meant to be a recommendation that anyone yell or swear at police officers:
1) They do a dangerous, difficult, public service and don't need the extra crap.
2) On a purely pragmatic level, no matter how many times the courts rule that it's legal to raise your voice, swear or even give them the finger, you will likely get arrested (or worse) if you engage in these behaviors. So you'd be an idiot not to "yes, sir" and "yes, ma'am" them like crazy.
.

11 comments:

Heir to the Throne said...

Hate to agree with Maria.
Gates was arrested for Contempt of cop.

However progressives had to play the race card in this matter.
I hope Gates sues for false arrest.

jaywillie said...
This comment has been removed by the author.
Conservative Mountaineer said...

Nice try, Maria, but... ZAP!

Gates is a rabble-rouser RACIST who has played the racist card before and played it this time and will play it again in the future. I especially liked his "Don't you know who I am?" attitude. You NEVER mouth-off to a Police Officer.. NEVER.. not for any reason.

Oh, and Mr. "Skippy" Gates is now known.. for his racist rant at Howard University, his questionable "charity"... and his/Obama's hatred of whitey and Police.

Maria said...

CM,

What crime did he commit?

Is "mouthing off" to the police a crime?

Why were the charges dropped?

EdHeath said...

When I started talking about this, I took the "you never yell at a cop line", and I still sort of say that. But ...

You are in your own house. Now, the way I read that statute, you could be disorderly in your own house, if perhaps you played music at high volume or screamed at the top of your lung capacity. I am guessing Gates voice was raised but probably not loud enough to constitute a nuisance. So Crowley had him come outside.

There are still things that are unclear here. In the 911 call the woman apparently doesn’t identify the intruders as black. I wonder if Crowley was surprised at who he found inside the house. It’s not clear to me whether the cab driver was gone when Crowley arrived. And I have to say the “yo mama” thing is not clear (could the cabbie have said it?).

An added dimension to this situation is that when Crowley had Gates leave his house and join him on the porch, at some point other officers showed up. Now Crowley is in the position of being yelled at in front of brother officers, possibly subordinates. I think that might have been part of the reason Gates was arrested. I think even a white man might have been arrested in that situation, but I think it was a sure thing with a black man.

And that’s the point. Yes, we know the police do a difficult job, and not only criminals but even ordinary people in a domestic dispute will turn on the cops and threaten them with kitchen knives and what not. But still a man who has been on an aircraft for god knows how long (coming from China), is jet lagged and had to force his way into his own house, he ought to have a right to be snippy. Even to be pissed off enough to play the race card (at least in the privacy of his own home).

Yes, we have a black president now. But African Americans are not earning anything near what white people do, still. Even if you believe in the personal responsibility thing, we maybe ought to try to meet somewhere in middle, and we have not gotten even close yet.

Conservative Mountaineer said...

Hey Maria.. Let's make a wager. Next time you're stopped by the Police, you start mouthing off. I'll do the "Yes, sir", "No, sir" routine. OK? Oh, and make sure you can make bail. [Yes. I've been stopped. Speeding, usually. I've been very respectful and gotten off all but 2x in 38 years. 2x I been able to avoid a more serious infraction by being VERY respectful.]

Now, no doubt a certain number of those in blue are Class A-1 a**holes.. my brother was (former) one.. bragging about certain aspects of his job...some are nothing more than Barney Fife with a badge and a gun. That being said, it is NEVER, I repeat NEVER, appropriate to argue with a Police officer.. EVAH!

"Skippy" Gates is a RACIST... major chip on his shoulder.. wonder why he married a whitey if he hates whitey so much?

JMHO, the charges were dropped due to political pressure (0bama and/or Deval)... I see Thursday's beer session being a comedy...Crowley should have said "No, thank you"... keeps this in the news for at least another 2 days, plus (hopefully) the weekend.. way to go, 0bama... gotta love it.

Maria said...

CM,

So you admit that no actual crime was committed?

Conservative Mountaineer said...

No, I will not accept your premise that a crime was not committed. 'Lil Skippy was mouthy and probably deserved a 'time-out'; however, that 'time-out' was (most likely) short-circuited for political reasons. Again, why don't you get mouthy with a Polce officer and get back to us? I think Sgt Crowley showed great restraints.. I'd hit the racist SOB over the head.. more than once. "Do you know who I am?" "No, and I don't give a rat's behind." BAM. BAM.

EdHeath said...

In other words, CM, you would beat a smaller man of a different color than you because of something he said.

We should take this as an expression of the enlightened view of conservatives? You think that should be policy, beat black men whenever possible?
And you call Gates a racist.

Maria said...

CM,

I'm sorry, I missed the "time out" statute in Mass. law -- just like you must have missed the actual law which says that you cannot be charged with disorderly conduct for yelling or swearing.

Sherry said...

cm, you are a very angry man.

i think you should see a doc. heart attacks are very unforgiving, unlike people.