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.
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