Using the Gates Arrest as a Comprehensive "Teachable Moment"
	By VIKRAM DAVID AMAR
	Friday, July 31, 2009

In this column, I offer some legal analysis of the recent high-profile arrest of African American Harvard Professor Henry Louis Gates by white Cambridge police Sergeant James Crowley. In particular, I focus on the free speech aspects of the episode, which are related to, but distinct from, the questions of racial equality that have commanded so much attention in the national conversation.

The Basic Background of the Incident

Although the specifics are disputed by the parties to the incident, the basic facts are familiar to most Americans with access to TV, the Internet or a newspaper. Responding to a report of an attempted residential break-in by two black men, Sergeant Crowley approached Professor Gates's house, saw the Professor behind the front door in the foyer, and began to question him. At some point, Gates came to believe that his race improperly factored into Sergeant Crowley's questioning of him, and let Sergeant Crowley know in no uncertain terms of his dissatisfaction over the way he was being treated.

Sergeant Crowley, for his part, maintains that Professor Gates was uncooperative with the investigation from the outset, and then became "loud," "tumultuous" and "disorderly" in a public place (i.e., the front yard of Gates's home, viewable from the sidewalk), at which time the arrest was made and Professor Gates was placed in handcuffs.

Most of the media attention concerning this incident has centered on the disputed question of the extent to which "racial profiling" played into Sergeant Crowley's conduct, and the related question of whether the episode reveals any general truth about the way that men of color are treated by law enforcement even in Twenty-First Century America.

A Different Constitutional Question

This mainstream media's focus on questions of race and equal protection under the law in this case is certainly understandable and quite important. But I want to put to one side, at least for the moment, the question of whether the racial identities of the participants played a role in the encounter. Let us stipulate, for present purposes, that Officer Crowley is guilty of no invidious "racial profiling" (and his background and expertise suggest, at least, that he tries hard to keep race out of his decision-making processes). Even so, his arrest of Professor Gates still seems constitutionally troubling, if not indefensible, because his application of the "disorderly conduct" idea violates basic notions of due process and free speech.

For the remainder of this essay, I will assume as true the facts that Sergeant Crowley himself alleges in the police report (even though some of those facts are hotly contested by Professor Gates). According to this report, Professor Gates did not readily answer Sergeant Crowley's questions or comply with requests to produce identification from the moment the two men saw each other. However, the report relates that, after some ranting and accusations of racism by Gates and some cryptic references by Gates to what a big-shot Gates was, the Professor did eventually produce some Harvard identification that led Crowley to conclude that Gates was not in fact a burglar.

Here's what Crowley's police report says in its key passages: "With the Harvard University identification in hand, I radioed my findings. . . and prepared to leave. . . . Gates continued to yell at me [and] I told Gates I was leaving his residence and that if he had any other questions regarding the matter, I would speak to him outside of the residence. . . . As I descended the stairs to the sidewalk, Gates continued to yell at me, accusing me of racial bias and contin[uing] to tell me I had not heard the last of him. Due to the tumultuous manner Gates had exhibited in his residence as well as his continued tumultuous behavior outside the residence, in view of the public, I warned Gates that he was becoming disorderly. Gates ignored my warning and continued to yell, which drew the attention of both the [many] police officers and citizens [on the sidewalk], who appeared surprised and alarmed by Gates's outburst. [After a second unheeded warning to calm down,] I informed Gates he was under arrest [and] stepped up the stairs onto the porch and attempted to place him in handcuffs."

Why the Disorderly Conduct Arrest Runs Afoul of First Amendment Principles

There are several aspects of this account that are legally crucial. First, the investigation into the reported burglary had already wound down when Sergeant Crowley determined that Professor Gates crossed the line into disorderly behavior and arrested him for it. Whatever else can be said of Professor Gates's alleged yelling from his porch at Sergeant Crowley as the officer walked to the sidewalk, this yelling and ranting in no way interfered with the investigation of the reported burglary; the officer had already determined that no burglary had taken place.

In other words, this is not a case in which a person who is uncooperative with a police officer, or who is interfering with a police officer's investigation of a third person, is arrested because of that obstruction or interference. Even if Sergeant Crowley would have been justified in arresting Professor Gates earlier -- either for suspicion of burglary or for obstructing the investigation -- based on Gates's alleged failure to promptly answer questions or promptly produce identification, that was not the basis for the arrest that in fact occurred. The arrest of Professor Gates was for disorderly conduct after Officer Crowley was no longer trying to figure out whether a burglary was in progress.

Second, consider the allegedly disorderly conduct itself. As boisterous as the yelling from his porch might have been, Professor Gates's "disorderly" conduct did not in any way suggest that he was a physical threat to any police officer, any passerby or himself. The (many) police officers and citizens who were allegedly gathered on the sidewalk may have been, as the police report suggests, "surprised" and "alarmed," but they could not reasonably have felt threatened in any way, and their "alarm" might have owed more to the substance of Gates's allegations (i.e., that police had been guilty of racial profiling) than to the heated manner in which Gates was allegedly conducting himself.

Moreover, even if Professor Gates's volume as he was speaking was high and his tone was excited (and people do blare music and other noise from their homes all the time for short periods of time, committing no crime), note that Sergeant Crowley could have ended the alleged tirade simply by leaving the scene; no reasonable person could think that Professor Gates would have continued to yell at Sergeant Crowley after the Sergeant was no longer within earshot.

All of this brings us to the likely real basis for the disorderly conduct arrest: Sergeant Crowley was being yelled at and accused of racism within view and earshot of many other police officers and members of the community, and that kind of disrespect and accusation angered and embarrassed him.

Being angry is natural when a person is being yelled at and accused of evil. But as the Supreme Court has made clear in a number of cases (largely from the 1970s and 1980s), police officers cannot invoke vague and open-ended laws like "disorderly conduct" ordinances simply because police are being unfairly berated.

Free Speech Protects Caustic Criticism of Cops and Requires that They Have Thick Skins

As free speech champion Justice William Brennan explained for the Court two decades ago in a seminal case in this line of decisions, Houston v. Hill, "contrary to the city's contention, the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. 'Speech is often provocative and challenging.... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.'"

To put the matter succinctly, there does not appear to be any "clear and present danger of a serious substantive evil" in the Gates episode.

What about the police officer who is being unfairly pilloried and humiliated? Doesn't such disrespectful and derisive treatment make it harder for him to do his job? Perhaps, but that is something the First Amendment's protection of our right to be vociferously critical of our government requires us, as a society, to endure. In the famous Texas v. Johnson flag-burning case, the Court explained that "expression of dissatisfaction with the policies of this country [is] situated at the core of our First Amendment values." And as Justice Lewis Powell properly suggested, one would at least hope that police officers who cannot develop a thick skin simply shouldn't be police officers: "[A] properly trained officer may reasonably be expected to 'exercise a higher degree of restraint' than the average citizen."

The Right to Free Speech May Sometimes Be Used Unwisely, But The Right Still Exists

None of this is to say that scolding well-intentioned and dutiful police officers who are just trying to do their jobs and protect life and property is wise or laudable. It may well be that Professor Gates overreacted in this encounter and that his escalation of the incident caused much of the problem. But overreaction and even unjustifiable ranting by a private citizen is very different than use of the coercive power by the police. When police act excessively and stupidly (to use the word President Obama did in commenting on the incident) they violate not just norms of common sense, respect and etiquette, but also our basic constitutional values like those embodied in the First Amendment.

One reason the First Amendment frowns on vaguely-worded regulations like "disorderly conduct" ordinances is that such ordinances can be used discriminatorily against racial and other minorities. But even if race is taken out of the picture, the arrest of Professor Gates on the facts alleged in the police report is hard to constitutionally stomach because people have a right to accuse government of wrongdoing, and government cannot punish them for the content or viewpoint of their speech. All of this may well explain why the disorderly conduct charges against Gates were so promptly dropped.

Perhaps the whole episode should now be dropped soon too, but if we are going to use the incident as a "teachable moment" (again, President Obama's wording), let's make sure our teaching covers all the important constitutional lessons.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.