Gates-gate: The Libertarian View
In my previous article on this subject, I briefly mentioned a third point of view on the matter of the arrest of Harvard professor Henry Louis Gates: the libertarian one. They’re not focusing so much on race (except to say that Gates was wrong to bring it up), but the legalities of the arrest.
In a Fox News interview aired yesterday, analyst and former judge Andrew Napolitano looked at the case from a legal perspective. In my previous article, I criticized some libertarians for taking too much stock in Gates’ account of the face-off between him and Sgt. James Crowley. However, Napolitano doesn’t do that here, but instead looks at it using only the police report, Massachusetts law, and the federal constitution. Napolitano concludes that the arrest was improper.
Matters concerning police authority tend to be one of the points of contention between libertarians and other conservatives.
Edit: Doug Mataconis at The Liberty Papers further fleshes out the legal situation:
And yet, that’s not what the law says, as Massachusetts’ highest Court has recognized:
The officers’ presence, alone, did not suffice to prove the public element, regardless of any concern they may have felt as they witnessed the defendant’s confrontation with Sergeant Boss. As recognized in the commentaries to the Model Penal Code, behavior that has an impact only upon members of the police force is significantly different from that affecting other citizens in at least two respects: it is an unfortunate but inherent part of a police officer’s job to be in the presence of distraught individuals; and, to the extent that the theory behind criminalizing disorderly conduct rests on the tendency of the actor’s conduct to provoke violence in others, “one must suppose that [police officers], employed and trained to maintain order, would be least likely to be provoked to disorderly responses.” Model Penal Code § 250.2 comment 7, at 350. Accordingly, police presence in and of itself does not turn an otherwise purely private outburst into disorderly conduct.(9)
In other words, the mere act of talking back to a cop does not constitute a crime and should not justify arrest.
Gates was a hothead, but Crowley stepped outside the bounds of his Constitutionally-limited authority.
(H/T Andrew Sullivan)
“In other words, the mere act of talking back to a cop does not constitute a crime and should not justify arrest.
Gates was a hothead, but Crowley stepped outside the bounds of his Constitutionally-limited authority”
I can agree with that, as I have said in previous posts on this subject:
http://www.poligazette.com/2009/07/25/obama-insults-police-forced-to-retreat/#comment-98790
“even if Officer Crowley was found to be out of line and didn’t play by the book, somehow it would *HAVE TO BE 110%* racially motivated, not just an error or a mistake, or just horribly bad judgment that was made. I’m disappointed that the knee jerk limo-liberals running my country, and my state (Massachusetts) keep beating their heads against a wall like this, it makes them look ridiculous.
Lets try reason, cool heads, rational thought and discourse.”
Like I’ve said before, even the libertarians think Gates was stupid to play the race card. They’re just arguing that he had a right to get a bit fussy on his own property, and that for Crowley to arrest him there for it (they say Gates’ actions didn’t meet the Massachusetts definition of disorderly conduct) was improper.
That’s the argument in a nutshell.
OK, I agree that the arrest was improper. But here’s what I don’t understand about the Libertarians position, and indeed the position of a lot of the public, that Gates was wrong to brought up the race issue.
The fact of the matter is that Crowley acted improperly by arresting Gates. In other words, just because Gates was yelling back and verbally abusing the copy, that does not mean that the cop had the right to arrest him. So the question is, why did the cop arrest him anyway?
How can anyone be certain that Crowley arrested Gates only because he was yelling, with no regard whatsoever to race? Is it completely impossible that race affected Crowley’s judgment? There is no proof one way or the other. Gates thought that race played an issue; he thought that Crowley’s tone was disrespectful because he was black. He felt that once he showed the ID that should have been it. Gates may have been wrong. But here’s the point: no one knows for sure. Why is everyone so quick to blame him for bringing up race at the heat of the moment?
Maybe race DID play a factor in Crowley’s decision to arrest him.
Feynman- it’s not that it’s impossible that race factored into Crowley’s decision, but if there isn’t probable cause to assume it than it’s wrong to accuse him of it. On some level, cops (or any white authority figure) shouldn’t be susceptible to ‘guilty until proven innocent’ of racism any more than any other individual should have presumption of guilt.
And given that every single white person that I’ve spoken with (and many who’ve weighed in on the matter on blogs) note that none of us would ever be similarly confrontational with a police officer unless we wanted to earn a trip downtown, isn’t it far more plausible that this was a routine arrest which would have happened regardless of the citizen’s race (whether or not those kinds of arrests meet the legal standard?)
The fact remains that Gates is the one who made presumptions based on the officer’s race, while Crowley acted in response to Gates’ behavior, not skin color.
I have what may be an offbeat question for some of you legal experts. Many jurisdictions have enacted codes relating to hate speech. If an officer came to a person’s home and the person engauged in some sort of slur that violated one of these laws, could they then be arrested or do they have 1st Amendment protection in that circumstance?
First Amendment concerns have led to the striking down of so-called “hate speech” laws in every instance they have been challenged. We can’t criminalize slurs. Speech cannot be criminalized unless it meets a very high test of producing an imminent threat of violence.
I see the assumption that Gates’ tantrum was “purely private” continues. That being the assumption that reduces the arrest to being about speech content, rather than about behavior constituting disorderly conduct. But…
Even protected-content speech can clearly be disorderly conduct, when it’s offered at volume in public. Because it’s not what you’re saying that constitutes the disorderly conduct, it’s how you’re saying it. When Gates stepped outside his home and into the sight and hearing of others not on said property, he was in public. When he continued to shout and rant in the presence of the public (and AT the public) he was by reasonable arguments committing disorderly conduct by disturbing the peace.
That by itself is not sufficient grounds for a proper DtP/DC arrest. That generally requires that the noisy peace-disturbing person first be advised that they are indeed engaged in DtP/DC, be requested to cease and desist the disturbing/disorderly behavior at least once, and then fail to cease and desist. And what happened? Gates was twice advised he was being disorderly and requested to moderate his volume, ignored the warnings/requests, and THEN was placed under arrest. By the book for a DtP/DC arrest, regardless of whether the speech content is accusations of racism or nursery rhymes.
Similarly, if your next-door neighbor decides it’s amusing to sing Horst Wessel songs through a bullhorn in his front yard at three in the morning, his claim that he is merely exercising his right of free speech of protected content will not prevent his being arrested for DtP/DC if he refuses to cease and desist when advised to do so by law enforcement.
Point being that unless you’re psychic, you have zero way of knowing that the arrest was made because of the content of Gates’ speech rather than for his disorderly behavior in public view and hearing. Whether or not that behavior sufficiently fulfilled the requirements for a conviction is another matter, one for a court, as is any question of the constitutionality of the statute or ordinance itself. But he appeared to meet the elements of the offense sufficiently to justify an arrest.
Tully: I don’t really know enough about Massachusetts law to make a judgment call, but I expect you’re right.
Even though he’s a judge, and one would assume knows more about these things than we do, Napolitano’s political views may be clouding his legal judgment.
Either that, or we’re all police deference showing sheep. Pick one or the other.
I don’t think it is “sheep” to show respect to a police officer or, at least, restrain oneself from deliberately trying to be as offensive as possible, like Gates was.
It shouldn’t be a criminal matter when one is disrespectful to an officer (and we should remember that the charges were quickly dropped against Gates, as they almost always are in cases of disorderly conduct), but let’s not turn rudeness to cops into some kind of virtuous act of fidelity to the ideals of liberty, ok?
I was being facetious. I had already said I thought Napolitano’s libertarian political views may be causing him to shove aside his legal knowledge. Basically, and I need to find the law to be sure, he may be making an extreme interpretation of Massachusetts law.
Regardless of the legal arguments about the arrest, it would appear that the arrest was protocol and not the result of Crowley being a bully or ‘rogue cop’ as some have said.
According to accounts, Crowley warned Gates at least twice, calmly, that he would have to arrest him if he didn’t stop being disruptive. Some have suggested the officer lured him outside of the house so he could charge him with public disturbance, but accounts suggest that the officer was ready to leave and at that moment didn’t invite him outside.
The other police officers at the scene back up the arrest by Crowley, and so does the chief, and so have others serving in the police force across the country.
It would be unfair to try to make Crowley into a bad cop figure if he just saw himself as doing his job. It seems some are saying that just so we can make things all equal and say both Gates and Crowley are wrong.
If people have problems with the protocol used by the police dept., they should address it, without making it a personal issue with Crowley. I don’t think the arrest was necessary either.
Like Gates, a great many libertarians have preconceived ideas in their minds which would trigger resistence to police in similar routine investigative situations. Like Gate, many libertarians haven’t grown up and raised themselves beyond the level of teenagers who feel the need to rebel against authority. There is no need to rebel against police. Police serve a legitimate spiritual function. See:
http://spirituallibertarian.blogspot.com/
CP: I don’t get your blog’s argument about writing a constitution that doesn’t have a legislature. So you suggest giving more power to the executive?
Doesn’t sound like libertarianism to me.
DAVID LETTERMAN’S HATE, ETC. !
David Letterman’s hate is as old as some ancient Hebrew prophets.
Speaking of anti-Semitism, it’s Jerry Falwell and other fundy leaders who’ve gleefully predicted that in the future EVERY nation will be against Israel (an international first?) and that TWO-THIRDS of all Jews will be killed, right?
Wrong! It’s the ancient Hebrew prophet Zechariah who predicted all this in the 13th and 14th chapters of his book! The last prophet, Malachi, explains the reason for this future Holocaust that’ll outdo even Hitler’s by stating that “Judah hath dealt treacherously” and “the Lord will cut off the man that doeth this” and asks “Why do we deal treacherously every man against his brother?”
Haven’t evangelicals generally been the best friends of Israel and persons perceived to be Jewish? Then please explain the recent filthy, hate-filled, back-stabbing tirades by David Letterman (and Sandra Bernhard and Kathy Griffin) against a leading evangelical named Sarah Palin, and explain why most Jewish leaders have seemingly condoned Palin’s continuing “crucifixion”!
While David, Sandra, and Kathy are tragically turning comedy into tragedy, they are also helping to speed up and fulfill the Final Holocaust a la Zechariah and Malachi, thus helping to make the Bible even more believable!
(For even more stunning information, visit MSN, Google etc. and type in “Separation of Raunch and State,” “Michael the Narc-Angel,” “Bible Verses Obama Avoids,” and “Hate Bill Favoritism.”)