Criminal Justice

The Henry Louis Gates "Teaching Moment"

Put the race talk aside: the issue here is abuse of police power, and misplaced deference to authority

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The arrest of Harvard African-American Studies Professor Henry Louis Gates has certainly got everyone talking. Unfortunately, everyone's talking about the wrong issue. 

Responding to a 911 call from a woman who observed Gates prying open the door to his own home, Cambridge, Massachusetts police Sgt. James Crowley confronted Gates, and asked him to prove his residency. What happened next is disputed, but it now seems clear that Gates mistakenly presumed that Crowley had racially profiled him, and hurled a barrage of invective at Crowley in response. Crowey has since been backed up by other officers, some of them black, and it turns out he was appointed to teach a clinic on profiling by a black former Boston police commissioner.

This has given law-and-order conservatives cause to crow: A liberal academic and friend of President Barack Obama wrongly accuses a cop of racial prejudice. None of this means racial profiling doesn't exist (law-and-order types seem torn between arguing that profiling is a myth, and arguing that it works). It just means that the story in Cambridge was about something else.

The conversation we ought to be having in response to the July 16 incident and its heated aftermath isn't about race, it's about police arrest powers, and the right to criticize armed agents of the government.

By any account of what happened—Gates', Crowleys', or some version in between—Gates should never have been arrested. "Contempt of cop," as it's sometimes called, isn't a crime. Or at least it shouldn't be. It may be impolite, but mouthing off to police is protected speech, all the more so if your anger and insults are related to a perceived violation of your rights. The "disorderly conduct" charge for which Gates was arrested was intended to prevent riots, not to prevent cops from enduring insults. Crowley is owed an apology for being portrayed as a racist, but he ought to be disciplined for making a wrongful arrest.

He won't be, of course. And that's ultimately the scandal that will endure long after the political furor dies down. The power to forcibly detain a citizen is an extraordinary one. It's taken far too lightly, and is too often abused. And that abuse certainly occurs against black people, but not only against black people. American cops seem to have increasingly little tolerance for people who talk back, even merely to inquire about their rights.

In a locally prominent case from April 2008, a friend of mine named Brooke Oberwetter was arrested at the Thomas Jefferson Memorial in Washington, D.C. for, essentially, dancing. Oberwetter and other libertarians had gathered at the memorial to quirkily celebrate Jefferson's birthday by silently dancing to their iPods. When National Park Police asked the group to leave, Oberwetter hesitated, stopping to ask one officer to explain what laws or rules they had violated. He arrested her, on the charge of "interfering with an agency function," a vague charge similar to Gates' alleged public disturbance. Oberwetter was never tried, though she was handcuffed and detained for several hours. She has since filed a civil rights lawsuit against the officer and the Park Police. Oberwetter wasn't profiled: She's white, female, and the daughter of a former ambassador to Saudi Arabia.

In the wake of both Gates and Obama escalating the arrest into a national debate about race, too many conservatives took the instinctively authoritarian tack represented here by Washington Post staff writer Neely Tucker:

One of the common-sense rules of life can be summed up this way: Don't Mess With Cops.

It doesn't matter if you are right, wrong, at home or on the street, or if you are white, black, Hispanic, Jewish, Muslim or whatever. When an armed law enforcement officer tells you to cease and desist, the wise person (a) ceases and (b) desists.

The End.

Perhaps on an individual level, this is sound advice. As a general rule, you ought not provoke someone carrying a gun, whether your criticism is justified or not. As a broader sentiment, however, it shows a dangerous level of deference to the government agents in whom we entrust a massive amount of power. And it comes awfully close to writing a blank check for police misconduct.

If there's a teachable moment to extract from Gates' arrest, it's that arrest powers should be limited to actual crimes. Instead, the emerging lesson seems to be that you should capitulate to police, all the time, right or wrong. That's unfortunate, because there are plenty of instances where you shouldn't.

The most obvious case where deference to authority can be counter-productive—both in practice and in principle—is when police attempt an unlawful search or seizure of your person and property. But there are plenty of other instances as well, particularly with the spread of information technology.

Photographing or videotaping police ought to be a protected form of expression under any reasonable interpretation of the Constitution. Yet at the website Photography Is Not a Crime, photographer Carlos Miller has tracked dozens of cases in which police have unlawfully demanded someone cease photographing on-duty cops. Typically, police demand photographers hand over their cameras, and those who refuse are often arrested. In some of the cases, the preserved video or photographs have vindicated a defendant, or revealed police misconduct. Miller started the site after he himself was wrongly arrested for photographing police officers in Miami.

A week before the Gates incident, the NAACP launched a new website where users can upload video, photos, and text accounts of police misconduct from their cell phones. Just days before Gates was arrested, Philadelphia newspapers reported on a local cop who was captured by a convenience store's security video brutally assaulting a woman who had been in a car accident with his son. He then arrested her and charged her with assaulting him. The officer then demanded the store clerk turn over surveillance video of his attack. The clerk says other officers made subsequent demands to turn over or destroy the video. To his credit, the clerk refused. The video vindicated the woman. The officer has since been suspended.

After Oakland police officer Johannes Mehserle shot and killed subway passenger Oscar Grant at point blank range last New Year's Day, police attempted to confiscate cell phone photos and videos of the shooting. Fortunately, not everyone complied. Mehserle will now be tried for murder.

In the last few years we've seen numerous other incidents where cell phone videos and photographs, surveillance video, or handheld video cameras have both exposed police misconduct and shown officers to have falsified police reports. In most of these cases, the police at various points attempted to confiscate, alter, or destroy the photographic evidence.

Still, sentiment like Tucker's is common. Commenting on Gates' arrest, National Review's Jonah Goldberg wrote that he counts himself among those who are "deferential to police," and willing to "give cops the benefit of the doubt for a host of reasons." That's a common position among conservatives. At a Federalist Society luncheon a few years ago, Bush Solicitor General Ted Olson praised the Supreme Court for "putting more trust in our police officers" in recent rulings. Los Angeles Police Department officer Jack Dunphy (a pseudonym) oddly concluded at National Review Online that the lesson from the Gates/Crowley affair is that anyone who asserts his constitutional rights when confronted by a police officer risks getting shot.

This deference to police at the expense of the policed is misplaced. Put a government worker behind a desk and give him the power to regulate, and conservatives will wax at length about public choice theory, bureaucratic pettiness, and the trappings of power. And rightly so. But put a government worker behind a badge, strap a gun to his waist, and give him the power to detain, use force, and kill, and those lessons somehow no longer apply. 

Police officers deserve the same courtesy we afford anyone else we encounter in public life—basic respect and civility. If they're investigating a crime, they deserve cooperation as required by law, and beyond that only to the extent to which the person with whom they're speaking is comfortable. Verbally disrespecting a cop may well be rude, but in a free society we can't allow it to become a crime, any more than we can criminalize criticism of the president, a senator, or the city council. There's no excuse for the harassment or arrest of those who merely inquire about their rights, who ask for an explanation of what laws they're breaking, or who photograph or otherwise document police officers on the job.

What we owe law enforcement is vigilant oversight and accountability, not mindless deference and capitulation. Whether or not Henry Louis Gates was racially profiled last week doesn't change any of that.

Radley Balko is a senior editor at Reason magazine.