It feels obvious to me that if Henry Louis Gates, Jr. had been white things would have gone differently. The assumption that underpinned Officer Jim Crowley’s actions was that Gates, a black man, was out of place both physically and attitudinally. Gates did not show the officer proper respect, and part of the respect the officer expected was rooted in racial status difference.
But racism is not the whole issue. Other critical pieces to discuss are the problems of the category of “disorderly conduct” and the behavior of the police officer in luring Gates outside so he could arrest him for this problematic criminal category. Disorderly conduct belongs to that class of “crimes” that includes “vagrancy” (having no established residence or lawful or visible means of support) and “loitering” (remaining in an area for no obvious reason). These are classified as “public order” offenses, and they carry serious penalties, including substantial fines and jail time.
Public order offenses are not really criminal acts according to the standard definition of crime. The historically-constant moral and legal definition of crime requires the material existence of acts of force or fraud that cause or threaten to cause demonstrable and significant emotional, financial, or physical harm to other persons.
It is crucial that those whose interests are being protected by real criminal categories are able to demonstrate reasonably-accepted emotional, financial, or physical harm. Being irritated or offended by a person’s behavior existential state does not rise to the level of significant harm. Behavior which a particular individual believes is harmful, but which reasonable persons do not, is also not a criminal offense. For example, it may be emotionally damaging to a particularly sensitive adult to have his trousers referred to a “high waters,” but reasonable persons would agree that the insult does not represent a significant harm to an adult’s emotional interests. Besides, the constitutionally-guaranteed right to free speech protects irritating and offensive speech.
Throughout time, for various reasons, categories of crime have appeared that do not fit the historically-constant definition. In theocracies, thought and behavior challenging the accepted character of the universe are usually defined in the criminal law thereby subjecting the offending persons to punishment. If, for example, the Church says the Earth is the center of the solar system, it transgresses the law to say that the Sun is. Compulsory heterosexuality has found its way into the criminal law, making sexual activity between persons of the same gender criminal. Consumption of various substances, such as the smoking of certain plants, has been controlled using the criminal law. Selling sexual services has also been criminalized in many societies.
Examples of criminal acts that do not fit the historically-constant definition of crime but which reflect the time-bounded norms of a particular society, norms constructed and enforced by the powerful of that particular society against those that annoy them, are practically endless. It will suffice to have the reader note that in none of the “crimes” listed in the previous paragraph can an appeal be made to reasonably-accepted emotional, financial, or physical harm to other persons, and remind the reader that, in a free society, a person is at liberty to emotionally, financially, or physically harm him or herself.
So what is the purpose of such public order crimes as disorderly conduct? This is not difficult to ascertain. The purpose of the crime of disorderly conduct is to permit the arbitrary control of undesirable persons by providing authorized agents of the state, that’s the police in modern society, with broad and almost-infinitely rationalizable categories with which to justify arbitrary arrest and detention.
Individuals charged with such crimes are subject to the will or judgment of police officers regarding behavior or existential states that do not impose harm upon the public. In public order offenses, the criminal behavior may simply be acting or existing in a manner the police or the public don’t like at the moment. The defendant’s fate in the moment is contingent solely upon the police officer’s discretion independent of harm to others.
Disorderly conduct has become a catch-all rule police use to arrests persons who refuse to respect them. Disorderly conduct thus gives the police the power to arrest anyone speaking angrily at them in public, disturbing the peace, or disrupting order in the community. Speaking in agitated tones to police officers is what it called “contempt of cop.” The proper disposition of the average citizen with respect to a police officers is to be servilely obedient or respectful, that is to assume some manner of genuflection.
However, constitutional limitation to disorderly conduct has placed a crucial condition on its administration, namely that, for the charge to be triggered, the speech or behavior must occur in a public place where it may be alleged that others may be disturbed. Standing in one’s living room and dressing down a police officer is not disorderly conduct. Contempt of cop is not yet codified into law.
Jim Crowley, the cop who arrested Henry Louis Gates Jr. on Gate’s front porch, states in his police report that Gates was yelling very loudly and accusing Crowley of being a racist as they stood in Gates’ kitchen. Crowley was frustrated because he knew this is not disorderly conduct. This is why Crowley wanted Gates to come outside, claiming that the “acoustics of the kitchen” made it difficult to hear Gates. This is a patently absurd claim, transparent in its intention. The officer was deceiving Gates in order to arrest him—that is, punish him for back-talking a police officer.
“I would say it is not constitutional to arrest someone in his home just for being loud and abusive to a police officer,” Boston University law professor Tracey Maclin was quoted in a LA Times story. “That’s why the cop asked him to come outside, where he could be arrested for being disorderly in public.” Crowley claimed that he arrested Gates for “his continued tumultuous behavior outside the residence, in view of the public.”
Boston defense lawyer Samuel Goldberg told the LA Times, “You might think that in the United States, you have a right to state an opinion, even an offensive opinion. But prosecutors like to say you don’t have a right to mouth off to the police.” This is, as I have described elsewhere, a thought crime. “Gates was saying, ‘You are hassling me because I’m black.’ I understand how that’s offensive to a police officer,” Goldberg said. “It’s astounding to me to call it criminal.”
What Gates was doing, even according to Crowley’s police report, was criticizing a police officer. Gates was indignant. And that is his right. Human beings have a natural right to be angry with people who displease them. Police work for the taxpayers and, moreover, free speech rights permit a citizen to criticize state employees, whether they are politicians, bureaucrats, or police officers.
Crowley did not appreciate being called a racist and or having his authority challenged. But he knew he could not arrest Gates inside the house. So he had to get Gates outside in public so he could use the presence of other citizens—the presence of other police officers would have been insufficient—to meet what Crowley perceived was the threshold for disorderly conduct.
The charge of disorderly conduct was dropped—and hardly anybody seems to want to focus on this—was because Crowley didn’t have a legitimate case. The arrest was a mistake. The cop acted stupidly. No rule of law was in force, but rather a police officer using his power to arrest somebody he didn’t like at the moment. He wanted to punish Gates, so he arrested him.
Those who love liberty cannot support the behavior of this police officer. Although police abusing their power has been all to common in the United States, most of us will agree that this behavior is out of step with the values Americans hold dear.