Second Thoughts


Will writes from Washington, D.C. (well, Arlington, Virginia). You can reach him at willblogcorrespondence at gmail dot com.

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75 Responses

  1. greginak says:

    I guess what we need is a solid shared definition of public order. A decent definition, at least to me, would leave a wide space for individual freedom. And order is idiosyncratic thing. What is order to some is chaos to others( like having a scary black man as president). To much of what we have created is a system where order for mostly white suburban middle to upper class folks is the order the police enforce. The biggest causalities are people that are an out group and not seen by many. I think there has been a vicious moralistic streak in Americans in the last couple decades that seems to fuel a lot of the lock’em, throw away the key and who cares if they get raped ( for non-violent crimes that didn’t threaten anybody).

    For profit prisons may also not be a great idea since they don’t seem to have much desire to rehabilitate. To be fair most Americans don’t think rehab is a good thing. I’ve heard more than one person(moron) gloat over ending things like education and drug rehab in prisons.Report

    • Jaybird in reply to greginak says:

      Yeah, exactly.

      Were the Jim Crow laws an attempt to preserve the public order?

      Is “the public order” something that can be protected through legislation?

      Why is “the public order” a good in and of itself?

      Am I wrong for reading “the public order” as “the established status quo”?Report

      • Katherine in reply to Jaybird says:

        Am I wrong for reading “the public order” as “the established status quo”?

        No and yes.

        “The public order” can encompass both preventing people from rocking the boat, and preserving people’s ability to not be robbed, murdered, etc.Report

        • Jaybird in reply to Katherine says:

          With regards to this particular case, I mean.

          If someone said “the public order” two hours after 9/11, I would have suspected that they were talking about robbing, murdering, looting, etc. With regards to this case? “The Public Order” means “the established status quo”.Report

  2. mike farmer says:

    “Although we’d prefer to believe that we adopt our political views after careful consideration of the relevant principles and issues, more often than not we adopt philosophies that align with our personalities and life experiences.

    For example, philosophically perceptive, right-leaning libertarians (as opposed to liberalartarians or leave-me-alone libertines) are a subclass comprised almost exclusively of white, middle-to-upper class, educated males aged twenty to fifty. Sociologically speaking, they are a demographic that is unlikely to have extensive experience with public disorder. It is understandable why they would be dismissive of such concerns when other interests, such as the rights of the individual, are involved.

    Also, as individuals these libertarians tend to share common personality traits. From my experience, they tend to be calm, self-controlled, typically Stoic, and prefer cool reason to heated emotionalism. (Ironically, while they defend Gates’ actions they are unlikely to engage in such intemperate outburst themselves. Unlike Gates, they are quite capable of controlling their emotions.)”

    I don’t know, it appears to be a jumbled, confused response to me based on the idea that we aren’t free agents who make judgements based on reason, but rather determined by our personalities and life experiences. In this case, right or wrong has no meaning, if everyone was acting as they are determined to act by something external to their own free judgement and freely chosen, objective moral code. Gates acted like he has to act, the police officer was acting like he has to act and libertarians and conservatives see the situation how they are determined by personality and life experience to see it. There don’t seem to be any free agents acting by choice anywhere in all of this. I reject this view, although people who have never chosen to use reason to be their guide can fall victim to being determined by their life experiences — the fact, though, is that Carter has no way of knowing which actors or witnesses fall into this category, and there is a way to look at it objectively and make a judgement. The “more often than not” is not based on any knowledge of the individual actors or witnesses in this case, just a general assumption applied to a specific situation. This distinction between the libertarians and conservatives based on external factors determining their response ignores the ability to make objective judgements, which are the only important judgements in this case. If we are incapable of making objective judgements, or act as free agents, then the whole situation had to be the way it is, and the responses to it have to be what they are — there is then, no morality, right or wrong, involved.

    If I read this right, he is saying we are all determined by personality and life experience, more often than not, and that the conservative personality and life experience determines the best response in this situation, but how can “best” be applied if no one had a choice in their responses? You have to have the capacity to make a moral, reasonable judgement based on what is objectively “best” in order to say anyone involved should have done this or that.

    Does Carter know who is “not” being determined in all this? Or is everyone determined as is “often” the case? The only way to know this is to be objective. Is the conservative response the only objective response, and if so, why is it so?Report

  3. Jaybird says:

    I’ll repeat what I said over there.

    The cops, in this case, remind me of nothing more than the TSA.

    We are not safer for this arrest. The guy was obviously arrested for being insufficiently demure. The folks defending the cop remind me of the folks defending the TSA. “What, do you want terrorists to kill us all??? Do you want another 9/11???”

    Do you think that throwing your potential binary explosives into a 55-gallon drum with other potential binary explosives is making us safer or is it some kind of “security theater”?

    This arrest?

    Law enforcement theater. Nothing more.Report

    • Michael Drew in reply to Jaybird says:

      The people defending this arrest on public safety grounds are on no where near as solid ground as those who defend the TSA. There is simply no threat to public order from one guy yelling at the police in public in Cambridge, Mass — after he was forced to leave his house against his will in order to be ‘in public’ to begin with.

      By contrast, 9/11 actually did happen, and it happened in part because of a failure of airport security. Those are facts. That doesn’t mean all the TSA’s procedures are efficacious, or that they should be detaining people who have names kind of like someone on a watch list who shouldn’t have been there in the first place. But the potential harm that can stem (in part!) from a failure to ensure security in air travel has been demonstrated — and it’s been demonstrated that it’s possible for it to be far greater than any harm anyone could ever dream up to suggest that either disorderly conduct or a lack of deference to police could cause.Report

      • Jaybird in reply to Michael Drew says:

        Defending the TSA because of 9/11 is like defending something that really sucks and is supposed to make people feel better without actually helping because of something legitimately bad that happened.

        My metaphorical skills failed me here, I admit it.Report

        • Michael Drew in reply to Jaybird says:

          Sure. The TSA’s idiocy should be its own subject for ridicule — and rightly is! But they do have an actual reason (in my opinion) for trying to do what they’re charged with doing — however idiotically they are doing that.Report

          • Jaybird in reply to Michael Drew says:

            And the same for law enforcement. The cop was there, after all, to investigate a B&E.

            It’s what happened *AFTER* that that makes me compare this situation to the TSA.Report

            • Michael Drew in reply to Jaybird says:

              The difference is that the TSA has a very tightly defined role/purview, and consistently uses the same means day after day to pursue that. Police are charged with enforcing all municipal laws, as well as generally with keeping the piece, so there’s always a question of determining the possible adverse outcomes and figuring out the right amount of power/force to be used (never exceeding their legally delineated limits on the use of force, and always erring on the side of the minimum amount necessary to keep peace/enforce the law). Both those things (possible outcomes, available actions) are completely variable when it comes to police in communities, while both are largely fixed in the case of the TSA. It’s basically an automated system. But you’re right to say the the ‘possible harm : coercive intervention’ ratio was/is out of whack in both the Gates situation and the TSA’s system. But not as much so in the TSA’s case.Report

  4. I was talking to a friend of mine who is a cop over the weekend. To make his point he told me about two different officers who arrived at calls that were considered non-emergencies. One was a domestic dispute and one was removing a guy that was making a scene from a bar. In both cases the officers failed to gain control of the situation with whatever means necessary. In one case the officer was shot and killed by the husband in the domestic dispute who produced a gun out of his pocket. In the other an officer was put in the hospital with a broken jaw from the guy in the bar who threw a punch while the officer was talking to dispatch on the radio and the guy was standing there un-cuffed and un-supervised.

    So in light of that…I think it is always in the interest of the police to bring situations to a quick end and also to protect themselves. If making a questionable arrest diffuses things, I’m okay with that. Their safety is not trumped by anyone’s right to free speech. One way that I think people are looking at this wrong is they are thinking that the police arrest gates as a punishment for his behavior. That’s not how I look at it. I look at it as they were trying to prevent he situation from becoming worse.

    Perhaps the most prudent question to ask is: Can anyone say with any certainty that up to the point he was arrested Gates couldn’t have produced a gun and started firing at the police? He was never searched, he was agitated, he was at his home where he could have potentially had a gun stored. What kind of threat does that possibly present to the police in that situation? It’s a big question-mark.Report

    • Guys –

      I think we’ve collectively beaten the Gates argument to death. Besides, this post isn’t about the details of his arrest.Report

      • Will,

        From your post:

        ” In the case of Gates, I believe that the circumstances surrounding the incident- the suspect was a old man with a cane, complaining to a police officer on a suburban street isn’t really an imminent threat to public order – militated against a preemptive arrest. “

        That’s not about the details of his arrest?Report

        • Will in reply to Mike at The Big Stick says:

          It’s incidental to my larger point about how we should prioritize law enforcement.Report

          • Then why even mention the Gates case?

            I stated my opinion: The right to free speech doesn’t trump the safety of police officers. So in that case, pre-emptive arrests are completely okay with me. As for ‘mass incarcerations’ is it safe to assume you are referring to non-violent offenders and not murderers, rapists, etc?Report

            • Jaybird in reply to Mike at The Big Stick says:

              I do not dispute this, for a second, as a description of how the world works in actuality.

              We have, however, a piece of paper that says the opposite and the government pretends that it’s otherwise.

              If the First Amendment no longer exists (or is no longer incorporated to the States), I’d just like to see that made official somewhere rather than keeping it as an unwritten policy.

              Why not have a constitutional convention?Report

            • “The right to free speech doesn’t trump the safety of police officers.”

              While Jaybird is correct that this may be how the world actually works, as a legal matter it is simply an incorrect statement of Constitutional law.

              From Houston v. Hill, 482 U.S. 451 (1987):

              “Second, 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.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949). In Lewis v. City of New Orleans, 415 U.S. 130 (1974), for example, the appellant was found to have yelled obscenities and threats at an officer who had asked appellant’s husband to produce his driver’s license. Appellant was convicted under a municipal ordinance that made it a crime “‘for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.'” Id., at 132 (citation omitted). We vacated the conviction and invalidated the ordinance as facially overbroad. Critical to our decision was the fact that the ordinance “punishe[d] only spoken words” and was not limited in scope to fighting words that “‘by their very utterance inflict injury or tend to incite an immediate breach of the peace.'” Id., at 133, quoting Gooding v. Wilson, 405 U.S. 518, 525 (1972); see also ibid. (Georgia breach-of-peace statute not limited to fighting words held facially invalid). Moreover, in a concurring opinion in Lewis, JUSTICE POWELL suggested that even the “fighting words” exception recognized in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), might require a narrower application in cases involving words addressed to a police officer, because “a properly trained officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.'” 415 U.S., at 135 (citation omitted).

              The Houston ordinance is much more sweeping than the municipal ordinance struck down in Lewis. It is not limited to fighting words nor even to obscene or opprobrious language, but prohibits speech that “in any manner . . . interrupt[s]” an officer. 10 The Constitution does not allow such speech to be made a crime. 11 The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”Report

              • What I am talking about Mark is the contention that when faced with an increasingly agitated person the police should remove themselves from the scene as the best practice for de-escalating the situation. I’m saying that free speech should not be so protected as to prevent officers from doing their job.Report

              • But, as I point out below, I’m not remotely saying that whenever the police face an increasingly agitated person they should remove themselves from the scene as a “best practice.” I’m saying that when the cause of the agitation is clearly the presence of the police and they have determined that there is no probable cause for an arrest, then the solution is to stop being the cause of the agitation, not arrest someone for being agitated.

                As for your point about free speech, you are certainly entitled to that opinion – but it is an opinion that was specifically and explicitly rejected in the case I quote above. That is the law that officers are required to follow.

                Regardless, Gates’ actions were not preventing the officers from doing their job in this case. They cleared him of any suspicion of burglary; their job was done. The only question was whether they were going to arrest him for the simple act of being agitated that he was suspected of burglary in the first place.Report

              • I guess the real problem is the desparity in disorderly conduct laws from state to state. In some states it is okay to curse police officers for doing their jobs, in others it isn’t. My understanding of KY law is that I’m glad to be in a state where officers only have to tolerate immature behavior up to a certain point. Apparently in Massachussets the bar is a bit higher. From what I’ve seen of the drivers in MA (light turns green, car in front of you doesn’t accelerate to 90mph within .02 seconds, honk until they do) I can figure out why.Report

              • If there is a state that prohibits cursing at a cop, that law is blatantly unconstitutional and would not withstand Supreme Court scrutiny if challenged.

                Under no state law of which I’m aware would the Gates situation have presented a justifiable basis for an arrest. If such a state law exists, it would not withstand a First Amendment challenge.

                Arguably, there’s a chance that the case I cite above would be partially overturned in the event of a law that narrowly applied to situations where the speech was in fact intentionally seeking to interfere with the officer’s performance of his duties, since only 5 justices signed on to that part of the opinion.

                But if the law was simply that officers don’t need to tolerate behavior that is merely “immature,” there would be probably not a single Justice on the current court willing to uphold it as constitutional.Report

    • I don’t have the time to comment much today, but I’ll just quickly note that there’s a big difference between an instance where the cop is walking into an already-tense situation like a domestic dispute or a disturbance at a bar, and a situation where the cop’s presence is the cause of the tension. In the former case, simply walking away isn’t really an option since the cop’s job is in large part to keep the peace and bring the tension down. In the latter case, however, walking away needs to be the first option since the cop’s job is in large part to keep the peace and bring the tension down.Report

      • Put another way: when a cop is walking into a situation where a dispute already exists, his job is to make sure the parties disperse and/or at least temporarily resolve their dispute on the spot. If neither is going to happen, then the cop is almost certainly justified in forcibly dispersing the disputing parties (ie, some sort of arrest for disorderly conduct or something closely related to it may well be in order). On the other hand, where the only parties to the dispute are the cop and the citizen and no crime has been committed, then the cop has it within his power to end the dispute without the use of any kind of force; when this option is available, a cop has a duty to take that option.Report

        • Michael Drew in reply to Mark Thompson says:

          Exactly. Complete failure to avoid escalation for its own sake where such escalation was easily avoidable. Brings highly into question the actual motive for arrest. Hence, working the assumption that the arrest was essentially for lack of deference, Sullivan is doing some good work on the implications of that this morning.Report

        • Mark,

          What you’re advocating is the notion that anytime the police get involved in a situation the best thing to do is to start screaming at them and run them off. Is that really a ‘best practice’ for police work (or for life in general?)Report

          • That’s not at all what I’m advocating. I’m saying instead that context matters. I think it’s a totally fair point to say that a police officer’s job is not merely to arrest people for crimes that have already happened, but also to maintain public order.

            But we need to keep in mind that, as a practical matter, a police officer’s ability to maintain or restore order is entirely dependent on his status as a more or less neutral representative of the law. A police officer also has a legal obligation not to use his disproportionate power vis a vis an individual civilian in a dispute that is ultimately between him and the civilian.

            Bottom line is that a police officer’s decision tree should look something like this:

            1. Is there probable cause that a crime was committed without regard to my involvement? If yes, then an arrest is appropriate. If no, move on to 2.

            2. Is there a dispute with the potential to escalate into a violent confrontation between the parties? If no, then walk away. If yes, then move on to 3.

            3. Do the parties respond to orders to disperse or (less likely) otherwise resolve their dispute amicably for the time being? If yes, then walk away. If no, then move on to 3.

            4. Is there at least a good-faith reason to believe that the continued presence of one or both of the parties (i.e., continued disregard of orders to disperse) constitutes a threat to public order? If yes, then an arrest(s) may be appropriate. If no, then walk away since you answered question number 2 incorrectly.

            In this case, the answer to the first question once it became clear that Gates was who he said he was, was “no.” The answer to the second question was at least arguably “yes.” The problem is that the police officer was one of only two parties to the dispute – there was no need to give an order to disperse, since he had the ability to disperse and Gates (as the homeowner) did not. In essence, the answer to question three was “yes” (demanding a walkaway), but he nonetheless skipped right ahead to question 4. And, of course, as a party to the dispute whose status as a neutral representative of the law had been compromised, he was in no position to answer question 4.

            What I am advocating is merely that police shouldn’t allow themselves to become parties to disputes that don’t involve the commission of a crime. As for how people should deal with the police, the answer is very much: it depends on what your previous experiences with the police have been. But what it all boils down to is this: it is the duty of police, as employees of the citizenry, to be well-trained in how to interact with that citizenry. It is in no way the duty of the citizenry (nor would it even be possible if it were) to receive training in how to interact with the government that is supposed to serve them.

            The only time where I think trying to run a cop off is appropriate is where the person trying to run that cop off has done nothing wrong. But in those cases, I think the right to run that cop off (whether or not it’s a wise idea) is pretty close to inviolate.Report

            • In the Gates case the officer was leaving the scene and it wasn’t de-escalating Gate’s behavior. I guess one questions is, do the police have a responsibility to not leave a scene where there is a clearly agitated individual present? What if Gates had gone back inside, gotten a gun and shot his neighbor for calling the police in the first place?

              I do not think the police should ever be forced to leave a scene simply to get an adult to behave like an adult. A big part of their authority is predicated on the acceptance of their authority. If it is subverted to the emotions of an aging college professor with cultural baggage, it weakens their ability to effectively police the populace.

              As for the citizenry knowing how to interact with the police, I thought ignorance of the law was not a defense?Report

              • Ignorance of the law is not a defense – but there is no law (indeed, such a law would be unconstitutional) dictating how citizens should act towards police. Contempt of cop is not a crime.

                Moreover, “leaving” the scene does not equal “left” the scene. Even if Gates’ agitation presented a potential threat (which is a highly suspect conclusion) that threat was solely to the cop, just as Gates understandably (if incorrectly) perceived the cop’s continued presence as a threat to him. There has never been any suggestion whatsoever that Gates presented a potential threat to his neighbors.

                As for this question, “do the police have a responsibility to not leave a scene where there is a clearly agitated individual present?” The answer is not only “absolutely not,” but also that to impose such a responsibility would make it impossible for cops to ever do their jobs. Their responsibility is to leave as soon as there is no threat of violence between the civilians remaining on the scene.

                If your proposed responsibility existed, cops would have to remain behind for hours after an arrest until, for instance, the family members of an arrested individual had ceased to be “agitated.” Not only would this be incredibly time-consuming, it would drastically escalate the potential threats of violence. I guarantee that the cops’ continued presence isn’t going to make the family members more accepting of the fact that their (father, son, brother, husband, etc.) has been taken away from them – quite the opposite.

                And you are correct that a big part of officers’ authority rests on acceptance of that authority. The thing is that this acceptance has to be earned – it cannot be given. This is the whole point I’ve been trying to make, in fact! The nature of police work is such that it is inevitably going to justifiably agitate people since police officers are human and cannot avoid the occasional wrong arrest or suspicion of an innocent person. When this happens, it undermines trust of the police, and the more it happens, the less the police are trusted. Creating a scheme in which the simple act of being agitated by a police officer’s action (however justifiable and necessary due to the nature of his job) is a valid basis for arrest only breeds more mistrust and less respect for the police.

                In other words, the less the police are willing to tolerate the notion that their actions will justifiably agitate people, the less acceptance their authority will receive. Their authority will increasingly be viewed as illegitimate and will increasingly rest not on civilian acceptance but rather on their force of arms. This is not good, and only the police can put a stop to it – we cannot demand that citizens suddenly forget about any wrongs committed against them by the police (whether real or imagined) and prohibit acting disrespectfully towards the police (again, this would be clearly unconstitutional). What we can do, however, is insist that police receive the sort of training that ensures that they understand that their actions will inevitably agitate people who have done nothing wrong, and that they must respond to such agitation coolly and professionally.Report

              • I would contend there are plenty of laws concerning how people act towards police. For example, police can arrest somone for failing to pull over when the police are flashing their lights behind them. They can cite someone for not slowing down when they are driving past a patrol car on the side of the road. They can charge somone with resisting arrest. So we have at least three distinct charges all stemming from a failure to interact with the police in a specific, acceptable way.

                As to agitated people, etc I see Gates as no less of a danger than someone being charged with public intoxication.Report

              • None of those examples has anything to do with free speech, though. Moreover, all of those examples specifically have to do with actions that intentionally interfere with the ability of the police to pertform specific duties.

                The public intoxication analogy also fails because public intoxication has nothing to do with free speech and nothing to do with the officer being the source of the agitation.

                Simply being agitated at a police officer is not a crime, and cannot be a crime.Report

              • Mark,

                You said:

                “It is in no way the duty of the citizenry (nor would it even be possible if it were) to receive training in how to interact with the government that is supposed to serve them.”

                I contend that is false. We expect the public to learn how to interact with the government in any number of ways. Now you’re saying, if I understand you correctly, that you mean that we can’t expect them to learn how to speak to the government in a certain way. I say we can given that the government already expects a wide-range of behaviors from the citizenry.Report

              • There’s this thing called freedom of speech and the First Amendment that says we can’t and shouldn’t. The police serve the people, who pay their salaries; the people do not serve the police.

                I would not want to live in a country where the law dictated that we only speak kindly and maturely to and of government officials. Such a law would render free speech truly meaningless.

                Thankfully, the Supreme Court has pretty clearly weighed in on my side on this one.Report

              • Speech is restricted in any number of settings on any given day. It’s done through providing choices and consequences. Your employer cannot stop you from speaking your mind, but they can persuade you to not do so at inappropriate times by threatening to fire you. The courts protect that right of the employer. I don’t see such a stretch in setting thresholds for speech that crosses the line in the course of a police action. And since disordely conduct laws are still upheld in many states with a lower bar than Massachussets, I think you might be too quick to claim the court’s support for unlimited and unrestricted free speech Mark.Report

              • Employers /= the government. The First Amendment only applies to the latter, not the former.

                Disorderly conduct laws are usually perfectly constitutional on their face (including this one). But facial validity does not mean that any application of those laws is constitutional.

                Additionally, Massachussetts apparently tried to codify precisely the sort of speech code that you advocate at one point in its disorderly conduct statute. It was, not surprisingly, ruled unconstitutional.

                A good summary of relevant Mass. disorderly conduct law is here:

                I would, frankly, be quite surprised if other states were much different.

                Again, I would not want to live in a society where it was illegal to shout out, berate, demean, or generally speak uncivilly towards a public official. Such a society would be one in which free speech was truly non-existent.Report

              • I guess that’s where we’ll just have to agree to disagree and put this to bed Mark. I prefer to live in a society where people air their grievances in the appropriate forum in a civil manner. If that means a little less liberty, I’m completely okay with that.Report

              • If that’s the society in which you wish to live, then start a movement to repeal the First Amendment.

                I for one would also love to live in a society in which people air their grievances in a civil manner. But that is a far cry from saying that people should be prohibited by law from airing grievances incivilly, especially when the people who decide whether a grievance is being aired “civilly” are the same people at whom that grievance is being aired.Report

    • cb in reply to Mike at The Big Stick says:

      I cannot say with certainty that you will not produce a gun and shoot an officer today. When will you be turning yourself in?Report

    • Katherine in reply to Mike at The Big Stick says:

      He was called to investigate a burglary. It rapidly became clear that no burglary was occurring. At that point, the simplest way to defuse the situation was to say, “Sorry about the misunderstanding” and leave.

      There appears to be too strong of a “The Cops Are Never Wrong” mindset for either the officer in question or those supporting him to comprehend such a course of action.Report

      • Gates didn’t ask the officer to leave. He asked the officer to stay and give him info. So Gates was requesting the officer’s presence and then berating him.

        Also, I think a lot of people are ignoring the fact that Gates was given multiple warnings before he was arrested. Even my kids know that when you get 2 warnings and you still can’t behave you go to timeout.Report

        • No. Gates demanded that the officer provide identification, which is well within his rights. The officer refused to do so. Regardless, whether Gates asked the officer to leave is irrelevant; the officer had no reason to stay once he knew there was no burglary. It was the officer’s responsibility, as an officer of the peace, to diffuse the situation in the least intrusive way possible (ie, he should have said “I’m sorry about the inconvenience, I’ll be on my way now”).

          I don’t see what’s so difficult to understand about this. He was in a private citizen’s house after he had confirmed there was no burglary. Is it so difficult to comprehend that a person would be reasonably agitated if they were being questioned for burglarizing their own home? Is it so difficult to comprehend that the response to such agitation isn’t to get angry with the citizen (who, again, has been cleared of any burglary suspicion), but is instead to diffuse the situation by calmly acknowledging that this agitation is reasonable and then going on your merry way?

          The multiple warnings are irrelevant – those warnings never should have been given. The warnings demonstrate that the officer continued to treat Gates like a criminal even after it was demonstrated that Gates was not a criminal.Report

          • Is it so difficult to comprehend that a person would be reasonably agitated if they were being questioned for burglarizing their own home?

            Actually, yeah. I told the entire story to my 10 and 14 year-old the other night at dinner. When I finished and asked them what they thought I got two responses:

            14 year-old: “The professor should have thanked them, not yelled at them.”

            10 year-old: “When I get 2 warnings and I’m still bad, I go to timeout.”

            Now I’m sure some will think these represent naive opinions not well-versed in the subtle nature of Constitutional law nor do they understand the weight of cultural baggage that an aging black Harvard professor must cary around daily…but even they were able to figure out that A) His initial response was completely unreasonable and NOTHING the police did warranted it. B) When people are asked by the police to calm down and they don’t, usually they take a ride downtown.

            You’re also skewing the facts of the case Mark, unless the police have changed the report since I read it. It states clearly that Gates was given the officer’s name more than once. the officer told Gates he was leaving and that if Gates had more questions he could aks them outside.Report

            • I’m not skewing the facts at all – giving a name is a far cry from providing identification, which is what Gates was demanding.

              Additionally, everyone acknowledges that Gates was a jerk who should not have acted in that manner. But that’s beside the point – the right to say nasty things to government authorities is pretty damn near inviolate; it’s at the very root of the concept of free speech, the very speech that is the most important to defend.

              Moreover, your response does not address why it’s difficult to comprehend that a person might be reasonably agitated if they were being questioned for burglarizing their own home? This is not a question of whether that person should be agitated in a given circumstance, it’s a question of whether a person might reasonably be agitated in such a circumstance.

              This is the core of the problem that exists between police and certain neighhborhoods they patrol – the police simply seem incapable of understanding that their actions (however proper and legal) have consequences on the people they are supposed to serve. I gave you the example the other day of a client I once had who I represented in a pro bono case – she had done nothing wrong, nor even anything to arouse suspicion other than having a particularly cantankerous ex-husband; she cooperated with the police and turned herself in without incident, even though she had done literally nothing wrong; for this, she spent a month in a rat-infested jail and had to fight criminal charges for six months, during which time she had to put her career on hold. So if cooperating with the police when she was innocent meant that she still spent a month in jail on bogus charges, what incentive does she have to cooperate the next time? Maybe if she screams and hollers, calls the cops names and generally causes a scene, someone will notice and make sure that she only spends a few hours in jail, gets released and gets the charges dropped quickly rather than having to spend 30 days in a rat-infested jail and put her career on hold for 6 months to fight those charges. Maybe, if she screams loud enough, enough people will pay attention that her case will get on the news, she’ll get a public apology, and an attorney (who she otherwise would be unable to afford) will volunteer to prosecute a civil suit on her behalf.

              Cops have an awesome, awesome power over the communities they encounter. They need to be aware of this and be extremely judicious about how they use it. If they don’t use it judiciously, they will quickly find themselves surrounded by a community that doesn’t trust them and doesn’t respect them except to the extent that they are heavily-armed.Report

              • I’m not suggesting that the right to free speech isn’t there…I’m saying that I don’t believe that right is coupled with the right to speak in any forum the person wants. A reasonable society can still uphold free speech while also declaring that at times that speech should be restricted temporarily in the interest of order and civility. An active police scene, crime or not crime, is not the appropriate forum. Have you ever seen a case where the police were going to arrest somone and their loud protests caused the police to let them go?Report

              • 10 year-old: “When I get 2 warnings and I’m still bad, I go to timeout.”

                So you are directly and unapologetically suggesting that the proper attitude for citizens to approach police is like naughty children to parents? When they feel that their rights are being violated?

                I really want no part of the society that you envision. It is not even a bit of an exaggeration to say that you are an apologist for authoritarianism.Report

              • Freddie in reply to Freddie says:

                Also, again– the police report is one sides version of a controversial issue. To unquestioningly take the police report at face value when it is the police’s conduct that is precisely what’s at issue is absurd.Report

              • Freddie in reply to Freddie says:

                And since disordely conduct laws are still upheld in many states with a lower bar than Massachussets, I think you might be too quick to claim the court’s support for unlimited and unrestricted free speech Mark.

                As has been pointed out to you ad infinitum, the arrest did not even meet the most generous reading of Massachusetts disorderly conduct laws.Report

              • Mark Thompson in reply to Freddie says:

                Thankfully, the power of authority in the US is not absolute; as I’ve pointed out repeatedly, the law is on my side here. I am, however, saying that in insisting as a matter of criminal law that people treat authority with respect or risk imprisonment, you are advocating (intentionally or unintentionally) precisely that, since the very person who will be determining whether you have treated the authority with adequate respect is that authority himself. Again, even if there is a mechanism for overturning that authority’s decision, being forced to quietly spend just a night in jail because the authority didn’t feel adequately respected is, well, disturbing. Such a society is a society in which there is no rule of law, just the arbitrary whims of authority figures.Report

              • If that means I believe in the power of authority…then absolutely. I believe in the rule of law and a civil society.Report

              • A society in which the power of authority is absolute is a society in which there is no rule of law, just the arbitrary whims of authority figures.Report

              • When you see the power of authority become absolute in the U.S. let me know. I find alarmism to be one of the most dangerous -isms there are.Report

              • Jaybird in reply to Freddie says:

                “I really want no part of the society that you envision. It is not even a bit of an exaggeration to say that you are an apologist for authoritarianism.”

                Freddie, you are *SO* close!!! Keep the thought going. Keep it going.Report

              • “Have you ever seen a case where the police were going to arrest somone and their loud protests caused the police to let them go?”

                Not to let them go immediately, but certainly to get them out of jail quicker, get charges dropped expeditiously rather than over the course of 6 months, and get their rights vindicated in a quick lawsuit settlement. Love him or hate him (and I mostly hate him), Al Sharpton has made a career out of enabling precisely that.

                Regardless, this doesn’t address the central point, which is quite simply that if a person reasonably expects to be treated unjustly (say by having to spend 30 days in jail awaiting arraignment on a crime they never committed) by law enforcement, then they have exceedingly little reason to respect and cooperate with law enforcement. Cops need to realize that plenty of innocent people have had negative dealings with the police and thus have no reason to expect that the police will treat them fairly. I realize that it is impossible to reduce this number to anything approaching zero, but police would behave a lot differently in situations such as this if they at least understood that the people they encounter might have very good and understandable reasons to disrespect them. Again, respect needs to be earned, it is not an entitlement; if respect is not earned, then it is given only to the extent that the officer has the ability to do very bad things – which isn’t respect, it’s fear.Report

              • So then suggest improvements to the court process, appeals, advocacy, etc. As a lawyer, don’t you find it a bit unfortunate that screaming at cops is your suggested line of redress to questionable incarceration? Aren’t there much more reliable alternatives?Report

              • You’re straw-manning me here. That is not my suggested line of redress – for most people, in most circumstances, cooperation is probably best. My point is that ranting and raving is an understandable reaction to questionable incarceration that should not be (and thankfully cannot be) criminalized.

                As for improvements to the process, well, a huge improvement would be if police were trained to follow something resembling the decision tree I’ve laid out. Beyond that, there are relatively few improvements that can be made (beyond the obvious one of dramatically reducing the scope of criminal law such that there are fewer crimes for which people can be incarcerated). Sovereign immunity and qualified immunity make it extremely difficult for even a well-off person to get damages against the state for improper police behavior (and I guarantee that police would go in for better training long before they’d be ok with reductions of sovereign and qualified immunity). Even if it were possible to regularly win damages in such suits, the people who most frequently have unjust dealings with the police are the very people who are least likely to be able to afford an attorney. This inability to afford an attorney also means that they’re likely to get an appointed attorney who will have little interest in their case. Worse, even where the attorney they get is willing to take a real interest in their case, there are still overwhelming incentives for even an innocent person to take a guilty plea that either keeps them out of jail or only puts them in jail for a very brief time. It is simply not possible to get rid of these incentives.

                Beyond that, though, the simple fact is that there are costs to throwing an innocent person in jail, even for a night, or making an innocent person fight charges, even for just a few weeks, that simply are not quantifiable. In addition to the toll these costs have on the arrestees, their friends, and their families, these costs will in turn undermine respect for police. It’s a vicious cycle, but one that only the police can stop. You simply can’t demand that the average person (along with their friends, neighbors, and family) be totally ok with the idea of going through these kinds of ordeals when they have done nothing wrong. You can wish it, even believe that this would be the best response, but you cannot expect it.

                You can, however, demand, as a condition of employment that police treat civilians with a certain amount of dignity, even if that means that the police themselves have to put up with verbal (as opposed to physical) abuse.Report

              • My point is that ranting and raving is an understandable reaction to questionable incarceration that should not be (and thankfully cannot be) criminalized.

                Maybe we’re talking past each other so let me back up. If someone is minding their own business and not breaking any laws and the police throw the cuffs on them, by all means, they should scream their head off if it makes them feel better and it should be legal to do so. But that isn’t what happened in the Gates case. Gates was not ranting and raving as a reaction to questionable incarceration. The ranting and raving came first and he was incarcerated because of his ranting and raving.

                Cops tolerate a LOT form the public and I’m not saying that if people are stupid enough to mouth off to them they shouldn’t let most of it go. I do think even libertarian-leaning folks should be able to recognize that speech can become dangerous at some point (encouraging others to attack the police would be dangerous) and fits the definition of disorderly or disturbing the peace. Where you and I will eternally differ is on where that bar should be. I am a rule of law kind of guy. I like civil order. I cringe when I see people behaving the way Gates did. I’m okay with arresting people that act that way and fail to heed multiple warnings to stop. If Freddie wants to call that authoritarian, I’ll wear the badge proudly.

                As for the police following your decision tree, I think you put far too much responsibility on the police in the field. Asking them to follow your decision tree is a recipe for cops getting hurt because it would breed timidity. Maybe the best thing would be to make an arrest a two-part process. If the officer in the field believes an arrest is warranted or believes detaining the suspect is the best course of action then they do so. Then they go to a station where a supervisor reviews the detainment in a more controlled environment and decides whether or not to make it a formal arrest. I guess I’m thinking of a time when I stopped for tresspassing and the police put me in the back of a patrol car while they questioned one of my friends. It was the best method of controlling the situation. The police should have an option like that in the field. I fear your free-speech-trumps-all notion doesn’t facilitate much in the way of de-escalation.Report

              • Jaybird in reply to Mike at The Big Stick says:

                Read your Solzhenitsyn. The Gulag Archipelago has a wonderful chapter talking about the relationship of the citizens with the police. The primacy of social order played a big role in keeping the citizenry analagous to rabbits.

                It’s worth reading.Report

              • I guess it’s about time for another Nazi reference now, isn’t it? Or I guess you are going the Soviet route?Report

              • Jaybird in reply to Mike at The Big Stick says:

                Yeah, yeah. We’re talking about people yelling in public, order must be maintained, history won’t protect you from burglaries, eyes down, etc.Report

              • I guess it’s why I find most libertarians so hard to take seriously. It’s their habit of exaggeration.Report

              • Yes, but Gates was minding his own business and not breaking any laws. Whether he was ranting and raving right from the start is irrelevant – he knew he was innocent, and resented being questioned in the first place (and, btw, that’s if you take the police report at face value instead of recognizing that in any confrontation there are usually three sides – each party’s side, and the truth which lies somewhere in between). Moreover, he wasn’t arrested for his ranting and raving when the cop first got there; he was arrested for his actions after the cop had already looked at Gates’ ID – the warnings were given only after the cop had insisted that Gates take things outside, which was after the cop had looked at the ID.

                Once the cop knew that Gates had committed no crime, he should have immediately recognized why Gates was agitated, and respected that the agitation was just a human reaction of someone who had lost his trust in the police.

                But this guy was in no way a threat to the police; he was just an angry, agitated dude who needed a cane to walk and said some mean things.

                As for being a rule-of-law kind of guy, well so am I. Very much so, in fact, which is exactly why I fear giving police the authority to arrest for the display of inadequate respect. The rule of law means less the more the enforcers of the law get to decide what laws will and will not be enforced, and when.

                Hell, I even cringe at Gates’ actions. But just because something is cringeworthy does not make it illegal or provide grounds for making it illegal.

                Speech can be limited in situations where it is clearly intended to incite violence and there is a likelihood that it will in fact imminently incite such violence; you also cannot shout fire in a crowded theater. But the reason why this speech can be limited is that it lacks an expressive element to it. There is no evidence whatsoever, and there has not even been a suggestion, that Gates’ anger was about to cause a riot or any kind of physical violence; it just angered the cop.

                As for my decision tree, I don’t see how it would create an unacceptable level of hesitation on the part of the police. The first step is one that the police already have to undergo if they don’t have a warrant. The second step (is there a dispute with the potential to erupt into violence) is a necessary step if the officer is going to justify his presence in a situation where he knows no crimes have yet been committed. The only possible area of hesitation would be the requirement that the cop first issue an order to disperse, if possible, before making any arrests, but this is what cops should be doing in the first place. Arrests should be a measure of last resort.

                The problem with your two-step process is that it already exists, more or less. Maybe it speeds things up marginally, but it’s hard to imagine a situation in which a police officer’s colleagues overrule his arrest.

                Look, the bottom line is that a cop shouldn’t be arresting someone for merely saying nasty things to him in any context. If the person is making specific threats of physical violence, fine; if the person is actually engaging in violence, absolutely. But just because the guy ranted and raved? That should never be grounds for an arrest under any circumstances.Report

              • We’re back to our core disagreement. I think excessive behavior like Gates exhibited interferes with a policing situation, even if things are wrapping up and the person is not being charged. I also think it undermines police authority to appear to be leaving a scene under verbal assault. I think it’s ni the interest of public order to prevent either of those things. And the fact that he was given multiple warnings is all I really need to believe Gates stepped over the line. At the point he continued after handcuffs were produced Gates clearly wanted to be arrested. The main mistake the officer made was in facilitating that. I just hope Gates gives him some royalty kickbacks from his next book.Report

              • Jaybird in reply to Mike at The Big Stick says:

                Well, here’s the audio.


                I’m a big fan of making sure of constant audio/video of police officers while they are on duty. It protects everybody and lets us know what really happened.Report

              • But if things are wrapping up and the person is not being charged, there is no policing situation to interfere with!

                As for leaving a scene under verbal assault vs. arresting someone for hurling verbal insults….leaving may cause people to fear the cops less, but it will also cause them to respect their restraint more. Respect and fear are two different things.Report

        • Katherine in reply to Mike at The Big Stick says:

          The cop’s aren’t your parents. They have the right to arrest you for breaking the law, not to send you to your room (or to the slammer) for getting on their nerves.Report

  5. matoko_chan says:

    Sillies, O was right.
    It was stupid to arrest Gates in his own home after he provided ID.
    He was arrested for yelling at the cop.
    Is this what America has become, a nation where public servants can arrest us for getting pissy with them in our own homes?Report

    • M.Z. in reply to matoko_chan says:

      I suppose it was time for Chan and I to agree. This is more evidence of the militarization of the police. Goodness, Gates was just a tick or two away from being able to make a false imprisonment suit.Report

  6. Jaybird says:

    Thinking about this argument some more, this seems to be a variation of Giuliani’s arresting turnstile jumpers, vandals, so on and so forth. By making sure that police response was highly visible and even small infractions were taken care of (as opposed to the whole “why aren’t you guys investigating murders instead of chasing after turnstile jumpers?” attitude), crime went down.

    This seems to be a variant of that. By arresting Gates, the public order was maintained.

    This does not work for me, though. For this argument to work, there has to be at least as much consensus that what Gates did was as bad as, say, jumping a turnstile. There isn’t. (And that’s assuming, of course, that Giuliani’s theory of law enforcement was the cause of crime going down rather than something else.)

    Now, of course, this isn’t exactly what Carter is arguing… but for Carter’s arguments to work on their own terms, the “public order” must be maintained by these kinds of arrests in aggregate and I don’t see how that would ever be the case. Explain it to me.Report

  7. ChrisWWW says:

    I wrote a post about this subject today. My thoughts are that we’ve shifted too far toward an irrational fear of police. Police are supposed to be public servants, not just scary guys with guns that we obey no matter what.

    Will is exactly right that public safety was not in any way enhanced by arresting Prof. Gates. Sure Gates was being a jerk, but as Dowd said, that’s not a crime.Report

  8. Dan Miller says:

    Yeah, what worries me about this is the utter absence of checks on the police in Joseph’s/Mike at the Big Stick’s formulation. Even if Officer Crowley is a model cop, which I’ll stipulate for the sake of argument, do we really want to give all police the ability to arrest anyone who behaves in a manner they feel inappropriate? And with no review of this power, and no consequences if used poorly?Report

  9. Dave says:

    Mike at the Big Stick,

    I’m going to agree to disagree and be done with this. Mark has laid out a substantial argument as to why he disagrees and I concur with his analysis. His arguments are derived from the rule of law. You emphasize law and order. There is a HUGE difference.

    In any event, it was an interesting read but going any further would simply be spinning my wheels.Report

  10. matoko_chan says:

    Can we all agree that Joe Carter’s post was NOT measured and/or intelligent and actually deeply and profoundly WRONG?
    Like much of his work.
    One problem the Bourgie Conservatives have (another being constant open warfare with the other tribe of conservative pundits, the Anger Whiggas) is an inability to call out one of their own in failstate.Report