The next question is whether Mr. Gates’s language and behavior that Sgt. Crowley described in his police report fell within the proscribed conduct of the Massachusetts statute against disorderly conduct. This is where the two accounts diverge most dramatically. Mr. Gates addressed the issue with CNN’s Soledad O’Brien, who, reading from the police report, said, “[Sgt. Crowley] described you as behaving in a tumultuous manner.”
“Yeah,” Gates responded with a chuckle, “look at how tumultuous I am. I’m five foot seven, I weigh a hundred-fifty pounds.” He said this as though it’s inconceivable that someone of those proportions might behave in manner that could be characterized as “tumultuous,” an assertion that any police officer, and for that matter just about anyone not affiliated with an Ivy League university, knows is preposterous. That Gates’s behavior at the scene of his arrest might differ from that which he exhibited on a nationally televised interview was an issue that went unexplored.
But there is a way we might learn, as best we may, of what really occurred that day on Harvard Square. Mr. Gates says he’s considering a lawsuit against Sgt. Crowley and the Cambridge Police Department, during which, one presumes, we would hear testimony from all the various parties and witnesses. If Mr. Gates is to prevail in such an action he would have to prove, by a preponderance of the evidence, that Sgt. Crowley fabricated the case against him, and did so in the knowledge that the incident had been witnessed by several other police officers, including a black sergeant from his own department and some officers from the Harvard campus police with whom he is presumably unacquainted. Also called to testify would be the woman who made the initial call to the police and some or all of the “at least seven other passers-by” referred to in the police report. And the arrest, which was undoubtedly vetted all the way up the police department’s chain of command, was nonetheless allowed to proceed despite the certain knowledge that Harvard Law School professor Charles Ogletree and a phalanx of briefcase-bearing shiny suits would soon descend on the police station and start tossing about their habeas corpus this and their mens rea that, and that they would spare no effort or expense in ferreting out any weaknesses the case may have.
Sure, professor, Sgt. Crowley made it all up. Arresting Mr. Gates may have been arguably imprudent, but it wasn’t illegal.
If I may presume to offer Sgt. Crowley a bit of advice, I would encourage him to invest in a small digital tape recorder such as the one I carry while on duty. I have done so for many years and it has often proved invaluable, as in the case when some of my colleagues and I were accused of all manner of heinous conduct by a young man we had arrested for carrying a gun. Among the allegations was that we had used the notorious “N-word,” which, though one can’t walk a block in some parts of Los Angeles without hearing the denizens use it a dozen times, is nonetheless held as a near-capital offense when spoken by a police officer.
The time came for my interview with the internal affairs investigators, for whom I played the tape. It revealed, among other inconsistencies in my accuser’s tale, that it was he and not we who had so liberally used the accursed word, and that he used it, in the span of about 45 seconds, as a noun, a verb, an adjective, an adverb, and as something of an all-purpose interjection, a linguistic feat I suspect I may never see equaled. I was cleared of the charge, but I still listen to that tape every now and then just for its entertainment value.
Sgt. Crowley, you can pick up one of those recorders for less than a hundred dollars. Don’t you wish you had bought one earlier?