I had a terrible nightmare last night: I dreamed I was driving along in my patrol car when I responded to a fairly routine radio call. Someone had reported a possible burglary, and when I went to the home to investigate I encountered not the burglar I was led to believe I would find but rather the home’s resident, an Ivy League professor who, while indignantly challenging my authority to inquire into the reported crime, couldn’t resist doing so without calling my intelligence into question, accusing me of racial bias, and even going so far as to insult my sainted mother. When the verbal provocations escalated further and crossed the line into illegal conduct, I slapped the handcuffs on the man and hauled him down to the station house. A frothing media maelstrom then ensued, with reporters clogging the streets outside my home and traipsing across the lawn and through the shrubbery with their cameras and their boom microphones and their incessant, impertinent questions. Finally, the president of the United States was on television telling the entire world how stupid I am.
Then I woke up.
I am in a sense fortunate in that I work in an area where I’m as likely to encounter an extraterrestrial as an Ivy League professor, but like most police officers I can nonetheless sympathize with Cambridge Police Department sergeant James Crowley, for whom there will be no waking from the nightmare for some time to come. But, except for the notoriety and lofty position of the reported “burglar” (one of America’s preeminent black scholars, and all that), the scenario presented to Sgt. Crowley is fairly typical, one that every cop has experienced many times. A well-meaning neighbor has seen something she perceives as out of the ordinary and has asked the police to investigate. If more people were disposed to act this way, America’s crime rate would plummet overnight.
The first question to be asked about Sgt. Crowley’s initial response is, was it lawful and reasonable? Clearly it was both. A cornerstone U.S. Supreme Court decision, Terry v. Ohio, held that an officer may stop and detain a person he reasonably believes to be involved in criminal activity. Here, Sgt. Crowley answered a citizen’s report of a possible burglary. Such reports are granted a presumption of reliability under the law, so Sgt. Crowley was on solid ground in approaching the home and, upon seeing a man inside who matched the description provided by the witness, asking him for his identification. A police officer responding to such a report must, for his own safety, assume the report to be accurate until he can satisfy himself that it isn’t. The cop who blithely handles every call assuming it to be a false alarm will likely not survive to handle many of them. In fact, many police officers faced with the identical facts would likely have ordered Henry Gates out of the home at gunpoint.
Sgt. Crowley did not go so far as that (imagine the furor if he had), but he exercised a measure of caution by following Gates into the home as Gates retrieved his identification. Gates insists Crowley needed a warrant to enter the home but he is mistaken, as even the most liberal judge would find that Crowley was faced with sufficiently exigent circumstances, viz. a possible burglar who may have attempted to arm himself or flee, to justify a warrantless entry.
Mr. Gates, who admits he asked his limo driver to force open a stuck door, is surely accustomed to a certain amount of bowing and scraping in the circles in which he travels, and it must have come as a shock when he was surprised by a cop who neither knew nor cared that he occupied such an exalted position. He apparently never stopped to consider that he and his driver may have been seen by someone who would misinterpret their actions and report them to the police. No, to Mr. Gates the first and only explanation for the sudden appearance of a white police officer at his doorstep was that the cops had come to hassle him because he’s black.
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?