My class list has been obsessing over Skip Gates’s arrest in Cambridge for a couple of days. Most participants tended to agree that the Cambridge cop had not behaved unreasonably, but a few correspondents were inclined to contend that arguing with police and denouncing their presence and behavior should be considered First Amendment-protected instances of Free Speech.
Captain Brandon del Pozo of the NYPD discusses the Gates arrest from a professional police perspective on Crooked Timber, refuting, I think, effectively the Free Speech claim.
Whether or not a person should be arrested for disorderly conduct depends on subjective assessments that are nonetheless important to make. (more on discretion later) These include the extent to which the interaction is actually in public, the extent to which he has genuinely impeded the investigation by being verbally combative with an officer who needs to elicit investigative information from him, or created a situation of genuine public alarm, and, admittedly more controversially, the extent to which he fosters a climate wherein itâ€™s acceptable for people to harass, berate and otherwise annoy the police as they are trying to conduct routine investigations that are in the interest of public safety. …
The officer instructs the person to exit the house and talk on the porch. This is standard police safety practice. An unfamiliar building with unknown occupants that is the potential site of a burglary is not a safe place for an officer to enter, especially alone. If he is drawn into the home and attacked there, he can be locked in and will take longer to rescue. Kitchens have a variety of weapons, and rooms have limited sight lines and places for suspects to hide. Bringing a suspect to the porch is a prudent move for an officer.
The man knows whatâ€™s going on. He did, in fact, just force his own front door open. All accounts indicate the sergeant showed up moments later; the 911 caller personally informed him, in sum and substance, â€œhe just went into the house a few seconds ago.â€ There is a continuity of events that indicates a reasonable person would understand why the police came to his door a few moments after he broke it open. The only thing that could indicate a race bias is the unobserved hypothetical that the police would not have been there if he was white. This doesnâ€™t matter; for a homeowner of any race there is a facially plausible race-neutral reason why the police have come to the door.
Around this time, the person begins to accuse the officer of racism, at first refusing to cooperate with the investigation. This makes the investigation more difficult, and might make the officer wonder if he is safe. To assume Gates isnâ€™t the type of man to use violence when he is angry and using obscenities is to emasculate him, or patronize him, or to resort to stereotypes based on age, stature, type of employment, etc. Anyway, early on, the sergeant concludes this man is not a burglar, but reports that the man continues to be verbally belligerent. …
The police cannot be expected to leave a location simply because the person there is screaming at them and ordering them around, even if that person is apparently innocent and likely lives there. They should still thoroughly investigate. If this were a legitimate expectation of the police, then it would sometimes allow genuine criminals to berate cops into leaving the scene prior to a complete and thorough investigation of the crimes they have committed. Officers should leave when they are convinced that the investigation is complete, and that the situation is under control, regardless of the demeanor of a person.
The police need to foster an environment in which they can deliver public safety without being subject to obscenities, accusations and yelling from any party, even innocent parties. The judgments of policing are obviously difficult and subjective, and are often marred when they are made in the face of people issuing inflammatory comments even as the police are rendering routine services with an obvious cause. It is in the collective interest of citizens and police to promote an environment where the police can conduct an investigation calmly and with mutual respect. It cannot become commonplace for people to be allowed to scream at the police in public, threatening them with political phone calls, deriding their abilities, etc. Routine acts like rendering aid to lost children, taking accident reports and issuing traffic violations could be derailed at any time by any person who has a perceived grievance with the police. The police service environment is not the best venue for the airing of such grievances.
The police should not be cowed by threats of phone calls to people such as mayors, police chiefs and presidents of the United States, along with allegations that â€œyou donâ€™t know who youâ€™re messing with.â€ It is traditionally whites who have had this type of crooked access and influence. These appeals to higher authorities are often meant to exempt the ruling castes from following the rules and laws that the rest of the community will be expected to follow. It happens, it is unfortunate, and it is not in the interests of justice for it to continue. Nobody trying to do their job fairly deserves to hear the equivalent of â€œMy daddy donated fifty million to this university, and youâ€™ll be getting calls from everywhere in the administration about raising my grade enough for this class to count as a distributive requirement.â€
It is possible for a person to commit disorderly conduct by unabated screaming and verbal abuse in a public setting. Without drawing conclusions about the Gates case, there comes some point where a person is genuinely causing public alarm, and where he is acting with a rage that exceeds what we can expect from a reasonable person in a heated moment. The mere presence of the police conducting a legitimate investigation should not provoke continuous rage and epithets from such a person. One response is that the police should just leave if the investigation has been conducted successfully, and that this will calm the person down. In practice, this is indeed often the best thing to do. On the other hand, it should be noted that it is just as much the responsibility of the citizen to see that his actions are an inappropriate way to relate to police officers who have not, in the specific case at hand, acted unreasonably. This point may be hotly contested, but I believe it is true: there is no obligation for the police to hurry in their activities or to leave as soon as possible because they have incited the rage of a person who is acting unreasonably. There is a distinction between hanging around to show them whoâ€™s boss and working at a steady, professional pace, to be sure. But in the end the mere presence of the police cannot be seen as an acceptable reason for disorderly conduct, and should therefore not spur the police to leave a scene simply to de-escalate it. A police strategy of â€œwinning by appearing to loseâ€ emboldens citizens to attempt to get the police to lose in more and more serious matters, including walking away from situations where a person is genuinely guilty of a crime.
It is in the civic interest for cops to have discretion over violations and some misdemeanors.