Report: Sgt. Crowley Considering Defamation Lawsuit in Gates Controversy

180px-Henry_Louis_Gates250px-al_sharpton_by_david_shankboneCambridge Police Sergeant James M. Crowley is considering a defamation lawsuit, according to his lawyer. The possibility of a lawsuit adds an intriguing element to this controversy over the arrest of Harvard Professor Henry Louis Gates Jr. The Massachusetts Police Commissioner Robert Hass has also come out to criticize the comments of President Barack Obama denouncing the actions of the police as “stupidity” and suggesting that it was a case of racial profiling.

Crowley has spent the last five years teaching the avoidance of racial profiling at the police academy and has an impeccable record, here.

A defamation lawsuit would raise some novel issues. There is no question that the suggestion that Crowley acted with racial prejudice is injurious to his professional standing, particularly given his status as an expert on combating profiling. Impugning the professional integrity of another is a per se category of defamation for slander. Indeed, such profiling can be a criminal act — another category of per se defamation. A court would likely treat this as a case of per quod defamation where extrinsic facts are needed to establish the defamatory content.

There is little chance for a lawsuit against Obama who was expressing his opinion on a public controversy. He did not expressly name Crowley (which is not a barrier to recovery but makes the case more complex) and he did not expressly say that it was racially motivated. He stated his concern that it might be racially motivated.

Gates is a different matter entirely. He currently made such allegations of abuse and racism. Crowley is not technically a public figure or limited public figure simply because he is involved in a public controversy. His status as a police officer may not be enough to make him a public official under New York Times v. Sullivan. If treated as an average citizen, he would not have to satisfy the high standard of actual malice and show either reckless disregard of the truth or knowing falsity. The Court further defined the meaning of a public official in Rosenblatt v. Baer (1966) as “those among the hierarchy of government employers who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” But does this include rank-and-file police officers? Some courts have said yes, here and here.

The Supreme Court has clearly identified the seeking of public office as a common element in establishing public official status — as indicated in Gertz v. Robert Welch (1974) when the Court noted “An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case.” Moreover, the Court ruled out that mere public employment is not sufficient to establish this status. In Hutchinson v. Proxmire (1979), leaving it to “the trial judge in the first instance to determine whether the proofs show [the plaintiff] to be a ‘public official.'”

Three years after New York Times v. Sullivan, the Court greatly expanded the reach of the constitutional defamation standard in Curtis Publishing Co. v. Butts by saying that the actual malice standard applied to “public figures” as well as public officials. In Curtis, the Court described public figures as private individuals who may help shape events and views of society and “play an influential role in order society.”

There is no question that Crowley is now a public figure due to his media statements, but that does not mean that he was a public figure at the time of the statements by Gates, Sharpton, and others. As was held in Foretich v. ABC against my former client Eric Foretich, even a brief media appearance can convert an average citizens into a public figure as someone seeking public attention. Crowley, however, did not make public statements until after the original claims of racism and profiling.

Lawsuits by police officer and fire fighters have long been controversial in and of themselves. For example, under common law torts, the Fireman’s Rule barred officers from claiming the more protective status of invitees in injuries that occurred in homes. However, the common law has never limited the right of officers to bring defamation claims. Indeed, Rev. Al Sharpton (who has also intervened in this controversy with claims of racism) was found guilty of defamation of prosecutor Steven A. Pagones in the infamous case of Tawana Brawley. Notably, police officers were also defamed in that case, but the most likely litigant Harry Crist Jr. former Fishkill, NY, police officer, committed suicide after being subject to the vicious and false statements. Crowley can make the same type of allegations as in the Brawley case. Of course, the Brawley case involved allegations of the physical abuse of a young girl for racial reasons — a far more specific and clearly criminal allegation.

Gates could argue that this was merely an opinion uttered in the heat of the moment. However, the allegation continued to be made after the arrest and courts have rejected the use of the opinion defense when it is based on the assertion of a defamatory fact like racist motives.

If Crowley can avoid public official or public figure status, he could have a case. It would allow him to conduct discovery with depositions of Gates and others — a great temptation for Crowley and his allies.

There are strong public policy reasons for including police officers in the category of public officials because their actions are routinely subject to public review and scrutiny — and they hold considerable power over citizens. If he is found to be a public official, however, it becomes tougher but not impossible. He could still argue that Gates knew his allegation was false or had reckless disregard of the truth. However, Gates would argue that this was his view of the events and there is no objective means to prove one’s motivation. Moreover, Gates could argue that a ruling in favor of Crowley would expose any citizens to lawsuits by police when they allege racist motivations or actions.

For the story, click here.

126 thoughts on “Report: Sgt. Crowley Considering Defamation Lawsuit in Gates Controversy

  1. The racists and the birthers will rally around this guy. He busted an African American man for trying to enter his own home. Maybe he can campaign with Palin.

  2. Once the person was Identified he should have been released. Once they arrested him, on his front porch, I think they crossed the boundary of an Officers duty to do the initial investigation then to be followed up by those highly skilled and trained detectives.

    Once the arrest occurred this was no longer an initial investigation. Somebody crossed the barrier and I am not sure if it was racial or not. I was not present.

  3. Thanks charles grashow for the police report narrative.

    In a quick scan of it I see that Gates is referred to as a “black man” by each of two reporting officers and Crowley’s report also refers to the person who called about Gates’s apparent, attempted break-in as a “white woman.”

    This may be standard US police operating procedure but it seems hardly an inoculation from allegations of racial abuse!

    I would be happy to hear why race ID in police reports is
    1) considered necessary
    2) accepted as race neutral

  4. I don’t know the law of compelled self-publication well enough, but I’m curious if the fact that Crowley was required to place Gates’s statements during the arrest into the police report would suffice to add a whole seperate set of statements for Crowley to point to.

  5. What I find amazing is that Crowley claims to be an expert on race profiling yet was unable to diffuse this situation. Crowley is not a victim. He chose to escalate this thing even after he was assured that no crime was being committed. Go home Crowley and lick your wounds. Gates warned you that you didn’t know who you were messing with. You picked on the wrong “Negro.” Deal with it.

  6. Are we *really* expected to believe that because some of Sgt. Crowely’s best friends are black, we are to look the other way at yet another symptom of the creeping Police State, where soon we will all be arrested DWC, driving while a citizen?

    If one cannot be disorderly in one’s home, we are done. Let’s just all move into penitentiaries.

    Yet another reason to demand accountability for abuses, from Sgt. Crowley to Dick Cheney. The police do NOT need to “take control” of every situation.

    I hope Professor Gates sues in kind. This has to stop. Sgt. Crowley needs to hear the word “no.”

  7. Just reading the police report, here are my thoughts. If the police came to my home and said there had been a report of a break in and I knew there hadn’t been one, I would be confused. Given police behavior as a whole I would be nervous as to why they were there. I would hope I would try to ascertain why they were there in a calm, reasonable manner, but I can’t swear to this because the whole situation would make me very nervous.

    It does sound like Gates went over the top in his reaction, but that still doesn’t matter as, as others have pointed out, it is Crowley’s responsibility to disfuse the situation. They both participated in escalating the confrontation, but the person who needed to deescalate it was the police officer. There does not seem to be any legitimate reason for the arrest of Gates that I can see in the police report.

    What I really wish at this point is that both Gates and Crowley would stand back from the situation and agree to mediation. I think it would send a powerful message for these two men, to sit down and truly work out, what happened, why it happened and what should have happened. Then they should make a joint statement in public. That would be a blessing to come out of this situation.

    Still if both or either side wishes to pursue this in court, they should do so and let the chips fall where they may.

  8. Jill,
    Gates has personally requested that he and Crowley meet to discuss their different points of view, out of the media spotlite and unrecorded. Crowley has flatly refused.

  9. Mike, that’s a crying shame. Dialog is the only way to get out of this mess. I’m listening to the (all white) Cambridge Brass making their announcement right now. They want apologies for their own failure to know the community they are paid to police.

    Paid by taxpayers, I might add, who could take a lesson from Professor Gates: the answer to this abuse of power is always NO.

  10. The police are NEVER wrong.:) I’m watching the police union’s press conference right now on CNN and becoming more disgusted by the minute.

    The arrest was punitive, in my opinion. The officer didn’t like Gates’ lack of submission to his authority, so he arrested him on a disorderly conduct charge (a bogus [punitive] charge, which was why it was thrown out — if he’d been a poor black man, it would have resulted in at least some community service or a few nights in the pokey — you have to know what you’re doing to get a charge thrown out). To me, the aspect of race is secondary to punishment. He wanted to punish Gates for having the nerve to question him. Race is a secondary issue, one that most likely plays into the initial call to police and/or police intent when they arrived on the scene. At the point the professor was identified, it should have ended. It wasn’t — only because the officer didn’t like the response he was getting.

    Professor Gates promised to teach the officer a lesson on CNN. I hope he does just that. I’d like to see Gates’ retirement funded by the officer’s pension and savings, and a hefty monthly stipend from the Cambridge Police Department. Until someone — ANYONE — is held accountable, and someone — ANYONE — pays the price, in a public way, the situation between the police and citizenry will continue to deteriorate.

    Jill & Mike, it is interesting that the officer would not consent to mediation. I suspect that would have to do with the fact that he might have to admit that he’s wrong — something, I suspect, he NEVER likes to do…thus the bade, the gun and the taser.

    Lastly, with Obama buckeling, I wonder if he has any backbone at all. I guess he has to take back his words because his teleprompter didn’t tell him to say it — it wasn’t in the “approved” text. Good God! When are we going to get a president with both brains and brawn!

    By the way, the police are really like babies the way they are carrying on about this. I say, if you don’t want a dangerous job, GET ANOTHER JOB!

  11. Mike Spindell
    1, July 24, 2009 at 12:12 pm
    Gates has personally requested that he and Crowley meet to discuss their different points of view, out of the media spotlite and unrecorded. Crowley has flatly refused.

    Do you have a link to show this is so?

  12. Prof. Turley, thank you for your detailed explanation of the legal possibilities.

    All that I can state unequivocally for now is that Pres. Obama’s remarks were exceptionally more stupid than the arrest. The arrest was likely too excessive an option; however, the biased counterclaims of racism are hyperbolic “oh poor me, I am being picked on because I am black, white, Muslim, Christian, Jewish, or too short, too fat, too poor, too rich, they are out to get me because of my ethnicity, etc.

    I am often critical of LEOs because I know firsthand how the “blue code of silence” and double standard LE can operate. However, based on what I have read, I think Prof. Gates was more culpable regarding any escalations of temper than Sgt. Crowley was.

    The greatest damage is that Pres. Obama has set race relations a giant step backwards by his naïve off-handed, biased, and uninformed comments.

  13. If Crowley casts caution to the wind he will most likely reap the whirlwind. He too will be subject to discovery.

    Everyone thought the detective in the Simpson case was above all that too, then it turned out they had tapes of the guy bragging about planting false evidence on “nig****” to get them convicted.

    All that attention brought down the LAPD which was found to be a criminal enterprise for RICO purposes, and the entire department was taken over by federal oversight. Everyone in it was given the microscopic once over.

    It is fundamental to an understanding the history of racial bias to remember that police departments have been at #1 or #2 in the top ten entities practising racial bias in our country.

    A lawsuit under 42 U.S.C. Sec. 1983 for false arrest by Professor Gates is a much better case it seems to me, even though it would be a tough struggle.

    Of the two lawsuits, I would bet on Professor Gates.

  14. My prediction, probably somewhat cynical, is as follows:
    1. Since the president imprudently commented on the event, the Republicans will continue to pound on it in the media, thus enabling them to combine political attacks with reminders to the base that the GOP is the only remaining bulwark against the loss of “our country” to “alien” forces, a reference, of course, to the ascendancy of blacks and hispanics in public life.
    2. The conservative base will vent their rage over the increasingly “uppity” conduct of blacks in this society, to the delight of Limbaugh, Gingrich, Hannity and other domestic racial terrorists.
    3. Things will settle down in Cambridge with a quiet acknowledgment that the reactions on all sides were disproportionate to the cause.
    4. No lawsuit will be filed.
    The only lasting effect will be anecdotal, another arrow in the Republican quiver to fling whenever the times are right to remind white people who their real friends are.

  15. Mike S.,

    I hope Crowley changes his mind and Gates sticks to the request for mediation as that would truly be a powerful message that both men could send.

  16. Former LEO: escalation, schmescalation. You did not, in your wisdom, identify, specifically, which laws Professor Gates violated. No charges were filed. No crime was committed.

    If you are bothered by screaming and yelling from a man in his own house, based on a fear arising from a demonstrably long and and ugly past, then you cede your credentials as an LEO, former or otherwise. You do not seem to recognize this fear, and how it could possibly still exist in 2009, and the power it still has on all sides. This is why dialog is crucial.

    Walk a mile in the man’s shoes, and do not forget to do it with a cane. I see the Cambridge Brass chose the opposite direction. They do not want dialog. They prefer crocodile tears.

    The President was correct: the police acted (and continue to act) stupidly. But now that he’s stuck his nose in it, he will be forced to play his part. It’s an opportunity for him to bring the sides together in a teachable moment quite unlike what any other President has had.

  17. @Mike Spindell: Given all of Gates’ rhetoric on TV (racist, rouge cop), I would refuse to meet with him, too. Gates needs to get over himself, and stop expecting that he should be treated so special.

  18. I don’t think it’s fair to call this cop as racist, or “The Next Joe the Plumber” (who thankfully appears to have returned to his home planet)

    Even from Gates’ own statement (via his attorney) his actions were less than polite to the officer who was just doing his job. It does seem to me that Gates was most likely acting like an ass when the police repeatedly tried to get him to step out side. And it really appears that Gates both at the time, and in every instance that has followed, has tried to make this as racially provacative as possible (It’s got to be good for his carrer afterall).

    Having said that, it does appear that he was basically arrested for being an ass-h_ le. If Gates were my father, friend, brother, client etc. I’d have been telling him to calm down and step outside to talk to the cop. Instead Gates’ choose to make it a racial confrontation. If the cops had been acting, as they often do, in some reactionary crypto-racist fashion (especially in Beantown)they would have been kicking the door in and tackling Gate’s as soon as he refused to come outside. (I would note that in several pictures I’ve seen of Gates being lead from his house there is clearly an African-American officer leading the way, and the white officers seem to be holding their hands out flat in a gesture that suggests they’re trying to calm Gates down.

    So, having said all of that, and having personally handled 100’s if not 1000’s of disorderly conduct cases when I used to be a public defender, I will add that I do not see Gate’s conduct, even as described by the police as constituting disorderly conduct. There’s is no law that says one has to be polite. There’s no law prohibiting one from being an ass-h_le in public (What c-span when Michelle Bachman is on). I think it’s a bad arrest and I think Gates would have one if he went to trial.

    The problem is that Gate’s seems to be relishing his own stupid behavior. This arrest was not a horrible racially motivated miscarriage of justice. He got arrested like thousands of people all over the country, or every color and creed, who get arrested every day for “mouthing off” to police.

    I don’t think the fact that the charges were dismissed is going to be much of a defense to the defamation suit since many of the dafamatory statements were made after the fact. I have really enjoyed some of Gates’ documentries on PBS, he always seemed like a really bright and likable guy. It will be too bad if this is resolved in anyway other than these two sitting in a room alone with a six pack.

  19. Even if Crowly isn’t a public figure and wouldn’t be required to show actual malice, this is certainly a matter of public concern so he would need to show negligence as to the statement’s truth or falsity to recover damages.

  20. The point of my post above is that I can’t imagine how Crowley could establish the requisite degree of fault for a private figure, matter of public concern suit.

  21. first thing i have only heard the charges were dropped…does that mean with prejudice? otherwise gates can’t speak

    now…if it is without prejudice then…i still think both sides should settle down…take a deep breath…count to ten…and decide what good comes out of continuing a three ring circus

    even if gates was upset and maybe thought he was being profiled…crowley should of just walked away…and if gates would of then continued (as crowley contends) followed him out of the house on his own and was saying things then crowley would of had a case

    lawsuits very seldom settle anything…the two men agreeing they were both in it together…shake hands and part ways

    questions that could be asked is…does crowley patrol that area…how many blacks live on that block…would crowley of reasonably known that a black man lived in that house…

    both have egos and both had their egos hurt…not worth money!!! nor solving problems politely!!!!

  22. Quoted for the first linked article:

    Prof. Gates:

    “This isn’t about me; this is about the vulnerability of black men in America,” Gates said.

    He said the incident made him realize how vulnerable poor people and minorities are “to capricious forces like a rogue policeman, and this man clearly was a rogue policeman.”

    Calling an LEO a rogue policeman and a racist in this specific instance is beyond the pale. Gates’ statement about “this isn’t about me” is similar to a frivolous lawsuit plaintiff’s claiming, “This isn’t about the money” in a $4.278320 million dollar lawsuit based on a chipped tooth from biting down on a small piece of cherry seed in a Shirley Temple drink.

  23. Last night I caught Eric Adams former NYD officer who is now a state senator for New York,And he was being questioned by Monica crowley on Fox.

    First she said well Mr.Gates was loud and abusesive,His response;
    ‘Not A Crime”
    Then she said that he was loitering:His response
    “He was Not On Public Property-Not a Crime”
    Her next question I don’t remember verbatum,but Mr.Adams said”Once Mr Gates showed him his ID and let him know that it was his property,the officer should have left the scene and just kept on moving.

    With all the back and forth on this issue,to me the sleeper case is “Ben Rothlisberger”of the Pittsburgh Steelers football team.

    Now maybe we will see how the media handles this one,can anyone say,Kobe Bryant,Mike Tyson?

    To give you some perspective remember the “Mark Chumura” incident of the Green Bay Packers?

    His situation was much worse than Rothlisberger.
    “Burden of Proof”

  24. As an initial matter, I find it curious that Prof. Gates’ neighbor did not recognize him before she called in the report of an apparent burglary. If I were a police officer that would give me some cause for concern when I found two men inside the house.

    Also, if I had to break into my own house, I would be happy that the police showed up to see if there was a crime occurring and I would be happy to show them my identification, including something with the address on it. I would certainly think that situation was preferable to a rule that required the police to leave the scene every time someone breaks into a house and then claims they live there. What would Prof. Gates have said if he came back from his trip to find his home looted and the police had said “we showed up and the guys inside the house said they lived there so we left”? So, in short, I think, based on what I have heard so far, that Prof. Gates overreacted to the situation.

    That having been said, Officer Crowley should have just walked away instead of arresting Prof. Gates. As some folks said above, being a jerk in your own house is not a crime and the professor was not a threat to public safety.

    The way both sides handled the situation makes me wonder not whether it was a racial situation but rather whether there may be a history between Harvard people and the Cambridge police that sparked both over-reactions? To be honest, I may be stereotyping Prof. Gates, not as a black man, but as an (arrogant, obnoxious) Harvard professor.

  25. I cannot wait to hear the audiotape evidence.


    Killion also claimed that audiotapes, now in the possession of the city solicitor’s office, will show that Harvard Professor Gates “turned this non-incident into a racial incident.” He said the audiotapes will prove Crowley’s account of the incident and show that Gates “was provoking the incident. He wanted to prove who he was… He deems himself higher than everyone else around.”

  26. A Massachusetts jury held police liable in a situation where two teens were dribbling a basketball, the police said stop it, the teens refused.

    The teens escalated by then not only dribbling but using an overhang as a play pretend basket for dunking. One of them said some cuss words directed to the police.

    The police began arrest proceedings, many other teens watching began to get noisy, so backups were summoned. Two others were arrested, charged with disorderly conduct like Professor Gates, and trespass.

    All defendants were exonerated of all charges at trial. In a suit for false arrest and other violations, the police lost. So, Massachusetts juries can be sympathetic.

    Interestingly, the Massachusetts appellate court said:

    “5. The burden of demonstrating probable cause. The plaintiffs argue that the jury should have been instructed that, in the case of a warrantless arrest, the burden of proof shifts to the defendants to justify the arrest. In a Link to previous search termsfalse arrestLink to next search terms claim, where an arrest is effected without a warrant, it is indeed the defendants’ burden to prove a justification. [FN12] See Shine v. Vega, 429 Mass. 456, 463 n.13 (1999) (judge correctly instructed that on claim of false imprisonment, defendants had “the burden of proof establishing that [the defendants] confined [the plaintiff] because their confinement was justified by law”); Julian v. Randazzo, 380 Mass. 391, 395 (1980) (burden on defendants to prove justification for arresting plaintiffs without warrant); Muniz v. Mehlman, 327 Mass. 353, 356 (1951) (“In an action for an illegal arrest or imprisonment the burden is on the defendant to prove justification”); Jackson v. Knowlton, 173 Mass. 94, 95 (1899). The judge erroneously instructed the jury that “[i]n order to prove a Link to previous search termsfalse arrestLink to next search terms [claim] the plaintiffs must satisfy you by a reasonable preponderance of the evidence that they were arrested without probable cause.” Therefore, we must vacate the judgment on both plaintiffs’ Link to previous search termsfalse arrestLink to next search terms claims and remand for a new trial.”

    (GUTIERREZ v MBTA, 437 Mass. 396, (2002)).

    The jury found for the plaintiffs on some but not all charges, false arrest among them, and the court reversed because the police have the burden of proving they had probable cause.

    The ultra quick dismissal by the prosecutors speaks volumes about the probable cause to arrest a disabled person for complaining about how he is being treated in his own home.

  27. I applaud the President’s statement this afternoon on the matter.

    I would also maintain that Professor Gates is free to call a policeman in his own home anything he likes, there and afterward. This is not a crime.

    If it were a crime, the charges would not have been dropped. Case closed.

  28. To stroke my own ego, I am hoping Sgt. Crowley got his idea for a defamation suit from me, but that would too much to ask:

    I would love to get the facts out here. I suspect we would see grandstanding and posturing that would make PT Barnum proud, and I am wiling to bet it wouldn’t be from Sgt. Crowley.

    Let the Complaints begin, and we will get to the truth. I am so hoping for audio tapes!

  29. FFLeo:

    I was hoping you would chime in. Could you explain the protocol for a possible felony encounter under these circumstances?

  30. I think Crawley can make a case even if deemed a public official. The statements by Gates appeared to made in the heat of anger and would certainly fall into the actual malice category or evil intent if made to the crowd to incite some reprisal against the officer or to expressly defame his reputation. If it can be shown that Gates had another motive –possibly a bid to seize upon the occasion to engender some publicity –then Crawley might also be able to make a case for false uttering with knowledge of the falsity of the words for financial gain. Either way it’s likely a jury question as to Gates’ motivation.

  31. O.K. I’m going to take credit for suggesting this crisis, like most in life, should be resolved with drinking (see my above post) I just saw on Huffington post evidence that the president reads this blog and is clearly hanging on my every word.

  32. seamus:

    “O.K. I’m going to take credit for suggesting this crisis, like most in life, should be resolved with drinking …”

    Damn you seamus for discovering the most effective and direct way out of the dilemma. Send both guys to bar with Scotch all around and let ’em settle it the old fashion way — either belt each other, or belt down a few. Cheers, as Carlyle Moulton likes to say.

  33. It would only be defamation if it was untrue, correct? I think it would be easier for Gates to prove racial profiling than Crowley to prove defamation. Officer Crowley should take some vacation for a few weeks.

    Amazing that the 4th Amendment stems from abusive British policies of forcing soldiers into the homes of Boston area residents.

  34. “Gates needs to get over himself, and stop expecting that he should be treated so special.”

    So I guess you would think of Professor Gates being “uppity.”

  35. Seamus,
    Ever had a moment when you just got pissed off by being treated unfairly and let go. You read the police reports. Let’s say for the sake of argument that they’re totally true. There was nothing in them that indicated any necessity for an arrest and there was provocation by the Officer. How? After the officer saw Gates drivers license and ID as a Harvard Professor, why did he then call in the Harvard Police and say he was leaving. Why were the Harvard police needed? As Gates was asking the officer was walking out. He in effect lured Gates outside and then arrested him. There was no reason for the arrest. What bothers me especially is that the PO is given the benefit of the doubt, but Gates a respected and distinguished man was given no benefit of the doubt from the first release of the incident.

  36. If Officer Crowley sues for defamation the crux will be the same as in the criminal charge.

    Did Professor Gates have “a legitimate purpose” in complaining about how he was being treated after showing he was in his own home and Officer Crowley having acknowledged that?

    He has a free speech right to complain about that, and if he thinks it is racially motivated he can add that aspect to his verbal complaint. And he can be as loud as he wants to be in his own home.

    When Officer Crowley lost his professionalism and enticed Professor Gates outside so he could consider it a public place, and then stretch the hell out of reality and call it a situation where Professor Gates was trying to cause a riot or the like, he engineered the results.

    We all know no riot would take place with all the police and few citizens there. Who was going to riot? The police were going to turn on Officer Crowley? The complaining witness?

    Get a grip, stop the fantasy, stop the denial. Get in the shoes of the D.A. who threw it in the trash immediately.

    There can be no defamation when there is a First Amendment right to speak out.

    If there was such a right Professor Gates wins because the legitimate purpose rule takes out probable cause that a crime was committed, but if there was no such right to speak, Officer Crowley could plead a prima facia case.

    Remember that the First Amendment free speech principles will prevail over government’s suppressive punishment of speech most of the time.

  37. For those who would like to read an expert lawyer specifically addressing the statute Professor Gates was charged under, read this not at all kind blog about the statute written in 2008 long before the incident:

    And for this expert’s take on the Professor Gates arrest under the statute he disdains as being more than 400 years too old, read this:

  38. Dredd:

    “There can be no defamation when there is a First Amendment right to speak out.”


    Surely you must know the First Amendment does not protect one from defamation claims except to the extent described in NY Times v. Sullivan and progeny. There is no absolute right to speak; it always governed by the rule of reasonable protection from harm lest you go out falsely evacuating theaters over mythical fires. It is also governed by the offense principle which protects the public from obscenity. This harm principle and offense principle serve as constraints on everyone’s ability to speak and the government may properly restrict some speech such as that at issue here in preventing an incitement to violence or disruption of public order.

    Your contention that Gates was lured out of his house to be charged is likewise suspect and the burden is upon Gates and his detractors to prove this intent. It is just as likely that the officer was trained to clear any house in which a suspected felony was occurring to protect against the possibility of an intruder hiding in the rear of the dwelling or holding another person hostage as the owner attempted to assuage the legitimate suspicions of the police.

    You may recall the murder of 12 year old Polly Klass, kidnapped from her parents home during a slumber party by Richard Allen Davis. Police encountered Davis while searching for the missing child as he possessed the girl in the trunk of his car. His car was stuck in the mud. Since no probable cause existed to search his vehicle they let him go whereupon he proceeded to rape and murder the child. Proper police work would have required a simple radio call to match the car’s license plate with the suspect vehicle and the existing APB. This deference to inconveniencing a private citizen directly resulted in the horror visited upon this child and her family.

    I try to evaluate the cases fairly without reflexive responses based on ideology. Others do not take that approach, and that is why I am usually criticizing the right for their mindless reliance on stereotypes and easy answers to complex problems. It is both revealing and disconcerting that I have to fight the same battles so close to home.

    However like my hero, Adlai Stevenson, I believe, “The sound of tireless voices is the price we pay for the right to hear the music of our own opinions. But there is also, it seems to me, a moment at which democracy must prove its capacity to act. Every man has a right to be heard; but no man has the right to strangle democracy with a single set of vocal chords.” Here Sgt. Crowley acted properly in my view and based upon what I have read. I am not wedded to that opinion and, like all opinions, it is subject to new and credible conflicting information. However, I find it strange that those sworn to protect our rights are given so little benefit of the doubt when the question is clearly in issue. Especially so for a man like Crowley who is bona fide hero, and, by all accounts a fine public servant. Does a man’s history mean nothing when we are hell bent on proving compliance with our preconceived notions of him or, more correctly, his profession?

  39. Rather than persuading Crowley and Gates to get together over a few drinks, instead persuade them to attend one of Jane Elliott’s sensitization to racism sessions as described in the films “Blue Eyed” and “A Class Divided”.

    Racists are not necessarily evil, in most cases they are genuinely unaware of their own racism and of how unpleasant it is for one who is both dis-empowered and on the receiving end of it. Jane Elliotts’s technique puts people through exercises where they get to act out both sides of the racist confrontation. They get to play the role of overman in one half of the session and underman in the other. Thus they have the techniques and assumptions of prejudice demonstrated from both sides.

    My guess is that both Crowley and Gates are racist to a considerable extent. It is a common fallacy to believe only whites can be racist, in fact racism is a normal human characteristic as normal as the possession of two eyes or ten fingers, the difference between honkeys and niggers in the USA is that honkeys have far more chances to act in a racist way to niggers than the other way around, that does not mean that niggers wont racially abuse honkeys when presented with the opportunity.

    Jane Elliott’s technique appears to work even in quite refractory cases, it involves forcing people to walk in the shoes of another for a considerable distance. I recommend to all readers of this blog thread that they get hold of one or both films and view them, preferably in company with people whose beliefs about racism differ from their own, Mespo and Mike Spindell for example.

  40. I get the feeling the Cop was a decent guy who got offended and abused his authority.

    That’s not new and not necessarily tied to racism.

    But someone spent their evening in jail for hurting the feelings of a cop.

    If that’s not an abuse of authority I don’t know what is.

    What’s perverse is that from what I’ve been reading in various places, Republicans apparently think there’s a “Talk back to a cop and get arrested law” that’s enforceable and “okay”.

    That’s antithetical to “freedom” and antithetical to judicious “law enforcement”.

    The Orwellian Republican Party is their own opposition Party: They are consistently against what they claim to be for.

  41. Overmen (Ubermenchen) Undermen (Untermenchen) and the concept of Uppity

    Understanding of what most likely happened between Crowley and Gates might be helped by examining these concepts.

    The word “uppity” is most often seen followed by the word “nigger” but it has much wider applicability. For example Israel has a serious problem with uppity Palestinians, the Islamic nations have such a problem with uppity women and back in nineteen forties Europe the nazis had a problem with uppity Jews.

    Overmen have the right and indeed the duty to keep undermen under control and the threat of undermen getting ideas above their station and appropriating rights or property to which they are not entitled is ever present.

    The proper behaviour between overmen and undermen is controlled by Jim Crow Etiquette, there are different varieties of Jim Crow etiquette for overmen dealing with undermen, for undermen dealing with overmen and for overmen talking with other overmen about undermen. For example an overman talking to an underman must on no account show courtesy to the underman of the type he would show another overman. To do so is to humiliate not just himself but all overmen. An underman talking to an overman owes the overman a servile type of courtesy and must on no account imply that he is entitled to the kind of courtesy from the overman that the overman would owe to another overman.

    There are many instances of the overman/underman relationship. There is that between master and servant, between aristocrat and serf, between a member of a superior race and a member of an inferior one and that between male human and female human. In particular the relationships between white and black and that between a policeman and a mere member of the public are both that of overman to underman. So in relation to Gates Crowley is twice an overman, once because he is white and Crowley is Black and again because Crowley is a policeman and Gates not. But Gates is a member of the respectable classes, a professor at Harvard University, a high status individual while Crowley is one of the lower proleteriat, a street cop, so this makes Gates the overman and Crowley the underman. You can see how this ambiguous relationship with respect to Jim Crow Etiquette leads to misunderstanding and trouble.

    It seems to me that most people on this blog, including myself. have chosen sides, either we believe the police account of what happened and think Professor Gates an insufferable pompous ass and a liar or we believe that of Gates account is substantially true and that Crowley was overbearing, obnoxious and racist. In truth the benefit of the doubt is owed to both sides, this is essentially a case of one person’s word against another. The fact that other police back up Crowley’s account is irrelevant since as associates they would be expected to back each other up regardless of the facts. Since none of us were there and since there is no recording of what happened we have to suspend judgement.

    However there are some things we can be certain of. We can be certain that Professor Gates perceived the behaviour of Sgt Crowley towards him as lacking the courtesy that he felt he was owed and we can be certain that Sgt Crowley perceived Professor Gates behaviour towards him to be lacking in the required respect.

    One problem is that the basis of law and order and the stability of society crumbles unless people automatically believe the police when they are contradicted by an alleged perpetrator.

  42. There is a relevant article on the Huffington post at this link

    This article states that the police have a sound recording of what happened and that it supports their case. We should press for the full contents of the tape to be made available as whether it supports the police or Gates is not a matter of fact but one of opinion depending on how one interprets tone of voice as well as the words.

  43. I would like to state as a matter of record that I only took the side of them having a drink and sorting it out.

    Or you could sue, waste a lot of time and money and do nothing but piss everyone off.

    Why not try what tribesmen with differences have done from the time we left the nomadic life – sit, have a drink/smoke/mushroom/pickled local delicacy of choice and either talk it out or keep escalating.

    Not every thing is best solved by law suits.

    And honestly? I think this whole thing isn’t about race at all.

    It’s about “Who has the biggest penis in this/his/my/whomever house.” “You don’t respect my home!” “You don’t respect my badge!” Blah blah blah blah blah. It’s territorial marking sans urine.

    Which is kinda sad because that would have been a much funnier story if it unfolded properly.

  44. I don’t think getting together over a beer is a good idea. If they need to use drugs marijuana would be better than alcohol. Alcohol tends to make people more sensitive to perceived assaults on their self esteem, more likely to misinterpret something as a slight when no such intention existed in the speaker and bellicose as well. Marijuana on the other hand is calming and opens the mind to points of view which would normally be unthinkable.

    However participation in one of Jane Elliott’s racism sensitization exercises for both would be good therapy and failing that a joint viewing of some of the documentaries made on Jane Elliott’s methods.

  45. In my post 3 before this one I have just noticed an error. The sentence that reads “So in relation to Gates Crowley is twice an overman, once because he is white and Crowley is Black and again because Crowley is a policeman and Gates not.” should of course read “So in relation to Gates Crowley is twice an overman, once because he is white and Gates is Black and again because Crowley is a policeman and Gates not.”.

  46. “Carlyle Moulton”, I stopped reading your first post three sentences in when you felt a need to print out the “N” word.

    Unless your intention is to be deliberately offensive you might want to stop using that word.

    But if being deliberately offensive is your thing, hey, don’t let anyone slow you down.

  47. Mews Reference.

    The N word has uses. It encapsulates all the malign stereotypes that the vast majority of white people in the US have of the people with brown skin whether or not they are of African descent.

    When Amadou Diallo died in a hail of bullets from 4 NYPD cops before those cops realized that he was unarmed, it was not because he was a Negro, that is a person of the African race with brown skin it was because the white policemen saw him as a Nigger, that is a subhuman (underman) possessing all those bad characteristics such as being dirty, being stupid, being inherently criminal, …… that descent white americans assume belong to Afican Americans other than the few good African Americans that they know.

    For an African American what is the most important determinant of what happens to them, it is that white people see them as niggers.

    Of course one can refrain from using the N word, but the malign stereotypes do not disappear because no one uses it. For this reason I think the N word should be used especially by African Americans as a means of highlighting that they know about the stereotypes.

  48. New Reference.

    Actually I do have some troll ancestry. I dislike writing anything unless I can use scathing sarcasm. I hope to be the first person to develop sarcasm into a weapon of mass destruction.

  49. Carlyle Moulton 1, July 25, 2009 at 6:50 am

    New Reference.

    Actually I do have some troll ancestry. I dislike writing anything unless I can use scathing sarcasm. I hope to be the first person to develop sarcasm into a weapon of mass destruction.

    Just Study Buddha, he will take you in the direction you wish to go if you really want scathing sarcasm. If you want Zen sarcasm, see mespo. If you want an A__ __ H__ __ __’s perspective on scathing sarcasm then I volunteer my services.

    But I most assuredly you, anyone at anytime can teach you some degree of sarcasm. Children are the best living proof.

  50. AY,

    In Re Sarcasm: Thanks. One lives to be of service, but it is occasionally nice to hear from a cohort in the application of sideways language that “This guy’s kung fu is pretty good.” I must also concur that mespo can be stunningly sly and natural in his sarcasm. Zen was a good word choice.

    As for children, there is nothing more sarcastic than a 13 y.o. girl except for a group of them. I started honing my skills at an early age as a dating defense mechanism. It’s one of the reasons I love the women so. You should also meet my Aunt J – possibly the most sarcastic person I’ve ever met. It’d be love at first quip.


    I must concur with your analysis of practical applications of therapeutic recreational chemistry, but some people like Coke and some people like Pepsi. Just as long as they get together and lighten the Hell up. But a beer or two is probably not as risky as a martini or two. After all, Aristotle’s advice of “everything in moderation” would have probably avoided the whole scene.

  51. News Reference and mespo727272,

    As I explained in my post linking to an expert in this field, under Massachusetts case law there is a right to cuss at, yell at, wave hands in the air, and get all mavericky when confronted by the police to the point of being agitated.

    Professor Gates, in Massachusetts, has the right to yell loudly, flail his arms, and let the police have it verbally. And at any time he can point out the history of police forces all across the U.S. as being in first or second place for most racially biased.

    Title VII was a special gift to them.

    That weakens the notion of a slander case considerably.

    [the defendant] then began flailing his arms and yelling loudly about his civil rights and such. In reversing his conviction for disorderly conduct, the Appeals Court noted that his behavior was not “extreme” or otherwise threatening, and was not therefore statutorily “tumultuous.”

  52. Carlyle,
    Your reference to Jane Elliott’s work was spot on and so was your overman/underman piece. The more I think about this particular case though and the publicity it has gotten the more it occurs to me that the schematics of what happened have been obscured, by the hullabaloo of race that was injected. This doesn’t negate what I’ve said above about the racism inherent in this incident, but modifies it in terms of your overman/underman terms.

    Let’s as mindplay take race out of the picture. Let’s substitute for Professor Gates, Professor Alan Dershowitz (I’m not sure he is with Harvand but this is a thought experiment). Let’s also assume that the police report as given was totally factual and represented the reality of what happened. Given all that the police officer still behaved badly and the Cambridge Police Department was stupid in their handling of the case, in my opinion.

    Dershowitz a lawyer and scholar with a national reputation might well have been annoyed at the police intrusion and definitely might have said “Do you know who I am” and even more abusive rhetoric. Once in the kitchen with the policeman
    having proved his identity via two photo ID’s, the policeman by all rights should have said words to the effect of “Oh,
    there’s been a mistake in the call, I’ll leave now.”

    Instead in front of the rightful occupant of the house, who already was angry for the intrusion and presuming all he wanted to do was to relax from his long flight, called in the Harvard Campus Police and said he was leaving. Why did he do that? Crowley knew there was no crime that had been committed, the excuse that he wanted to clear the house in case a burglar was lurking is specious, it could only have been done to further provoke this person who not only had been disrespectful but had proved higher status than the officer. He clearly was going to show the man who was really overman. The officer, a Sergeant, also knew that he needed to draw the Professor outside of the house to arrest him on a disorderly conduct charge, as he knew by the arrival of a backup officer in the kitchen that more police were outside.
    Given the habit in American residential neighborhoods it would not take a genius to assume that with the presence of officers a crowd would have gathered.

    So Crowley walks away from Professor Dershowitz in the middle of him still angrily asking for his name and shouting. The minute the Professor reaches his front porch, the officer describes the Professor’s behavior as “tumultuous” as he has learned it says in the statute and cuffs him. Tumultuous is not by any means a commonly used word in America, even among the educated and in fact has become somewhat archaic in usuage. This is all premised on the truth of the police report mind you and Dershowitz was picked because of his high profile and Harvard Associations.

    My contention is that even though Dershowitz is white this story would have been reported similarly in the media as some intellectual big shot, who wrongly opened his mouth to the police and got busted for it. The American media consistently shows a bias in favor of the police and against anyone deemed an “intellectual.” That it was in fact a black man, known to many as a leading scholar on race relations in the US. A man who is a moderating force actually on this issue, actually makes it sadder. His skin color and esteemed position only made it all the more headline provoking because obviously to many American minds he was acting “uppity,” which is an unwritten crime for people of color, no matter what they’ve accomplished.

    Therefore missed in this whole story, buried by the race angle, is the fact that many American police have to readily adapted to their overmen status when it comes to people they readily perceive consciously, or sub-consciously as undermen.
    This view of the police going beyond the law has actually been given license in the American media and entertainment industry, where from “Dirty Harry” on the policeman ignoring the “niceties” of the law is lionized as a hero, while his superiors who want to restrain his lawlessness are portrayed as secondary villains. With the 9/11 bogeyman added to the mix by the Bush/Cheney Crime Family, this has taken on epic proportions and people actually believe someone is wrong not to kiss policeman’s asses. While in a practical sense this is good advice, given the negative consequences, it is not supposed to be what the law is about.

    As far as your use of nigger goes I must admit that every time I see the word there is a frisson of revulsion that goes through me. In fact in my first post directed to you I commented on it. However, I fully understand where you are coming from with it and it makes sense. This has become a banned word in America, yet in truth it is merely pushing undercover the still innate racism of older American people. Among our young, meaning 35 and younger, I feel stirrings of hope that racism, misogynism and homophobia are being eschewed, but that may merely be the wish fulfillment of an old fart. I of course also agree with you that humans are by nature xenophobic and so all of us have our bigotry.

    A question of curiosity for you though. Is the Australian police situation vis-a-vis the overman/underman viewpoint similar to the US? I know that in Britain it has become so and the image of the polite “Bobbie” is long gone.

  53. The more I think about CM’s ubermench analysis, I think I should read Jane’s work. I think I was coming at the same thing but more from a zoological observation about dominance displays in mammals, but I’d be interested in seeing her psychological take if she impressed you both.

    Mike, CM, a suggested starting place?

  54. Buddha,
    Jane Elliott was in 1968 an Iowa teacher who on learning of MLK’s death set up an experiment in racism for her class by dividing it into two groups the blue eyed and the brown eyed. Her results were startling. A PBS documentary was made and its’ producer William Peters wrote a book about this experiment. That is the first link below. The other two links feature videos with Ms. Elliott herself and run 9 minutes and 55 minutes respectively. What is so neat about the experiment was that it suggested the standard for many experiential learning groups on racism that came afterward. Definitely worthwhile of your time.


  55. Buddha,
    Sent you 3 links, but due to that my comment is being moderated and might not be posted soon.

  56. Dear Mike Spindell,

    I loose my temper all the time and it’s almost never productive. I hope I’ve been clear in my previous posts that I think the arrest was illegal/without merrit. I don’t think the cops have a right to arrest people for just being a-holes, although I suspect that municipalitys have attempted to enforce “a-hole statutes” which usually target speech and dress in an unconsitutional way, and are usually targeting minorities, in not on their face in their execution.

    Still, I think Gates made this encounter a racial issue, not the police. And I still would advise people not to yell at the police in any instance (unless they’re on the witness stand and the judge is letting you get away with it). It’s like teasing a dog you don’t know; it’s not illegal, but it’s definately not a wise move.

  57. Mike S:

    ” That it was in fact a black man, known to many as a leading scholar on race relations in the US. A man who is a moderating force actually on this issue, actually makes it sadder. His skin color and esteemed position only made it all the more headline provoking because obviously to many American minds he was acting “uppity,” which is an unwritten crime for people of color, no matter what they’ve accomplished.”


    Jackasses come in all human colors. Your comment that the situation was stable and that a potential home invasion was out of the question is post facto certainty. There is an criminal element out there that has no regard for the laws you and I revere. Sgt. Crowley is all too familiar with it, and his reasons for clearing the house may seem “specious” to you, but they seem reasonable to me to protect the very individual who lambasted him for doing his job. Imagine the outcry if my scenario was correct and “Skip” or his family suffered some harm because the officer took the situation for what it appeared to be and left. In any event, I think a few minutes of that audio tape will be all we need to find out if it was you or me who opined reflexively.

  58. I will call it the n word because I am an old white person. If you think it is banned in American society you have never listed to rap music and are unaware of certain segments of African American culture. Even such mainstream rap artists such as Kanye West use it constantly. It is a cultural thing. It doesn’t bother me. I think the use of the word scares many white people.People can refer to themselves however they want. Didn’t anyone even watch the “Wire”?

  59. If I were the kind of person that bets money, I would put my money on Professor Gates account of the incident being closer to the truth, but then I am prejudiced.

    I strongly recommend viewing the documentaries on Jane Elliotts techniques for countering racism. These demonstrate vividly all the techniques overmen normally use to control undermen and attack their self esteem, that is prevent them from becoming uppity. For example when an overman needs to control an underman he must use the stick not the carrot. An overman must not allow an underman think that anything he says or does is of any value to the overman. Undermen must only speak to an overman when the overman requests it, they absolutely must not volunteer information that the overman does not want to hear. So if the overman has misinterpreted the situation and events are about to go chaotically wrong, that is tough, the underman is impertinent if he tells the overman the truth that he does not want to hear, it implies that the underman is in this instance wiser and more perceptive than the overman an unforgivable impertinance.

    Additional examples of the overman/underman relationship are teacher/student, authority figure/mere citizen, prison guard/prisoner, senior officer/subordinate.

    It is becoming obvious that America’s problem with racism is much more serious than I would have thought six months ago. It may be that the election of President Obama has made it much worse. The US desperately need Jane Elliott’s techniques to be used widely especially on authority figures and government officials but I think it would be worthwhile if 100% of the population were subjected to them.

  60. It is in the nature of humans that they tend to see the harms done to them by others as much larger than they are and to see the harms done by them to others as through the wrong end of a telescope. Both overmen and undermen do this but overmen to a much greater extent than undermen. The fact is that the reality of overmen’s abuse of undermen is so grotesquely excessive that there is little scope for exaggeration. In the case of American Negroes white overmen have treated them to slavery, Jim Crow, lynching, the counterattack on the civil rights movement that goes by the name of “the war on drugs” and now frequent accusations that they are playing the race card when they dare to complain when white people treat them with the deliberate discourtesy with which overman are obliged to treat undermen.

    I see the relationship between Sgt Crowley and Professor Gates as that of an overman to an underman, whether it was the white/black issue or the cop/civilian one that created this dynamic is irrelevant, Professor Gates would have assumed the former, but it is most likely it was both.

    I see so many commenting on this issue on this and other blogs siding with Sgt Crowley. What this shows is how widespread white hostility to Negroes is, these commentators see Negroes as whinging, whining, carping undermen (this phrase courtesy of a right wing Australian politician.)

  61. CM I don’t side with Sargent Crowley and I didn’t from the beginning. You are correct in that if a person of color discusses racism,the person of color is immediately accused of playing the race card much as a person who mentions income disparity is accused of promoting class warfare. The message is don’t dare speak the truth. That is why Obama had to be so cautious in the campaign and still continues to be.

  62. Swathmore Mom.

    Just because my comment came immediately after your does not mean that it was an answer to yours in particular. I was thinking about many comments on several JT threads on this issue and comments on relevant threads on other sites. I don’t necessarily remember which sites as I view a news item and maybe browse the comments and then go on to another one.

    Consider this thread on Alan Bean’s Friends of Justice:-

    or this one at the Huffington post:-

    It is the comments that are of interest, the majority are supportive of Crowley and hostile to Gates and the US President. How do you measure racism? Monitoring blog comments for attitudes on the race issue is one method. Racism in the US is less than when niggers were hanged from trees, but rope lynching has been replaced by lynching by the legal system where biased police arrest and apply excessive charges, biased prosecutors prosecute on thin evidence, biased juries convict on this same thin evidence and biased judges impose heavy sentences. At every stage of the process there is discretion and this discretion is almost invariably used to treat niggers in a worse way than a white would be treated in similar situation.

    I recommned the Friend of Justice blog site ( as a repository of many illuminating instances.

  63. Mike.

    One of the things that overmen are required to do is to treat undermen with deliberate discourtesy. Undermen are not entitled to courtesy from overmen and doing or saying anything that implies that they are is uppity behaviour that must be punished. So a white policeman may be 99.99% sure that a Negro is not a felon but he must on no account let the Negro know this. Threating an underman as being in the wrong even if one knows he is not is a matter of keeping him in his place.

    In some other post I mentioned the Australian Aborigine he lost his cool when a white policeman insisted on making him wait while he radioed to check whether the car in which the black man was driving his pregnant wife to hospital was stolen. Of course the policeman had to known that the probability that the man was using a stolen car to ferry his wife to hospital was very low, nevertheless he had to go through the motions to demonstrate that he knew the underman was an underman and therefore inherently untrustworthy. The purpose was to show contempt.

    An overman who is performing a job such as a paramedic has to be careful when he is summoned to an alleged case of a sick underman. He humiliates himself and all overmen if he treats the case as serious when it is in fact not. Suppose he spends time examining and treating and it turns out that the underman is not sick or if sick or injured the illness or injury is self inflicted by means of drugs or reckless behaviour. If he has least doubt he has a duty to refuse treatment. What is the worst thing that can happen if the underman is in fact ill and the paramedic refuses to treatment? Well the underman might die. On the other hand what if he treats the underman and that it later turns out that the latter was not seriously ill at all or was ill but as a result of his own stupid behaviour? In this case the overman has demeaned himself and let all other overmen down by performing his job to the benefit of one not deserving of it. Sure the paramedic is a public servant and treating sick people is his job but he has the more important duty of maintaining the correct overman/underman protocols than to perform his job as carefully for an underman as he would for an overman.

    I can remember at least four instances where Aboriginal people in Australia have died from serious illnesses and injuries because ambulance and hospital personnel have been reluctant to treat their cases as serious. In Western Australia several years ago occurred the case of a boy whose name if I remember correctly was Johno Johnson. He was aboriginal but adopted by a white family. One day a gang of youths beat him up and later deliberately ran him over with a car. An ambulance was summoned but the paramedics refused to examine him because they knew he was a glue sniffer and they knew where he lived. They took him to his home, refused to take him to hospital. Subsequently he died and his toombstone erected by his white adoptive parents has in the epitaph the words, “died because he was black”. This was some years ago before the ubiquity of the internet, so I cannot find any links to the newspaper articles.

  64. Mike.

    I think that on the whole Australian police are not as bad as American ones. However I think members of our black underclass suffer abuse from them every bit as bad as American Negroes suffer from US police.

  65. “Jackasses come in all human colors. Your comment that the situation was stable and that a potential home invasion was out of the question is post facto certainty.”

    Actually it was ex post facto musings due to one salient fact. I read the entire police report that Vince provided. There was no mention in the report of ensuring the security of the house. It did mention that a second policeman joined Crowley as he was with Gates in the kitchen. That policeman could have been asked to secure the premises. Mespo like you I’ve also had many dealings with the police, during my Child Welfare days, which I’ve written about. If there was any danger perceived in lurking villains it would have been put in the report as further justification for the officer’s actions. Having read Crowley’s own report and that of the other officer, there is nothing within it that justifies this arrest, or presents any logical/legal case for it.

    Given that in my opinion the arrest was unjustified accepting the report as factual for the purpose of discussion. We then are free to make assumptions as to why Crowley did it. Since the simplest solution is often the best, the simplest solution is that Crowley didn’t like Gates’ attitude and decided to punish him for it. Was this because of race we will never know? However, discounting race it seems to me that Crowley was exhibiting a behavior that has become all to common of late. That is that despite all the respect, deference and accolades given to police, their post 9/11 training is coupled with an Us vs Them (civilians-the public) mentality and a tendency to see themselves as victims. If you would like to get into a larger discussion of why this is so, I’m willing to, but the answers are long and complex.

    Why was Gates so certain the arrest was racial is an easy surmise. This man’s life work has been about the effects of racism in America. He has reached much fame do to this and incidentally for his moderate views. He was tired and he was agitated that he just got home from a long flight and into his home with difficulty, when come police accusing him of being a burglar. He made the assumption of racism based on that and his supposition may, or may not have been correct.

    Just recently, my wife and I had cause to make a police complaint under the advice of the head of security for our large gated (yes people I do live in one)community. This was not a matter which would involve either an insurance claim, or a possible arrest, merely something we were told should be put on a police record by someone who works closely with police. The PO was a ramrod straight, unsmiling type who refused to sit down, I explained to him I had to sit because I can’t stand for long due to my disability and had offered him a chair. My wife and I are two attractive people in their 60’s, who were dressed well. When I tried to explain to the officer what the situation was, he cut me off curtly, as he stood in a defensive posture, perhaps expecting attack at any minute from these two threatening characters. He told me that he alone would ask the questions and he wasn’t interested in long replies. The upshot, to shorten the story, is that I felt violated in my own home for making a minor police report. Unlike Professor Gates perhaps, I have neither the resources nor the prominence to challenge a public servant with such an attitude. However, if I had I would have let the man know who he was dealing with and excoriated the man for simply his attitude and who knows I might have been arrested.

    This is what is happening all over the country in police work as it becomes more and more militarized. Do I personally feel empathy for police, you’re damned right I do. Down here they are underpaid and under insured. They are middle class people predominantly who mostly went into the job for very good and probably noble reasons and yes I would enjoy having a beer with them if I drank beer. However, on a country wide basis this post 9/11 propaganda and the pandering of politicians had led the police to believe that they are not to be questioned and must be treated docilely, or they must assert their authority. By his own hand Officer Crowley expressed that in this case, in my opinion.

  66. Carlyle,
    Thank you for your answer on the Australian Police, I expected it because from afar Australia appears to be a less up tight society than my own. It is a place I would love to visit, but probably will never get the chance to.

    More importantly I think your conceptualization of the idea of overman/underman puts much into proper perspective. My own feeling for years has been that human society’s greatest ills stems from the myths, inherited fear/flight characteristics and rigid mores that guide humanity, much more so that any political and/or religious philosophy. The reason to me that reform is so difficult is because people are in general unaware of these motivating factors and so a decent discussion cannot be held about how to deal with them and hopefully evolve into more humane creatures. Overman/Underman is one way to frame the discussion which creates a framework makes it easier for most people to conceptualize. Jane Elliott’s contributions also fall into that category.

    This is, however, as I’m sure you are aware, merely one aspect of the problem of the human condition. How we organize ourselves is another; the success of sociopaths in politics;
    the instinctual xenophobia; the tendency to give accolades to the most physically aggressive; and on ad infinitum create the mess we see around us throughout the world.

    The problem is that most humans, including those wielding any kind of power are unable to examine even their own interior
    selves, much less conceptualize the effect on society as a whole. This to me is the evolutionary challenge and I do believe we humans are in a race to meet that challenge, or self destruct.

  67. Mike S:

    “When I tried to explain to the officer what the situation was, he cut me off curtly, as he stood in a defensive posture, perhaps expecting attack at any minute from these two threatening characters.”


    Well, if a rapier wit is a weapon, I consider you heavily armed and dangerous I understand your feelings, but I have to side with the officer in the Gates case given the potential felonious nature of the encounter; minor infraction or misdemeanor and I’m with you.

  68. “Well, if a rapier wit is a weapon, I consider you heavily armed and dangerous”

    I do have my moments, at times. On this Gates thing we’ve both made our views clear and damn it, we’ll just have to agree to disagree. I hate it when I’m unable to use my impeccable logic, sterling integrity and just perfect understanding of all and everything, to convince people my views are the correct ones. You’re a hard man Mespo and you know too damn much Emerson for your own good.

  69. Mike S:

    “I’m unable to use my impeccable logic, sterling integrity and just perfect understanding of all and everything, to convince people my views are the correct ones. You’re a hard man Mespo and you know too damn much Emerson for your own good.”


    Principled disagreements among friends are the things that making conversation worthwhile. Who wants a chorus chiming in every time you speak?

    BTW, if you like my Emerson, you should see me Thoreau. I try not to flash it too often. JT gets a little cranky, you know, what with all his Captain and Tenille philosophy.

  70. Mike S. I wrote the following last night and I just read your comments regarding the security of the house etc. but I did not modify my comments. You are mistaken, my good cyper-friend, about securing the residence. Read the Incident Report posted as a .pdf link by charles grashow above (thanks C. G.). There is a full paragraph of 5 sentences regarding the residence’s security.

    Mike Spindell et al.

    I agree with Mespo in this specific instance and the procedure Sgt. Crowley followed regarding protocol appears reasonable given an officer’s duty to perform a thorough investigation and follow-up report to ensure completeness, accuracy, and that he left the scene in a secure condition. If Crowley was the lead officer and he did not fulfill his duties, he could have been liable for follow-up ‘claims or occurrences’ associated with the immediate scene and property.

    If the shouting rant actually occurred as alleged, one of the first things that most likely coursed through Crowley’s mind was that Prof. Gates was strongly implying that his civil rights were being violated. That is a Federal crime involving a U.S. DOJ investigations of him and his department and a career ending time–often in prison—for the officer(s) involved, if convicted. Perhaps Crowley considered that the only manner to deescalate the situation to prevent further damage—civil rights related or otherwise—was to arrest Gates for both men’s well-being and for that of others at the scene. Crowley could have ‘temporarily’ further restrained/detained Gates onsite and released him once he quieted down, but that might not have resolved the situation nor have been a viable option. Of course, false arrest can fall within a civil rights violation.

    Had I been Crowley and someone was shouting that I was violating their civil rights—implying police misconduct under the ‘color of law’—I would have taken those comments as potentially threatening, in the context that—if you proceed—I will have your badge because you do not know who you are dealing with here. Speculatively, perhaps Gates knew his friend, Pres. Obama, would eventually come to his aid and that is a powerful incentive to ‘make your point’ knowing that kind of power is on your side; having friends in high places can embolden a person into thinking that they are somewhat beyond reproach.

    Of course, we are all speculating and I am anticipating the release of the audiotapes, although we might only get a transcription of those. The tone and the volume will lend credence to either Gate’s or Crowley’s recollection of what actually occurred.

    However, as Mespo stated, and most of us know that, many good, decent, dedicated LEOs risk their lives daily for our safety and at very little financial compensation. There seems to be a downward trend in competency and ethics along with lowered standards in LE but that appears prevalent in most sectors of government in today’s world. I think that our 3-branches of Federal government set the tone and temper for the local and State governments and the problems trickle-down. That is, if our Federal judiciary and Congress are corrupt and our Attorney General does not apply the rule of law equally—or not at all—how can those examples of failure and neglect encourage LEOs at any level to regard their oaths as sacrosanct.

    Finally, Professor Turley often presents examples of rogue cops within this blawg and Sgt. Crowley does not fit any of those traits, based on the evidence to date.

  71. Thanks FFLeo for weighing in on the topic. I was wondering what you thought was reasonable given the facts as we know them.

  72. FFLEO,

    I think there is an unacknowledged elephant in the room and that is classism. Gates was a big, classist a-hole and I think Seamus calls this situation correctly. But for the life of me I cannot see why Gates should have been arrested. I know that Crowley had no reason to know that a break-in had not occurred and he did need to investigate and make certain everything was O.K. It certainly does seem that Gates was throwing his weight around and being a jerk and that he did make a statement that would make an officer nervous. Still I think it was Crowley’s duty to check things out, let Gates get on with his rant, say what a jerk this guy is to himself, record the whole thing just in case, and then leave. I don’t understand your point of view. I do understand how Gate’s statement would be worrisome, but wouldn’t the recording of the situation allow the officer to prove he had done nothing wrong? I am not trying to get in an argument with you, I really don’t see why an arrest was called for.

  73. FFLEO,
    As you suggested I read the entire PDF file, actually expecting that I was about to be proven wrong and that the Harvard Police were being called to search the house, or that Crowley or Figueroa were going to state the need to search the house in case of a lurker. I was already thinking about how to phrase my regret for getting the facts wrong. However, taking the report as fact securing the premises was never done by either Crowley, Figueroa and/or the Harvard Police. That was either sloppy police work, or a tacit acknowledgment that there was no danger. If the police suspected anything untoward, such as a bad guy holding Gates’ wife in the basement and telling Gates he’ll kill her if Gates doesn’t send the police away. A not unreasonable scenario. They didn’t and never searched, nor requested to search anything.
    Therefore any argument by the police about “securing” the scene was specious.

    The officer was clearly trying to lure Gates outside in order to arrest him. Why did he specifically invite Gates outside telling him if he wants his name and badge number he would have to come outside. Crowley is obviously a smart police officer and smart police officers know how manipulate people.
    Even if Gates was yelling at the officer in the street, what public danger was occurring that, especially considering that most of the crowd were police officers? My honest reading of the entire report leads me to feel the arrest was unnecessary and more about the officer’s ego, than about protecting public safety. Now did Gates over react, perhaps. Was this racially motivated on Crowley’s part, no one will ever know?
    Even if Crowley wasn’t racially motivated, the arrest was in my eyes a stupid one and an abuse of police power.

  74. Mike Spindell,

    I had to type this from the Incident Report because I could not copy/paste it. This is what I mean when I say securing the scene before the officers departed, in this situation. Prof. Gates’ compliance is reason enough to absolve the LEOs of any further potential liability of leaving the scene unsecured.

    The following is an excerpt of 5 sentences from within the Incident Report.

    Quote (* Emphases are mine):

    “I then asked Gates if he would like an officer to take possession of his house key and *secure* his front door, which he left wide open. Gates told me that the door was un securable due to a previous break attempt at the residence. Shortly thereafter, a Harvard University maintenance person arrived on scene and appeared familiar with Gates. I asked Gates if he was comfortable with this Harvard University maintenance person *securing* his residence. He told me that he was.”

    End Quote.

    Under the circumstances in this case, any LEO would do a cursory security sweep of the immediate residence since the RP stated that she observed only 2 subjects trying to break in to the residence.

    I simply cannot argue with your opinion regarding the sloppy police work or any prejudice involved, because those are not founded on the available facts.

  75. Officer Crowley’s report of the incident is “factually challenged”, to put it generously. In particular, the indication within the report of proper radio communication with the 911 dispatch at the Cambridge Emergency Communications Center is suspect, since the Department has made contrary public statements:

    “As the encounter between the two men escalated, the Cambridge police tried to reach Sergeant Crowley on his radio at least three times, but he did not respond, police officials said, revealing previously unreported details. Because of his worrisome silence, they said, six more police cars soon clogged the one-way street, surprising Professor Gates. By 12:51 p.m., he was in handcuffs, charged with disorderly conduct. Friends say the two men who met at the front door of the trim yellow house on Ware Street were the unlikeliest of people to be caught in such a struggle.”

    The “trim yellow house on Ware St.” appears to have the distinction of being within the bounds of the Harvard University campus. Officer Crowley, having been a Brandeis University police officer should have been immediately aware of the jurisdiction of the Harvard University police in the situation, and gives himself retroactive cover within his subsequently filed report, but the Department statement indicates that his communication and responsiveness was so lacking that it was necessary to dispatch additional backup to ensure that the situation was in hand.

    Professor Gates’ account of the situation is as follows:

    ‘Professor Gates immediately called the Harvard Real Estate office to report the damage to his door and requested that it be repaired immediately. As he was talking to the Harvard Real Estate office on his portable phone in his house, he observed a uniformed officer on his front porch. When Professor Gates opened the door, the officer immediately asked him to step outside. Professor Gates remained inside his home and asked the officer why he was there. The officer indicated that he was responding to a 911 call about a breaking and entering in progress at this address. Professor Gates informed the officer that he lived there and was a faculty member at Harvard University. The officer then asked Professor Gates whether he could prove that he lived there and taught at Harvard. Professor Gates said that he could, and turned to walk into his kitchen, where he had left his wallet. The officer followed him. Professor Gates handed both his Harvard University identification and his valid Massachusetts driver’s license to the officer. Both include Professor Gates’ photograph, and the license includes his address.

    ‘Professor Gates then asked the police officer if he would give him his name and his badge number. He made this request several times. The officer did not produce any identification nor did he respond to Professor Gates’ request for this information. After an additional request by Professor Gates for the officer’s name and badge number, the officer then turned and left the kitchen of Professor Gates’ home without ever acknowledging who he was or if there were charges against Professor Gates. As Professor Gates followed the officer to his own front door, he was astonished to see several police officers gathered on his front porch. Professor Gates asked the officer’s colleagues for his name and badge number. As Professor Gates stepped onto his front porch, the officer who had been inside and who had examined his identification, said to him, “Thank you for accommodating my earlier request,” and then placed Professor Gates under arrest. He was handcuffed on his own front porch.’

    Someone doesn’t have a defamation case, much less a legal leg to stand on in this matter.

  76. Even worse news in today’s Boston Globe, since the woman never said she observed black men, and the Chief agreed with her, but that false information was put in the police report.

    False information in the written report.

    This guy does not want to go on the stand.

    Better sign a book and movie deal for big bucks while the story is hot.

    Sgt should sign with Spike Lee — he would make the best offer and the best movie.

  77. Federal LEO’s commentary is spot on:

    “If the shouting rant actually occurred as alleged, one of the first things that most likely coursed through Crowley’s mind was that Prof. Gates was strongly implying that his civil rights were being violated.”

    Which Officer Crowley promptly did by, first of all abusing the public trust by making unjustifiable arrest and subsequently compounding that abuse by misstating the facts that the CPD wil support in his filed police report.

    “That is a Federal crime involving a U.S. DOJ investigations of him and his department and a career ending time–often in prison—for the officer(s) involved, if convicted.”

    Precisely. There’s one person in this incident who has made himself appear to be a criminal and it certainly isn’t Prof. Gates. There’s a purpose to the statute: encouraging proper respect for the law by the citizenry under whose authority it is to be enforced.

    “Perhaps Crowley considered that the only manner to deescalate the situation to prevent further damage—civil rights related or otherwise—was to arrest Gates for both men’s well-being and for that of others at the scene.”

    Tell it to the Judge. Four hours in “protective custody” is a preposterous line. Try another.

    “Crowley could have ‘temporarily’ further restrained/detained Gates onsite and released him once he quieted down, but that might not have resolved the situation nor have been a viable option.”

    Or he could have waited for HUPD officers who had actual jurisdiction:

    he didn’t.

    “Of course, false arrest can fall within a civil rights violation.”

    You betcha.

  78. Communication is possible only if all parties in the conversation agree on the meaning of the words that they use. The word racist is a problem because it means different thing to different people.

    In fact racism is a normal characteristic of humans as frequent as the characteristics of having two eyes, two ears, two arms or two legs. A human who denies he is to some extent racist is either a liar or lacks self awareness. When most humans use the term they are thinking of Adolph Hitler or a grand exalted dingbat of the Ku Kux Klan but the correct term for Nazis and Klan members is “extreme racist”. Extreme racists are a problem but if all of them were to disappear the lesser racism of the remainder would continue doing enormous damage to those who are on the receiving end especially when they are also socially disadvantaged. Racism and social disadvantage work together in a synergistic way to multiply the damage.

    Racists do not know that they are racists and their outrage when someone states the truth about them is not feigned. All humans exaggerate the harms done to them by others and minimize the harm done by them to others, but racist overmen exaggerate more than undermen who are subject to discrimination. There discrimination by overmen against undermen is so large that there is little scope for exaggeration, maybe 10% whereas overman exaggerate maybe 90%. For example it is a bit rich when white people act as if the accusation of racism is as hurtful to them as the use of the “N” word is to a Negro.

    It is obvious by sampling the blog comments on several blogs that white Americans are favouring Sgt Crowley and his description of what happened over Professor Gates and his account. In addition there are accusations that Gates is an inferior scholar in an inferior subject field, that he has a victim complex and a chip on his shoulder and that he is a bully using his position of power against the poor white policeman. This indicates that the US is not post racial.

    I tend to think these two posts by Francis L Holland are pretty close to the mark:- .

  79. Did the officer in question actually follow proper procedure in this situation. Most police leave their radios open to record what is going on in an arrest. I believe that the recorded tape not an edited transcript would put some light on the situation of who actually over reacted. It seems it wouldn’t be necessary to arrest a man for entering his own home. I would think showing some sort of ID would have cleared the matter up. At this point no one knows all the facts. Suing for defamation of character seems to be a way of throwing up a smoke screen instead of sticking to the facts in this case.

  80. Jill,

    I stated above in a previous post: “The arrest was likely too excessive an option;”

    In such heated encounters, it is impossible to replay the interactions in an after-the-fact scenario to derive the defendant’s or the LEO’s ‘reasoning’ for the actions they took at that time.

    Apparently, Prof. Gates wants to move on. I do not think he has a strong case for a false arrest claim given his unreasonable and–most importantly–his *unexpected* behavior which can lead the arresting officer to consider any defendant’s current state of mind as part of the reason to detain or arrest.

    Here is the manner with which I *might* have handled the situation. Once Gates was cuffed, he seemed to calm down as evidenced from the Incident Report. At that instance, he was under custody and Miranda triggers. However, had I noticed his calm—and considering the totality of the circumstances—I might have stated, ‘we still do not need to go to the station if you are willing to cooperate. Based on a nod or other affirmation I would have ‘unarrested’ him in the field and then asked for his noncustodial compliance to an interview to sort out the issues with the full understanding that he was no longer under arrest and that he could leave at any time. Then the impetus is on the defendant to comply with your request to resolve this in an amicable manner. I would have requested the assistance of the black LEO on scene to help in the field ‘arbitration’. At that juncture the LEO has established his LE authority per the disorderly conduct stature—rather than a ‘making’ a personally biased point—restored order, and then offered the defendant an honorable way out. The fact that Crowley was potentially defamed as a civil rights violator and a rogue cop, I do not know if this potential option would have crossed his mind.

    Regardless, we have courts of law and judges to adjudicate problems such as the Gates/Crowley encounter. I always tried to remember what an LE colleague told me when confronted by a judge about a mistake in judgment the LEO had made by letting a defendant ‘off’ with just a warning and the guy bragged about getting away with a crime. The judge learned of the incident and told the officer that an LEO’s duty was not to judge the guilt or innocence of any defendant, but to enforce the statues. Certainly, LEOs have discretion—which must be tempered with good commonsense and logic—although most often it is best to let the judiciary do its job and stay away from judging defendants afield where the crimes occur and most often in the presence of anger and frustration on all sides.

  81. Former Federal LEO skirts the legal issue:

    “TITLE 18, U.S.C., SECTION 242

    ” Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.”

  82. mud:

    “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution…”


    The operative word is “willfully,” and that is what this thread has been talking about ad nauseum. I’ll concede for the sake of argument that FFLEO may be skirting the issue (and I for one know that he is not), but you, my friend, understand neither the law nor the issue. Quoting law you don’t understand doesn’t make you look like Moses, rather you look like Mrs. Malaprop in Richard Brinsley Sheridan’s play “The Rivals.”

  83. Your name is Mud,

    If you bothered to read the posts of this thread, in my last post to which you stated, “Former Federal LEO skirts the legal issue”, I was responding directly to Jill (not Jill et al.) regarding a question she asked of me. I strive to respond to the regulars even if I understand that my reply is not directly germane to the specific legal issues/statutes involved.

    Mespo is correct regarding the “willfulness” question of Sgt. Crowley’s actions. I submit that only an impartial court of law examining the entire set of facts and circumstances can ‘reasonably’ decide if Crowley’s actions were a willful ‘deprivation of any rights, privileges, or immunities’ of which Professor Gates is guaranteed under the U.S. Constitution.

    If you are not an attorney—or unfamiliar with LE—I suggest that you and others do some research to also fully understand the legal concept, ‘color of law’. Any Internet ‘Philadelphia lawyer’ with a Google J.D.—or not—can find the ‘color of law’ explanation on the web.

  84. FFLEO,

    I had missed your post to me and the earlier statement, just seeing them now. Thanks for laying out your experience. I will think about what you said. I do not have your background to draw on and please know I will take your words and life experience seriously.

  85. O.K. FFLEO,

    Here’s me as a average citizen. First of all most LEO’s scare the living crap out of me (sorry). Just a while back I was walking in the park and the ranger pulled up blocking my car from pulling out of the space. He then got out and came towards me. I couldn’t help noticing his hand was near the gun. I knew I hadn’t done anything but I thought I was about to be arrested because he’d blocked my exit and was telling me he wanted to talk. It turns out he asked me if I would not pull my purse out the trunk while at the park because they’d had some break-ins. That’s a reasonable request but I was feeling a lot of panic because my exit was being blocked. I maintained myself as calm when he approached, but I was quite scared. So I have sympathy with Gates. If the police came to my house and said there had been a break in, and I knew there hadn’t been one, I would be scared and suspicious. On the other hand, Crowley had an honest report of a break in and had to check it out.

    We then come to the part where I believe Gates was probably scared, confused and also a classist a-hole. So he reacts out of a combination of all of these. I didn’t know what “securing” a residence meant until you explained it. If the police had asked if they could take my house key to “secure” my house, I would have been very nervous because I wouldn’t know what they meant or why I couldn’t just lock the door myself. I would want the police to leave ASAP, not stay and do more than figure out everything was O.K.

    You write: “However, had I noticed his calm—and considering the totality of the circumstances—I might have stated, ‘we still do not need to go to the station if you are willing to cooperate. Based on a nod or other affirmation I would have ‘unarrested’ him in the field and then asked for his noncustodial compliance to an interview to sort out the issues with the full understanding that he was no longer under arrest and that he could leave at any time.” To me, again, having been arrested I would have been scared shitless. I’m certain that you mean well by that offer, but after having been cuffed I would not have been in a trusting frame of mind. So I look at this situation just as seamus does, keep your mouth shut, cooperate and move along. I think Crowley misused his authority. I think both men were a-holes and I hope they will both “cop”:) to that and make something good come from this situation.

  86. An absolute defense to an civil action alleging slander is “what I said about the officer was TRUE”. If Gates can prove, using incidents and people from his past, that the officer involved has shown insensitivity in the past, which would be evidence of color-aroused bias, then Gates could successfully defend against a slander action.

    I would look to the example set by Johnny Cochran and Mark Furhman to see where this would end up. I’m willing to guarantee you at this point that officer Crowley has some behavior that he does not want aired in a civil trial. But, because he is a white man and thinks he can do anything he wants, he might go ahead, hoping as Marsha Clark did, that the truth will not come out. Somewhere, there is someone who heard this officer say negative things about Black people. If officer does have color-aroused ideation, emotion and behavior (and virtually everyone in this country does on some level) then the officer cannot carry his burden of proof.

    One interesting question would be to litigate the meaning of “racist”. Is “racism” a mental defect that is chronic, or can it also be a momentary ideation, emotion and behavior that is, for example, unlawful or tends to hurt one’s standing in the community?

    Should Dr. Gates be required to prove as an affirmative defense that Officer Crowley has a chronic mental disorder that could also be called Extreme Color Aroused Disorder, or is it enough to show that ON THIS DAY, IN THIS CASE, Crowley had ideation, emotion and behavior that was aroused by skin color?

    Let Crowley file his suit. We’ll all learn something about Extreme Color Aroused Disorder in the process, because the suit will turn on whether officer Crowley has that disorder. If so, it doesn’t really matter whether it was what motivated Crowley in this particular case.

    Analogously, if person “A” calls person “B” a thief based on a misunderstanding in a store, it doesn’t matter whether the misunderstand involved thievery if OTHER facts prove that “B” is a thief as a matter of chronic behavior. IF “B” is a thief, then calling “B” a thief does not constitute slander.

    You might also say that this threat to file a civil action is in the nature of a “slap suit”, trying to quash First Amendment speech through civil actions.

    If Officer Crowley refused to give his badge number and name to Gates then, in my opinion, that should be a prima facia defense of ANYTHING that Gates might say about officer Crowley. When you invade someoene’s house and refuse to identify yourself, you can expect to be called some awful names.

  87. Jill:

    You said,

    It turns out he asked me if I would not pull my purse out the trunk while at the park because they’d had some break-ins.

    I was in the same situation once, where I was stopped on the highway in Florida and had left my wallet in my suit jacket, which I had placed in the trunk of the car. As a result, I was compelled by those circumstances to open the trunk of my (rental) car in order to get my identification, which the police officer had a right to request that I produce.

    However, if I had my identification in my pocket, the officer certainly would not have a right under Fourth Amendment jurisprudence of the US Supreme Court to demand that I open my trunk. He would have to have a reasonable suspicion, and the fact that there have been some thefts in the park does not mean that the police have a reasonable suspicion of everyone who drives through the park.

    The fact that my skin is brown does not give rise to a reasonable suspicion.

  88. Francis,

    In this case I was not under suspicion. He was trying to avoid break-ins and was asking me not to take out my purse at the park. I have been stopped in Phoenix and grilled for having too brown of skin, so I understand what you are saying about your own situation and I agree with your point concerning the law.

  89. LEO, my name may be Mud, but I know better than to think that the law is there to be weaseled with by by servants of the courts. The law makes us free in our obedience to it. Here’s the purported statutory violation that was at the basis of the arrest, restraint and detention of Professor Gates:

    “9.08.010 Disorderly conduct–Profanity and insulting language.
    No person shall behave himself in a rude or disorderly manner, or use any indecent, profane or insulting language in any street or public place. No person shall make or cause to be made, any unnecessary noise or noises in any public street, private way or park, so as to cause any inconvenience or discomfort for the inhabitants of the City.”

    And here’s the extent of remedial action to be sought:

    “9.20.010 Violation–Penalty.
    Unless otherwise specified, any person who violates any provision of this title shall be liable to a fine not exceeding fifty dollars for each offense.”

    Above that, there would be need to rely on Massachusetts general law to support arrest and detention in this case:


    No good luck there.

    The likeliest surviving blue law:


    would be:

    Chapter 272, Section 36. Blasphemy.

    There’s a lot more fruitful area of the statutes to look for correction of impropriety in this case, it would seem to my uneducated eye:


    So for all the disjointed anecdotal statements made by you, there is only one individual involved in the incident under discussion who has any possibility of having violated the law and it’s Sergeant Crowley. Since his problems have been compounded by televised public statements and radio interviews, I’ll await the review board’s assessment rather than ascribing to the forced conclusions that you’ve arrived at, since you’re not a lawyer.

  90. Well then, Mud, we will just have to wait for the lawyers and/or judges to decide this, if necessary—as I have championed all along—without further ‘muddying’ the waters with speculation and anecdotal musings.

  91. Sounds good LEO.

    I don’t expect much from any disorderly conduct charges though. And it appears that Prof. Gates is satisfied that there’s nothing more he needs to do other than teach.

    The review board is the next at bat.

  92. Mud,

    The important outcome is that the full facts surface, something positive derives from this incident to ensure that any wrongs committed are fully exposed and justice is meted, if appropriate, and that it never happens again.

  93. Francis Hollard:

    “If Gates can prove, using incidents and people from his past, that the officer involved has shown insensitivity in the past, which would be evidence of color-aroused bias, then Gates could successfully defend against a slander action.

    But, because he is a white man and thinks he can do anything he wants, he might go ahead,…”


    Well, your efforts at erudition came screeching to a halt with this classic display of elliptical reasoning, and ad hominem attack. (Are your legs tired from that colossal leap of logic, too?).

    In addition, Gates cannot prevail by showing that the officer was “insensitive,” in the past and, according to your logic, was thus supposedly acting on some “color-aroused bias [sic].” Instead, Gates must show that the officer’s actions in arresting Gates were motivated exclusively “because [Gates was] a black man in America,” and that his arrest was solely due to his race. Otherwise Gates is guilty of slander per se since loudly alleged this to be true in front of witnesses.

    Finally, your analysis of the Lee Bailey/ Det. Fuhrman confrontation is superficial and pedantic: Fuhrman was not discredited because he used a racial slur, but because he denied ever using the word. Had he simply admitted the use of the racial epithet, albeit in anger or frustration or whatever, his credibility would not have been so successfully challenged as jurors themselves admitted after the verdict.

    All in all Francis, you have added nothing to the discussion save confirming your inability to grasp the issues, and your reflexive need to blame the officer first, with little regard for the facts or the law.

  94. I really hope Gates takes this to court.

    Police falsify their reports all the time to cover up their abuses of power. Justice needs to be served in this case and Crowley needs to answer for his illegal actions.

    Crowley should be taking out people’s garbage, not wearing a badge.

  95. _________________________________


    Disorderly Conduct: Conversation About Gates Arrest Precedes Arrest

    A lawyer who moments earlier had been complaining to friends about police overreaction in the arrest of Harvard Professor Henry Louis Gates Jr., got a taste of the Gates treatment himself after loudly chanting “I hate the police” near a traffic stop in Northwest Washington, D.C.

    End Quote}

  96. James:

    I have no idea how many officers you know, or even if you know any, but your statement that, “Police falsify their reports all the time to cover up their abuses of power,” speaks for itself both in terms of its breadth and foolishness. Police don’t falsify their reports all the time, your assertion notwithstanding. And as for your invective that Sgt. Crowley should be taking out other people’s trash, some would say that is, in large measure, what his job consists of already. Judging by your comments, I must wonder if you come with handles or a drawstring?

  97. Mespo,

    Thank you for your witty retort to James’ ridiculously false statement. I started to reply soon after his post, but I knew that some reading this thread would simply consider me too biased regarding LE to counter James’ comments.

  98. “Police don’t falsify their reports all the time, your assertion notwithstanding.”

    Yet sometimes they do and enough times to raise suspicions,
    Amadou Diallo, for instance, or this from today: don’t falsify their reports all the time, your assertion notwithstanding.

    original link provided by JT:

    While James statement was hyperbolic, these incidents happen with great frequency. My original position still stands though. Sgt.Crowley’s and his colleague’s own reports, even if we grant them as being true provide no rational reason for making the arrest, no matter how this is spun. Was it racism, as I said before no one can know, but at the least it was the case of a PO who did not like having his authority challenged and in revenge decided to take Professor Gates down a peg. Sgt. Crowley should have walked away after he saw proper I.D. and if he was not self serving would have written down his name and badge number and left it with Gates.

    We have had so many instances of this posted by JT since 2009 began alone, that it points to a pattern of police behavior. I’ve stated on many occasions that I am sympathetic to the police and that as a former civil servant I know how badly they can be treated by their own Agency. They are hardly victims though, although the majority feel that way and thus feel entitled to be treated specially. This has been compounded by the homeland Security/DEA police indoctrination that has accelerated since 9/11, to the point where police have in their minds assumed a para-military status. While
    a military outlook is essential for combat, it has no place within the law enforcement realm of a supposedly free society.

  99. “”

    Yet another example of police gone wild.

  100. Mike Spindell,

    I posted that HuffPo link yesterday, which implies that you are not reading the previous posts before commenting. That is not like you. In fairness to Crowley et al. please see my comments above regarding *securing* the Gates’ residence since you and I have a disagreement regarding that issue.

    Regarding police/LEO misconduct, it has always occurred and the main difference is our heightened awareness of the misconduct based on modern, ever-present videography and the Internet. I personally want to see every ‘bad cop’ lose their LE careers and serve jail time; however, you are spreading the blame over too wide an area across the LE spectrum. Now, this is a blawg and it would not be very worthwhile if each of us does not give his or her own opinions, but we all realize our comments are just opinions and hearsay because we never know the full facts of the case so we should not get too critical of others’ opinions.

  101. ________________________________


    WASHINGTON — The police officer at the center of a national dispute over race and law enforcement says a much-anticipated meeting at the White House was productive and all parties are looking forward.

    Cambridge, Mass., police Sgt. James Crowley spoke after meeting with President Barack Obama and Harvard professor Henry Louis Gates Jr., along with Vice President Joe Biden. Crowley described himself and Gates as “two gentlemen who agreed to disagree” about the confrontation that led to Gates’ arrest.

    He said that the conversation centered on moving forward, not reliving the events of the past two weeks, and that they plan more meetings.

    End Quote}

    We don’t need no stinkin law, nur judges, nur courts of law, we got’s beer justice in this ‘sheer country. Swangin’ doors to blissful happiness.

    They’s a tear in my beer…

  102. Mike S:

    If you judge by the sports page, everybody sets world records, all long touchdown passes happen in the final seconds, home runs are frequent event, and soccer is an exciting pastime in the US. Good police reporting and work rarely makes the papers or the Huffington Post. That should not suggest it doesn’t exist. Read any good “dog bites man” stories lately?

  103. FFLeo:

    “I started to reply soon after his post, but I knew that some reading this thread would simply consider me too biased ….”


    I doubt anyone who has read your comments thinks you shill for anybody. I like your expert opinion … even when it cuts against my argument.

  104. I would like to know did the white woman who was so observing the neighborhood, notice that the cab driver had drove off, and I do believe that it was DAYLIGHT, she should have told the officer that a cab driver left after dropping off the person in the home. How long had she lived on that street and have she ever seen her neighborhood who lived across the street?

    This is the very first time that she seen this cripple old man with a cane going into his home?

  105. I dislike “white /black” when refering to people. There are NO literally white or black people. We are all a degree of brown. We should not be identified or judged by the color of our skin but by our character.(MLK)

  106. “Good police reporting and work rarely makes the papers or the Huffington Post.”

    That is true if you look at it from strictly a news story context. However, at least half of the “dramas” on TV are shows that extol police and portray them very favorably. That doesn’t count the prime time reality police shows like 48 hours, Cops, and America’s Most Wanted. There is a network ID, which runs reality police shows 24 hours a day and Oxygen that has entire
    evenings devoted to showing “Snapped” a reality show about women who commit murder. The favorable publicity for police is so overwhelming as to touch on propaganda. Then too in NYC where I used to live the two tabloids The Post and The News would constantly take the side of police in cases like Amadou Diallo’s, which was to my mind indefensible. I’ve written here often that given all the favorable publicity, it is telling that police in general see themselves as victims.

  107. “I dislike “white /black” when refering to people. There are NO literally white or black people. We are all a degree of brown.’

    I’ve been fervently wishing that to be true literally since the age of four when I heard my mother talking about her disgust with segregation in N.C. from where she had just returned. Unfortunately, too many people still judge people by our superficial differences and the stereotypes they are taught
    about them. I wish you a world where that which you dislike no longer exists.

  108. “however, you are spreading the blame over too wide an area across the LE spectrum.”

    I am spreading the blame wide, but if you read into what I’ve posted about LE, you might understand that it is not the officers I blame. As I’ve written I’ve worked with, known and even been friends with police. Their backgrounds are similar to mine and over some drinks, back when I could, we enjoyed each others company. It is not them. It is the move in this country to Militarize the police, initiated after 9/11. It is the training of them that borders on the para-military, supplied by Homeland Security. It stems from the poisoning of the FBI by JE Hoover, who instituted a culture of lawbreaking to intensify his power. The first movie that I went to in a theater was High Noon, with Gary Cooper playing the role of Marshal Will Kaine. Standing up to evil, even when the whole town turned its’ back. I can’t overemphasize the effect it had on me, my outlook on life and how I’ve stood up to bully’s at work despite the possible effects on my career. I would have become a Cop in NYC, or Nassau County, except my eyesight at the time was unacceptable.

    So understand, I’m not against LEO’s, the work they do, or getting the bad guys of this world. However, the sheer bureaucracy of police work, the demands to close cases quickly, the training that tells them they must be obeyed perfectly or face danger, the police unions that convince them they are victims, the egging on by cheap politicians (like Rudy Guiliani, who promoted an almost police riot in his mayoral campaign and fired a wonderful police chief because he got to much good publicity), Mayor Daley who encouraged the insanity in 1968 Chicago and then the reality of how they are treated badly in general by the system that praises them to the public. I’ve been in police precincts in NYC many times and seen the decrepit furniture, ill maintained buldings, disgusting rest rooms, shapeup rooms that could barely hold the next shift. I’ve even lectured at precincts on dealing with the severely mentally ill and have not only found good people ready to listen, but learned some valuable tricks from old pro’s.

    I’m not anti-LEO, but I’m anti using them for purposes that disrespect our laws and our Constitution. That is where they become the victim, along with their victims. They are being ill served by the political hacks who praise them to their faces, make the public more fearful than it should be and out of sight screw the very officers they use to promote their political careers.

  109. An Editorial Opinion,

    This case against Professor Gates isn’t about a racial issue. I’m a middle aged white male & the same thing would have happen to me as well. Thanks to the cops being an arrogant, my way or the highway mentality, combined with authority issues!!!!

    This arrest is about out of control police officers throughout the country. Once it was established that this house was Professor Gates residence this Officer Crowley should’ve had enough sense to leave IMMEDIATELY, PERIOD. This is just another example of rogue cops and how they don’t follow the law!!!! A judge would’ve have thrown this case out of court and in favor of Professor Gates.

    The only exception would be if an verbal or physical threat was imminent.(which was NOT THE CASE).

    This case is however about our “Constituitonal rights” under the first ammendment and “freedom of speech”. You have the right to voice anything you desire except verbally saying fire in a crowed building where there is NO FIRE, & telling a judge to F _ _ _ off or even a police officer.

    Anything short of that is our God given rights provided by our founding fathers and our CONSTITUITION. NO EXCEPTIONS!!!

    My sincere hope is that Professor Gates sues this police force because that is the ONLY WAY to stop this CONTINUOUS BAD BEHAVIOR!!!

    Greatd job Mr.Turley I love how you explain things and I’ve admired you for a very long time!

  110. Rob Rahlf:

    “This case is however about our “Constituitonal rights” under the first ammendment and “freedom of speech”. You have the right to voice anything you desire except verbally saying fire in a crowed building where there is NO FIRE, & telling a judge to F _ _ _ off or even a police officer.

    Anything short of that is our God given rights provided by our founding fathers and our CONSTITUITION. NO EXCEPTIONS!!!”


    Well you certainly are an absolutist.Let’s look at some other fact situations and see if your “No Exceptions” rule applies:

    1. American naval vessels are crossing a narrow isthmus in a canal in hostile territory and you become privy to the time and location of their crossing. You decide that this is news of public concern and you decide to broadcast it to your fellow countrymen, and also to the enemy who then immediately goes about the task of annihilating you countrymen. Still think you conduct is “God Given” and immune from criticism and punishment?

    2. You are witness to a bank robbery and see the armed robber fleeing the scene. As the officers give chase, you tell the robber that the police are coming down 4th Street and his best escape route is up 3rd street. He gets away scot-free. Should your free speech rights be sacredly protected now?

    3. You are driving along Highway 5 at midnight near the Guadalupe Bridge. You have just heard a radio alert that the bridge has collapsed. A family of 4 heading out on vacation asks you if you heard the newsflash that they just missed. You tell them it was some distant weather advisory and that you just came from the direction they are going and the way is clear and the bridge is fine. They roll along relying on your word and plunge into the river to their death. Still hear the fifes and drums of your free speech rights playing?

    4. Your pastor has just returned from vacation in Brazil sporting a great tan and some great stories. You decide to drop by his house and tell his wife (who did not make the trip) that the good vicar told you he just broke off a torrid affair with his South American mistress. Th wife files for divorce and the pastor’s career is ruined by your slander. Still think any jury would protect you under these circumstances while you recite the Constitution?

    Absolutes are for foolish or weak minds.

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