Why did they dismiss the charge against Gates? Commonwealth v. Mulvey

[merh]

Commonwealth v. Mulvey
57 Mass. App. Ct. 579 (March 14, 2003)

Police presence in and of itself does not by itself turn an otherwise purely private outburst into disorderly conduct.

The defendant was charged with disorderly conduct for yelling and pacing on private property that was set back from the road in a secluded area. There was no one around at the time except police officers. While the statute requires that the disturbance be such that it had or was likely to have an impact upon people in an area accessible to the public, the presence of police officers alone will not suffice to prove the public element.

In reaching its decision, the Court noted that the rationale behind criminalizing disorderly conduct rests on the belief that a disorderly person can provoke violence in others.. Given that an inherent part of police work involves being in the presence of distraught individuals, and given that police officers are trained to maintain order, the Court concluded that police should be the least likely to be provoked. Therefore, police presence alone does not satisfy the public element.

http://www.mass.gov/?pageID=dmdaterminal&L=5&L0=Home&L1=Court+Decisions&L2=Court+Decisions+by+Topic&L3=Crimes&L4=Disorderly+Conduct&sid=Dmdaa&b=terminalcontent&f=courts_mulvey&csid=Dmdaa

Please note the link goes to the Massachusetts District Attorneys' Association.

.

[MercutioATC]

1. The "disorderly" conduct was performed in front of the general public, not just officers.

http://www.scribd.com/doc/17512830/Gates-Police-Report


If the police report is factual, the arrest would have been sustained on its merit.

Gates being well-connected probably had a lot to do with why the charge was dropped.

[SemiCharmedQuark]

5. Yelling at an officer is not illegal if it does not incite others or affect the investigation.

"Richard Weinblatt, director of the Institute for Public Safety at Central Ohio Technical College, said the police sergeant was responsible for defusing the situation once he realized Gates was the lawful occupant. It is not against the law to yell at police, especially in a home, as long as that behavior does not affect an investigation, he said."

http://www.msnbc.msn.com/id/32092715/ns/us_news-race_and_ethnicity/page/2/

[TexasObserver]

25. +1

[LiberalFighter]

6. The police officer created the incident.

The incident started in the house and then the officer drew Gates out of the house into the so called public arena.

The officer if he was a true professional should had been able to diffuse the situation. If the officer had any brains he would had called for the campus security since the property was on Harvard property. They could had verify his identity. But considering that Gates provided both drivers license and Harvard photo ID they should had left.

[MercutioATC]

7. Did you read the police report? The incident began when Gates answered the door.

Crowley asked Gates to step outside (which is standard procedure to protect bnoth the officer and the civilian). Gates refused.

Gates then questioned whether the request to step outside was because "he was a black man in America".

Crowley asked Gates if there was anybody else in the house (again, standard procedure). Gates told Crowley that it was none of his business and accused Crowley of being racist.


That sounds like the start of the incident...and Crowley certainly didn't "create" it.

[Solomon]

10. "Did you read the police report"? There in lies your error.

Number one, as a defense attorney well versed in the art of police making out complaints, they are always drafted in such a way as to justify the crime.

The report itself condems the guy. He thinks he's covering by touting what Gates said, but that's irelevant. It's like he's saying, "but he made me mad".

He doesn't have the right to violate someone's constitutional rights because someone made him mad.

Lot of patriots we have here. It a man can't talk shit in his own home, then what right do you have?

You need to "read the report" and see where the point is that he admits that he knows the guy lives there. And then see what he did after that.

He screwed up. Lost his head. Does nothing to say Gates lost his head too. That's just justifying throwing away the most precious of your rights.

[MercutioATC]

12. You're confusing "led to believe" with verification.

Crowley was required to obtain some form of verification that Gates was who he said he was.

Do you really believe that if an actual burglar says "I live here" that the police aren't required to still verify his identity?

[N7255Q]

14. You mean a burglar might lie to the police??? Inconceivable!!!

:silly:

[merh]

20. So tell me, he has the Harvard Identification card

Why did he need the Harvard Police to come out there?

[MercutioATC]

23. It's probably procedure when dealing with complaints on Harvard property.

I have no idea, but agreements like that frequently exist.

[merh]

24. Bull - no crime was being committed. There was no need to call

the Harvard police once it was established it was his residence. The only reason they called him was because he didn't believe the black man could be a professor. He still doubted his identity despite he fact he was provided the proper identification.

[MercutioATC]

34. Right...because cops in Cambridge know that there are no black professors at Harvard.

Gimme a break.

It's common for agencies with overlapping jurisdictions to call each other when an incident occurs. Even after his identity had been established, Gates was still verbally combative and the house was under Harvard Police's jurisdiction. Calling them was a good idea (and probably procedural).

[merh]

37. Try again.

Crowley should have had the University Police meet him on the scene, he knew those residents were Harvard U residents. If he had no jurisdiction and need Harvard to come out there, why did he make the arrest?

Your excuse is a load of crap. If a white professor had shown his ID Crowley would have said, thanks, sorry for the inconvenience and here's my card and the incident number if you want to get a copy of my report.

Crowley wanted to make sure this black man was the professor he claimed to be. See, Crowley used to work for Harvard UPD, he thought he knew it all about the campus.

[MercutioATC]

48. If a white professor had acted the way Gates did, Crowley's actions would have been the same.

...and the white professor would have brought it on himself, too.

Gates was demeaning and accusatory from the minute Crowley showed up. Even after Gates' identity had been established and Crowley was leaving, Gates was verbally abusive...even after being asked twice to lower his voice.

There is NO course of action Crowley could have taken that would have satisfied some of the cop-haters here....and if Crowley had been black and Gates white, 90% of the rest would be on the police's side. There would still be the 10% who disagree with the practical application of almost ANY law, but the "racist" component here is on the part of those screaming "racism!", not Crowley's actions.

[merh]

49. If it had been a white professor, Crowley wouldn't have done anything

more than ask him if he lived there and then for proof of his identification. Then he would have thanked him for his time, given him his card after writing the incident number and the day's date on the card, and he would have told him he could go by records in 48 hours to pick up a copy of the incident report.

Crowley would not have called the Harvard University Police.

It would never have happened in this manner.

[MercutioATC]

50. Crowley followed procedure...as he would have if Gates was white.

...and if a white professor had been as hostile, accusatory, and disruptive as Gates was, he'd have been arrested too.

Following established procedure is not evidence of racism.

[merh]

51. No, Crowley didn't - especically taking into consideration that he

is the trainer for avoiding racial profiling and how to handle such issues.

See, the cops have to be the "bigger person" - they aren't supposed to let the anger or cussing or rude behavior get to them. "Given that an inherent part of police work involves being in the presence of distraught individuals, and given that police officers are trained to maintain order, the Court concluded that police should be the least likely to be provoked."

And the Massachusetts statute requires that the disturbance be such that it had or was likely to have an impact upon people in an area accessible to the public, the rationale behind criminalizing disorderly conduct rests on the belief that a disorderly person can provoke violence in others.

Crowley admits he did refuse to give Gates his name, that he left the house and as he was leaving, as Gates was asking again for his name, Crowley told him if he wanted more information he would have talk to him on the porch. Gates didn't give him his card, didn't tell him the incident number or how he could get a copy of the police report. He violated standard procedure.

[MercutioATC]

52. Crowley DID give his name. Twice.

Gates was too busy accusing him of racism to listen....or to listen to any other information Crowley was trying to give him.

...and none of what you've claimed (wrongly, in most cases) evidences racism.

[merh]

53. He didn't give it a third time or provide his card or identification.

He was not cooperative - Gates was on the phone with the department and that is what had Crowley all ticked off. Imagine, Crowley, the guy that "knows" Harvard because he used to work on their force, the guy who trains folks how to avoid and what to do when accused of racial profiling, caught up in just such an incident. He failed.

And I have not been wrong, I've based my posts on Crowley's own report and on the law. You, you've just ranted and ranted poorly, imho.

[MercutioATC]

55. We disagree. Having worked in law enforcement, I believe Crowley acted appropriately...

...and that he exhibited a high level of professionalism given Gates' paranoid and abusive behavior.

[quiller4]

56. If Crowley had come to my door, I wouldn't have let him in.

[MercutioATC]

59. Would you have stepped outside, answered a simple question, and provided ID?

[merh]

61. I've worked in LE

I've trained LEO; I've worked with those that defend LEO and I've worked with those that have sued LEO; I've worked for those that represent LEO and municipalities. I've even written LEO policies and standards.

You are mistaken and Crowley screwed up. He allowed his emotions to interfere with the job. He let his ego get in the way and he illegally arrested someone and charged them with a crime he couldn't prove. See, Gates is a citizen, he is allowed to have issues and emotions; Crowley as the professional has is supposed to be more restrained and professional.

My conclusions are based on the facts as set forth in Crowley's report and based on the law of the state of Massachusetts and based on the constitution.

Your's are based on your need to defend LEO and nothing more.

Defending them does you no good and worse, defending the mistakes of the cop does the profession no good.

[MercutioATC]

63. Just curious...in what capacity did you "work in LE"?

Have you actually ever been a LEO or dispatcher or corrections officer...or were you a civilian contractor?

[merh]

64. I've actually worn a badge, had the polyester uniform, name tag,

collar brass and holster and gun.

I've worked in LE. I'm a certified LE trainer.

I could care less about your experience. I can tell you don't rely on the facts and you don't know the law. IMHO, I also don't believe you really care about what is right for police work, for the profession. You couldn't if you dismiss the bad performance of this cop just cause he is a cop.

[MercutioATC]

65. Our opinions still differ.

...but, at least, you have an informed opinion.

[merh]

67. Informed based upon the facts as written in Crowley's own report

and based on the legal precedent in Massachusetts relative to the disturbing the peace charge.

[MercutioATC]

68. Yep. And an opinion, nonetheless.

As I said, I disagree with your assessment, but you have an informed opinion...which is more than most people here have.

[merh]

69. Where were the facts that I stated in error?

And what mistake did I make regarding the law?

[TexasObserver]

26. It's a standard request that cops are taught to skirt the LAW.

Get the guy to step outside. They want to do that so they can make up any bullshit charge they want. If the policeman forces his way into the home after being denied entry by the owner, the police officer has to really justify his actions.

You're making excuses for a police trick that is standard procedure, but that's to its shame, not its credit.

[MercutioATC]

35. Ok, so police resopnding to a break-in should just walk away if the occupant tells them to leave?

What Crowley "was led to believe" aside, Gates was a potential perpetrator until his identity had been established...and Crowley was aware of that.

That's not a "trick", it's a valid procedure.

[TexasObserver]

47. No, he should be polite, identify himself, and tell the person why he showed up.

And yes, it is a trick asking the homeowner to step outside, just as I said.

And yes, police are taught to use it, to allow them to arrest someone who is in their own home, by inducing the person to come outside, and thereby give up their defense of being in their home. The policeman cannot enter the home unless he has a warrant, OR there are exigent circumstances, such as someone screaming from inside "he's going to kill me!" Absent those two circumstances, the police officer does not have the right to burst into the home.

The cop knew that, and that's why he was trying to get the professor to step outside.

Cops misbehave so much that they and their advocates think such misconduct is acceptable.

[merh]

8. Nope - try again and this time, pay attention to the report you rely upon.

Page 2 - line 14
"... While I was led to believe that Gates was lawfully in the residence, I was quite surprised and confused with the behavior he exhibited toward me. ..."

So he knew that Gates was lawfully in his residence yet he insisted on verifying his identification and on calling the Harvard Police to the scene.

He claims that the reporting witness and 7 unidentified passers-by were looking in the direction of Gates. "Looking in the direction" OMG, that could result in a riot, couldn't it. Did they stop and gather? If so, why didn't they get their names? It's not like the situation was out of control and they were just trying to protect themselves. Do you see a problem with relying on this type of nonsense.

Nope, the report is more harmful than helpful.

The case cited is on point and probably why the city prosecutor told them to drop the charges.

[N7255Q]

13. It sure appears that Gates approached the encounter with a huge chip on his shoulder.

I'm seeing a couple of interesting phenomena here...one is some people siding with the cops because they are white and the other guy is black...and some side with the resident because he's black and the cops are white.
There's a lot less interest in the facts in than screaming 'racism' which clearly is at work both ways here.

[Celebration]

16. so what?

Is it illegal to have a huge chip on your shoulder in your own home?

LOL, that is ridiculous.

[N7255Q]

18. Starting a fracas with cops is never a smart thing to do.

Principles are fine but they can get your head bashed in. If you find a rattlesnake in your hall, you'd be an idiot to engage it in a wrestling match...you call for animal control and later you can sue the sonofabitch who put it there.

[seabeyond]

31. do you hear yourself. defending the cops by telling all us they are abusive adn WE need

to be wary of them.... fear them

[truedelphi]

22. Consider this - many here at DU live with or know of someone who

Is diabetic, and thus has problems with maintaining correct blood sugar levels.

Or another case, lives with or knows of people who are slightly unbalanced in terms of mental health.

And some people have mental health issues that do not arise unless they are stressed.

So here a person happens to be, in their own home, minding their own business, and they have police entering their home, unexpected and not for any discernable reason that they can make out, and they have a hissy fit.

So frigging what!

Police need to be trained to accept that people are not required to be perfectly polite when they enter someone's home unbidden. And that perhaps the person will even act in unacceptable ways.

[merh]

33. I wish I could recomment this reply.

You nailed it.

The lack of police training or, if trained, the failure to follow procedures, is why this matter escalated and why the false arrest was made.

[seabeyond]

30. he is allowed to have a chip. not our business, not against the law. you are missing the group

of people that are outraged by this cause this cop did WRONG and there are people here defending it.

[orleans]

72. so, if i'm white and i am siding with the black guy where does that leave me

in regards to your observation of "interesting phenomena?"

or

if i'm asian and i'm siding with the white cops how do i fit in here?

just wondering...

[HiFructosePronSyrup]

17. lulz

[starroute]

21. There's something weird about the address given in that report

The police report says repeatedly that Gates lives on Ware Street and that's where the arrest occurred. But I lived on Ware Street myself for a couple of years back in the 60s -- and it's one block long and all slightly run-down apartment buildings, with nothing that could be described as "secluded." So I checked at zabasearch, found what I presume is Gates' actual address, and looked that up on Google maps.

The Google street view shows very clearly that it's a nice old single house, with the front steps set maybe 16-18 feet back from the sidewalk and with plenty of landscaping along one side of the path and around the entryway. What's more, you can't even see the front door from the street -- just a small porch flanked by pillars.

The door itself is presumably offset to one side, behind the pillars. And the picture that was released of Gates being arrested shows him standing in the doorway in a position that looks like he would have been pretty nearly invisible to anybody passing by on the street.

So at the very least, the idea of this occurring out in full view of the general public is pretty far-fetched -- and the notion that anybody passing on the sidewalk could have felt threatened is even more so.

But I really want to know about the Ware Street part. That's what's really got me bewildered.


On edit: I just checked Google street view for Ware Street -- and there are a couple of single houses in the middle of the block, so perhaps Gates does live in one of these. But those are also set back from the sidewalk with shrubbery and front porches -- so the idea of a public disturbance remains questionable.

[seabeyond]

27. right, cause the threat is all these other harvard types in upscale area are going to be provoked?

this was a bogus charge, hence he was let go and not charged and the cop planned on getting him for this while they were still in the house.

[librechik]

39. excuse me, where are the names of those in the public disturbed by Gates behavior?

There are none. Only the cops were "disturbed"

That's why the charges were dropped.

[quiller4]

54. Prosecutor must not have thought so when he dropped the case for "legal insufficiency"

[Eric J in MN]

2. There should be no such crime as "disorderly conduct."

It's a catch-all for police to arrest anyone they want.

It's nice that in the case of Mulvey you quote that charges against Mulvey were dropped after the fact, but using "disorderly conduct" as a slimy excuse to arrest protesters persists.

[slampoet]

4. Even denial of resisting arrest will get you charged with "resisting arrest"

And since saying Yes will ALSO get you charged and since SILENCE is also construed as resistance there REALLY is nothing under law to prevent an arrest of the completely innocent.

[N7255Q]

15. But the legislatures in every state have given that 'charge' to cops. Mostly as a way to generate $

but it comes in 'handy' when a cop is offended.

[merh]

19. I tend to agree with you.

I'll give you one better though. The city next door makes it a crime to "intimidate a police officer". I kid you not.

I have a friend that is well over 6'6" - I told him if I ever hear of him charging anyone with that I will see that he is laughed out of town.

[TexasObserver]

29. Agreed. It's a bullshit charge that means "you're bothering me, boy!"

[GreenPartyVoter]

3. Seems like a reasonable precedent to use.

[merh]

36. Most folks defending the cops forget that the cops are supposed to

be trained on how to restore the peace (they used to be called peace officers) and that they are supposed to be taught how to handle distraught and emotionally upset folks.

[HardWorkingDem]

40. and when someone continues....

to be disruptive, they are dealt with and that is called an "arrest."

[merh]

41. False arrest when they arrested for violating no laws.

First amendment allows me to be an ass at my home, SCOTUS says

Our hard-working law enforcement officers surely deserve better treatment from members of the public. But disgraceful as Duran's behavior may have been, it was not illegal; criticism of the police is not a crime. Houston v. Hill, 482 U.S. 451, 461-63, 107 S.Ct. 2502, 2509-10, 96 L.Ed.2d 398 (1987).

[Davis_X_Machina]

9. Federal law makes hash of 'Contempt of Cop', at least in a majority

...of federal circuits.

From bmaz at firedoglake:

Thus, while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.
...
No less well established is the principle that government officials in general, and police officers in particular, may not exercise their authority for personal motives, particularly in response to real or perceived slights to their dignity.

[merh]

11. OMG, 7 passer-bys were looking

The cop should be ashamed, his report is more harmful to him than he realizes.

Thanks for the link.

[dorktv]

28. Actually I think it was more along the likes of the situation was no longer

an issue and it was not a bad enough one to merit prosecution.

[merh]

32. Actually, they couldn't prosecute.

No law was broken.

Thanks for playing though.

[dorktv]

70. So you are saying that disorderly conduct is no longer an offense in

Massachusetts?

[HardWorkingDem]

38. This actually isn't applicable.....

Because more than police officers were present to witness Gates' outbursts.

[merh]

42. No they were not.

The report lists no names of witnesses. It refers to "passers-by" who looked in Gates direction.

It does apply and as others have noted, the porch was protected from public view by its construction and the foilage.

Nice try but it doesn't work, that is why the charges were dropped. The cops didn't even get the names of the "witnesses" to the alleged crime. Talk about failure all the way around.

[HardWorkingDem]

43. Read the court ruling again...

it says that police can't be the offended party and in this case they were not. And where does it say that foliage can prevent a person from disturbing the peace?

Eyesight is not the only physical "viewing" involved...

[merh]

44. You read the opinion again

I've underscored the text you appear to be missing:

Commonwealth v. Mulvey
57 Mass. App. Ct. 579 (March 14, 2003)

Police presence in and of itself does not by itself turn an otherwise purely private outburst into disorderly conduct.

The defendant was charged with disorderly conduct for yelling and pacing on private property that was set back from the road in a secluded area. There was no one around at the time except police officers. While the statute requires that the disturbance be such that it had or was likely to have an impact upon people in an area accessible to the public, the presence of police officers alone will not suffice to prove the public element.

In reaching its decision, the Court noted that the rationale behind criminalizing disorderly conduct rests on the belief that a disorderly person can provoke violence in others. Given that an inherent part of police work involves being in the presence of distraught individuals, and given that police officers are trained to maintain order, the Court concluded that police should be the least likely to be provoked. Therefore, police presence alone does not satisfy the public element.

So who was it that would be affected by the behavior or alleged disorderly conduct that could have been or were provoked into some violent? What were the names of the witnesses.

The one identified other person on scene was the complaining witnesses. That doesn't meet the standards.

[HardWorkingDem]

45. Here's part of what you underscored....

"the disturbance be such that it had or was likely to have an impact upon people in an area accessible to the public, the presence of police officers alone will not suffice to prove the public element."


1) Is the front porch accessible to the public in this case? Yes, it is. Look at photos of it. It is an open air porch, viewable from the street. Is there a possibility of a person provoking violence from their exposed front porch? Yes, there is.

2) According to the report, were other people, other than police officers present? Yes, according to the report there were. The ruling states mere police officers can't be the victim or complainants of such charges.


Are these stretches? Yes, they are, but do fit under your highlighted citation.


Read the police report. It mentions there are other people watching.

[merh]

46. Oh, so the police fucked up when they didn't obtain the names of the

witnesses to the crime, is that what you are saying?

And seven passers-by that looked in the direction of Gates does not constitute a public that could be enticed into a violence.

Try again.

[quiller4]

58. Seven includes the campus police called to the scene

[merh]

62. It might, but I don't know. The cop didn't list the witnesses as is

standard police procedure.

[HardWorkingDem]

73. Do you realize....

the type of catch all offense that this is and how often the witnesses are not named? Nationwide?

And whether you agree or not, and I don't care if you do, the thing about a law is if something can fit or not and Gates' behavior could be stretched to fit the elements of the offense.

Sorry you don't like it.

[quiller4]

57. There were no "offended" parties. All neighbors called prosecutor

to protest Gates arrest.

[Yavin4]

60. merh, You're Dealing with an Authoritarian Element on DU

These people falsely believe that their economic class and racial identity protects them from police abuse. In their minds, only racial minorities and the poor get abused, and rightfully so.

You've shown them a court decision which disproves their arguments, and they still argue in favor of authoritarianism.

[merh]

66. Some are freepers pretending to be "the good guys"

Some are cops or have relatives in LEO and think they must defend cops, even the bad ones.

Some are racists.

And some, as you say need to have a strong authoritarian presence in their lives, they need big brother to watch over them and tell them what to do and when to act.

[BlooInBloo]

71. And so the terrorist cop had to get him on the porch.