Prof. Gates' comments to Officer were protected by First Amendment

[Gothmog]

The arrest of Professor Gates was bogus and would not have stood up in court. Prof. Crowley was arrested for disorderly conduct by Officer Crowley. Such conduct was Prof. Gates exercising his First Amendment rights.

The Mass. Disorderly Conduct law does not cover this type of speech. http://www.slate.com/id/2223379/

What, exactly, is disorderly conduct?

Behavior that might cause a riot. Massachusetts courts have limited the definition of disorderly conduct to: fighting or threatening, violent or tumultuous behavior, or creating a hazardous or physically offensive condition for no legitimate purpose other than to cause public annoyance or alarm. (The statute, however, just says "idle and disorderly persons," a formulation that is, on its own, patently unconstitutional.) Violators may be imprisoned for up to six months, fined a maximum of $200, or both.

The stilted language in the Gates police report is intended to mirror the courts' awkward phrasing, but the state could never make the charge stick. The law is aimed not at mere irascibility but rather at unruly behavior likely to set off wider unrest. Accordingly, the behavior must take place in public or on private property where people tend to gather. While the police allege that a crowd had formed outside Gates' property, it is rare to see a disorderly conduct conviction for behavior on the suspect's own front porch. In addition, political speech is excluded from the statute because of the First Amendment. Alleging racial bias, as Gates was doing, and protesting arrest both represent core political speech.

Here is the relevant Mass. case law on this issue http://masscases.com/cases/app/46/46massappct471.html

In Feigenbaum, 404 Mass. at 475, the court held that although behavior which was motivated by political purposes could be found to have created a hazardous condition, and might be considered "criminal under the common law or by some statute," such behavior "does not constitute disorderly conduct under G. L. c. 272, s. 53," because it has "a legitimate purpose."

Prof. Gates comments to Crowley was about protesting the violation of his rights and complaining about racial profiling. In addition, Prof. Gates had asked for written ID and Crowley had violated Mass law by not providing such written ID

Here are some quotes from the SCOTUS decision of Houston v. Hill on this issue http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=482&invol=451

Houston's ordinance criminalizes a substantial amount of constitutionally protected speech, and accords the police unconstitutional discretion in enforcement. The ordinance's plain language is admittedly violated scores of times daily, App. 77, yet only some individuals - those chosen by the police <482 U.S. 451, 467> in their unguided discretion - are arrested. Far from providing the "breathing space" that "First Amendment freedoms need . . . to survive," NAACP v. Button, 371 U.S. 415, 433 (1963), the ordinance is susceptible of regular application to protected expression. We conclude that the ordinance is substantially overbroad, and that the Court of Appeals did not err in holding it facially invalid. .....

Today's decision reflects the constitutional requirement that, in the face of verbal challenges to police action, officers and municipalities must respond with restraint. We are <482 U.S. 451, 472> mindful that the preservation of liberty depends in part upon the maintenance of social order. Cf. Terminiello v. Chicago, supra, at 37 (dissenting opinion). But the First Amendment recognizes, wisely we think, that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive. We therefore affirm the judgment of the Court of Appeals.

The disorderly conduct arrest of Prof. Gates was bogus. We need to point out Crowley violated Prof. Gates' First Amendment rights.

[TomClash]

1. You are certainly anxious to find fault

Why not wait until an investigation has been conducted to determine what the actual facts are.

[Gothmog]

2. We have to frame the issues

The charges against Prof. Gates were dropped before arraignment because the City knew that the case would never hold up. Prof. Gates probably made some comments to Crowley that were hot headed but these comments were protected by the First Amendment. The arrest of Prof. Gates for disorderly conduct is bogus. We need to keep the debate on the conduct of Crowley and how he violated Prof. Gates' rights.

[elleng]

4. Yea, the officer violated the professor's rights to curse and swear.

Thats it. Not likely to have been 'political' or any other particularly interesting 'speech,' just '****.' And the officer didn't recognize with whom he was 'dealing.' Too bad for him.

[Bette Noir]

7. Gates said, "Yo mama" to Crowley. According to Crowley himself,

That's when he decided to arrest him.

Mighty thin-skinned, for a cop.

[elleng]

8. Holy !!!!

[Gothmog]

9. Remember what SCOTUS stated in the Hill case

This cop is thin skinned. In the Houston v. Hill case, the SCOTUS stated

Today's decision reflects the constitutional requirement that, in the face of verbal challenges to police action, officers and municipalities must respond with restraint.

Crowley failed this test

[TomClash]

16. So you want to deny the same rights to a police officer

you would give to any other citizen? My understanding from reading the Boston Globe articles is that Crowley has not provided his version of events yet. I prefer to wait and see before we jump to conclusions.

[quiller4]

26. The dropping of all charges is sufficient for me to decide

that the officer acted wrongly.

[elleng]

3. Yes.

But investigation not necessary; we know the facts, I believe.

Lets not elevate this to a constitutional case; the Mass. court has taken care of that, by dismissing the matter, as it should have done.

[Gothmog]

5. It is a Constitutional Issue

President Obama was correct when he stated that Crowley's actions were stupid. Crowley's actions were indeed stupid since he violated Prof. Gates' First Amendment rights and made an illegal arrest. The arrest of Prof. Gates for Disorderly Conduct was bogus and we need to keep the focus on Crowley's actions.

I truly believe that Prof. Gates should sue Crowley and that he has a good case here.

[Towlie]

6. "Acted stupidly" was actually a generous choice of words. It was really more criminal than stupid.

[elleng]

10. You a lawyer?

[Gothmog]

11. Yes, I am a lawyer

I worked both in the Kerry/Edwards voter protection team and for the Obama Voter Protection Team as a volunteer

[elleng]

12. Hi! So am I. We disagree.

I don't think he either violated Profs 1st Amd rights, OR made an 'illegal' arrest. If he were to sue, I think a good judge would throw such a case out (better, suggest that counsel 'discuss' the matter with his client.)

Crowley used VERY bad judgment; that's all, folks.

[jberryhill]

13. The bad judgment was hassling a wealthy person, mainly

[elleng]

14. 'Wealthy' not so much, imo.

WELL KNOWN!!!

[jberryhill]

17. He is a best selling author...

...who had just returned from a trip to China.

I don't know how many poor struggling professors they have at Harvard, but Gates is loaded enough to make legal hell for that racist cop and destroy him.

People who don't have that kind of money should know better than to hassle their economic betters.

[elleng]

18. Sounds nice

'make legal hell for that racist cop and destroy him'

NOT.

[jberryhill]

19. Why not?

Gates has the resources to squash that idiot like a bug.

Public employees need to learn not to mess with people who have money.

[elleng]

20. Why not nice?

If this is really you, I am surprised to hear such nasty foolishness from such:

http://www.johnberryhill.com/

[jberryhill]

23. No need to get personal

But you are obviously not picking up on the point here.

Working class cops should not hassle people who have more money and education than cops do. They are the hired help to maintain precisely the sort of economic privilege that Prof. Gates enjoys, and that was the message that Prof. Gates was giving to the cop.

[elleng]

24. I don't know or care what message he was giving to the cop,

and I certainly don't accept the proposition that 'working class cops should not hassle people who have more money and education than cops do. They are the hired help.' City cops are not 'hired help.' They are public peace officers. Personal body guards are hired help.

I reject your 'point.'

[jberryhill]

34. Today's Vocabulary Word Is...

"facetious"

The only people who have property rights are people with property. A great deal of the law is concerned with making sure that other people don't get their hands on your stuff. The police were called to protect the property of someone with quite a bit of it, and failed to show proper deference to the owner of the valuable property they were called to protect.

The long term upshot here will be - this officer is toast.

[Gothmog]

21. Prof. Gates has access to Harvard Law faculty

Prof. Gates is represented by Prof. Ogletree of the Harvard law faculty. If a case is brought, I can see a great deal of support being given directly and indirectly to Prof. Gates by the faculty and the law students.

[izzybeans]

15. uh huh.

[redqueen]

22. If the arrest wasn't bogus, why'd they release him? (nt)

[Gothmog]

25. Prof Gates was "nul-processed" i.e. the charges drop before ct. appearance

The police and the City knew that this arrest was bogus and drop the charges very very quickly http://abcnews.go.com/US/Story?id=8148986&page=2

David Frank, a former prosecutor and a writer for Massachusetts Lawyers Weekly, said it was "unusual" for a case to be "nul-processed" without a court appearance. Gates was slated to be arraigned on disorderly conduct charges Aug. 26. He is now demanding an apology from Crowley instead.

"Legally, the prosecution made the right call," Frank said. "The issue, though, is that if Gates were an electrician from Everett and not a well-known professor from Harvard, the reality is that in all likelihood he would have to defend himself against the charges in a courtroom.

The fact that the charges were dropped prior to a court appearance is evidently unusual in Mass and shows that the authorities knew that this case was bogus

[elleng]

29. I think 'they' released him once they confirmed that Prof. G.

did not violate anything; one might say the court confirmed that the arrest was bogus, or somesuch.

[quiller4]

27. He did not provide his name and badge number when first

asked. That is a violation of MA State law.

I would not expect a judge to throw out a lawsuit filed by Gates. The arrest was illegal.

[elleng]

30. The arrest was 'illegal' why?

Because the officer did not provide his name and badge number?

[Gothmog]

31. No crime had been committed and so the arrest was bogus

The arrest was bogus because no crime had been convicted. The Mass. Disorderly conduct statute specifically excludes conduct protected by the First Amendment. Please read the analysis set forth below as to why the arrest was bogus and would have been dismissed because no crime has been committed.

[Gothmog]

36. Mass. Law requires Officers to carry ID and provide it on request

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x6134165

See also http://www.mass.gov/legis/laws/mgl/41-98d.htm

Chapter 41: Section 98D. Identification cards


Section 98D. Each city or town shall issue to every full time police officer employed by it an identification card bearing his photograph and the municipal seal. Such card shall be carried on the officer’s person, and shall be exhibited upon lawful request for purposes of identification.

This violation does not make the arrest illegal but does show that Crowley was not acting in accordance with proper procedure. The matter would not have escalated if Crowley had complied with Mass. law and provided the proper id when Prof. Gates first asked for such ID

[Gothmog]

28. Here is a good analysis of the First Amendment issues by a Mass. attorney

To me it is very clear that Prof. Gates' conduct was protected speech and that the arrest on disorderly conduct charges was bogus. Here is a good analysis of this issue from a Mass. attorney http://legalblogwatch.typepad.com/legal_blog_watch/2009/07/gates-gate-whats-the-law-say.html

In a 1976 decision, Commonwealth v. Richards, 369 Mass. 443, the Supreme Judicial Court of Massachusetts held that the First Amendment prevents application of the disorderly conduct law to language and expressive conduct, even when it is offensive and abusive. The one exception would be language that falls outside the protection of the First Amendment, "fighting words which by their very utterance tend to incite an immediate breach of the peace."

Jury instructions used by the Massachusetts courts spell out three elements that must be proved beyond a reasonable doubt to convict someone of disorderly conduct:

1. The defendant engaged in fighting or threatening, or engaged in violent or tumultuous behavior, or created a hazardous or physically offensive condition by an act that served no legitimate purpose.

2. The defendant’s actions were reasonably likely to affect the public.

3. The defendant either intended to cause public inconvenience, annoyance or alarm, or recklessly created a risk of public inconvenience, annoyance or alarm.

There are at least two different versions of what happened at Gates' house -- his and that of the arresting officer. But even if one were to assume the accuracy of the police version -- that Gates called the officer a racist and warned him that he had no idea who he was dealing with -- there is no basis for prosecution, Frank concludes.

While the report refers to Gates’ conduct as "loud and tumultuous," there does not appear to be anything there that would allow for a conclusion that they were "fighting words."

The SJC has also said that for a defendant in Gates’ situation to be found guilty, his actions must have been reasonably likely to affect the public in a place to which the public had access. Where much, if not all, of the alleged conduct occurred on Gates’ property, it appears that legal requirement would prove fatal to the DA’s case.

The controversy over Gates' arrest is unlikely to die down anytime soon. But one conclusion seems clear -- the legal ground for his arrest was shaky from the start.

Basically, it is very clear from the record and fact that the arrest of professor Gates was bogus and would not stand up in court.

[elleng]

32. The instructions seem to clear Prof. Gates of any actionable charges.

If thats the Mass. law, that's it.

[Gothmog]

33. Someone e-mail Sullivans blog about the law here

The Atlantic is looking for legal analysis on this issue and I have no idea as to how to contact them http://andrewsullivan.theatlantic.com/the_daily_dish/2009/07/arrested-for-speaking-his-mind.html

Could any Dish readers with legal expertise shed some light on that line between free speech and verbal assault?

I think that we most of the relevant legal authorities on this thread now

[elleng]

35. I wouldn't purport to inform them at this point.

To be authoritative would, I think, take more than this: 'It can depend entirely on which jurisdiction or state you live in. Some states have laws against "Curse and Abuse," or "Fighting Words," while others do not and consider such non-physical verbal attacks as a manifestation of "free speech."'

http://wiki.answers.com/Q/Law_for_verbal_assault

[Gothmog]

38. The First Amendment applies here and so this is not just Mass issue

There is a First Amendment right to in effect yell at police officer without fear of being arrested. http://www.denverpost.com/opinion/ci_12909735

But since he'd already established that Gates belonged there (and I realize we don't have all the details yet), couldn't he have just let Gates rant?

"The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." So wrote Justice William Brennan in 1987 in the Supreme Court opinion Houston vs. Hill, which struck down a municipal ordinance making it unlawful to "abuse or interrupt any policeman in the execution of his duty."

UCLA professor Eugene Volokh, who teaches criminal and First Amendment law, explained to me what this means. "The mere fact that someone is berating an officer" is not reason enough for his arrest, Volokh said. Other conditions also must be present, such as talking over an officer who is conducting an investigation or using epithets that count as "fighting words."

But Gates apparently wasn't arrested for using fighting words. He was arrested under the catch-all umbrella of disturbing the peace.

Some years ago, the high court also struck down an ordinance making it a crime "for any person wantonly to curse or revile or to use obscene or opprobrious language toward . . . any member of the city police while in the performance of his duty." So even profanity with a cop isn't out of bounds. Nor should it be, so long as it's legal in other interactions.

The First Amendment applies here and the actions of the officer were wrong. This is not just a Mass. law issue

[Gothmog]

37. Good Youtube

Here is a nice youtube on the fact that the real issue is not race but rights http://www.youtube.com/watch?v=c6VA73-4EJ4 The race issue is important but the real issue is that Prof. Gates' first amendment rights were violated.

[Gothmog]

39. Good article by UCLA Law Prof. on illegality of Prof. Gates arrest

Here is a good analysis of Prof. Gates' arrest by an UCLA law professor http://www.huffingtonpost.com/adam-winkler/obama-was-right-about-the_b_244888.html

But one thing is clear: Gates did not violate any law. Under Massachusetts law, which the police officer was supposedly enforcing, yelling at a police officer is not illegal.

There are clear decisions of the Massachusetts courts holding that a person who berates an officer, even during an arrest, is not guilty of disorderly conduct. And yet that is exactly what Gates was arrested for.

The Massachusetts statute defining "disorderly conduct" used to have a provision that made it illegal to make "unreasonable noise or offensively coarse utterance, gesture or display," or to address "abusive language to any person present." Yet the courts have interpreted that provision to violate the Massachusetts Constitution's guarantee of freedom of speech. So police cannot lawfully arrest a person for hurling abusive language at an officer.

In several cases, the courts in Massachusetts have considered whether a person is guilty of disorderly conduct for verbally abusing a police officer. In Commonwealth v. Lopiano, a 2004 decision, an appeals court held it was not disorderly conduct for a person who angrily yelled at an officer that his civil rights were being violated. In Commonwealth v. Mallahan, a decision rendered last year, an appeals court held that a person who launched into an angry, profanity-laced tirade against a police officer in front of spectators could not be convicted of disorderly conduct.

So Massachusetts law clearly provides that Gates did not commit disorderly conduct.

The Cambridge Police should be training their officers to know the difference between legal and illegal conduct. What Gates did was probably not so smart -- in general, be nice to people carrying guns -- but it wasn't disorderly conduct. At least not in Cambridge, Massachusetts.

That explains why the charges against Gates were dropped. It wasn't because the police were trying to defuse the situation. It was because Gates had done nothing illegal.

[Gothmog]

40. Here is another good Mass. case on this issue

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

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.