Monday, July 27, 2009

Race, Police, and Henry Louis Gates

By now, most of us have heard about the recent arrest of Harvard Professor Henry Louis Gates, Jr. for disorderly conduct. Upon first hearing bits of the story, it was natural to assume that racism had something to do with it. After all, Professor Gates is 58 years old, wears glasses, and seems a highly unlikely candidate for a legitimate arrest. What, then, could explain what happened? Race. Maybe.

Racism is undoubtedly a factor in many police decisions. Profiling is ubiquitous, and police have admitted using race as a proxy for likelihood of criminal conduct. That said, however, the facts of Gates's case offer a very plausible alternate explanation for what happened, albeit one that is not that much more flattering to the police.

Consider the facts in greater detail. According to Gates, he was having a difficult time opening his own front door, after returning from a trip. He then asked his driver to help him force open the door. Someone saw two men trying to force open the door and called the police. Again, according to Gates, the police arrived, and an officer asked Gates -- who was already inside his home -- to produce identification that would prove his residence. Gates did so. After doing so, however, Gates asked the officer to show his own badge and the officer refused (the police dispute this part) and walked away. Gates then followed the officer and suggested that the refusal reflected racism. Gates was subsequently arrested and held for hours.

As Gates has himself acknowledged, it was appropriate for someone in the neighborhood to call the police and for the police to come to the scene, when two people appeared to be trying to force their way into his house. Gates reportedly said of the caller, in fact, that "[i]f she saw someone tomorrow that looked like they were breaking in, I would want her to call 911. I would want the police to come." We therefore should not attribute racism to the caller in this case, even though one can never rule it out entirely.

What police should certainly not have done, after asking Gates for identification and thereby confirming that he did in fact live in the house, was to arrest him for disorderly conduct. Questioning police conduct and asking for a badge do not authorize an arrest.

But police do not like anyone questioning their authority, and Gates had done just that. By his own account, Gates demanded that the officer who had asked to see Gates' identification show Gates his own identification and then, when the officer allegedly ignored the demand, Gates followed him and said "Is this how you treat a black man in America?"

Gates's demand for identification and the immediate accusation of racism showed disrespect for the police, and many less prominent citizens (white and black alike) would have refrained from such an exhibition, as a matter of prudence. Yet Gates had every right to speak in the way that he did, and to arrest him for it was an illegal and unconstitutional abuse of power.

It may not, however, be accurate to say that the misconduct was motivated by Gates's race. Just as likely, it stemmed from a destructive arrogance through which police wish to see unquestioning compliance with their demands and punish those who disappoint this wish.

Posted by Sherry F. Colb


  1. "Just as likely, it stemmed from a destructive arrogance through which police wish to see unquestioning compliance with their demands and punish those who disappoint this wish."

    This couldn't be more correct, but I find it disturbing that it's conspicuously absent from mainstream discussion (as far as my casual intake reveals).

  2. I think Jonny T. makes a very good point. There is relatively little discussion of this phenomenon. I have two thoughts about a possible explanation.

    The first is that in criticizing government excess (including law enforcement misbehavior), we have tended to focus primarily on discrimination, so that as long as abuse is directed in a color-blind fashion, it is not viewed as worth complaining about. The same, incidentally, seems to be true of abusive workplace conditions -- if employers are equally abusive to men and women or to whites and people of color, then the abuse is less noteworthy, somehow. I find this quite disturbing. Discrimination is a real harm, but it is not the only harm and not the only source of injustice.

    My second thought about why police misconduct is sometimes overlooked or forgiven is that many people correctly understand the job of law enforcement to consist of extremely dangerous, threatening, stressful, and inadequately compensated work. Given this reality, it is legitimate to cut police some slack. The difficulty, of course, is that arresting a person to punish him for being disrespectful is unacceptable and goes beyond the "slack" that ought to be extended. At the same time, a judge -- who is better compensated and has a far more cushy job than the police officer, along many dimensions -- has the explicit power to lock people up for contempt for not showing proper deference in the courtroom. In the light of a judge's authority to demand absolute compliance, it is easier to sympathize with police, even as it is crucial to take institutional steps to reduce police abuse (in no small part because carrying a weapon raises the stakes of such regrettable encounters considerably).

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  4. As a middle-aged, middle-class white guy, I can certainly testify to the non-racially-motivated type of police arrogance to which Professor Colb refers. Just as one of many examples, I was once waiting at a curbside pick-up for a friend at Newark Airport, standing next to my car. A transit officer came along and yelled at me to move my car. When I pointed to the street sign that said I could do exactly what I was doing, he yelled: "Don't challenge me!!" I moved the car.

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  6. I agree with Professor Colb and Johhny T. As it happens, Maureen Dowd had some very helpful things to say along these lines in her op-ed yesterday. There was also a letter to the editor of the Times op-ed page by Inga Parsons (former NYU Law clinical professor) describing disorderly conduct as something that "we in the criminal defense business know to be the 'we’ll see who gets the last word, buddy' type of ticket."

    Still, there's no question that this is not getting the play that it deserves.

  7. Police arrogance isn't the only arrogance involved. There are three structurally unequal relationships in most societies: professor-student, doctor-patient, and policeman-citizen. Both Gates and Crowley are accustomed to being the dominant party, the man in charge.

    But in this relationship, at least until the matter goes to court, the man with the badge, gun, and handcuffs is the dominant party -- and the prudent course, unless one intends to get arrested, is not to berate the cop even if he's making an ass of himself on your front porch.

    Gates knew that. And by all accounts he's a disciplined, reasonably good-humored man who knows how to keep his cool under stress. So why did he get in Crowley's face? Did he want to get arrested to prove a point?

    That said, there's no question Crowley should have backed off once he knew Gates was the lawful occupant of the house. I think he didn't because he's a guy with an authoritarian personality who takes being a policeman too seriously. He's not the only cop with that problem.

  8. "Did he want to get arrested to prove a point?"

    Possibly. And if so, there is nothing really wrong with that. "Forcing" a person in authority to act foolish and exceed the grant of that authority is a valid and often effective form of protest.

    There may have been two forms of arrogance going on here, but only one - as a citizen - that I care about. A professor (or other person with little or no power to actually effect my life) can be an arrogant blowhard all day for all I care. I police officer I expect to keep that in check.

    I (along with the rest of us) give him the authority to pack a weapon and wear a badge as a symbol of that authority. It's not to be used to see who has a bigger - well, you know.

    Crowley is not owed an apology. To the contrary, he should be disciplined. It just may be that race had little, if anything, to do with the wrong he committed.

  9. Great point being made here, I for one find it hard to believe that the situation got to the point we see in the now famous photo of Professor Gates handcuffed and on his way out of the house.

    Does anyone really think that there was not something obviously wrong with the whole situation here! And then how the heck did it get to the point where Officer Crowley was demanding some sort of apology. I saw nothing wrong when the question was presented to President Obama with his statements and comments. I for one respect the unique perspective that he could bring to this situation. The criticism hefted upon Barack was uncalled for and completely unfair. Why shouldn't he have an opinion. And it may be true that we do not all agree on every issue, but there was not much "Grey" area here it was pretty "Black and White" to me!

  10. Anonymous2:13 AM





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