The Arrest Of Henry Louis Gates Was Unconstitutional

So says Fox News Channel Legal Analyst, and former Judge, Andrew Napolitano:

Civil liberties attorney Harvey Silvergate agrees:

Under well-established First Amendment jurisprudence, what Gates said to Crowley–even assuming the worst–is fully constitutionally protected. After all, even “offensive” speech is covered by the First Amendment’s very broad umbrella


Today, the law recognizes only four exceptions to the First Amendment’s protection for free speech: (1) speech posing the “clear and present danger” of imminent violence or lawless action posited by Holmes, (2) disclosures threatening “national security,” (3) “obscenity” and (4) so-called “fighting words” that would provoke a reasonable person to an imminent, violent response.

As Silvergate goes on to discuss in an article well-worth reading, none of these four exceptions can reasonably be said to have applied to the confrontation between Crowley and Gates. Additionally, as Jacob Sullum notes, neither would Massachusetts state law on disorderly conduct justify the arrest in this case:

In Massachusetts, as in many states, the definition of disorderly conduct is drawn from the American Law Institute’s Model Penal Code. A person is considered disorderly if he “engages in fighting or threatening, violent or tumultuous behavior…with purpose to cause public inconvenience, annoyance or alarm” or “recklessly creates a risk thereof.”

Crowley claims Gates recklessly created public alarm by haranguing him from the porch of his house, attracting a small crowd that included “at least seven unidentified passers-by” as well as several police officers. Yet it was Crowley who suggested that Gates follow him outside, thereby setting him up for the disorderly conduct charge.

It’s hard to escape the conclusion that Crowley was angered and embarrassed by Gates’ “outburst” and therefore sought to create a pretext for arresting him. “When he has the uniform on,” Crowley’s wife later told The New York Times, “Jim has an expectation of deference.”

As the Massachusetts Appeals Court has noted, “the theory behind criminalizing disorderly conduct rests on the tendency of the actor’s conduct to provoke violence in others.” Yet police officers often seem to think the purpose of such laws is to punish people for talking back to cops.

And yet, that’s not what the law says, as Massachusetts’ highest Court has recognized:

The officers’ presence, alone, did not suffice to prove the public element, regardless of any concern they may have felt as they witnessed the defendant’s confrontation with Sergeant Boss. As recognized in the commentaries to the Model Penal Code, behavior that has an impact only upon members of the police force is significantly different from that affecting other citizens in at least two respects: it is an unfortunate but inherent part of a police officer’s job to be in the presence of distraught individuals; and, to the extent that the theory behind criminalizing disorderly conduct rests on the tendency of the actor’s conduct to provoke violence in others, “one must suppose that [police officers], employed and trained to maintain order, would be least likely to be provoked to disorderly responses.” Model Penal Code § 250.2 comment 7, at 350. Accordingly, police presence in and of itself does not turn an otherwise purely private outburst into disorderly conduct.(9)

In other words, the mere act of talking back to a cop does not constitute a crime and should not justify arrest.

Gates was a hothead, but Crowley stepped outside the bounds of his Constitutionally-limited authority.

  • Red

    Which is why the charges were dropped it seems. However, that usually happens after having to go through the motions of being detained which the office oftentimes exercises the right to do because when you are with an officer in a situation you are in a state of temporary custody anyway (in a sense) and are only able to move on freely when the officer deems so. Bottomline: Crowley may have had enough of Gate’s mouth BUT Gates didn’t have to go outside and was probably more angry with himself for going outside of his home on his own whether he felt provoked by Crowley or not. That was his choice to give Crowley a reason. Couple that with the fact that gates was uncooperative to being with and there you have it: the perfect formula to get arrested. Race had nothing to do with it. It was Gate’s mouth and ego that cinched the deal.

  • Voltaire


    You said: “Race had nothing to do with it. It was Gate’s mouth and ego that cinched the deal.” Even if Gates actions would predictably end in his arrest, that does not, in my mind, absolve the officer for arresting a man whose only crime was his failure to respect a cops authoritah. If this doesn’t settle it in your mind, Crowley’s wife says “When he has the uniform on, Jim has an expectation of deference.” Jim has an expectation of deference. He feels that outfit entitles him to your obedience, and he is willing to entrap you, to bait you into a circumstance he feels he can pass off as legitimate, and arrest you. Jim Crowley, by his own and his wife’s assertions, has a sense of authority that, if offended, will propel him to arrest you for whatever crime he might concoct. Does that seem right to you?

  • KYJurisDoctor

    Really Louis Gates could have told the cop to “fuck off”.

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  • southernjames

    “Really Louis Gates could have told the cop to “fuck off”.”

    Yeah, that’s the ticket. Good advice there champ.

    Yep, I always tell my 21 year-old son, and his friends, that if they are ever pulled over, to exercise their rights endowed from our Creator, to start screaming and cussing, and carrying on; and for his friends who are persons of color – if even only ONE of three cops on scene is a person of non-color,(as was the case for Gates) to start screaming RACIST at him. After all, the cops are constitutionally and lawfully BOUND…BOUND I tell you, to just suck it up and walk away. So really, why not indulge yourself if you’re having a bad day. Unload on the guy trying to do his job to make sure a criminal isn’t breaking into your home. You just got back from China for god’s sake and you’re jet-lagged. And you are also a very important person too, so let’s not forget that

    Say to him “Do you know who I am?” That works well too, I’ve heard. Either right before or after saying “Fuck off,” either way is fine.

    Fuck the cop and fuck considering his side of the equation or how he feels in this situation. He is lawfully BOUND to act in a professional manner at ALL times. And therefore perform his job PERFECTLY – just as I am sure you perform your job perfectly, every day. No matter HOW much verbal abuse you heap upon him. He is not human like the rest of us. He is just a Cop. Be an unfeeling machine, you pig.

    If all that screaming and accusations of “RACIST” etc., doesn’t get a rise out of the Pig and piss him off sufficiently so that he cuffs you and drives you downtown, so that you can then make even MORE of a public spectacle of yourself (and perhaps even file a lawsuit, not to mention a nice book deal!!) try yelling “Homophobe” too, that’s always a good one – or perhaps even SPIT on the racist pig. Give him some of your enraged spittle right in his Facist Bush police state racist whitey face!! With any luck he’ll then Taz you and somebody will have a videocam nearby, and then we can all have a national heartattack over the jack-booted “police state” we live in.

    Ah Well, at least our Therapist in Chief will calm these trouble waters, and turn this little “misunderstanding” into a “teaching moment,” with a Bud Light in his hand. I await the Wise Words of the Master with bated breath.

  • charrob

    The Law: So what is the law? If an officer is responding to a “911” call, is he or is he not allowed to enter a private residence without a search warrant? How about if the homeowner refuses to prove that is his residence? In other words, does the fact that it’s a “911” call over-ride other laws stating a search warrant is required?

  • Norm

    Oh common lets make it juicy. Suppose there have been a number of home invasion robberies in which families were taken hostage have been robbed and beatin. The last one of which the police came and went when the father insisted everything was alright out of fear but in fact the 13 year old daughter was being raped in the rear of the house.

    What’s a cop to do????

  • Nylarthotep

    You know, you’re right. Gates had every right to disturb the peace and be a complete jackass.

    They should have arrested him for intefering with a police investigation.

    Gates assumption was that the cops were out to stomp on him rather than do what they told him they were there for, that is a reported break in my more than one individual.

    Society demands police protect them and yet refuse to cooperate in any manner that would be beneficial to them. Nice double standard there.

    Oh, and as for the police entering the house for the call, they didn’t need a warrant. They were responding to a call of a crime in progress and had cause to enter. If Gates had just identified himself and been cooperative the police would have disappeared in a couple of minutes. Instead he decided to practice his First Amendment right and to hell with the guy actually providing service to the community.