This matter has gone on far too long and it seems that Mr. Gates and Sgt. Crowley have decided to take President Obama up on his offer to have a few cold ones at the White House on his dime; or rather, on the tax payers. Be that as it may, there are quite a few detractors of Professor Gates who feel that he should have been more respectful, deferential, and cooperative with the Cambridge Police; especially to racial profiling expert, Sgt. James Crowley. It just goes to prove that textbook scenarios and real-life situations and interventions are not the same. Outside of the obvious racial implications, very little has been mentioned about the all-important “FIRST AMENDMENT” right of ‘Free Speech’ Constitutional Protections against the abuse of power by the State or Federal Government toward private citizens and their habitations; there should be a great outcry about this more than anything else. Even far back into English Common Law, a person’s domicile, house, residence, or castle was considered almost ‘sacred’ and any violation against this most precious [‘Divine’??] right was deemed as tantamount to sacrilege. Below is an excerpt by Massachusetts Attorney Michael Sullivan of the very Model Penal Code and Appellate Court decision that the Cambridge Police as supposed to be familiar with and uphold.
MASSACHUSETTS APELLATE COURT
"Disorderly conduct" is an offense against the public peace, and it is difficult to fathom how it ever properly could be charged for one's behavior in one's own home.
In my decades of practice as a state prosecutor, I have never seen "disorderly conduct" charged for acts which did not originate and occur in a public setting. I cannot conceive of a case in which a prosecutor would pursue a charge of "disorderly conduct" occasioned by tone or speech in one's own home. Nor have I seen tone or content of speech as a basis for charging disorderly conduct even in a public place. At the risk of restating the obvious, "disorderly conduct" aims to penalize what it says: conduct. Disorderly conduct is something more than "disorderly speech." In my opinion, the criminal prohibition would be fatally and unconstitutionally overbroad were it to be deemed to apply to pure speech. What citizen then meaningfully would be on notice to what speech would be viewed as "disorderly" and risk criminal prosecution and penalties?
The Massachusetts Supreme Judicial Court has stressed the public disruption element of "disorderly conduct" as ordinarily charged: the classic formulation of the offense and its enabling statute is found in its decision in Alegata v. Commonwealth, 353 Mass. 287, 303-304 (1967)(emphasis supplied), quoting from Model Penal Code § 250.2 (Proposed Official Draft 1962): "It is our opinion that "disorderly" sets forth an offence. . . designat[ing] behavior such as that singled out in Section 250.2 of the Model Penal Code (Proposed Official Draft): 'A person is guilty of disorderly conduct if, with purpose to cause "public" inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior; or (b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. `Public' means affecting or likely to affect persons in a place to which the public or a substantial group has access.'. . . .[T]he statute. . . aims at activities which intentionally tend to disturb the public tranquility," and penalizes one who "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, . . . creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor."
So, if Mr. Gates was a little perturbed and belligerent with the Police coming to his front door on a legitimate investigative complaint by an observant neighbor, he is still entitled to be so under the Constitution; as long as his behavior does not pose a threat or risk to the officers and where the intent does not tend towards inducing or producing threat, harm, danger or a public disturbance etc. The statement that Sgt. Crowley made that he was “provoked” is not substantiated by the facts as they are known and is quite surprising from someone allegedly trained in de-escalation techniques, and who should have been able to take control of the situation where it should have resulted in a different outcome. Even so, the charges against Professor “Skip” Gates were summarily dismissed; as they should have been because they were without merit. Hopefully now, everyone can take a deep breath, ‘chill out,’ and focus on more important matters. The Washington Post had an amusing cartoon along with Columnist Gene Robinson’s article on Tuesday, July, 28, 2009. It showed President Obama, Henry Louis Gates jr., and Sgt. James Crowley sitting at the bar with beer mugs and the President sitting apart by himself while Mr. Gates and Sgt. Crowley argued over whether their respective beer was “LESS FILLING or TASTES GREAT.”
Robert Randle
776 Commerce St. #B-11
Tacoma, WA 98402
July 28, 2009
pbks@hotmail.com
