Thursday, July 30, 2009

Beyond Race: On "Contempt of Cop" Regarding The Crowley/Gates Affair

In my opinion, there was undoubtedly some racial profiling going on in the Crowley/Gates affair. I'll leave the racial component to others, as what I wish to draw out are some underlying points as regards the relationship between all of us citizens, our rights and the police.

First, bmaz articulates the basis of the legal argument better than I can:

Instead, the officer seems to have become angered and bellegerent [sic] that Gates would be so forward as to demand his identification. At this point, little old Professor Gates, who walks with a cane, was in what is known in the criminal justice field as "contempt of cop".

The salient problem for the Cambridge Police Department is contempt of cop is simply not a crime, even if profanity is directed at the officer, a situation escalator not even present in Gates' case. In fact, there is a case I have argued with success many times, Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 1990) which, in an opinion written by now 9th Circuit Chief Judge Alex Kosinski, provides:

Duran's conduct is not totally irrelevant, however, as it suggests a possible motive for his detention, one upon which law enforcement officers may not legitimately rely. The Durans contend, and the district court held, that Aguilar stopped their car at least partly in retaliation for the insult he received from Duran. If true, this would constitute a serious First Amendment violation. "[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." Hill, 482 U.S. at 461, 107 S.Ct. at 2509. The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state. Id. at 462-63, 107 S.Ct. at 2510. 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. Surely anyone who takes an oath of office knows--or should know--that much. See Hill, 482 U.S. at 462, 107 S.Ct. at 2510. Whether or not officer Aguilar was aware of the fine points of First Amendment law, to the extent he is found to have detained Duran as punishment for the latter's insults, we hold that he ought to have known that he was exercising his authority in violation of well-established constitutional rights.

Sounds pretty much on point doesn't it? It is. The City of Cambridge, Sergeant Crowley, and the other individual officers actively participating in the wrongful arrest of Professor Henry Louis Gates are in a world of hurt legally. They may want to rethink the company line of no official apology.

Pretty much lays out the legal side, no? So let's move on to the society and relationship pieces, which are woven together by who else, the traditional media.

While most of the chattering class is interested in beer today, there were a few "poker tells" thrown in about the underlying issue; Do What Cops Say Or Else. From the years ago, formerly vaunted, but now pretty much noise machine NPR today there was anthe following article on All Things Considered.

Doing the usual, mush-mouthed, split-the-baby vis-a-vis Colbert "Bad Stenographers" type of reporting Tovia Smith offered this:

Adams is calling for a federal investigation into whether local police make unjustifiable or illegal arrests.

"We're going to have to compel them to examine what needs to be done. And to look at [whether they are] misusing the disorderly conduct statute to teach people a lesson who talk back to police officers," Adams says.

To others, Gates' arrest shows that the public needs educating as much as the police do.

"That learning curve should be on both sides," says Dr. Joe Thomas Jr., police chief in Southfield, Mich. He says citizens need to know not to cross the line with police. It's not so much about protecting police egos as it is about public safety.

"There's a certain amount of respect. There are certain things you don't say to ministers; there are certain things you shouldn't say to your mom, your dad, or the clergy," Thomas says. "It's how you talk to people that got responsibility and authority for controlling people, because if you disrespect them, you take away that authority and it hurts everybody." [emphasis added]

You can listen to the audio here, and you tell me if Joe Thomas' tone of voice is irrelevant.

This was not Joe Thomas' only appearance on a PBS network about this issue. He was also on Newshour, in a segment with Ray Suaresz and Professor Antwi Akom:

JOSEPH THOMAS, JR., Chief, Southfield Police Department: I think that there are some studies out there that this does happen in some areas, in some communities, but let`s not get too far away from this incident, because this is what we`re talking about. This is why we`re here. If not, we`re talking about a larger study.

This incident, as a law enforcement executive, when I saw this, first thing that went through my mind is a lack of training. That incident that occurred to that professor could and should have been handled differently.

Now, that does not mean that this officer did something that was against the law. I`m not going to go that far, because I don`t know the totality of the circumstances.

But I do know, from my personal standpoint, my law enforcement career standpoint, based upon my working with students and colleges and university settings, and I also own my own consulting company, G.I. Consulting (ph), that case or that incident should have been handled differently.

There`s no doubt about it; there`s a lack of training there.

RAY SUAREZ: So, Chief, just so I understand you, you`re saying by definition, if a mistaken call of a crime in progress occurs and it`s understood by both parties in an encounter that there is not a crime in progress, if somebody ends up getting arrested and led away in handcuffs, this wasn`t handled properly?

JOSEPH THOMAS, JR.: It could have been handled differently. I don`t use the word improperly. With the proper training, it could have been handled differently.

This is why I made the statement in the copy of today`s USA Today that, when you began to react and interact with a police officer in a negative manner, then the humanistic sides take place and you can -- sometimes I talk to my people of color about police demeanor and police training.

And you can talk your way into a ticket. I`ve seen people talk their way in jail by saying things to antagonize the police on the scene. And that could have been what happened here.

So we`ve got to be extremely careful and look at this case by itself, and then we voice our opinion. If not, we`re going to start talking about what happened in the `50s, the `40s, the `30s and `60s, and you won`t solve this problem.

I`ve seen a lot of cases, cases throughout this country, where we saw emotions and we saw personal frame of reference and we don`t solve the problem. If we don`t look at this from a training standpoint and take a look at what those officers are being taught in the academy and their enrichment training and what they`re taught to do, this incident will reoccur, if you don`t change the policy and training, rituals, beliefs and values of people that are in the law enforcement industry. That`s what I`m saying about this incident.

RAY SUAREZ: Let me turn to Professor Akom at this point. Professor Akom, does a black man have to handle an encounter with the police different from any other American?

ANTWI AKOM, San Francisco State University: No, I think that we should all be handling encounters with the police by following exactly what the police say. At the same time, I think that racial profiling is a rampant problem and that we need to very much be focused on making sure that racial profiling -- i.e., the criminal suspicion of people based on race -- there`s a psychological impact that I think that we need to be concerned about and that that this is actually broader than a law enforcement problem.

This is actually a problem that is also a public health problem. But in terms of reaction, I think that, yes, black Americans are no different than any other American, and we need to respond in the same way.
And voila! Yes, I said this post was beyond race, but behold; PBS put on two men of color who said basically "Do What The Police Say - Don't Get Uppity." Because the big message here was to anybody who would watch or listen to either of these PBS articles, much less any other trad med that might have pushed into this confrontation piece; Don't Any Citizens Talk Back To Authority. Have Respect Or Else You Get What You Deserve.

What is particularly bothering me, is that living in Denver, I have very recent memories of the Police State occupying town last year.

Nonetheless, I say: