Friday, July 24, 2009

Professor Gates Was Falsely Arrested

This is a follow up to a previous post yesterday.

I will now argue that Harvard Professor Henry Louis Gates, Jr. was falsely arrested in violation of Massachusetts Law, and probably the 4th Amendment as well under federal constitutional law cases.

This case can be analyzed with horn book law and decisions of the Massachusetts state courts concerning that state's statute under which Professor Gates was arrested and charged.

We go back to a case found in horn books and a case on the lips of those aware of seminal Supreme Court cases, which would exclude Sarah Palin:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.
(Marbury v Madison, 5 U.S. 137 (1803), italics added). What does the judicial department of Massachusetts say about the statute the police accused Professor Gates of violating?

The Massachusetts Statute, under which Professor Gates was charged, is 272 § 53, which says:
Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment.
(Massachusetts v Zettel, 46 Mass. App. Ct. 471, 1999). Obviously this statute needs some help from the Massachusetts courts in order to be clear and to be constitutional.

In the Zettel case above, a mother was picking up her child at school where she was double parked behind some school buses that were also double parked.

A police officer ordered her to move her car because what she was doing was unsafe. She refused, eventually resisted arrest, kicked the police officer, and was found guilty by a jury.

The Massachusetts court of appeal reversed for lack of evidence, saying the crucial part of this particular statute is whether or not the accused has a legitimate purpose for the behaviour the police say was a crime setting.

She had a legitimate purpose in being where she was to pick up her children and so a traffic ticket would have been more real than a disorderly conduct arrest.

Professor Gates has a legitimate purpose when he exercises his free speech right to say the thinks the police are being motivated by a racial animus, whether they are or not, and he can say it in public so long as he is not trying to incite violence against that policeman.

The Fourth Amendment is the Supreme Law of the United States, and it says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
(4th Amendment). The police are not allowed to make an unreasonable arrest for behavior conducted in a person's home, even when that behavior would be illegal outside the home.

That is why they wanted to get him to "a public place", his porch, because he has less right there than he does inside his home.

Clearly the officer tried to entrap him by consistently asking him to come onto the porch, but nevertheless, Professor Gates had a legitimate purpose, a free speech right to yell his free speech considerations even from his front porch.

He could yell "you have been shown this is my house and no crime has been committed by me but your racial bias will not let you move on to deal with real crimes that are being committed elsewhere".

That is why the prosecutor dropped the charges like a hot potato. They knew they would lose the case and Professor Gates would win the case in the state court.

A lawyer who practices in Massachusetts explains how the statute under which Professor Gates was arrested is 400 years too old.


  1. Instead of inviting himself to the White House for a beer, the officer could better use his time meeting with Gates and other officials in Cambridge who are willing to resolve the matter. It seems awfully inappropriate for an officer to be thinking about "beer" instead of reflecting on where he went wrong. Even in the interview, the officer had his arms folded which communicates that he is unwilling to listen to anyone and that it is his way or no way. The fact that he invited himself to the White House, confirms that he is self-centered and egotistical. Gates did not break any laws and should not have been arrested. If the officer had been in Gates' shoes, he too would have been angry and based upon his actions, the situation would have been much worse. Gates was not violent or dangerous to the point where he was disorderly. The officer under Mass. state law was requirerd to ID himself when asked. Instead, he escalated the situation by forcing Gates to leave the residence. This is not the kind of behavior that is expected from someone who claims to have the kind of training and experience the officer is flaunting. Police should display the level of professionalism laaw and order types ascribe to them which includes not making arrests when no law is broken and not escalating situations that could be easily resolved. The officer abused his power to falsely arrest someone just because his feelings were hurt. I'm sure Obama's feelings were hurt when the New York Times portrayed him as a monkey being shot. The cartoon picture was rude and inappropriate and should have never been directed to the President. Also, Rush Limbaugh's comments about wanting Obama to fail as president were outrageous and yet Obama continues to perform without letting his feelings get in the way of helping our country. There is no law against being rude or failing to bow to a government employee. Nor should there be. The truth is, many conservatives think that everyone else is too easily offended. Yet, they don't think that applies to them or their buddies. Three major things should happen as a result of the "beer"
    meeting at the White House. 1. The officer should bring his arrest record for the past five years. 2. Obama should set up police abuse hotlines in every state. Any time someone is falsely arrested or brutalized by the police, they should be entitled to immediate legal assistance. 3. Watch dog groups should be in place to monitor the frequency of racial profiling. Those who continue to abuse their authority must be removed. Based on the way the officer has conducted himself thus far, his continued role in law enforcement is questionable.

  2. It might help you to know that the officer in question, and his behavior, was the subject of a meeting between myself, the Police Commissioner, and staff from the Mayor's office, among others. I then warned that oif this officer wasn't brought under control, "he will do this again, and do it to the wrong person."

    In fact, that is exactly what happened.

    A good investigative news stroy would be how many complaints have been filed against this officer, and against all others, and just how many have been found to have merit. Acording to the CPD, NONE of the complaints filed against this officer were found to have merit.

    T H I N K

    Ant the harrased and eliminated head of the civil/human rights and citizen police review board, has won a retaliation lawsuit for multimillions of dollars against the City of Cambridge.

    T H I N K

  3. Kathy,


    You did your job and could have saved them some big bucks if they had only listened.