A Case of "Residing While Black"? A Legal Analysis of the Arrest of Prof. Henry Louis Gates

(July 26, 2009, New York, NY)  The controversial arrest of Prof. Henry Louis Gates outside his own home has been largely interpreted as either a racial or a psychological phenomenon.  Either: 1) it was a case of two grown men over-reacting childishly, and/or 2) one of those men, the police officer, was guilty of racism and racial profiling, and/or 3) one of those men, the professor, was guilty of racial hypersensitivity and over-reaction.

While these perspectives are valid, the press has notably failed to explore the crucial perspective of constitutional law.

In the Gates incident a police officer asked a homeowner to leave his home in order to verify the homeowner’s identity.  Then, when proof of identity was not immediately forthcoming, the police officer pursued the homeowner into his home – without having requested permission to do so.  Therefore, there was a double transgression of the crucial legal barrier represented by the threshold to Prof. Gates’ front door.  This double state intrusion was not warranted by the facts of the situation. 

This is a key constitutional issue which goes to the very heart of the freedoms guaranteed by our Bill of Rights. By ancient tradition, our homes are inviolable “castles” of privacy and this principle has been enshrined in our fourth amendment. The fourth amendment prohibits all unreasonable government intrusions into our home. 

In 1980, for example, the U.S. Supreme Court over-turned a New York statute that allowed police to enter a home in order to effect a routine felony arrest (Payton v. New York, 445 U.S. 573).  Writing for the Court, Justice Stevens held:

The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed… [A]n invasion of the sanctity of the home…is too substantial an invasion to allow without a warrant, in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is present…[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Normally, therefore, police officers are neither allowed to enter our homes nor to ask us to leave our homes’ protection. When a police officer crosses our threshold, or asks us to do the same, he or she must be able to articulate a clear and urgent reason for doing so. 

Obviously, a report of a burglary in progress is a perfectly good reason for the police to knock at the front door.  However, they must stop there.  When someone claiming to be a resident then answers the door, police procedure must take into account the strong possibility that a legal resident has been spotted breaking into his own home.  This is a common situation.  Every morning hundreds of Americans head off to work having forgotten their house keys.  After returning from work, such people are sometimes forced to re-enter their own homes in a suspicious fashion, breaking windows or forcing doors.  In a certain percentage of such cases, the “break-in” will be reported to police by neighbors.  This probably happens at least a dozen times a day across America.  How should police react?

The police should understand that while this situation is not unusual for the police force, it is probably a once-in-a-lifetime occurrence for the homeowner.  The home-owner may react with surprise, confusion or annoyance.  The police officer should anticipate those emotional reactions and be prepared to remain calm. When a break-in is reported at a house and a person presents themselves at the front door and claims to be a legal resident, the presumption must be overwhelmingly in that person’s favor.  It may well be that the person is a burglar who is coolly pretending to be a resident, but this possibility is not sufficient to over-ride our vital constitutional guarantee of freedom from government harassment in our own homes. 

Regrettably, police forces in America do not have any clear and legally-defensible policy with respect to the crucial decision to cross a homeowner’s threshold.  In the Gates’ incident, the police officer spotted the professor through a window and requested Prof. Gates to come outside.  Why? Although Prof. Gates had committed no crime, he was asked to leave the legal and psychological protections of his home by going outside.  Given that Prof. Gates was eventually arrested for “criminal behavior” which would not have been criminal had he remained indoors, it is clear that the legal safety of Gates’ home was crucial.

Sgt. Crowley, the arresting officer, said that his intent was to verify whether or not Prof. Gates was an intruder.  In order to achieve this, it was only necessary to ask, “Do you live here?”  The respondent does not have to leave his own premises in order to comply.  Why was it necessary to ask Gates to leave his home?  Perhaps it was because the officer wanted to make sure that Gates stayed in sight, so that he did not seek to escape or to procure a weapon?  That is not a good enough reason.  Unless Gates presented himself at the door with some sort of visible evidence that he was a burglar (i.e., burglar tools, weapons or trembling, bloody hands), the officer had no sufficient reason to ask Gates to leave his home. 

The officer could easily have requested some I.D. through the open front door, without asking Gates to step outside, and without volunteering to come in.  Prof. Gates could have reached into his wallet and showed his I.D. without ever having had to leave his home.  There is no reason that this kind of discussion cannot transpire across the threshold of a man’s front door. Of course, if you feel comfortable talking to police you are perfectly free to step outside your house or invite them in.  But our constitution guarantees that you don’t have to.  If you want the police to stay on their side of the threshold, you have a constitutional right to demand it, and police should scrupulously respect that legal boundary.  A policeman should never enter an American’s home without first requesting permission to do so unless there is a compelling reason that the officer can clearly articulate.

Americans are not required to carry I.D. in their own homes.  Suppose that the “break-in” at Gates’ house had been performed by Gates’ 17-year old nephew, house-sitting while the Professor lectured at Oxford.  The nephew would have had an absolute legal right to be in that house, but he would have lacked a valid I.D. with the right address.  So what?  In such a situation the officer might reasonably request access to the home to seek some common-sense verification of legitimate residence.  Let us say the young nephew volunteers:  “I can tell you what’s baking in the oven.  I can tell you what’s under that couch over there.  I can tell you the password to the computer in my uncle’s study.”  At some point the officer has to use common sense, based on articulable observations.  If the nephew displays a level of familiarity with the household that is only available to long-time residents, the police officer should excuse himself and leave.

In the Gates case, however, the police officer pursued Gates into his own home without a sufficiently good reason for doing so.  Crowley should have patiently remained at the front door while Gates located some proof of residence.  The risk that Gates might have been a burglar who would have used the opportunity to escape over the back fence is not sufficient justification to enter a person’s home (absent any visual evidence that Gates was in fact lying).

None of the above legal analysis has anything to do with the issue of whether or not Gates over-reacted, which seems to be the emerging media consensus.  That is certainly a valid line of inquiry, but it should be kept separate from our constitutional analysis.  A man may be a jerk, but our Constitution guarantees him an absolute right to be a jerk in his own home, and any state intrusion upon that right must be highly offensive to anyone who takes constitutional rights seriously.

The Gates incident exemplifies, sadly, the abysmal failure of the Bill of Rights to protect American freedoms.  Our American approach to freedoms is excessively legalistic and case-based, which makes it useless.  We have lots of beautiful, complicated Supreme Court cases that discourse eloquently – if obscurely and ambiguously – on the limits to police intrusion.  In reality, though, we get almost no protection from these case-created rights.  If the police violate one of your constitutional rights in a minor incident, their impunity is virtually guaranteed.  What are you going to do – take them to the Supreme Court over a misdemeanor when you can just pay a fine and forget about it?  Police all across America have learned, for example, that if you just search people without asking you can later defend that search as a “consensual search.”  Almost no one is ever going to make a federal case out of a constitutional breach resulting in a misdemeanor charge (no one except Skip Gates, perhaps).

The result is that neither American citizens nor the police have any clear idea as to what is a “legal search.”  It’s not our fault.  You would have to be a lifelong constitutional scholar just to begin to understand the Supreme Court cases dealing with legal searches of automobiles.  Since nobody understands the law, the police do whatever they want and in 999 out of 1000 cases they get away with it.  Then, they’re surprised if we get upset about any of this.  If we get become angry about a violation of our constitutional rights, and if we exhibit our civic unhappiness in public, we can be arrested for “disturbing the peace.”  So the law comes down to this: the police can do whatever they want; they can even ignore the Constitution – and you better not get mad about it.

Mr. President, it’s time for a change.  America needs a clear federal statute with respect to police stops, searches and home and car intrusions.  American citizens and their police need to be playing from the same rulebook.  We will never get a handle on the messy issue of racial profiling until both citizens and police can agree on exactly what’s in the rulebook.  Today, the opposite is true.

Unlike Barack Obama, I am no particular friend of Prof. Gates.  He may be a very cool dude most of the time, but in this incident he comes across as a pompous ass (I know what one looks like because I own a mirror).  Whether or not a celebrated scholar of African-American history has displayed racial hypersensitivity is indeed an interesting social question.  However, the fact that our constitutional rights are routinely violated with impunity is far more important, and that’s what we should be focusing upon.

Guillermo C. Jimenez is an author, attorney and educator living and working in New York City.  Comment below.

Comments

[Eduardo Gonzalez]

The intersection between constitutionally protected civil liberties and practical application of laws has almost always resulted in "sliding scale" emphasis on factors that should not be determinative. In other words, your civil rights are subject to interpretation based on who you are and who is doing the "rights-evaluation," be they police, judges, legislators, media pundits, ect.
You are right, the media focus on Gates' arrest is simply a gross over-simplification of a multitude of unresolved issues in our society, race, equal application of the law, subjective factors that affect people in their daily lives.
However, I do disagree that issue is one of the "failure of the Bill of Rights." To the contrary, the constitutional rights guaranteed by the Constitution are the bedrock foundation for a truly democratic society.
Sadly, this case is just a small example of the way that these inviolate rights are constantly mis-interpreted, attacked and erroded in reality by the misinformed, truly ignorant or, even worse, the malevolent who cloak themselves in whatever the fashionable cloth of the day is (security, terrorism. ect.)
While media focus on the Gates case expands, the incalculable harm done to American's rights of privacy, let alone human rights, is mostly ignored. Specifically, searches, seizures, warrantless wire-taps, John Yoo-perversions of constitutional law to permit torture, and disparate treatment of persons are all deemed "ok" by citizens or simply ignored.
So maybe there is some good that may come of this discussion: a re-newed vigor in protection of these inviolate rights, or at least a clear bright line that we citizens can follow to know when someone thinks we are about to step over the fluctuating boundary of protected behavior.

[Guillermo Jimenez]

Eduardo,

You're right that I overstate the case a bit (as usual). Obviously, we have more rights than North Koreans and that must be in part due to the traditional protections of the Bill of Rights.

But here's my point -- these constitutional protections do not apply in what I would call the "ordinary course of business" as regards police-citizen interactions.

Our Bill of Rights is like an insurance policy with a $50,000 deductible. If the damage that the police do to you is less than $20,000 to $50,000 , it's not worth the $50,000 it's going to take you to win on a constitutional issue at trial (assuming a very simple trial).

Now, what kind of people get into trouble of that magnitude? The answer is: criminals. So in effect, the funny thing is that our Bill of Rights is primarily of service to criminals.

Ordinary citizens don't commit a lot of felonies, but tons of misdemeanors. In a misdemeanor offense, and even in most non-violent felonies, the cops know that the defendant is going to plead to a fine or some kind of reduced sentence. There's not going to be any cross-examination of any cops, there's not going to be any damn appeal to the Supreme Court. Thus, the cops can do whatever they want.

The Gates case is a good example. The charges against him were dropped, so what's Gates going to do about the violation of his constitutional rights? Start a civil suit? Who on earth has time to start a civil suit every time the police piss you off? And what are the chances of winning such a suit?

So what I'm saying is that in the ordinary course of business, when citizens are either innocent or have at most committed a minor infraction, their constitutional rights are not of much use.

One of the reasons for that is that our "statute" for police-citizen interactions is the crazy patchwork created by Supreme Court decisions. It is filled with all kinds of exceptions, holes and contradictions. This is exploited by cops to "push the envelope" of acceptable practice via their chickenshit "standard police procedures" in which, to protect "officer safety," cops can do things like pull guns as they approach the cars of fat pregnant ladies who've run stop signs. Just in case the lady is actually a fat pregnant ninja terrorist about to pull a sawed-off shotgun on them.

Civil law countries have a better approach to this. You draft a statute and then if its not working you redraft it. I know the suggestion is completely impractical, but we would benefit from some kind of highly specific federal enabling statute for the 4th amendment.

So in the end I really don't blame Crowley for what he did, because I do believe he was following "standard police procedure" and I don't think he was at all motivated by racism. Any fool could see that Gates was a Harvard professor from the moment he opened his mouth, you don't need a Ph.D. to figure that out when you're literally two blocks away from Harvard University and an angry and elegant black man comes to door of a beautiful two-million dollar house. Crowley knew exactly who he was dealing with before Gates even opened the door. However, "standard police procedure" allowed and even encouraged Crowley to trample all over Gates' constitutional rights, and as Gates pointed out more than once, Crowley was messing with the wrong guy.

I too am glad that the incident has become such a cause celebre because I think it will make cops hesitate a tiny bit more in the future in precisely this kind of situation (especially in Cambridge).

I am also glad that Gates comes out looking silly. He and Cornel West both drive me crazy, they're about the most pretentious academics in America -- and that's saying something. But that's an argument for another day....

[Wolf Knoblauch]

Where is your argument, Guillermo ?? Inuendo and the past history, doesn't cut it anymore ! Please read: ( Start - Quote )
Race Relations
The Gates Arrest: A Personal Reflection
By Knight Kiplinger

I don't know what will happen when President Obama sits down Thursday for a beer at the White House with Professor Henry Louis Gates, Jr. and police Sgt. James Crowley, to get the two men to talk things out.

But in any event, I have a personal experience that sheds some very relevant light on the Gates affair, and what -- if anything -- it has to do with race in America.

I've been in the situation that Gates faced on his own front porch in Cambridge, Mass. last week. But unlike Gates, I didn't suspect -- or angrily charge -- that I was a victim of racial discrimination. Why? Because, unlike the professor, I am white.
( Continues - Unquote ).

Read more at Kiplinger.Com

wolf4071@aol.com

[Raya]

Wolf, the fact that this kind of thing ALSO happens to white people in no way undermines Mr. Jimenez's argument, which was not that Sgt. Crowley's actions were racially motivated but that they violated Prof. Gates's Constitutional freedoms -- Constitutional freedoms we all share, regardless of race.

Mr. Jimenez specifically states that he does *not* believe Crowley was motivated by racism, although this consideration is any case irrelevant to the issue of whether or not his actions were illegal.

For my part, I would like to point out that "But this happens to white people too" is a classic Racism 101 fallacy (see #16 on the list at the link). An experience you have as a white person that you think is similar to an experience related by a person of color is not a valid proof that racism doesn’t exist.

[Raya]

Ah, I see the link was scrubbed. Sorry, I'm not familiar with WordPress HTML settings. Here is the list I was talking about:

http://resistracism.wordpress.com/we-heard-it-before/

[Mona]

I enjoyed you post. I've been following this case and the most troubling thing is that no one seems to be concerned about the officer ignoring the violation of the Bill of Rights. I don't care what race you are, we should all be angry and worried about what happened to this man, any of us could be next.

[Guillermo Jimenez]

Mona,

I think people aren't looking at the constitutional issue because the racial questions seem more obvious and in a way "juicier" for the press. And there are racial issues, but as you point out, the legal issues affect all of us.

When a policeman is in front of you, that's awesome power -- they literally have a license to kill, and they've got guns and lots of bullets. It is absolutely a great thing about America that we theoretically place some limits on that vast power.

Unfortunately, it doesn't do us good in small cases, because the police know the case will be dropped or plead. So in our routine, everyday encounters with police, our constitutional rights can be routinely ignored. This is something that deserves further legislative scrutiny.

A lot of people seem concerned that the cops had to make sure a burglary wasn't in progress. Yes, but they should still be careful and respect the constitution. I remember a sad case that happened in Newark in the 1990s, a single mother working a night shift as a nurse locked her 8-year old boy in at night behind two separate locked doors. One night he was making noise and a neighbor reported it to the cops. A cop busted through the two locked doors and shot and killed the boy -- he was up playing with a plastic gun.

There's a reason why we put controls on cops.

[Guillermo Jimenez]

Raya, thanks for setting Wolf straight and for the helpful categorization of his argument as a standard form of racist fallacy.

This incident is extremely peculiar for its ability to serve as a kind of prism or touchstone for so many different social and racial questions. I think there are reasonable arguments lurking on all sides, but they are obscured by a lot of noise and confusion. People are having trouble keeping the racial, legal, procedural etc. questions separate.

I must say I was surprised to finally hear the 911 tapes and realize the caller had said nothing about race. If that's true, as seems likely, then I don't know where Crowley came up with his remark about two black men. That does raise a red flag that something strange was going on in Crowley's head, how did he imagine that the suspect was black when the caller had said nothing of the sort? A bit odd, to say the least.

[John Bonaccorsi]

Sgt. Crowley responded to an eyewitness report of a possible crime in progress. When he got to the house, he discovered Professor Gates inside it. At that point, Sgt. Crowley did not know whether Professor Gates was a lawful occupant of the house. He also did not know whether Professor Gates was one of the two men who had been seen forcing entry to the house. He also did not know whether the two men who had been seen were persons other than Professor Gates and, unknown to Professor Gates, were still in the house, unlawfully. Accordingly, reasonably, he asked Professor Gates to come outside. Although Professor Gates was not entirely cooperative, he did eventually comply with the Sgt. Crowley's lawful request to provide ID. This involved the professor's going to another part of the house; and Sgt. Crowley, unaware who else or what might be in the house, reasonably entered the house to watch Professor Gates as he went to get the ID. This has nothing to do with Payton versus New York, and there was no violation of the Fourth Amendment rights of Professor Gates. The limits on police action are not the absurdities that this post of Mr. Jimenez suggests they are. If Mr. Jimenez is, indeed, a lawyer, God help his clients.

[Barry]

Sgt. Crowley, the arresting officer, said that his intent was to verify whether or not Prof. Gates was an intruder. In order to achieve this, it was only necessary to ask, “Do you live here?” -- GC Jimenez

Assuming that the officer was dealing with a calm, reasonable person, your statement would be true. Unfortunately your statement is false because the officer was not dealing with a calm, reasonable person.

First it was necessary to calm down the highly agitated Mr. Gates. If you'll remember, in a bit of reverse profiling, Mr. Gates took one look at Officer Crowley and began screaming "Racist cop! Racist cop!"

Why do you have such a difficult time acknowledging this? You act as if Mr. Gates' first utterance was, "Hello, Officer! What can I do for you?"

Alas, if only that had been Gate's reaction this entire regrettable episode would never have occurred. Instead, Gates began things by acting like a jerk in his home, which is not a crime.

However, once Gates continued his beligerent act in public, it became a crime when he was told to cease his tirade and to go back inside his house. It was only then that he was lawfully arrested.

Since Mr. Gates of his own volition decided to continue his public tirade after having been warned that he would be arrested if he did so, in effect, Mr. Gates chose to be arrested.

[ckirksey]

Crowley did a very, very poor job of investigating a POSSIBLE BE in progress. Apparently he did not talk to the 911 caller and simply ask; "What did you see?". Based on this simple fact(?) Crowley did not have probable cause to ever enter Gates' house. Gates had no obligation to step outside. Gates was assumed to be a suspect by Crowley before Crowley ever knew that a crime had been committed.

A 911 call by itself is never sufficient for probable cause. The police must investigate once on the scene. Crowley did not do this.