George Orwell and Benjamin Whorf are just two of the thinkers who have suggested that our minds are limited and defined by language.
George Orwell and Benjamin Whorf are just two of the thinkers who have suggested that our minds are limited and defined by language.
In the NY Times Magazine, "Ethicist" columnist Randy Cohen suggests that Prof. Henry Louis Gates would be warranted in filing a lawsuit.
"Yes, Gates should sue, and he does have grounds, and the topic is definitely worth the suit.
The gist of the problem is that an American’s fourth amendment right to freedom from government intrusion in the home is, in practice, limited by a patchwork of Supreme Court decisions that make it hard for police officers and citizens to have a clear idea as to what is acceptable and what is not acceptable during police stops, searches and home and car intrusions.
The result is that the police continually “push the envelope” of acceptable constitutional practice, especially because they know that there is no legal recourse in misdemeanor cases.
That is to say, no one is going to go the expense of a trial on a constitutional issue when they can plead to a misdemeanor or a violation and a fine. So in small cases, the police become accustomed to treating constitutional protections with a certain sloppiness. Gross invasions of our privacy are justified by “standard police procedures” which are supposedly based on the need to protect officers. The police know that we are never going to take a misdemeanor issue to trial, so they are going to get away with it.
In the Supreme Court case of Payton v. New York, 445 US 573 (1980), Justice Stevens was quite eloquent on the firm line that the constitution draws at the entrance to our homes: 1) even when there is probable cause that 2) we have committed a felony and are within a premises, 3) officers may not enter without a warrant. That’s the law, period.
Yet the law is routinely ignored in practice because the police claim a “consensual search” (which just means they didn’t ask, they just barged in and then claimed consent later).
There’s not a lot of precise law on the issue of what happens when someone shows up at the door of their home and gives a plausible explanation of their legal residence, along with a plausible explanation of the supposed “break-in”, but refuses further compliance with police requests to enter the home or to produce identification.
In America, if it hasn’t gone to the Supreme Court, it’s not law, so a lot of quite common situations are not covered by any clear federal law. The police exploit the legal vacuum.
However, as Justice Steven points out in Payton, the sanctity of the home is one of the bedrock principles on which the nation was founded. The 4th Amendment itself can be traced to the American disgust over the Customs Act, which permitted invasions of the home which revulsed Americans and led directly to the Boston Tea Party.
If freedom in America means anything at all, it means explaining to the policeman at the door that unless he produces a warrant he better stay on his side of the door unless he gets our express permission. It may seem extreme to be so intransigent with a well-meaning policeman, and we are not in fact required to be so intransigent, but the Constitution makes it our option, not the policeman’s.
Crowley failed to heed Gates constitutional rights at least twice — first, when he asked Gates to leave his home, and second, when he entered Gates home without requesting permission — and Gates would be doing us all a favor if he made that clear in court.
I should finally note that I do not believe that any of Crowley’s actions were motivated by racism. Moreover, it does seem that Gates acted with a certain racial hypersensitivity. However, from a constitutional point of view (if not from a social one), that’s all irrelevant.
The problem in this case isn’t racism, but it’s something just as bad, the creeping intrusiveness and impunity of police power in our daily lives."
In a NY Times Opinionator Blog Post, Eric Etheridge starts an interesting discussion on the question: How to talk to a cop? Should Profr. Gates have zipped his lip, or was he within his rights to mouth off?
GATES (speaking across the threshold of his front door):
“Yes, all right officer, I understand the situation. A neighbor has reported a break-in and you are doing your job by checking the situation. I have now assured that you I am the legal resident of this home, that I forced the side door only because I have misplaced my keys. I am Prof. Henry Louis Gates of Harvard University and my legal ownership of this residence is a matter of public record, which you may verify at your leisure.
Now, officer, as to your request for my ID, although I understand what you are trying to do, I need you to understand that as a scholar of racism and African-American history, and given the extremely unfair history of racial discrimination by police officers against black people in this country, I am extraordinarily sensitive that my constitutional rights be protected at all times.
As I am sure you are aware, the 4th amendment prohibits you from entering this house without a warrant even if you have probable cause that I have committed a felony. If you cannot enter, a fortiori you cannot demand my identification. An American is not required to carry identification at home.
If you don’t believe that, you can discuss it with my attorney, Prof Charles Ogletree of Harvard Law School, who will be here shortly. If you wish, he can teach not only you about the 4th amendment, but perhaps we could also arrange for a seminar for the Cambridge Police Department, to make sure you fellows clearly understand what you can and cannot do.
What I am going to do now, very slowly and politely, is close this door on you and request that you leave my property. Obviously, you are strong enough to force your way in here, but you must understand that if you do so you will be ignoring an explicit request that you respect my constitutional rights.
If you are really still worried that I am a burglar, which I sincerely doubt, you may post officers at my front and back entrances until you return with a warrant. However, you will find that a warrant extremely difficult to obtain, because the judge will ask you if you have made even the most minimal verification of my identify, and you will have to answer that you have not.
If you go on Google for 2 minutes you will see that I am a very famous professor and I am sure that your police network can verify my address without my further assistance.
I wish you good day, sir.”
(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.
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