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Aug 07, 2009

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Mr. Jimenez --

Payton and Olson do not have to do with a report of a possible crime in progress. Neither does Bonvicino. Consult United States versus McConney 728 F. 2d 1195 (9th Cir. 1984), which the Bonvicino court cites in reviewing the "exigency" justification of warrantless entry:

"We define exigent circumstances as those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts."

(That passage may be found in the paragraph numbered 12, at http://cases.justia.com/us-court-of-appeals/F2/728/1195/57540/)

Your statements that Sgt. Crowley's entry into the residence of Professor Gates were in violation of Amendment Four are summary. You refer to the "clear and obvious" violation, the "obvious illegality" of the entry -- but at no point do you discuss the facts. You do not identify the point at which Crowley entered the house; you do not mention -- much less analyze -- possible justifications of the entry. What you declare to be a "definitive analysis" is, in short, no analysis at all.

Regarding the arrest of Gates for disorderly conduct, you state that the Massachusetts courts have "adopted a factual approach which focuses on whether the allegedly disorderly behavior threatened an imminent breach of the peace (e.g., 'tumultuous' behavior)." You provide no citation for this. Consult the 2003 case of Commonwealth versus Mulvey. In section 2's first paragraph (page 582), the court cites Commonwealth v. Chou, a 2001 case, as follows:

"The resulting definition of 'disorderly' . . . includes only those individuals who, 'with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . : (a) engage[] in fighting or threatening, or in violent or tumultuous behavior; or . . . (c) create[] a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.'"

(Mulvey may be afound at http://masscases.com/cases/app/57/57massappct579.html)

Accordingly, your questions whether the onlookers outside the Gates residence were "really frightened that Gates was about to attack a dozen armed officers" or feared "personal bodily harm" are irrelevant. Again -- the language of Mulvey: "with purpose to cause public INCOVENIENCE, ANNOYANCE, or alarm."

Henry Louis Gates was not arrested for his abuse as such of a police officer (or officers). He was arrested after the officers had concluded that he was a lawful occpant of the house where he had had been discovered and that no crime was in progress there or had been committed there. The police were leaving the scene, and Gates was shouting at or after or about them (or one of them), out into the neighborhood. Not only was his arrest justified: it was required. The police were not entitled to drive away from the scene and allow him to continue to conduct himself in that disorderly way. They are obliged to enforce the law.

As for the question of racial profiling: Kindly state what, in your view, Sgt. Crowley would have done differently if he had not been engaging in such profiling.

Because the parenthesis I placed at the end of each of the two links in my previous comment was automatically included in the link, the links don't work properly. Here they are again:

United States versus McConney, 728 F. 2d 1195 (9th Cir. 1984): http://cases.justia.com/us-court-of-appeals/F2/728/1195/57540/

Commonwealth versus Mulvey: http://masscases.com/cases/app/57/57massappct579.html

"As Crowley approached Gates’ residence it seems that Crowley was thinking “I have to be careful, there may be armed burglars within the residence. It seems likely that they are black.” The problem is that Crowley had no reason for assuming that the alleged perpetrators were black. Where did that come from?"

Is that how you would think if you were in Crowley's place/shoes? Also, the problem is not that Crowley had no reason for assuming but rather that you have not reason for assuming that he made such an assumption!

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