Harvard Professor Arrested--Gates Black in America

[rubelet]

I sure hope the citizen's of Massachusetts don't rely on the statement in your post.

If you will refer to sub-section 250.2: (1)(b), you will find the following in the penal code.

(b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present...

Although I appreciate and respect the info. posted on this thread, it is the sole discretion of a police officer to determine whether behavior of an individual constitutes disorderly conduct and if that individual should be arrested. From that point, it is up to a court to decide if that person is guilty of the charge.

I don't believe the meaning of the words "abusive language to any person present" in the sub-section is ambigious.

From broad legal strokes to an unidentified "penal code"... I had to look this up. This is from the model penal code.

It does appear to give justification of this arrest, as it has been applied in previous contests regarding the constitutionality of the Massachusetts disorderly conduct laws. But this is not Massachusetts State Law nor does this language appear in Massachusetts Law. And apparently the obscurity of the Model Penal Code can be a source of confusion to many. This also doesn't take into account the location, as public/private seems to come into considerations of interpretation of the model penal code as applied to Mass. law. Sigh. Here's the source I was reading. http://tpmcafe.talkingpointsmemo.co...bamagatescrowley-relevant-sta.php?ref=recmuck

Given I am not a legal expert nor even a resident in the United States, perhaps I was not best suited to weigh in with a legal opinion. So I'll back off on interpreting the legalities. But maybe we all should unless we are sure we are not obfuscating the laws with vague references to statutes that may or may not even apply to the situation.

 

[Morag]

magnolia, I get that you don't care for public displays of anger. Neither do I.

And I get that you think police officers should be treated with respect. As a rule, so do I.

But the Constitution of this great republic does NOT specify a "right time" to assert one's rights, nor does it put but a few restrictions on the "right way" to exercise one's right of free speech.

Nova, thanks for saying this so succinctly. I have a healthy respect for police and their powers and responsibilities, but I refuse to be cowed by them. It has just never occurred to me that I needed to roll over and play dead when a cop has wrongly stopped me, accused me, or otherwise treated me unfairly.

I was once accused of theft by the FBI! And I stood up to them, refused a lie detector test, and protested to my Senators, congressman, newspaper editorial boards, etc. And guess what? Someone else confessed to the theft. Did anyone apologize to me? No. And Teddy Roosevelt )) didn't invite me to the White House for a root beer, either.

Another person was accused at the same time. She submitted to the polygraph, and she later told me it was extremely stressful and humiliating; the polygraph "expert" asked her about her sex life and drug use- she was a beautiful and wholesome 19 year old girl at the time. Additionally, she was out about $3000 in attorneys fees, which her parents paid.

I knew I was innocent, refused to cooperate in being humiliated, and owed no money to lawyers- I could not figure out any way to get the money to pay an attorney, so I stood up for myself. Luckily, the case never went to court, so Attorney Morag did not have to represent me. But I suffered from the aftermath of such an awful experience for many years, as did the girl who cooperated.

Do those who think that Professor Gates should have been meeker really think that America requires blind submission to law enforcement officials?

C'mon, people, he was hoarsely yelling at a cop in his own kitchen, and then from his own porch. Seems that Sgt Crowley would benefit from some sensitivity training- he's just too darn sensitive.

 

[magnolia]

That's an excerpt of the Massachusetts Model Penal Code, correct? How does that apply to a private house? Isn't Gates' porch his private property? I sure think it would be! As far as I know he did not become "disorderly" in his driveway or anywhere even beginning to smack of a public place. Further, his disorderliness would have to likely effect "members of the public" to be applicable. How is asking the officer for his supervisor's name bothersome to members of the public?

Further, luring Gates outside with mentioning being unable to hear or understand him due to the bad acoustics in the kitchen and then *bam* arresting him once he's outside does not look good for the police.

Like everyone else posting on this thread, I am not a Judge, so I can't give a definitive answer to that question.

However, as a lay person, I agree with the following assessment.

If you believe the police report (and this is an essay about matters of law rather than matters of fact), then Professor Gates probably satisfied the criteria of Model Penal Code s. 250.2: (1) by shouting insults at the cop from his front porch, and even though the front porch itself is not a public place, it was sufficiently close to the public sidewalk and street so that "persons in a place to which the public or a substantial group has access" were affected.

www.open.salon.com/.../obamagatescrowley_statutes_case_law_and_model_code -

 

[Theonly1]

Like everyone else posting on this thread, I am not a Judge, so I can't give a definitive answer to that question.

However, as a lay person, I agree with the following assessment.

If you believe the police report (and this is an essay about matters of law rather than matters of fact), then Professor Gates probably satisfied the criteria of Model Penal Code s. 250.2: (1) by shouting insults at the cop from his front porch, and even though the front porch itself is not a public place, it was sufficiently close to the public sidewalk and street so that "persons in a place to which the public or a substantial group has access" were affected.

www.open.salon.com/.../obamagatescrowley_statutes_case_law_and_model_code -

Is the Model Penal Code section you quoted Massachusetts' statutory law? The Massachusetts courts interpret how that statutory law is applied. The case I linked shows you some examples of how Massachusetts has looked at this issue.

First the court will look at:
1. Was the incident in a private or public place?
2. If it was private, which it was, was it in a place the public could be affected?
3. The court will look at what the subject said, how far from the street he was, who could have possibly seen it or heard it (other than the police officers) and whether public individuals would be affected by the incident.
4. They will also look to see if what Gates said held any legitimate purpose (What is your badge number? Who is your supervisor?)
5. Finally, "[n]othing less than conscious disregard of a substantial and unjustifiable risk of public nuisance will suffice for liability."

Those are not five hurdles I would like to jump through.

 

[Theonly1]

From broad legal strokes to an unidentified "penal code"... I had to look this up. This is from the model penal code.

It does appear to give justification of this arrest, as it has been applied in previous contests regarding the constitutionality of the Massachusetts disorderly conduct laws. But this is not Massachusetts State Law nor does this language appear in Massachusetts Law. And apparently the obscurity of the Model Penal Code can be a source of confusion to many. This also doesn't take into account the location, as public/private seems to come into considerations of interpretation of the model penal code as applied to Mass. law. Sigh. Here's the source I was reading. http://tpmcafe.talkingpointsmemo.co...bamagatescrowley-relevant-sta.php?ref=recmuck

Given I am not a legal expert nor even a resident in the United States, perhaps I was not best suited to weigh in with a legal opinion. So I'll back off on interpreting the legalities. But maybe we all should unless we are sure we are not obfuscating the laws with vague references to statutes that may or may not even apply to the situation.

Hehehe. Last I checked, GUAM was the only "state" to have adopted the Model Penal Code in its entirety. The states tend to pick and choose what parts of the MPC they like and adopt.

 

[magnolia]

The Model Penal Code section you quoted is Massachusetts' statutory law. However, the Massachusetts courts interpret how that statutory law is applied. The case I linked shows you some examples of how Massachusetts has looked at this issue.

Exactly~ The Massachusetts Courts interpret how the law is applied. I basically said the same thing in my post.

Although I appreciate and respect the info. posted on this thread, it is the sole discretion of a police officer to determine whether a citizen should be arrested for disorderly conduct - and up to a court to decide if that person is guilty of the charge.

 

[Theonly1]

Like everyone else posting on this thread, I am not a Judge, so I can't give a definitive answer to that question.

However, as a lay person, I agree with the following assessment.

If you believe the police report (and this is an essay about matters of law rather than matters of fact), then Professor Gates probably satisfied the criteria of Model Penal Code s. 250.2: (1) by shouting insults at the cop from his front porch, and even though the front porch itself is not a public place, it was sufficiently close to the public sidewalk and street so that "persons in a place to which the public or a substantial group has access" were affected.

www.open.salon.com/.../obamagatescrowley_statutes_case_law_and_model_code -

The facts in the Mulvey case which I linked in another post are as follows: the police arrived at a man's house to serve him with an out-of-state warrant for his arrest. The man was on property with a large driveway and a some fencing. The man told the officers to get off the property, yelling many times I believe, and basically put up a feeble resisting arrest (battery charges also ensued along with the disorderly charge). The jury acquitted him of all his other charges and the only issue left to appeal was the "disorderly" conduct.

Since the incident happened at a residence it was deemed a private place. The court looked at things like how far he was arrested into his driveway, how far the driveway was from the road, that it was single-family housing, and the opaqueness of the fencing around the property. No bystanders or neighbors watching were noted. The fact that he likely raised aural holy hell to the police officers was deemed unimportant. The police were expected to be able to withstand that sort of behavior.

Had the neighbors or looky-loos been able to see the arrest the court would then have decided how "affected" they would have been. And mention was also made about whether whatever was said by the defendant would have to serve no legitimate purpose (you can imagine one million nasty comments which would not serve a legitimate purpose).

Finally, the court mentioned having to see if the defendant must have created a conscious disregard of a substantial and unjustifiable risk of public nuisance.

While the facts in Gates' arrest seemingly had a few looky-loos, I don't know how far from the street Gates' porch was located, whether the looky-loos could hear what he was saying, and so on. But the case law is pretty clear that police are assumed to be personally pretty caloused to these sort of disruptions. It is the public who they look to see if they are "affected". And if Gates' comments were comment that held a legitimate purpose well, he could scream those questions or comments to the hills, really.

So, this is the way I see it:

1. Was the incident in a private or public place? It was Gates' private residence.

2. If it was private, which it was, was it in a place the public could be affected? Gates was questioned inside his private residence and no public was affected by the questioning that went on inside the house. The officer told Gates to go outside due to the kitchen acoustics and once on the porch when Gates repeated his comment then was arrested!

a) Was Gates' comments while on his porch in a private place? Yes. But by then a crowd had gathered.

b) Was the crowd a crowd of police officers? If so, they are exempt. If there were bystanders then go to #3.

c) Was Gates on his porch of his own accord and volition?

3. The court will look at what the subject said, how far from the street he was, who could have possibly seen it or heard it (other than the police officers) and whether public individuals would be affected by the incident.

So, now what Gates said while on his porch will be scrutined. How far was he standing from the bystanders? What did the bystanders hear him say, if anything? If only the police officers heard his comments then it is exempt. If the bystanders heard Gates' comments like "YOU ARE A RACIST" or something were they personally affected by Gates' comments?

4. They will also look to see if what Gates said held any legitimate purpose (What is your badge number? Who is your supervisor?)

Who is your supervisor= legitimate purpose
What is your badge number = legitimate purpose
What are you arresting me for? = legitimate purpose

You are a racist! = maybe no legitimate purpose

5. Finally, "[n]othing less than conscious disregard of a substantial and unjustifiable risk of public nuisance will suffice for liability."

Ugh. This one would have to be coupled with something like "YOU ARE A RACIST!" yelled at top volume and guaranteed for the public to hear and be affected by.

 

[daisy7]

I sure hope the citizen's of Massachusetts don't rely on the statement in your post.

If you will refer to sub-section 250.2: (1)(b), you will find the following in the penal code.

(b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present...

Although I appreciate and respect the info. posted on this thread, it is the sole discretion of a police officer to determine whether behavior of an individual constitutes disorderly conduct and if that individual should be arrested. From that point, it is up to a court to decide if that person is guilty of the charge.

I don't believe the meaning of the words "abusive language to any person present" in the sub-section is ambigious.

Can you provide a link so we can read the whole statute?

 

[Theonly1]

Can you provide a link so we can read the whole statute?

I don't think Massachusetts formally adopted that Model Penal Code section.

This is the archaic language still on the books as far as I can tell:

The relevant Massachusetts statute (G. L. c. 272, § 53): 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 of the opposite sex, lewd, wanton and lascivious 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.

 

[Buzz Mills]

Would anyone be at all surprised to have Obama parlay this into the need for a national dialog program on Racism.

Not something that most of need, or want. We have enough on our minds at this juncture without having racism lectures foisted on us.

Religion, Race, do not belong in politics

 

[southcitymom]

Is the Model Penal Code section you quoted Massachusetts' statutory law? The Massachusetts courts interpret how that statutory law is applied. The case I linked shows you some examples of how Massachusetts has looked at this issue.

First the court will look at:
1. Was the incident in a private or public place?
2. If it was private, which it was, was it in a place the public could be affected?
3. The court will look at what the subject said, how far from the street he was, who could have possibly seen it or heard it (other than the police officers) and whether public individuals would be affected by the incident.
4. They will also look to see if what Gates said held any legitimate purpose (What is your badge number? Who is your supervisor?)
5. Finally, "[n]othing less than conscious disregard of a substantial and unjustifiable risk of public nuisance will suffice for liability."

Those are not five hurdles I would like to jump through.

You AND the Mass Police Department who (rightly) dropped the charges quicker than you could blink!

 

[southcitymom]

Would anyone be at all surprised to have Obama parlay this into the need for a national dialog program on Racism.

Not something that most of need, or want. We have enough on our minds at this juncture without having racism lectures foisted on us.

Religion, Race, do not belong in politics

Love you to pieces, Buzz, but laughed out loud at this last sentence as I believe all human law stems from Religion and so Religion has never left and will never completely leave the arena of politics. And in a country that houses as many different races as the melting pot of America, I automatically assume that's going to find its way into the political arena as well.

But maybe you were saying you believe that in a perfect world, Religion and Race wouldn't penetrate politics.

That said, I personally feel like we DO have a national dialogue on racism and race-related issues and we have had one for a while. That's a good thing, IMHO. Like you, I don't think we need any formal program about it!

 

[magnolia]

Would anyone be at all surprised to have Obama parlay this into the need for a national dialog program on Racism.

Not something that most of need, or want. We have enough on our minds at this juncture without having racism lectures foisted on us.

Religion, Race, do not belong in politics

I could not agree more Buzz.

 

[southcitymom]

http://webmail.ec.rr.com/do/mail/message/download?msgId=INBOXDELIM16040&part=2&l=en-US&v=standard

I could not open this link, lonetraveler.

 

[magnolia]

magnolia, I get that you don't care for public displays of anger. Neither do I.

And I get that you think police officers should be treated with respect. As a rule, so do I.

But the Constitution of this great republic does NOT specify a "right time" to assert one's rights, nor does it put but a few restrictions on the "right way" to exercise one's right of free speech.

I don't quite understand what "asserting one's rights" has to do with the Gates incident. Gates was not asserting his rights, imo. He was screaming and yelling abusive verbal comments at a police officer. This is not a case where a citizen "asserts his rights" by denying an investigator access to his house because the investigator does not have a search warrant. This is not a case where a citizen "asserts his rights" by refusing to talk to police without an Attorney present. This is not a case where a citizen "asserts his rights" by filing a complaint against a police officer. Again, I don't believe Gates behavior is in the "asserting one's rights" category.

 

[Morag]

...
What are the restrictions on one's right to exercise freedom of speech?

The usual example is that you can't shout "fire!" in a crowded theater. There are very few restrictions, thank goodness. If there are to be restrictions, who should determine what those restrictions are? We have to be willing to hear speech with which we don't agree, not just that we agree with. Dictatorships, for example, only allow speech with which they agree (North Korea, Iran, Nazi Germany, Stalinist Russia).

 

[magnolia]

The usual example is that you can't shout "fire!" in a crowded theater. There are very few restrictions, thank goodness. If there are to be restrictions, who should determine what those restrictions are? We have to be willing to hear speech with which we don't agree, not just that we agree with. Dictatorships, for example, only allow speech with which they agree (North Korea, Iran, Nazi Germany, Stalinist Russia).

Is "hate speech" not included in those restrictions?

 

[JBean]

I did a search for this and did not find it. but doesn't mean it hasn't been posted. Have you all read this email from the Boston officer Barrett? OUCH! It is so bad. he is on leave for it. he sent out a mass email in response to an editorial by yvonne Abraham.
if already posted let me know.
http://www.myfoxboston.com/dpp/news/local/justin_barrett_full_email_072909

 

[Morag]

Is "hate speech" not included in those restrictions?

That's a good question. I am not sure that calling someone a racist (if Gates did indeed call Crowley a "racist cop", and if that is what you mean) is considered hate speech. I kind of doubt it. Quite recently, Glen Beck, a television person of some sort, called President Obama a racist. And Rush Limbaugh, a radio commentator, has called Judge Sotomayor a racist.

What sort of hate speech do you mean?

I think that in general, even the KKK and Nazis are permitted to say some pretty ugly things... The courts have ordinarily decided that allowing some rough and crude speech is preferable to squelching everything that someone may find offensive.

 

[southcitymom]

I did a search for this and did not find it. but doesn't mean it hasn't been posted. Have you all read this email from the Boston officer Barrett? OUCH! It is so bad. he is on leave for it. he sent out a mass email in response to an editorial by yvonne Abraham.
if already posted let me know.
http://www.myfoxboston.com/dpp/news/local/justin_barrett_full_email_072909

Well, damn! I hadn't seen any of this JBean and it really makes me feel for the beleaguered police department who (along with the National Guard) responded swiftly and appropriately.

It's always a good idea to have someone read over an angry missive before you send it out into the public!

Barrett's attorney contends that when he compared Gates to a "banana eating jungle monkey" four times in the course of his letter, he was trying to get across the fact that Gates was acting like an impulsive wild animal and he didn't perceive racial connotations in the animal description he picked. My question is this? - are there really any 36-year-old police officer in this country who aren't aware that "jungle monkey" is considered a pejorative and racist term. I'm having a hard time buying that.