Opinion
Op-Ed in response to CRC report
Gates Arrest: Opinions on a Teachable Moment
What is the Teachable Moment?
John Burris
Now that President Obama has endured the “beer summit” with Professor Gates and Sgt Crowley and declared the summit as a teachable moment, I wondered what lesson if any has been learned. The President’s foray into the issues of race and police surely costs him points in the polls. The public reactions to his comments that the police acted “stupidly” suggest that the vast majority of the public can not see beyond race when there is a conflict between a white police sergeant and an African American Harvard Professor. For the President it seems that the teachable moment may be that questions related to race and the police are so complex and raw that no single event, particularly this one, allows for an objective discussion of the facts. But for the rest of us, the Gates’ case does present a teachable moment to illustrate the every day challenges facing the police and African Americans when confronting each other and what can and should be done.
As a civil rights lawyer litigating cases of police misconduct for over 25 years, I do not consider what happened to Professor Gates as unique for African Americans regardless of their profession, economic or social status. In large cities and small towns throughout this country African American males are routinely arrested for questioning the legitimacy of police conduct directed at them and many, if not most, suffer negative consequences of such inquiries. In my own practice I have been involved with many cases where the police were legitimately called to a scene, like Sgt Crowley, because of potential criminal activity and once there assumed that the person on the scene was engaged in criminal conduct, when in truth the person was acting lawfully but was not given an opportunity to be heard. In a good many of these cases the person was arrested for resisting arrest, a crime similar to disorderly conduct. Here are some recent examples: two young African American men were working in a convenience store at closing time when someone riding by looked in the window and assumed that they were robbers; the police were called and before they could explain, they were physically assaulted and arrested. Another young African American man dressed in his Security Guard uniform, eating his dinner while sitting in his car, was accosted by the police ostensibly for suspicious activity, but before he could explain he was pulled from his car assaulted and arrested. In another case, an African American male physician was working on his car at night at a gas station when a woman called the police about suspicious activity. The police arrived and before the physician could explain, he likewise was physically assaulted. Luckily for him, like Professor Gates, he was able to prove his identity. To further illustrate the long standing nature of this conduct, 25 years ago I represented an African American physician who, while trying to get to a hospital because of an emergency surgery, was stopped on the freeway for speeding by a CHP officer. The officer was rude and refused to believe that he was a physician and the more he tried to explain the nature of the emergency the more hostile the officer became. The physician continued to protest and the officer became irate and physically manhandled the doctor injuring his wrists and arresting him.
I have had numerous cases where individuals were arrested for asking for the officer’s badge number, asking for their supervisor, or asking what they have done. These are typically cases where the person committed no crime other than failing the attitude test. Unfortunately, these cases have profound ramifications for the arrestee including a need to hire a lawyer to fight the charges, getting a criminal record that can affect employment in the future and more importantly a sense of hopelessness and frustration that police officers can make false allegations to cover up when they have over reacted or used force when it was unnecessary.
Positive interaction between the police and African Americans requires basic understanding, a fundamental commitment to listening and having good communication skills. A person stopped by the police must listen to the officer and follow directions rightly or wrongly. Likewise, the officer must communicate to the person in such a way that a person can hear him/her. Also an officer needs to have the self confidence to walk away when the job is done, even if the person is being verbally abusive. Police officers know that every person has a right to shout, yell and direct profanity at them as long as the person is not obstructing or delaying the officer in doing his/her job. In essence a negative reaction by people toward police conduct comes with the turf.
Finally, the teachable moment for all of us, including Professor Gates, is to cooperate and tone down inflammatory rhetoric and for police officers, it is to listen and once the job is done to walk away even if being subject to verbal abuse. By de-escalating the moment no one loses.
John Burris is a member of NPAP's Board of Directors and a civil rights attorney in Oakland, CA. He represents the family of Oscar Grant, the young man killed on New Years day by the Bart Police. He also published a book entitled “Blue vs Black: Let’s End the Conflict between Cops and Minorities.” For more information about Mr. Burris see his web page; www.johnburrislaw.com
A "Teachable Moment" ? An Action Moment
King Downing
Despite the fact that Prof. Gates and Sgt. Crowley sat down with President Obama to have a conversation on their individual differences, racial profiling and police abuse remain serious systemic problems that must be addressed and ended.
1. Sgt. Crowley clearly violated Prof. Gates' rights and should face investigation and adjudication.
Even if we assume Sgt. Crowley’s version as stated in his police report, which differs from Prof. Gates account of the incident, there is no factual basis for Prof. Gates' arrest. All the acts alleged by Sgt. Crowley, that Prof. Gates “replied,” “demanded,” “exclaimed,” “yelled,” even in a “tumultuous manner,” are protected speech, even if perceived as distasteful or insulting by the officer. Therefore, Sgt. Crowley should be adjudicated for false arrest on the basis of protected speech.
As to the charge of racial profiling, or unjustified differential racial treatment in arresting Prof. Gates, Sgt. Crowley should be investigated for possible conscious or unconscious bias in enforcement settings. This would require a review of his practices while interacting with people of color, especially in adversarial situations. Included must be citizen reports and complaints, and data on citations and arrests by him, including dismissals of charges often associated with police retaliation, such as disorderly conduct, trespassing, resisting or assault of a police officer.
2. The racial profiling issue is bigger than Prof. Gates and Sgt. Crowley; the Cambridge Police Department has a history of racial profiling, and its activities must be thoroughly investigated and sanctioned, if necessary.
The focus on Prof. Gates and Sgt. Crowley must expand to review the policies and racial practices of the Cambridge Police Department, and the department must be held accountable for the actions of Sgt. Crowley and any other officers found in violation of constitutional rights.
As a result of prior public outcry about racial profiling, stop and search data studies were ordered by state and local law and through lawsuits; some departments collected data voluntarily. Reports were released from over 20 states, covering 4000 cities, including half of the 50 largest, and 6000 police departments. Almost all the reports show not only significantly disproportionate stops and searches of people of color, but that, in spite of the extra scrutiny, people of color are no more likely, and often less likely than whites, to be in possession of drugs, weapons or other contraband (“hit rate”).
Here in Massachusetts, a 2004 statewide final report on citations and race required by the state's racial profiling law (Chapter 228 of the Acts of 2000), and conducted by Northeastern University on behalf of the Executive Office of Public Safety (EOPS) found that 247 of the 366 police agencies had sufficiently significant racial disparities to require the additional collection of stop, search and hit rate data.
The Cambridge Police Department was no exception. The 2004 report found it to be near the top of the list, among the 15 worst cities in the state, having significant racial disparities in all four areas of the study-- citations issued to Cambridge residents, citations issued to all drivers, searches, and citations compared to warnings.1
Prof. Gates, as an African-American scholar and traveler, would also, no doubt, be aware of, and personally concerned about, these findings in Cambridge, in Massachusetts and elsewhere, and it may have fueled his response. Sgt. Crowley, as a reported racial profiling trainer for the CPD, also no doubt knew, or should have known, as well, and should have acted with the necessary professionalism.
3. Governments, organizations and individuals must take strong direct action to root out racial profiling and other police abuse.
City of Cambridge: Conduct immediate full investigation into incident as well as police 1st Amendment and racial profiling policies, training and accountability; Un-merge the Police Review and Advisory Board (PRAB) from the Human Rights Commission, and beef up PRAB's resources and staff, including investigators; Post the data from the 2004 study and the follow-up stop-and-search study.
State of Massachusetts: Conduct immediate full investigation into this incident, as well as 1st Amendment and racial profiling policies, training and accountability in Cambridge and statewide; refer police allegations of abuse to prosecutors; collect and release the data from the follow-up statewide study; pass the pending state racial profiling bill (H3842, sponsored by Rep. Byron Rushing and Sen. Sonia Chang-Diaz), which would amend the existing law to continue data collection, and require police agencies to report their data to EOPS for independent analysis.
Rights organizations, community groups: Advocate strongly for the above government actions and on behalf of victims; form active coalitions toward that end; hold “know your rights/tell your story” workshops, hearings and town hall meetings; support the racial profiling bill; and exercise the right to dissent.
Individuals: Learn rights and teach others to stand up for their rights; observe, photograph and videotape police activity; file complaints, fight wrongful tickets, and take legal action--fight abuse, even if only in small claims court.
Federal government:
Congress: Encourage and review constituent complaints in respective districts; hold hearings on racial profiling and First Amendment violations; pass the federal End Racial Profiling Act (ERPA), which would ban racial profiling, require all police departments to collect and report data, and give victims the right to sue; reform civil rights law to make it easier to take police departments to court.
President Obama: Order, fully fund and implement “zero tolerance” policy against racial profiling and other police abuse; push passage for ERPA; immediately convene a commission of rights advocates, academics, community members (including affected young adults) and police to review the findings from complaints, litigation and statistical data to create a dialog and national action plan on racial profiling (and serve beer).
The mainstream uproar caused by incidents like the arrest of Prof. Gates is directly proportional to the degree to which dialog and action on race, racism and institutional racism remain suppressed. Credit must be given to Prof. Gates for having the courage to speak up. In doing so he stood up for the less prominent, who might have remained in jail, under charge, to this day.
King Downing, national expert on racial profiling, is a member of NPAP and the former director of the ACLU’s Campaign Against Racial Profiling. He is the plaintiff in Downing v. Massachusetts Port Authority, where a jury found that the Massachusetts State Police had unlawfully detained him at Logan Airport in 2003. He is currently advising the NPAP on a community outreach project.
1 Massachusetts Racial and Gender Profiling Study, Final Report, Northeastern University, Institute on Race and Justice, May 4, 2004
Arrest Deserves Condemnation by Police, Not Support
Sam Paz As the country has seen more and more governmental abuse of authority --torture, abuse of prisoners, some resulting in death, illegal spying on Americans and secret assassination squads, to name a few, the arrest and jailing of Harvard professor Henry Louis Gates Jr. by Sgt. James Crowley is a frightening example of abuse of authority and clear violation of Professor Gate’s First Amendment freedoms, beyond the implications of racial profiling. But more troubling is the police union and those who defend Sgt. Crowley.
Officers nationwide, are required to study and know when the First Amendment protects speech and when an officer has the right to arrest for speech in public for “breach of the peace” and “disorderly conduct.” Officers must learn the words of the historic 1942 Supreme Court decision in Chaplinsky v. New Hampshire which described the type of language that may get you arrested. These are words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” These are commonly known as “fighting words” and “incitement to riot.”
Another basis case is City of Houston v. Hill that held that the First Amendment protected shouts of verbal challenges, including profanity, directed at police officers unless such speech is “shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest.” The Court explained that the “freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”
President Obama’s description of Sgt. James Crowley as acting “stupidly” in arresting Professor Gates was not good presidential judgment. However, the police union is intentionally misleading the public in defending the arrest and jailing. They know the arrest, even assuming everything in Sgt. Crowley’s report is true, that this arrest is what is known in “cop talk” as an “attitude arrest.” An arrest for speech that is an unconstitutional abuse of authority. This willingness to back the fellow officer and ignore the clear commands of the law is a chilling example of the code of silence where police officers turn a blind eye to police corruption and unconstitutional conduct to protect their own.
R. Sam Paz, is vice president of the NPAP and a civil rights attorney in Los Angeles. Since 1974, he has practiced law for the Los Angeles community, specializing in litigation of civil rights claims and selected criminal defense cases. He has earned numerous victories in cases involving injuries or death caused by excessive use of force and police misconduct.
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