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Charles W. Cherry Ii NNPA Guest Columnist
Published: 28 July 2009

Let's do what the "mainstream media" have not done: factually and legally analyze Harvard professor Dr. Henry Louis Gates, Jr.'s arrest by Cambridge, Mass. Police Department Sgt. James Crowley.
Though Gates and Crowley disagree as to the specific details, the most important undisputed facts are that the arrest occurred inside Gates' home; that only Gates and Crowley were present there at the time; and that no one outside Gates' home saw or heard Gates raise his voice.
After their conversation, Crowley arrested Gates for one count of disorderly conduct. Gates spent four hours in jail; Cambridge prosecutors dropped the disorderly conduct charge less than 24 hours later.

Easy Call

According to Massachusetts law, arresting Gates under those circumstances was clearly illegal. Why? Because Gates' actions didn't meet Massachusetts' definition of "disorderly conduct."
Crowley charged Gates with causing "tumultuous behavior," which is a requirement for a successful disorderly conduct prosecution. But it's only one requirement; there's another. Massachusetts, and almost all of the 50 states, has what's called a "public element" requirement for someone to be legally convicted of disorderly conduct.
Take, for example, the case of Massachusetts v. Joseph Mulvey. In 2000, Oxford, Mass. cops arrested Mulvey, who was cussing and fussing at them after he was served with a restraining order. Cops testified that Mulvey yelled at them till he was "red in the face." But Mulvey shouted at them from his mother's property, which was set back 100 feet from a public road, through a fence that cops themselves could barely see through.
The court said disorderly conduct did not occur because Mulvey's loud, animated conduct did not satisfy the "public element" requirement. The court defined "public" as "affecting or likely to affect persons in a place to which the public or a substantial group has access." It said that prosecutors must prove that the disturbance "had or was likely to have had an impact upon persons in an area accessible to the public."
In Mulvey's case, there was no evidence that a crowd, inquisitive neighbors, or passersby actually saw or heard the disturbance. There was no evidence that people could have seen or heard Mulvey from any place of public access such as a nearby sidewalk, path, road, shopping area or other neighborhood facility.

Cops are not the 'public'

Still, Mulvey's prosecutors argued that the "public element" requirement was fulfilled by the fact that two cops observed Mulvey acting a fool. The court disagreed. It cited the Model Penal Code, a template of criminal laws that have been adopted by most of the states, as support.
"Behavior that has an impact only upon members of the police force is significantly different from that affecting other citizens in at least two respects," wrote the court, citing the Code. "It is an unfortunate but inherent part of a police officer's job to be in the presence of distraught individuals…one must suppose that [police officers], employed and trained to maintain order, would be least likely to be provoked to disorderly responses. Accordingly, police presence in and of itself does not turn an otherwise purely private outburst into disorderly conduct."

Even If Gates Was 'Disorderly'

Let's take Crowley's word for it that Gates acted in a "disorderly" fashion, and called Crowley every curse word known to man. (Both Gates and Crowley agree that didn't happen.) Crowley still couldn't legally arrest Gates for disorderly conduct, because Crowley isn't a member of the 'general public' that the crime of disorderly conduct is designed to protect.
This analysis is why Cambridge prosecutors dropped the charges against Gates less than 24 hours after Crowley arrested him. The bottom line: having a loud, animated disagreement with a cop in a private setting is not a crime.

Incompetent, not racist

Again, let's believe Crowley's assertion that he's not a racist, and that he didn't consider Gate's race before he decided to arrest him.
Crowley is a veteran cop and training officer. For him to arrest Gates without evidence of the "public element" required by Massachusetts law shows at best bad judgment and egotism – at worst, incompetence.
For the entire Cambridge Police Department, including Sgt. Leon Lashley, the Black cop who was there on the scene, to support and ratify Crowley's incompetence proved Obama's comment that the whole department "acted stupidly" is true. Their stupidity is compounded by arrogance, in which they request that Obama apologize to their department.
In math, two plus two always equals four. Things are rarely so certain in criminal law. But given the facts that neither Gates nor Crowley argue about – Gates being arrested in his own home for questioning a police officer, an act that was neither seen nor heard by a member of the "general public" outside Gates' home – is as close to a certain illegal arrest as it gets.
Gates should sue. Crowley and his department will then be forced to publicly admit their error – in front of a jury and the world.

Charles W. Cherry II is a practicing attorney and former South Florida prosecutor. He is also the publisher of the Florida Courier and the Daytona Times

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