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Confusing Suds with Substance

By Edward Zelinsky

At their much anticipated White House meeting held last Thursday night over beer, President Obama, Professor Henry Louis Gates Jr. and Sergeant James Crowley made a valiant effort to end the national controversy provoked by Sgt. Crowley’s arrest of Prof. Gates. However, these White House atmospherics, while well intended, cannot obscure the troubling questions which persist: Was there probable cause for Sgt. Crowley to conclude that disorderly conduct had occurred? If not, was the arrest, as President Obama initially opined, “stupid”? Of the irreconcilable statements advanced by Prof. Gates and Sgt. Crowley, which is true – and which is false?

Throughout the twentieth century, judges and legal scholars have grappled with the dilemma posed by the notion of disorderly conduct. On the one hand, individuals can behave in ways which unacceptably disrupt other persons and the community as a whole. On the other hand, the term “disorderly conduct,” by itself, is disorderly. This term is vague, giving no effective notice of what conduct is forbidden. Consequently, arresting officers may have great discretion to deem conduct as “disorderly.” In the worst case scenarios, constitutionally-protected expression and purely private behavior can be squelched as “disorderly.”

The drafters of the Model Penal Code (MPC) addressed this dilemma by limiting the concept of “disorderly conduct” to situations in which an individual deliberately or recklessly “cause(s) public inconvenience, annoyance or alarm.” From this perspective, there is no crime of disorderly conduct in private. Moreover, conduct is illegally disorderly only if an individual intentionally or recklessly inconveniences, annoys or alarms the public. In such decisions as Commonwealth v. Peace Chou, the Supreme Judicial Court of Massachusetts incorporated the MPC definition of “disorderly conduct” into Massachusetts law.

In light of this legal definition, Sgt. Crowley lacked probable cause to arrest Prof. Gates for disorderly conduct under either Sgt. Crowley’s description of events or Prof. Gates’. According to Prof. Gates’ narrative, he was arrested as he stepped onto his porch, before he made any public comments. As a legal matter, there is no disorderly conduct in Massachusetts without public impact.

Assuming instead the truth of Sgt. Crowley’s report, he still lacked probable cause to arrest Prof. Gates for disorderly conduct. Nothing in the police report suggests that Prof. Gates intended to inconvenience, annoy or alarm his neighbors or that his behavior, as described by Sgt. Crowley, satisfied the test of recklessness.

That, however, is not the end of the story.

President Obama in his July 22nd press conference called the arrest of Prof. Gates “stupid,” a term which implies that Sgt. Crowley acted irrationally, in bad faith, or both. Again, accepting Sgt. Crowley’s description of the events of that night, his decision to arrest Prof. Gates, while legally incorrect, was not “stupid” since, in Sgt. Crowley’s telling of the story, Prof. Gates’ behavior was abusive and intemperate. From this vantage, the arrest, while faulty, was understandable.

In contrast, accepting Prof. Gates’ statement as the correct version of events, what occurred that night was far worse than “stupid.” The narrative released by Prof. Gates describes him as calmly identifying himself to Sgt. Crowley as the occupant of his home. The Gates narrative then depicts Sgt. Crowley, without provocation or reason, arresting Prof. Gates for disorderly conduct when Prof. Gates stepped onto his porch, before Prof. Gates engaged in any public statements.

Each of these gentlemen, as well as the President, had his own reasons for participating in Thursday night’s brewski diplomacy. Nevertheless, these troubling questions persist. The carefully-crafted Gates and Crowley statements cannot be reconciled. In the former version, the arrest that night in Cambridge was totally unjustified. In the latter version, the arrest was understandable, albeit legally insufficient. Either way, President Obama’s initial characterization of the arrest as “stupid” was wrong, either unfair to Sgt. Crowley or too generous to him.

We should not mistake a feel good event with an authoritative resolution. Suds should not be confused with substance.


Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America.

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  1. [...] Confusing Suds with Substance: The Obama-Gates-Crowley Meeting … By Rebecca … White House meeting held last Thursday night over beer, President Obama, Professor Henry Louis Gates Jr. and Sergeant James Crowley made a valiant effort to end the national controversy provoked by Sgt. Crowley's arrest of Prof. … OUPblog – http://blog.oup.com/ [...]

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