Friday, April 19, 2024

Cambridge Review Committee member Chuck Wexler reads during a Wednesday press conference from the committee’s report on the July 16 arrest of Harvard professor Henry Louis Gates Jr. Looking on are committee community liaison Jennifer Flagg and Cambridge Police Commissioner Robert Haas. (Photo: Marc Levy)

The long-awaited report on the arrest of Harvard professor Henry Louis Gates Jr. notes that the Cambridge Review Committee, its issuer, “was not charged with conducting a definitive fact-finding regarding the incident of July 16, and has not attempted to do so.”

“The committee feels strongly that such an inquiry would likely prove fruitless,” says the report, which was released Wednesday. [A summary of the report is here.]

Reading it, though, raises the question of whether the restriction — and lack of investigation or findings by the Cambridge Police Department and Police Review and Advisory Board — hobbled the panel’s dozen members. The report lacks in some striking ways.

The main issue is that the arrest of Gates, who is black, by Cambridge Sgt. James Crowley, who is white, was for disorderly conduct, but the 60-page report spends only one page addressing what this is or whether Crowley’s arrest was valid. It refers to “backtalk,” but doesn’t use the phrase most cite as the real reason for the Gates arrest: an unofficial term called “contempt of cop.”

The background of the case is well known.

Crowley went to Gates’ home on a 911 call of a potential break-in, but after he determined Gates was the legal occupant of the house and alone inside it, he arrested Gates, according to his arrest report, for “exhibiting loud and tumultuous behavior, in a public place [that] served no legitimate purpose and caused citizens passing by this location to stop and take notice while appearing surprised and alarmed.”

(Emphasis here and below were added for this post. There’s another portion of Crowley’s report that has been removed from this passage for discussion below.)

The lay person may read that description searching for the commission of a crime, especially if they know Gates, who was on his front porch, is only arguably in “a public place.” Crowley’s arrest seems to hinge on the “tumultuous behavior” of Gates, which is foreshadowed glancingly in Massachusetts General Law:

A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (a) engages in fighting or threatening, or in violent or tumultuous behavior; or (b) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

But then the committee notes that

Massachusetts courts have held that the law cannot prohibit conduct that involves the lawful exercise of a First Amendment right, and that a defendant cannot be convicted of disorderly conduct based solely on his speech.

This is what Deborah A. Ramirez, a consultant for the U.S. Department of Justice and police forces around the country and once an assistant U.S. attorney in Boston, meant when she said at a Feb. 11 forum in Cambridge that “I’m just going to come right out and say this. I’m a lawyer. I do not think there is a court in Massachusetts that would have upheld this charge, and that’s why it wasn’t brought to a courthouse; that’s why it was dismissed.”

She’s hardly alone in the assertion. In discussion after discussion posted online by lawyers and journalists consulting lawyers after the Gates arrest, the idea Gates would have been convicted (potentially facing a six-month jail sentence) was rejected. In discussion on National Public Radio — and at the Feb. 11 forum with Perry L. Anderson Jr., police commissioner for Cambridge between 1991-95 and former chief of police in Miami — police officials also said the case against Gates couldn’t be won.

Locally, defense attorney Daniel Beck said the U.S. Supreme Court had dealt with this in the 1987 case City of Houston, Texas, v. Hill, in which a disorderly conduct arrest was made citing a law with a list of causes similar to that of Massachusetts’ law, but the court “struck that down. While noting that of course the parts that say ‘assault, strike,’ you know, are legal, the entire statute is not because it includes First Amendment-protected speech, because it’s been used against people who interrupt verbally.”

Beck went on to paraphrase the court’s decision:

In many instances the malefactor is described as having done nothing more offensive to the public order than speaking or failing to remain silent. They held that that was an unconstitutional because a person has a First Amendment right to interrupt the police. In fact, somewhere in there it says something about how the right to verbally oppose police officer conduct is what distinguishes us from a police state. They talk about a ‘fighting words’ exception to the First Amendment, but ‘fighting words’ have been fairly narrowly interpreted. And here they said it may require a narrower application in cases involving words addressed to a police officer because a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen and thus be less likely to respond belligerently to fighting words.

“It is clear you have all kinds of rights,” Beck said. “Whether it’s wise to exercise them may be a different story.”

He said that at the time of the interview, in March, he’d just defended a woman whose “cardinal sin was demanding that the police officer give her his badge number. They don’t like that at all,” Beck said.

Another Cambridge attorney, Dan Solomon, went further.

“Actually, a lawsuit for false arrest would not be a horrible thing. Because he didn’t do anything wrong,” Solomon said. “Gates basically told a cop to go screw, and he didn’t do it politely, and that’s the sole and only reason why he got arrested. The cop, who I kind of know of and think is a good and decent cop, must have been really pissed off, because it was a moronic move to arrest Gates. You could tell by talking to the guy after about a minute that this is an individual who’s not some street guy and not a burglar and not a junkie, etc., etc. It just got to be two entitled willful, entitled men banging heads.”

Lawyers say courts would have rejected the arrest of Harvard professor Henry Louis Gates Jr. by Cambridge Police Sgt. James Crowley on a charge of disorderly conduct.

Had the case gone to trial, Gates would have been acquitted, Solomon said in April.

The committee makes 10 somewhat muddled recommendations — muddled because they are not written in the form of recommendations, which would have forced the committee to state them more clearly and recognize overlap might reduce them to as few as five. (Although the lessons were to be “for other police departments and other communities” as well, a likely editing error allows the fourth recommendation to persist in saying what “the City of Cambridge” should do.)

They reflect the thinking throughout the report, which was asked to look away from specific remedies for a case called “an aberration” by the city’s police commissioner and to ponder instead things that can be shown to have either a loose or no connection with what happened July 16.

The report discusses police hiring and training and the need for police and members of the community to practice “de-escalation” throughout — the terms “de-escalate” and “de-escalation” appear 54 times — although it is unclear what role either has in the arrest of Gates.

In terms of hiring and training, the report says police departments are frustrated by civil service rules and cannot hire the officers they want, although Crowley has repeatedly been called an “exemplary” officer who was raised in Cambridge with multiple commendations who is well-liked and respected and has even served as an instructor on the prevention of racial profiling. Police Commissioner Robert Haas’ comments that Crowley’s actions were in line with his training and national standards, and yet an aberration, only add to the confusion.

The report also suggests better integration and cooperation between the Cambridge police and their counterparts in the city’s college campuses. Gates, a Harvard professor, was living in a Harvard-owned home. Harvard police were called in after Gates was identified as being an employee, though, and were present to watch him be arrested. “When multiple police agencies share jurisdiction over a community, the more their operations can be coordinated and standardized, the easier it becomes for the public to form accurate expectations of the police, regardless of which department they may encounter,” the report says, without clarifying how that would have changed the outcome July 16.

While it is possible the report is suggesting Harvard police would have responded to a potential break-in already knowing, possibly by sight, who belonged in the Ware Street home, police didn’t even take the step of finding the name of the home’s legal occupant before Crowley arrived on the scene. While he drove to Gates’ home and interviewed the 911 caller, dispatchers could have produced a name — information that is even available to the public online. The report does not make such a suggestion.

In terms of de-escalation, Crowley’s report is incorrect in saying Gates’ behavior was “directed at a uniformed officer who was present investigating a report of a crime in progress.” Crowley makes it clear in his report that the investigation was over and there was no crime in progress.

Yet the report says “It appears fear was an issue for both men … Most police officers can understand that Sgt. Crowley was concerned for his safety and the safety of others as he approached professors Gates’ house.”

It goes on to discuss “the threat of violence” and “that residents should not expect officers to be casual and friendly in the midst of what, from the officer’s point of view, may be a potentially dangerous situation … sometimes the actions that police take to protect their safety and the safety of others can seem cold, insensitive or overly authoritarian.”

Further, it says, “The time to question a police officer’s actions is not at the very moment of the encounter, but later, when there are no safety or security considerations at issue,” which could fit the description in Crowley’s arrest report: “I told Gates I was leaving his residence and that if he had any other questions regarding the matter, I would speak with him outside the residence.”