Shared Responsibilities? – A faulty premise

Brigitt Keller, Nancy Murray, King Downing, Filipe C. Teixeira and Jamarhl Crawford

Can someone be arrested for simply talking back to the police?  Do police officers and the public bear the same responsibility to “de-escalate” an encounter?
The Cambridge Review Committee (CRC), specially appointed to look into the arrest of Harvard professor Henry Louis Gates Jr.  last year, has produced a report titled “Missed Opportunities, Shared Responsibilities” that ignores the U.S. Constitution and barely mentions the issue of race.
By avoiding the two most important issues, the report is a waste of taxpayer dollars. Without basis, the CRC suggests that the arrest may have been legally justified and that the public and police officers bear the same responsibility “to de-escalate the level of tension in their encounters with each other.”
These are astonishing premises given the First Amendment, which protects even angry speech; the Fourth Amendment, which requires probable cause for arrest and the awesome power of police — along with the well-documented abuse of that power.
The majority of the CRC consisted of current or former police officers or prosecutors and did not include a single civil rights or constitutional rights advocate. This may explain why the report does not acknowledge the power imbalance between an un-armed civilian — here an elderly man with a cane — and a police officer entrusted with enforcing the law, by use of deadly force if necessary. This imbalance was amplified by the fact that the civilian was black and the officer was white.
Police officers have a legal obligation to treat civilians with respect. They deal every day with people who are intoxicated, upset or show signs of emotional distress or mental illness. As trained professionals they are expected to take this into account and know that citizens have a First Amendment right to be verbally disrespectful to police officers.
The arrest of Gates was not legal. According to Sgt. Crowley’s own police report, the professor’s behavior never went beyond words, and 911 tapes of the encounter provide no evidence that these words were capable of inflicting injury or inciting an immediate breach of the peace, which would constitute the prerequisites to remove constitutional protection.  
Another unsettling factor is that the 60-page report almost entirely avoids questions around race even though race and racial profiling were issues raised by Gates, the community at the CRC’s forums and other Cambridge events, and by the national conversation.
The report also neglects to mention that Cambridge has a documented history of racial profiling, lending support to Gates’ assumption that his arrest was racially motivated. In the 2004 “Massachusetts Racial and Gender Profiling Study” by Northeastern University, commissioned by the state public safety agency, an evaluation of stop and search data revealed that Cambridge was one of the 15 worst communities out of 366 with significant disparities in all four measurement categories.
Even though the Cambridge Police Department is still collecting stop and search data, the data is currently not analyzed and not publicly available, making it impossible for the public to assess whether the department has improved its performance in regard to racial profiling.
The report also claimed no racial disparities in disorderly arrests based on a subset of only nine arrests out of one year’s total.
The report ignores the significant constitutional and racial issues that are raised by the encounter and public discourse.  Gates had the right to express his view that the sergeant’s conduct was racially motivated, even if this was not a welcome message.
Once Crowley determined that there was no longer reasonable suspicion of a crime, he had no right to take further action and should have left. The city should have sanctioned him for his conduct.
Costing more than $100,000 and in the spotlight of the national attention brought by this arrest, the CRC report might have been a “teachable moment.”
Instead, it provides an all too common “avoidance moment” — the real “missed opportunity.”
The authors are Brigitt Keller, executive director of the National Police Accountability Project; Nancy Murray, Cambridge resident and education director of the ACLU of Massachusetts; King Downing of the New York-based Human Rights-Racial Justice Center; Bishop Filipe C. Teixeira, Diocese of Saint Francis of Assisi, Brockton; Jamarhl Crawford, Boston Black Men’s Leadership Group.