Police Discretion

There's already been a lot of virtual ink spilled about the Gates arrest, and now about the President calling the arrest stupid. Ta-Nehisi Coates has terrific posts, and terrific threads, about both, and I'm using my blog to put together some of the thoughts those threads brought up for me. As someone from a police family, I think that arrest was stupid. It was a glaring piece of bad judgment.

Even according to the arresting officer's report, this is very much a discretionary arrest. There are such things. If every law on the books was constantly enforced with arrest, we'd live in a bizarre and palpably unjust world. Every loiterer should not be fined. Everyone drunk in public should not spend a night in the drunk tank. Every piece of disorderly conduct should not lead to an arrest. Any time a police officer makes one of those arrests, he or she is using her discretion. It's a judgment call.

Should these laws be taken off the books? No. Do they give the police too much leeway? Not necessarily. Police need some tools to manage difficult situations in real time in the interest of public safety. The ability to arrest people, to remove certain parties from a situation that's looking volatile, is an absolutely necessary tool. If you've got some truculent drunks in a crowd after a sporting event, who are on the verge of starting a fight, public drunkenness is a great arrest to make. If you want to keep two large groups of teenagers from brawling, the no-loitering law is perfect. If someone is legitimately creating a public danger, disorderly conduct arrests can defuse the situation.

But here's the thing. Exactly because these arrests are discretionary, they put the burden on the police officer to use discretion and good judgment. These are laws that are basically designed not to be enforced most of the time. The point is that the officer is supposed to apply these laws judiciously, in the interest of public safety. A drunk twenty-something leaning on a designated driver's arm? Not an arrest. A drunk twenty-something screaming threats at a guy in a Yankees cap? Arrest-a-mundo.

Most of all, discretionary arrests should not be used by a police officer to vent spleen or avenge insults. They often are, but that is not policing. That is public bullying. Disorderly conduct should not be charged simply because someone displeased a police officer.

The arresting officer's report, which is by its nature a one-sided and adversarial document, can't really make the case that Gates had to be arrested. It only makes the case that Gates could be arrested. And for a disorderly conduct charge, that isn't enough. Any talk about how Gates comported himself is beside the point. Being a jackass, and we only have the arresting officer's word for that, is still not an arrestable offense. And as for the defense that Sgt. Crowley was "just doing his job," I would point out that his job is to use his discretion. He certainly wasn't protecting anyone when he arrested Gates. And he wasn't using his judgment. He was just being, to put it as charitably as possible, stupid.

I believe that Crowley knew from almost the beginning of the interview that Professor Gates was not a threat to him. The fact that Crowley entered Gates's home (as all parties agree) by himself and without backup, gives that away. If he went into that house without backup (especially when the initial report mentioned two suspects) before knowing that there was not a crime in progress, then he would be an enormous fool. That he walked into Gates's home alone suggests that he knew he was dealing with a safe situation.

After Gates had identified himself as the homeowner, and shown ID (which all parties agree, although they differ on details), and after, as Sgt. Crowley himself reports, Crowley believed that he was dealing with the legitimate resident, there was no further police work to do. (Certainly, he should not have continued to ask the resident questions after that. What reason could there be?) Crowley should have been on his way. Ideally, a few conciliatory words along the line of "Sorry to disturb, just doing our jobs," would have helped, but Crowley was also free to scowl and depart.

What happened next, with Gates being arrested and cuffed on his porch, has nothing to do with public safety. Even if Gates behaved every bit as badly as Crowley claims, Gates's vocal and arguably "disorderly" displeasure was not going to be a threat to anyone else's safety. There wasn't going to be any mayhem on Ware Street. I'm not entirely sure that the laws of physics permit mayhem on Ware Street in Cambridge. If Gates had genuinely lost his temper, then Crowley should have allowed him to sputter on his porch and embarrass himself. Instead Crowley reached for his cuffs and made everything into a bigger deal. Was that stupid? There's no way on Earth to call it smart.