The Deputy Who Didn't Shoot

People, including the President of the United States, are heaping scorn and shame on the Broward County Deputy who was assigned to protect Marjory Stoneman Douglas High, but who did not go into the building to confront the Parkland shooter. He has lost his job. He will probably never live this down, and may never get over his guilt. I don't particularly admire him, but we should not pretend for a second that he is the reason that lives were lost. I might hope and wish he'd gone into that building, but his behavior was completely normal. He's not the first school-protection officer to behave in exactly the same way.

First, let's deal with a simple fact. He was outgunned. The shooter's AR-15 was superior to the deputy's sidearm in nearly every way. It's easier to aim, it has a longer effective range, it's more powerful, and it can fire many more bullets before reloading. The 19-year-old misfit had the law enforcement officer badly outgunned, because that's the country we have decided to live in.

The AR-15's superior firepower makes it more dangerous in the shooter's relatively untrained hands than the deputy's pistol was in his trained hand. The kid had enough firepower to kill the deputy before the deputy could get close enough to return effective fire, and the shooter had enough rounds in the magazine that he didn't need to be an especially good shot. He could just keep shooting. In a straight-up firefight, the expected outcome is that the shooter with the AR-15 kills the deputy with the handgun, not the other way around.

We shouldn't assume that the deputy would have stopped or killed the Parkland shooter if he'd gone in. In fact, he was much more likely to have been killed by the shooter. The deputy would have needed to get some kind of tactical advantage on the shooter, by for example finding a way to get close to him and then shoot behind cover. But entering the building would probably have put him at a tactical disadvantage. He was much more likely to find himself in a position where the shooter had the drop on him, or was firing from behind cover, or both. The deputy had almost certainly undergone active-shooter training which made clear to him exactly how dangerous going into a building after a shooter is.

This is what the old assault-weapons ban was about: about not having the cops outgunned by criminals, or by random kids. But we have decided that the Second Amendment requires us to live in a world where nearly everyone has access to pretty serious firepower. The country where teenagers outgun the cops is exactly what the NRA has been lobbying for, has been demanding, for decades now.

The Broward County Sheriff has also announced from now on school-protection officers will have, well, AR-15s. But that's not a good solution; upping the firepower in an arms race just increases the risk all around. And it's too late now. The shooting is over, and the deputy only had the weapon he had.

Now, does part of my heart wish that the deputy had heroically gone into that building anyway, knowing he was more likely to be killed than the save anybody? Do I wish he'd tried? Sure. Especially when I compare his position to the unarmed teachers who had to sacrifice themselves inside. But we're asking for extraordinary heroism here, even for futile self-sacrifice.

If your position is that the deputy should have gone in and died trying even if it was hopeless, that he had a duty to get killed, that's a position. But admit that's what you're saying. 

Instead of blaming the deputy for not risking his life against the odds, we should ask why he was put in that position at all. We have created, and accepted, a system where the deputy is more likely to be killed himself than to stop the killing. Let's not talk about what he did or didn't do without keeping that in mind.

There was also an armed county deputy at the Columbine shooting. He didn't go into the building either. So what the Broward deputy did is not unexpected; it's what happened before. The deputy at Columbine High did manage to exchange some fire with one of the shooters in the parking lot, but when the killers went into the building he did not follow. Later, he and the same shooter exchanged some more fire through a window, without any real result. You will sometimes find people on the internet looking for evidence of "good guys with guns" point to the Columbine officer and say that it would have been worse without him, but there's no evidence of that. The Columbine shooters managed to kill 13 victims anyway. It's not clear the deputy even managed to slow them down much.

The officer at Columbine waited outside the building until backup arrived. That was not cowardice on his part. It was what he had been trained to do. He did not enter Columbine High, where he was more likely to become a victim than to save one. In fact, a number of other deputies and officers showed up and all remained outside the building, focused on evacuating fleeing students and sometimes providing covering fire for them. They shot back at the killers when the killers shot out windows, but they didn't enter the school. Eventually a SWAT team arrived, a force strong enough to overwhelm the shooters, and that SWAT team went into the building, at which point the Columbine shooters killed themselves.

The Broward County Sheriff has said unequivocally that his deputy should have gone “in. Addressed the killer. Killed the killer." The last part is wishful: just because Sheriff Israel would want his deputy to succeed in killing the shooter, that doesn't mean that it would have happened. You can expect your deputy to try. You cannot mandate that he succeed. And Sheriff Israel has to know that his deputy was more likely to be killed by the killer. Even I know that.

As for demanding that the deputy enter the building and engage the shooter, that may be an expectation. But it may be a retroactive expectation. I am not at all sure how the deputy was trained. Taking a defensive position and waiting for backup may, in fact, be what the deputy had been told to do in this situation. Deciding after the fact that he should have done something else is, well, too late. Maybe Broward County deputies are trained to rush into dangerous situations without backup if the situation seems bad enough. I have known cops who rushed into homes before backup could arrive because they thought a situation, such as a domestic dispute, was getting too dangerous too fast. (To be fair, those cops weren't rushing into buildings where there was gunfire.) But neither would I be surprised if standard Broward County training turns out to dictate exactly what the deputy ended up doing.

And, for what it's worth, we have been training a whole generation of cops, across the United States, to be very risk-averse, with training that heavily emphasizes the danger they're in. One of the reasons we've had so many police shootings of non-dangerous civilians is that the cops' training has made them intolerant of even very minor risk, and encouraged them to use deadly force in self-defense even against things that later turn out to have been phantom threats. Those civilians got killed because cops are now trained to approach every tactical situation from a place of fear. They have fear of their lives drilled into them as part of their training. It shouldn't be a surprise that a deputy whose training likely emphasized mortal fear didn't rush to face a genuine threat to his life.

cross-posted from Dagblog; comments welcome there, not here

Don't Ever Call the Cops: The Tamir Rice Story

The Tamir Rice story, and the irresponsible decision not to prosecute his killers, is breaking my heart. And while the worst sufferers are Tamir's family, I have found myself thinking, ever since he died, about the poor soul who called 911. That person was just trying to do the right thing, but the positive, neighborly gesture led to disaster. Calling 911 brought the Cleveland Police, and because the police came a child died. Everything would have better if the police had not come.

I wonder about that 911 caller, who did the right thing and will have to wrestle with guilt because in Cleveland that became the wrong thing. The 911 call specifically said that the person in the park was probably a kid and the gun was probably a fake. Those caveats got stripped away, and the police rolled right up on the poor boy, got out of their patrol car car, and immediately shot him dead. Then they stood around let the child bleed to death.

Before we go through the apologists' spin doctoring, let's remember three things:
1. Tamir got shot within two seconds of the police's arrival. They did not give him time to comply with any order. I do not think they gave the boy time even to comprehend their orders.
2. The fake gun was still tucked in Tamir's belt when he was killed. The police never saw it in his hand.
3. Even Tamir had been a grown man with an actual pistol, THAT IS NOT AGAINST THE LAW in Ohio. Ohio, for better or worse, is an open-carry state, which means that people have the legal right to carry a gun openly in parks. The cops shot him dead although there was no crime being committed, and no appearance of a crime being committed.

That is to say, there was no crime being committed until the cops arrived. The police themselves became the menace, not for the first time in Cleveland, destroying the civil peace they were sworn to protect.

And that leads us back to the problem of the 911 caller. Because one of the practical lessons here is: do not call the police. They are too dangerous. What should be the safe and neighborly thing to do has the most gruesome unintended consequences, because the police turned a kid fooling around on a playground into violent death. I'm sure that caller won't be quick to call the cops back to the neighborhood. How could you be?

And this is just one particularly stark and ugly example of the ways that bad cops destroy good cops' ability to do their jobs. Police work depends on neighborhood cooperation. Always has, always will. It's impossible to solve most crimes without neighbors providing tips and serving as witnesses. (The prevalence of CSI-style procedurals on TV is partly about denying this fact. In the real world, solving a felony with DNA evidence alone is rare.) Keeping peace and preventing crime depends on neighbors being willing to call 911. When you teach a neighborhood not to call the cops and not to trust the cops, because the cops themselves have proved themselves untrustworthy, you are making real police work nearly impossible.

It's not justice or peace. The police are sworn to uphold both. By endangering the citizens they are sworn to protect, they not only pervert their sworn charge, but make it impossible for any peace officer to do the job correctly.

cross-posted from, and all comments welcome at, Dagblog

Still Killing Citizens: The Death of Sam Dubose

A University of Cincinnati cop has been indicted for murder. He killed an unarmed black citizen named Sam Dubose, whom he had initially stopped over a minor traffic issue: no front license plate. Why are we still doing this?

We've heard this story before. A ridiculously minor offense, the kind of thing that cops routinely let go, escalates into homicide when a cop kills a black citizen who has no weapon. After Eric Garner and Mike Brown, after Tamir Rice and Freddie Gray and Sandra Bland and Walter Scott, we are still doing this. Why?

The facts in evidence in the Cincinnati case are appalling. The killer was wearing a body camera. His police report is flatly refuted by the video from that camera. A number of other police officers made sworn statements, backing up the killer, that are also flatly contradicted by the video evidence. All of that is a disgrace. But even more shocking than what they did is when they did it.

After Ferguson, after Baltimore, after Tamir Rice and Walter Scott, after months and months of protests against police killing black citizens, and after months and months of increasingly less plausible denials of the problem, these cops went out in the second half of July 2015 and did EXACTLY what apologists for the police have been telling protestors cops don't do. A cop escalates a chicken-shit traffic stop over a license plate into a homicide, for no perceptible reason. His fellow cops lie and perjure themselves to back him. We are still doing this. Apparently, some of us insist on doing this.

Protest and conscious-raising have not been enough. There are still some cops out there, people who should never have been police for even a minute, who do not see killing unarmed black people as a problem. Attention to the issue has not made such people more cautious; Sam Dubose's killer is unbelievably reckless. Watch the tape. Attention to the issue has not dissuaded some cops, sworn peace officers, from this terrible crime against peace and justice.

Our national conversation about race and policing is not working, because some people, some actual cops, are refusing to accept that conversation. They are not willing to stop killing unarmed civilians. It is, apparently, a privilege they insist on.

There is nothing left to be done but to apply the full force of the law. We are still doing this, because some people refuse to stop doing this, refuse even to have an honest conversation about this. It is time to stop talking. It is time to put some people, as many people as insist upon it, in jail.

cross-posted from, and comments welcome at, Dagblog

Do We Have a Constitution, Officer?

A country is only as democratic as its police, and Constitutional rights are only as real as its police treat them. The fight over police work in America is ultimately a fight over whether or not the United States Constitution is real.

The Constitution plainly states that no person "shall be deprived of life, liberty, or property, without due process of law." It could not be clearer. It could not be more essential. But in 2015 we hear apologists for police misconduct, across our country, loudly advocating a civil order where the police can punish any citizen who does not comply swiftly enough to please the police officer, where police can arrest citizens without cause, where police officers can kill unarmed citizens with impunity to guard against hypothetical and thoroughly imaginary dangers. There is no due process of law. You have no rights.

Officer Michael Brelo, recently acquitted of manslaughter in Cleveland, stood on the hood of two unarmed citizens' car and shot fifteen bullets into their windshield. Brelo had already shot 32 other bullets at that car. In fact, Brelo and his fellow officers, who shot 137 bullets at those two unarmed citizens, were also shooting at each other, because they had surrounded the car and were shooting into a circle. Brelo, the only one prosecuted for shooting, was standing on the hood of the victims' car because, even if they had had a gun, Brelo knew they were no longer in condition to return fire.

Timothy Russell and Malissa Williams's lives were taken, by paid agents of the state, without due process. There was no trial. There was no judicial process, and there are no consequences. Nor was there ever any danger to any police officer except from other police officers. The chase (which involved more than a hundred cops) began because Russell and Williams's car had backfired and a jumpy police officer, hearing an engine backfire, decided that he was being shot at.

The police can take two citizens' life in response to their own fantasies. They go free after doing it. The Constitution is not in force. We do not live in the country we say we do.

In Baltimore, Freddie Gray was arrested for no reason that the police themselves can explain. He was arrested without committing a crime; he had looked at a police officer, and then he had run. Baltimore police officers punished these non-crimes by arresting Gray, and by beating him; he was limping on his way into the police van. He was dead when he came out. But other citizens put into Baltimore police vans have come out with broken bones, concussions, and spinal damage: the Baltimore cops' way of dispensing "justice" without any judge, without any chance for the citizen to defend or explain himself, without any law needing to be broken at all.

Did they mean to kill Freddie Gray? Or did they just mean to punish him by doing him bodily harm, without due process of law? Either way, there is no Constitution in Baltimore. This is not the America we talk about.

Police officers in Cleveland, in Baltimore, and across the country, consider themselves entitled to beat citizens who don't cooperate as the police officers see fit, to beat citizens who say something a police officer doesn't like, to beat citizens who make the police officers run. They see this as their right and their privilege. They don't ask a judge. They don't bother with the law. Your rights in the Constitution are not your rights, because the police don't bother with them.

People who excuse or encourage this behavior, who say that you're in no danger if you obey a police officer, should be up front about what they believe. They believe in abolishing the Constitution. They trust the police, any specific police officer on any given day, more than they trust the Founders. If your Constitutional rights can be voided whenever a cop, any cop, in any mood, decides to give you an order, then you have no Constitutional rights. The Founders deliberately decided that no one in our system, not even George Washington himself, could be trusted with unchecked power. Allowing police to dole out any punishment they see fit to anyone who disobeys any order, even unlawful orders, is a mockery and misunderstanding of everything our system was meant to be.

I am from a family of police officers. I grew up around police officers, including many, many officers I love and admire. I know lots of good cops. But I have never known a cop who was not a human being, with human failings. I have never met a police officer who should be allowed to do anything he or she wants without accountability. Thomas Jefferson mocked the idea of "angels sent as kings," by divine right; certainly, a system that requires all police to be angels, because they are empowered to do whatever they want, is even worse.

Yesterday Cleveland agreed to Justice Department oversight for the Cleveland Police. That oversight includes things like not beating suspects who are already in custody and in handcuffs. But that is not a new rule. That was always the rule. The Cleveland police knew that rule and disobeyed it. That Cleveland police officers did that, time and again, shows that they have routinely ignored the law, that they consider themselves above the law and can not be held accountable. The New York Police Department forbids its officers to use chokeholds on suspects, and has forbidden that for years, but for years its officers routinely did it anyway. The six Baltimore police officers who took Freddie Gray on his fatal ride all told their superiors the same story, a story that did not match video evidence. Lying and falsifying reports has become routine. Standing orders are routinely ignored. It is clear that in many police departments, the rules that are written down are not actually obeyed, and the focus is on protecting one's fellow officers from oversight.

Every cop is not bad. But when police are not properly supervised and held accountable, then the bad cops are put in charge and the good ones have to follow their lead. When the police avoid the authority of the laws, then there are no laws but the police.

If the police are not answerable for what they do, then nothing else matters. If they are beyond the law, then none of us are safe from them. If the police need not answer for what they do to us, then the police become, in the most literal way, irresponsible. And then the Constitution is just some words on paper, no more real or meaningful than the beautiful and high-minded constitutions of every other police state.

Michael Brelo was acquitted because the judge said no one could prove that Michael Brelo's shots killed the two unarmed people who had committed no crime. After all, by the time Brelo was standing on the hood of the car, both of those victims were probably already dead. But that means Brelo was standing there, pouring fifteen more bullets into two defenseless human bodies, to make sure that neither of them survived. Think about that when you go to sleep tonight, and try to pretend that you have any rights.

cross-posted from Dagblog

Police, Danger, and the Social Contract

I was blogging about the police tonight, and about the responses to protests of police brutality. Then I heard about the shooting of two police officers in New York City,  so the rest of that post (and some of the others I have been working on) will have to wait.

The first thing I want to say is that absolutely nothing justifies this. Nothing justifies the murder. And if the murderer committed his crime in the service of any reasonable cause, he has set back that cause tonight. You don't get justice for Eric Garner, or for anyone else, by vigilante revenge. That only makes the problem worse.

We live in a culture where the police (who face real danger in their work) have been taught -- indeed, actively trained -- to be excessively fearful, to the point where some officers will put citizens' lives and safety at substantial risk rather than face some very small risk themselves. (For example, they might apply a chokehold to a suspect who's already being held on every side by several officers, and who can't free either of his arms. What danger that was meant to eliminate is hard to say.) Basically, the logic is that every possible trace of danger should be eliminated, which is impossible. So the effort to eliminate all danger generally means being extremely aggressive in situations that aren't actually that dangerous.

But that culture of fear is not helped by randomly killing police officers. It's fear that's driving the aggression, and the fear is fed by the potential randomness of the danger. Cops being killed without seeing the danger coming translates, in our current atmosphere, into cops being hyper-aggressive in situations of minimal danger because, "You never know."

Killing two cops in an ambush won't break up the mindset that killed Eric Garner, Killing two cops at random feeds the mindset that killed Eric Garner. When the police have been convinced that they could die at any moment, they take crazy and dangerous steps against people who actually pose no threat to them.

But anyone pointing at this murder as justifying that bad and crazy policing is a mistake. This doesn't justify anything. And the NYPD's aggression on the street will not, cannot, protect them from things like this. Saying they need to get tough with non-violent offenders in misdemeanor arrests because they could be killed in an ambush makes no sense. That strategy creates new problems without solving the old one.

The ugly truth is, police officers (like every other human being) are extremely vulnerable to a surprise ambush with a gun. Two police officers were killed this way in Las Vegas this year, gunned down by anti-government nuts while eating lunch. And obviously, the Tsarnaev brothers ambushed and killed an MIT campus cop last year. The method is the same every time: come up behind a police officer and shoot. The attacks in all three cases came out of the blue, and there was nothing that the officers could have done to protect themselves. It's not a question of police tactics. None of those cops had a chance.

But this is where the current approach to police work, the attempt to eliminate any and all potential danger, breaks down. You can never eliminate all danger. You can never even eliminate all mortal danger. Every police officer -- and every police officer's family -- has to live with that small, terrible chance. (I am a police lieutenant's son myself; I know exactly what this feels like.) There is always a little danger that you can't foresee or protect yourself from. But you definitely can't get rid of that uncontrollable danger by getting extra tough when there is no danger. Someone with a gun could always come up behind you. You can't protect yourself from that by choking an unarmed guy who's selling loosies on the street. That only creates more problems.

Least of all should the Mayor of New York, or other people who have legitimately criticized police tactics, be blamed for a crime against police officers. Police work is too important to be shielded from any criticism, and the difference between good and bad police work is much, much too important for bad cops to get a free pass. When police work becomes so recklessly bad that unarmed civilians are getting killed, when the police have actually become a cause of violence on the street, then the civil authorities have a duty to look into that. They would be derelict if they did NOT investigate.

In fact, the police are safest when they have strong civic oversight. In the end, the police's greatest protection is the social contract, which they are meant to enforce. The public support the police because the police protect them. If they endanger the public instead, the social contract breaks down. If ordinary citizens know there's a legitimate grievance process that works, and that they are safe from needless aggression by the police, the cops are safest and most respected. But when those legitimate outlets do not exist, or break down, then people are wrongly tempted to redress by illegitimate means. A breakdown of the social contract leads to unpredictable violence. And that puts everyone in more danger.

cross-posted from Dagblog

Trayvon Martin and "Making It About Race"

cross-posted from Dagblog

Whenever an unarmed black person gets shot to death, the way Trayvon Martin was, you'll hear some people defend the shooter by claiming that the shooting wasn't racist, and how dare you judge what's in the shooter's heart? The shooter would have killed any unarmed person for walking down the street in a sweatshirt, or walking down the street with a wallet, or performing whatever "suspicious" everyday activity prompted the homicide. The defense is that the killer is not a racist, but a universal menace to society. This is supposed to be reassuring somehow. It's a thoroughly illogical defense. It even suggests that no matter what the person making the argument says, and no matter what they tell themselves, they know in their hearts that racism was the motive for the violence. In fact, their own sense of safety is based on their rock-bottom belief that the killing was racist.

Anyone who sincerely believed that George Zimmerman was equally likely to kill a white teenager, or a teenager of any other race, who happened down the street with a packet of Skittles would want Zimmerman disarmed and off the streets yesterday. They certainly wouldn't be talking about being reasonable and making sure Zimmerman wasn't judged in the media and casting about for anything that could be twisted into "reasonable doubt." If you really thought Zimmerman was just as likely to kill your son, your grandson, your nephew, as he was to kill Trayvon Martin, for exactly the same reasons, you would demand that Zimmerman be held without bail.

In the same way, if you really believed that the New York City Police (for example), were likely to shoot any unarmed civilian in the city 41 times over a minor misunderstanding (for example), you would want massive firings and new leadership from outside the force. You wouldn't feel safe walking the streets until you'd been convinced that the whole department had been shaken up and radically changed its ways. You wouldn't get all mealy-mouthed about the thin blue line or how cops "need to do whatever they have to to be safe." You'd know that until things changed in the police force you would not be safe. And that would be intolerable.

No. When someone defends a killing like Trayvon Martin's or tries to find a way to justify it, they are admitting that they do not believe themselves to be in any danger. They believe themselves, and their loved ones, to be safe because they believe that only an African-American could be killed for such little reason. They not only believe that black men and black teenagers are in special danger of being shot and killed but count on that danger being racially biased, count on the danger hovering over another part of the population and not over their own. They are sure that the "Stand Your Ground" law will not permit someone to shoot them or theirs, are sure that quick-triggered police will never shoot them or their sons. Anyone who says that these capricious homicides aren't about race is only saying that because they know it is about race, and because they're okay with that. 

Who Can't Get a Gun in This Country?

Norman Leboon, who has threatened to kill Congressman Eric Cantor, has been found unfit to stand trial for psychiatric reasons. This is not a big surprise; last year Leboon was arrested for threatening to have the Archangel Gabriel kill his roommate. But on the other hand, that wasn't enough to get Leboon's license to carry a concealed handgun canceled. Of course, when Norman got really crazy his brother came and tried to confiscate the gun. He just couldn't find it.

Charles Alan Wilson, who has been arrested for threatening to murder a United State Senator, also has a concealed-carry permit, and a .38 handgun to conceal. He told the FBI all about it.

On the other hand, Jacob Ward of the Hutaree militia had his guns taken away by his mother. This made him so angry that he asked the police to arrest his mother, "and was irate when the cops refused":

Police reports indicate Ward wanted his AK47 and .45-caliber pistol back because an Ohio crime family was after him for trying to marry a Macedonian woman who had been held captive on an island in Lake Erie by another crime family.

Fortunately, the police can't make you give a delusional relative his guns back. But they can't stop you from giving them back, either. And it's apparently up to you, and not the cops, to take the guns when your family member becomes a menace.

All irrelevant in the case of Huntsville shooter Amy Bishop, of course, whose husband bought the gun she would someday use in Huntsville back in 1989. (If you remember her husband claiming that he didn't know where she got the gun, because the family didn't have one, it's because he said that in public. He was just lying.) This is one family member who wanted to make sure that Amy had access to a gun, which is odd considering she'd killed her brother with a gun in 1986. Now, her husband likely doesn't believe that Bishop murdered her brother, and Bishop was never charged or even fully booked. But even if you grant Bishop's version of the story, why should anyone who's killed someone through incredible carelessness with a firearm have another firearm? If you can't load and unload a gun without committing fratricide, you just shouldn't have guns. Really.

And of course, the people who sold Virginia Tech killer Seung-Hui Cho his two handguns couldn't have known that he would use them to kill 32 people before he killed himself. There was nothing in his past that predicted he would become a mass murderer. His psychiatric history only suggested the suicide part. And though we worry, or pretend to worry, about selling guns to murderers, nobody ever complains about people selling guns to people who might kill themselves. Think about how cold that is.

So my question is: who can't get a gun in this country? People suffering paranoid delusions can have handguns and assault rifles and concealed-carry permits. People who've been arrested for threatening other people can have guns. Suicidal college students can have guns. People who've killed other people with guns can have new guns. Seriously, who the hell is not allowed to have a gun? I'm not proposing any draconian new gun laws here. But how on earth can it be this easy for people who are obviously a menace (one way or another) to get semi-automatics?

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.