Prof. Gates’ property rights likely violated in arrest — but Obama was wrong to weigh in

by John Berlau on July 30, 2009 · 5 comments

in Culture, Odds & Ends, Personal Liberty, Politics as Usual, Regulation, Sanctimony, Zeitgeist

Amid all the endless media psychobabble about “national conversations” and “teachable moments” – and we will no doubt here more of this in the reporting of the “beer summit” at the White House today — I have been trying to weigh the established facts surrounding Henry Louis Gates’ arrest from a libertarian, constitutional liberties perspective.

I have come to a conclusion siding with Gates against the officers – but only in a limited sense. Although I disagree that this was a case of racial profiling, I do think the charging of Gates with disorderly conduct for yelling at the officer in Gates’ own home was an improper and likely unconstitutional infringement on both Gates’ free speech and property rights.

Generally, unless a something like a bullhorn is involved, a homeowner cannot “disturb the peace” on his own property, not matter how obnoxious the content of his speech might be. And the Cambridge police made a serious error in the charge against Gates in describing Gates’ own front porch as a “public place,” rather than the private property that it is.

But I also believe President Obama should not have weighed in on this or any other pending legal dispute. In so doing, he broke a longstanding precedent that presidents should not make any comments as to the guilt or fault of individuals in an ongoing or potential legal case, because they could compromise the impartiality of the proceeding. 

In fact, as I detail below, Obama’s speaking out may hurt Gates’ chances of prevailing in a lawsuit against the Cambridge Police Department – a lawsuit that I believe would be merited.

If anyone is owed an apology in this drama, it is Gates’ alert neighbor Lucia Whalen

Before I get to the main parts of the Gates controversy, let me say how heartened I am at the vindication of Lucia Whalen, who did what any good neighbor should do: report what she thought might be a break-in at her neighbor’s property.

Whalen’s 911 call released this week by the Cambridge Police Department shows that she never identified the race of Gates and the driver who were trying to force their way in (when pressed by the 911 dispatcher she guessed that one might be Hispanic), and acknowledged the suitcases and the possibility that they could “live there.” Here’s the audio and transcript of the call, and here’s video of Whalen’s press conference yesterday.

 And it wouldn’t rally have mattered even if she had identified race. Black or white or whatever, if people are shoving themselves at a door and trying to force it open, as Gates and his driver were, there is more than a good chance that they are would-be burglars and not the home’s owners. In too many cases, burglaries and other crimes could have been prevented if neighbors had been more alert. For example, many incidents have been reported of burglars cleaning out houses in broad daylight by posing as movers. A curious neighbor calling the police could have foiled these thefts and saved those homeowners — whatever race they were —  much anguish.

If anyone is owed an apology, it is Ms. Whalen, who was attacked by Gawker’s John Cook (who called her “racist” – and did apologize after the 911 call was released), Daily Kos blogger BabylonSista (who called her a “nosy bigot,” and so far still hasn’t apologized), and countless others. Before jumping to these conclusions now exposed for the idiocies they are, they just should have listened to Gates, who to his credit had nothing but praise for the watchful neighbor. “I’m glad that someone would care enough about my property to report what they thought was some untoward invasion,” Gates told the Washington Post last week.

(Note: I use Whalen’s name because it is now part of the public record, although it never should have been. Unfortunately, it wasn’t redacted from the police report that leaked out onto the Internet. Her name has been bandied about in blog posts and several news stories, and she has even had to hire an attorney. One of the “teachable moments” from this saga should be that police departments must do a better job protecting the privacy of those who report potential crimes.)

 Whatever Gates said to Sgt. Crowley, Gates should not have been arrested for “disturbing the peace” on his own property.

Both Whalen’s call to the Cambridge police and Sgt. James Crowley’s quick response to the dispatch should be praised. Where it gets murky is the exchange of words that occurred after Crowley stepped on Gates’ front porch.

According to Crowley’s police report, Gates immediately responded to Crowley’s announcing that he was investigating a reported break-in by that shouting that he was being targeted because he was a “black man in America.” He then hurled several insults, called Crowley a racist, and, in an allegation backed up by the report of a fellow officer who appeared on the scene named Carlos Figueroa, yelled that Crowley didn’t know whom he was “messing with.”

A major point of contention concerns IDs — both those of Gates and Crowley Crowley wrote that Gates “initially refused” to show him identification, demanding that Crowley show his police ID first, “but then did supply me with a Harvard University identification card.” But a statement from Gates’ attorney Charles Ogletree says Gates promptly handed Crowley his Harvard ID and Massachusetts driver’s licenses. Moreover, the statement says that Gates asked several times for Crowley’s name and badge number, but “the officer did not produce identification nor did he respond to Professor Gates’s request for this information.”

Then Gates obliged Crowley’s request to step out on the porch, continued the yelling of insults (according to Crowley and Figueroa), and was then arrested and placed in handcuffs on his porch – as the picture that has gone round the world shows. In Crowley’s description in the report, Gates “was placed under arrest … after exhibiting loud and tumultuous behavior, in a public place.”

But, wait a minute, “public place!” The public place in question was Gates’ own front porch, part of Gates’ private property. And “disorderly conduct” is usually intertwined with the charge of “disturbing the peace,” which require a public to disturb.

Crowley’s report notes that Gates’ “actions” on the porch – the porch that Crowley directed him to –  “caused citizens passing by the location to stop and take notice while appearing surprised and alarmed.” But no one forced the neighbors to stand around and watch the drama on Gates’ porch, and they could have been just as easily “surprised and alarmed” by the sight of so many cops there.

If Gates’ were truly yelling loud enough that Crowley couldn’t radio his findings to the police department, there might have been cause to arrest him for interfering with an investigation. But this was not the charge – “disorderly conduct” was, and this charge was dropped by the Cambridge police with good reason. Regardless of the content of Gates’ remarks to the officer — and Gates’ comments seemed pretty obnoxious from the account in the police report — unless there is something like a loudspeaker involved, one cannot “disturb the piece” by yelling on his own property. This lack of knowledge about property rights is unfortunately repeated by government at all levels.

Thus, in my opinion, the arrest not only violated Gates’ free speech rights in the First Amendment, as others have noted, but also the restrictions of the Fifth Amendment’s ”takings clause” against expropriating private property for “public use.”

Having said that, there is no evidence Crowley was influenced in making the arrest because Gates was black. He had taught a course in racial profiling, and black fellow officers have rushed to his defense. He very likely may also have hauled in a white homeowner who mouthed off to him.  But the focus on whether racial profiling occurred obscures the important issue raised in this case of constitutional liberties for all citizens: namely the fact that even though Crowley may be a good cop, in this instance, he stepped over the line and made what courts would more than likely find to be a “false arrest.”

Indeed, it is hard to find an expert who has read Crowley’s report – even if they defend him from charges of racial profiling – who argues that Gates’ arrest was justified.

National Review’s Jim Geraghty is hawkish on foreign policy and pretty much what would be called a law-and-order conservative. But on the Gates arrest, he wrote, “Being short-tempered, ill-tempered, shouting, etc., are all bad, but I do not think they ought to automatically trigger an arrest.”

He added that “if Gates’s account is correct and the officer would not provide his name, it is troubling.” He even argued that the Cambridge police “put the officer on paid leave” while it reviewed the incident. I agree.

But now of course, Sgt. Crowley is President Obama’s new best friend, on his way to the White House for the ultimate sensitivity session that goes beyond even “South Park” parody (Those readers who have seen the “Sexual Harassment Panda” and “Dr. Nelson” episodes will get this reference. For the rest of you, start watching “South Park”!) After first saying that he “acted stupidly,” Obama refined his remark to say in a special appearance in the White House press room that Crowley was “an outstanding police officer and a good man.” And that while he continued to believe “there was an overreaction” in the arrest, “Professor Gates probably overreacted as well.”

And this brings me to my third point:

3. President Obama, in the interests of justice, please follow precedent and just SHUT UP about specific and pending legal cases!

On President Obama’s butting in to this unresolved dispute, where should I start? Since he and the media don’t seem to understand what a transgression it is for a president to take anyone’s side in an ongoing or potential legal case, I’ll start with the consequences of President Richard Nixon’s unwise comment on a very different legal proceeding in 1970.

In 1970, Nixon remarked during serial killer Charles Manson’s ongoing trial that  Manson was “guilty, directly or indirectly of eight murders.” This resulted in multiple delays — with antics like Manson flashing a newspaper containing the Nixon story before the jury and his defense demanding the judge declare a mistrial due to a compromised jury — before Manson was convicted.

Since then, presidents have steered clear of weighing in on the guilt or fault of parties in dispute before a hearing or trial affirms a verdict. For instance, President Clinton never weighed in on O.J. Simpson’s innocence even after Simpson was acquitted in the criminal trial or found liable for wrongful death in the civil trial, except to say – both times – that the public should respect the jury’s verdict. “We all agreed that the president’s statement should be as neutral as possible,” recalled  fromer Clinton aide (and now ABC newcaster) George Stephanopoulos in a Newsweek essay.

President Obama can say that Gates is a friend. He can say that racial profiling is a problem. But while can speak about what the process should be, but he has to remain neutral among the two parties while that process is playing out.

In his criticism of the Cambridge Police Department, Obama has ironically aided its defense team in any potential lawsuit from Gates. Police lawyers can now legitimately ask to bar strong Obama supporters from the jury because their impartiality could be compromised by his criticism of the officers’ conduct.

As Leftie commentary site  legal blogger Bmaz, who favors a false arrest suit against the Cambridge cops, notes: “Thanks to President Obama declaring the actions of the Cambridge Police Department ‘stupid’ and wrong, the attorney defending the Police Department now has a lever in his favor should the case go to a jury. You can expect said defense attorney to move the court for a jury questionnaire to survey the jury pool as to who saw or heard said comment by the President of the United States, and in that local pool, the people who saw and/or heard of it are going to be the jurors Plaintiff Gates wants in the jury box the most.”

President Obama seems to understand neutrality in foreign policy (except in the case of Honduras, where he is openly siding with the Chavez and Castro-backed president who was ousted after flouting ruling of the country’s Supreme Court.). He needs to get his arms around the concept in the President’s relation to domestic disputes. Even if something good comes of the meeting on Thursday, the White House calendar would fill up very quickly if “Beer Summits” were utilized for every confrontation between citizens.

Bottom line: Racial profiling charges obscure real violations of civil liberties and property rights in Gates’ arrest and in other government policies. Your home is no longer “your castle,” in many instances.

One of the best summations of the flaws of the Gates arrest comes from an article by Sophia A. Nelson on, a web site where for which Gates happens to serve as editor-in-chief.. Although the site deals mostly with racial issues, Nelson, ever so briefly in her column, gets to the crux of the issue of abuse of government power in the Gates incident. “Is it now unlawful to talk trash in your own home/porch if you don’t like something? … A man’s home is his castle-or is that no longer true in America?”

Unfortunately, in many cases it is no longer true in America – for black, white and all citizens – that individuals’ homes are their castles. The Institute for Justice’s Castle Coalition (named after the expression “your home is your castle.”) points to homes being confiscated and razed to make room for shopping malls, hotels, and other private commercial enterprises that do not meet the definition of “public use” in the Fifth Amendment’s Takings Clause. But these violations of property rights were unfortunately given the “green light” in the 2005 Supreme Court case Kelo v. New London.

The government is also turning property owners’ “castles” into sand through environmental rules that reach into the most routine activities of land use for homeowners and farmers. For instance, the so-called Clean Water Restoration Act, supported by Obama making its way through Congress, would remove the current Clean Water Act requirement of “navigable waterways” affecting lakes and rivers for government regulation of private land. As a consequence, “the regulatory reach of the act would extend to all water — anywhere from farm ponds, to storm water retention basins, to roadside ditches, to desert washes, to streets and gutters, even to a puddle of rainwater,” according to a letter to the Senate from the American Farm Bureau Federation. And  this act would broaden and retain the criminal penalties already in the Clean Water Act, for which a Wall Street Journal editorial has noted, “law-abiding citizens … can go to jail for moving sand on their own land.”

Although African-Americans have indeed been victims of these efforts to weaken property rights both through eminent domain and overreaching environmental restrictions (see my 2002 article from Insight magazine on black farmers whose livelihoods were threatened by a “smart growth” plan), these statist schemes threaten the liberties of all Americans with the prospect of arbitrary state power over their land and homes.

Gates told the Washington Post that his experience has inspired him to produce a documentary on race and criminal justice. He would be doing a great service to the country if he were to broaden his topic to include the erosion of property rights for all citizens.

So if we have to have a “national conversation,” let’s have that conversation be about overweening government and the effect on the constitutional liberties and property rights of everyone.

Lizz Brown July 30, 2009 at 10:52 am

If it was illegal and wrong to arrest someone for yelling on their own property then why should the President, lawyer, former law Professor "SHUT UP about specific and pending legal cases!" He was, according to you, CORRECT on the issue.

It is indeed a stupid act for the police to arrest a person for public disturbance in their own home.

The truth of the matter is this: It is very difficult for this country to discuss race. And when you add in a white cop it becomes even more difficult. Finally adding in an African American President who many white folks and some black folks felt would keep them safe from "race discussions" makes some folks like yourself want to holler "shut up!"

Lets have a discussion about race in this country—an honest, open and brutal conversation. We need it—otherwise we will continue to put our hands over our ears screaming shut up while the problem goes on and on and on.

John Berlau July 30, 2009 at 11:57 am


Thanks for your comment.

The president should "shut up," even though he likely is right, because he has to stay neutral on not just this, but any legal controversy before a trial or hearing comes to a conclusion and establishes a veridict. Read on in my blog for the disastrous results of when Nixon weighed in on Charles Manson's guilt, and Clinton's wise decision to refrain from commenting on OJ Simpson's innocence or guilt.

You and I can offer our opinions, because we do not have the power of the presidency to influence a jury or a proceeding. It's president can say that Gates is a friend or that racial profiling in general is bad, but he can't or shouldn't say who is at fault or guilty.

A Leftie blogger I cite agrees with me that if Gates ever filed suit, the Cambridge police defense team could move to bar Obama supporters who heard the comments from serving on the jury. So, he has hurt Gates in a number of ways by weighing in.

joe July 30, 2009 at 4:42 pm

Was Crowley Quick response deserving praise. Maybe securing the exits and waiting for backup would have been better policing.He seems to

have decided he could in and handle possibly 2 bad guys by himself.

On the radio transcript he calls for a wagon while still in the house.

This tells me he has decided to arrest him before he did the supposed

crime on the porch.

He did not provide his id card according to MA law. He did not ask

if he could come in or observe a crime. And there is no mention of

a search for the second suspect that so many on the internet say

he was in danger from.

I agree it is not about race and Obama should have kept his mouth shut.

I wonder why there is no media play about his age and disability.

Would a small frail famous white man or woman on a cane be viewed

the same. He needs a cane to stand. Could the look on his face

in the photo also be pain and anger.

SoloTruth July 30, 2009 at 5:18 pm

Gates should not be sipping on a beer at the white house

his lawyers should be clipping on a Civil Action brief at the courthouse.

There are laws in our country that punish police officers for making false reports

in Crowley's report there were 2 false statements. My whole problem with this is the police officer did not believe it was Gates home after he showed him 2 Id's. The Officer over reacted because he still had doubt. Because his doubt he falsely arrested a man standing on his own porch. What a miscarriage of Justice.

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