By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel
On the basis of the police report, news accounts, and Henry Louis Gates's own account, I think the police were clearly wrong to arrest him, particularly once they confirmed that he was who he said he was and was where he was supposed to be. Whether it was a result of simple racism, or of taking unwarranted punitive action because the police found Gates difficult and arrogant, or abuse of authority, or some combination of all of these, I can't say. But Gates's conduct in no way justifies the arrest.
I do want to focus for a second on the police report saying that Gates told the officer, presumably not in dulcet tones, that he had no idea who he was messing with. I have ambivalent feelings about this. One charitable interpretation of this is that Gates, who was well within his rights to be trying to open the door to his own property, was telling the officer in no uncertain terms that he could not get away with abusive treatment simply because he was dealing with an anonymous (and black) citizen; Gates could and would quite properly use the megaphone he enjoys to broadcast this abuse of police authority. That is not only within his rights, but can be a salutary corrective to the many possible occasions in which police officers take liberties with people who don't have the same access to publicity. (Another charitable interpretation, albeit of a different kind, is that whether or not Gates's statement had this meaning, he was justifiably angry and spoke in anger. We may not admire that completely, but we can certainly understand it; and, again, police should be trained to deal with such situations with responses that fall well short of arrest.)
Another interpretation is that Gates was, in essence, turning the tables, saying, you are not powerful and I am; and I will use all the means at my disposal to make your life miserable. (Indeed, one of the shifts in perspective that is necessary in viewing this incident is that in some cases police officers are far more powerful than well-connected Harvard profs; in other circumstances, however, they are far less powerful, and the whip hand shifts.) Or even that he was saying, not that powerful people should enjoy impunity -- after all, he was, again, well within his rights to enter his own house -- but that, if you're going to mess with someone, you had certainly better not mess with someone who is powerful and well-connected. This assumption of the privileges of power is not limited to Harvard professors with wide media connections (although I suspect it takes especially fertile root there). We see -- and generally condemn -- similar statements by other powerful people in the hands of the law. Of course, one thing that influences our condemnation is that in many of these situations, the powerful accused person is, in fact, guilty, and that was not the case with Gates. But we also independently dislike such statements, I think, regardless of guilt or innocence, because we recognize the broader statement about the uses and prerogatives and assumptions of power that accompany the statement "do you know who I am?" We don't like it when judges use such statements when stopped by traffic cops, when Senators use it when pulled aside at airports, or when Mel Gibson and other celebrities use it after being picked up for some wrongdoing or other; we may not like it either when Oprah uses it when denied admission to Hermes, and then uses her own megaphone to exact lengthy retribution against that store, even if we think the store was wrong to deny her admission. We also don't like it in other circumstances, when there is no great wrong done by either side: say, when someone trades on his name to secure a key table at a restaurant at the last minute although the hoi polloi could not hope to get in without a longstanding reservation.
So I confess to some ambivalence here, too. I don't blame Gates for using his prominence to publicize an indignity that he should not have suffered, especially if and when less prominent people suffer similar indignities without recourse to publicity. On the other hand, for all relevant purposes, the answer to the question "do you know who I am" should always be the same: a private citizen, possessed of greater or lesser prominence but otherwise equally situated with everyone else. Without wanting to be too hard on him for statements made in the heat of a moment of what he reasonably viewed as police mistreatment, one can wish that Gates had used "who he was" to publicize the event afterward, without attempting to invoke "who he was" during the contretemps.