Legal Commentary

I began to write a comment in response to Paul?s really interesting post about the Henry Louis Gates arrest, but it ended up growing a bit long, so I decided to develop it as a separate post. To begin, I share Paul?s general reaction to the phrase "You have no idea who you're messing with" (which Gates may or may not have said; the reports appear conflicting). Coming from a fat-cat businessman or a snarky socialite, it?s a pretty vulgar invocation of social privilege. But I'm pretty sympathetic to Gates? (or anyone's) having used this language under these circumstances.

The reason is that being arrested?or having police force used against you generally?is a distinctively and powerfully upsetting experience. On about three occasions in my life (each when I was quite a bit younger), I have been on the receiving end of what I felt to be excessive policing for relatively innocuous behavior (not merely traffic stops for speeding, though I?ve had my share of those as well--all of them well justified). And while I attempted on each occasion to remain calm and reasonable, having the state?s power brought to bear on me for what I felt were trivial and unjustified reasons made me feel as frustrated and angry as anything I?ve experienced.  After the first such incident, I was quite surprised; I would not have imagined beforehand that it would have been as upsetting as it actually felt.

The foregoing is all true even though I?m not a member of a group that has historically suffered discrimination, so I can only imagine how much more upsetting the experience would be if you added race to the mix. I write all this because I?m not sure it?s possible to fully appreciate how distressing the experience of police harassment (or simply mistaken enforcement) can be unless you?ve had that experience first hand (which I think most lawprofs have not). I continue to think that scholarship about racial profiling consistently downplays the psychological impact of police maltreatment on both individuals who suffer it and communities that are over-policed, likely because most of the people writing in the field cannot personally relate to the experience.

So while I concur that in general the phrase ?you don?t know who you?re dealing with? is objectionable, under the psychological stress of a wrongful (as in mistaken) use of state force, Gates? use of the phrase in this instance seems to me an understandable and limited expression of justified anger.

That said, I'm not sure the early stages of this incident evince racism or racial profiling. The initial complaint was based on seeing a man trying to force the front door of a house open; I'm pretty sure it's reasonable to call the police under these circumstances, regardless of the man's race. And while the subsequent facts are murky, it seems that the policeman was initially satisfied by Gates' proof that he was the house's owner and a professor at Harvard.

What does seem problematic to me, though, is that the police responded by arresting Gates rather than simply trying to calm him down. I feel skeptical that the police would have gone to these lengths if, for example, the exact same thing had happened to one of Gates' senior white colleagues. Obviously when there is any low-level domestic disturbance, police have to use their discretion to calibrate the use of force to a level they find appropriate, and sometimes this may mean restraint and arrest. But while I wasn?t present, it?s hard for me to understand the necessity of handcuffing and arresting a sixty-year old college professor.

None of this is meant as a knock on the police generally. One of the great things about teaching at Southwestern is that I have students from all walks of life, and that includes current and ex-law enforcement officers. I find their stories and experiences invariably interesting, and each one of them has struck me as a decent and thoughtful person. Efforts to paint the police with a broad brush as ?racist? seem to me short-sighted and wrongful for the same reason that attributing to a profession the qualities of its worst members invariably are.

That?s what?s so very difficult about this case. The police are trained to take and keep control of any situation, and in the clear majority of cases they are dealing with punks and criminals who need to be suppressed using that strategy. But sometimes the police get it wrong, and when they do it?s enormously upsetting for the wrongfully accused (imagine having agents of the state force you to convince them that your house is actually yours?do you have to produce a deed, or a certificate of title?). I?m not sure if police are trained to apologize or admit their mistake for these kinds of incidents (thought it bears reminding here that the police were asked to investigate a potential burglary, so the initial mistake wasn?t theirs), but if they were it might go a long way toward defusing these kinds of situations.

For those interested in checking out the primary evidence, here is the text of the police report, and here is Gates? statement through Charles Ogletree. There?s also a really astute comment in a thread at Concurring Opinions about the differences between the two accounts and how they might be reconciled.