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Gates’ arrest raises serious constitutional issues

A growing number of voices are weighing in on the freedom of speech issues raised by the arrest of Henry Louis Gates for “disorderly conduct”.

An analysis piece published in the Los Angeles Times looks at whether or not citizens of the United States of America have “a right to mouth off to the police.” On that point, it turns out, opinions differ.

Maureen Dowd starts off her column on the subject with the declaration “Being obnoxious is not a crime.”

In this column Christopher Hitchens talks about a recent incident in which he was the target of verbal abuse by a police officer who, Hitchens points out, “was wearing a uniform that I helped pay for.” He ends with a characteristic Hitchensian rant:

Race or color are second-order considerations in this, if they are considerations at all. I was once mugged by a white man on the Lower East Side of New York, and then, having given my evidence, was laboriously shown a whole photo album of black “perps” at the local station house. The absurdity of the exercise lay not just in the inability of a half-trained and uncultured force to believe what I was telling them, but in the certainty that their stupidity was helping the guilty party to make a getaway. Professor Gates should have taken his stand on the Bill of Rights and not on his epidermis or that of the arresting officer, and, if he didn’t have the presence of mind to do so, that needn’t inhibit the rest of us.

In a blog entry at the Huffington Post, civil liberties attorney Harvey Grossman is highly critical of the “middle ground” approach that seeks to place equal blame on Professor Gates and Sergeant Crowley:

The parties are apparently going to affirm that perspective with a beer at the White House. This is a calming resolution, but it sends the wrong message about the proper role of law enforcement under our Constitution ….

Everyone knows that as prudent people we ordinarily should not get “lippy” with a police officer, but Professor Gates is not guilty of violating that maxim. He was standing up for his rights. The Constitution protects our right to protest injustice, including on those occasions when we are the victims. Gates was exercising his rights and Crowley violated them.

This is not an abstract issue. Just last Saturday night a Washington DC attorney was arrested, he claims, simply because he said, loudly and within earshot of a group of police officers, “I hate the police.” Pepin Tuma claims that one of the officers took particular exception to this constitutionally protected expression of opinion, and not only called Pepin a “faggot” but physically abused him while placing him under arrest for, you guessed it, disorderly conduct.

Finally, in my opinion it is wrong for Hitchens to insist on minimizing the roll that race plays in this. Gates was justified in thinking that he was being “profiled” because he is Black. But even if it could be proved (and its far from clear how one would go about doing this) that Gates was not being profiled, he was completely within his rights to voice that opinion and to do so, in his own home, in a way that the police officer in question didn’t like.

One response to “Gates’ arrest raises serious constitutional issues

  1. Kullervo August 3, 2009 at 7:15 am

    Weren't the police responding to a neighbor's call about what looked like a break-in? If anyone was guilty of racial profiling, it was the neighbor, but we can hardly be Constitutionally protected against that. The cops get a burglary call, they respond, and they investigate to see what's going on. I don't see anything racial about that on the cops' part. they were doing their job, and doing it the way we want them to do it.Now, the issue with the mouthing off and the disorderly conduct is a legitimate question, I think.

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