No, Henry Louis Gates Is Not a 'Railer,' a 'Brawler,' or a 'Common Street Walker'

Since Barack Obama weighed in on the arrest of Henry Louis Gates, we thought it was worthwhile to do a close reading of the law and the arrest report to see just how stupid the Cambridge Police Department was.

This account is based on the police report, a statement from Gates' lawyer, interviews by Gates given after the arrest, and a radio interview that the arresting officer gave this morning.

The Call

At around 12:45 p.m., Lucia Whalen called 911 to report two African American men wearing backpacks attempting to break into a house on Ware St. in Cambridge. Whalen works at Harvard Magazine, the offices of which are located a few doors down from Gates' home. She told Sgt. Crowley when he arrived that "her suspicions were aroused when she observed one of the men wedging his shoulder into the door as if he was trying to force entry." The man wedging his shoulder into the door was Gates' driver, and the other African American man with him was Gates. The men had just returned from Logan Airport, where Gates had landed after a trip to China. He found the lock broken on his front door—apparently as a result of an attempted break-in while he was away—and his driver was helping him get the door open so he could get his luggage in. Up to this point, both Gates and Obama say the whole thing is kosher: "I'm glad that this lady called 911," Gates has said. In recounting the story last night, Obama said, "There was a report called into the police station that there might be a burglary taking place — so far, so good, right?"

The Confrontation

Sgt. James Crowley arrived at Gates' house shortly after the call. He was alone. He walked up onto the porch, saw Gates standing in the foyer through a glass pane in the door, and asked him to step out onto the porch. According to the accounts of both men, Gates refused. Is that illegal? Massachusetts law makes it a crime to disobey the order of a police officer if you're operating a motor vehicle, but we couldn't find a similar statute that would have required Gates to obey Crowley's request. Even if there is one, Gates was never charged with violating it.

According to both men, Crowley—still standing on the porch—told him Gates was there to investigate a break-in. According to Crowley, Gates interrupted him, saying, "Why, because I am a black man in America?" At this point, according to Crowley, Gates didn't strike him as "someone who would break into a house." Still, he found "the way [Gates] responded to [his] routing inquiries peculiar" and accused him in the police report of "yelling" and "exclaiming."

No, Henry Louis Gates Is Not a 'Railer,' a 'Brawler,' or a 'Common Street Walker'

Crowley's ID

According to Crowley, Gates "demanded to know who I was." Gates phrased the request differently: He says he asked for Crowley's "name and badge number." The distinction is important: Crowley claims that he complied with Gates' request by identifying himself as "Sgt. Crowley," while Gates says "he did not produce any identification nor did he respond to Professor Gates's request for this information." It's clear from the accounts of both men that Crowley did not provide Gates with a complete answer to his question—Crowley doesn't say that he told Gates his badge number or first name, nor did he turn over the identification card bearing that information that police officers in Massachusetts are required to carry and, by law, "shall be exhibited upon lawful request for purposes of identification." (Crowley said he was prepared to furnish the card, but that Gates turned away from the door and walked to his kitchen before he could hand it over.)

Badge numbers are assigned for a reason, and Massachusetts requires its cops to carry ID cards for a reason: Cops can lie about their names, making it difficult or impossible for citizens to file complaints about their behavior after they've departed a scene. If every police officer was assumed to be honest and forthright in all instances, those laws wouldn't be on the books. What's more, there are a lot of people in the Boston area named Crowley, and a lot of them are police officers. Gates asked Crowley to comply with Massachusetts law by furnishing his full name and badge number, and all Crowley told him was that he was a sergeant and that his last name was Crowley. In other words, he did not comply with Gates' request.

Inside the Home

According to Gates, while still on the porch, Crowley asked Gates to provide ID to prove he lived there, and Gates turned to retrieve his Massachusetts driver license and Harvard ID from his wallet in his kitchen. Crowley then followed him into the house. According to Crowley's account, it's unclear how Crowley came to enter the home: At one point he is on the porch, and then Gates turns to pick up a cordless phone, at which point Crowley radioed his dispatcher to say he was "in the residence with someone who appeared to be a resident but very uncooperative." It's not clear who Gates was calling on the cordless phone, but according to Crowley, Gates was asking asking for "the chief" and said he was dealing with a "racist police officer." He was apparently trying to go over Crowley's head and make a complaint. During the entire time he was in Gates' house, according to Crowley, Gates was agitated and angry, telling him "you don't know who you are messing with."

Gates' ID

Crowley was convinced very early on that Gates was not a burglar. Shortly after he entered the house, his report says, he "was led to believe that Gates was lawfully in the residence." But he asked Gates for ID to prove that it was indeed his house. According to Crowley, Gates initially refused, "demanding that I show him identification." Note that Gates didn't ask for Crowley's name—he asked for the identification that Crowley was required by law to furnish. Crowley did not furnish it. Eventually, Gates did give Crowley ID—Crowley says it was a Harvard ID, Gates says it was a Harvard ID and a Massachusetts driver license that bore the address of the house they were in. In any case, Crowley became convinced that Gates was who he said he was.

Leaving the House

As soon as Gates provided a Harvard ID, Crowley says he "radioed and requested the presence of Harvard University Police." Why? What reason would he have to call more police officers to Gates' house after he'd received definitive proof that no crime had been committed and the 911 call was caused by a misunderstanding? Crowley doesn't say. But bewilderingly, he says that after requesting the presence of Harvard police, he prepared to leave. But Gates continued to demand his name, and Crowley says that as he tried to answer, Gates yelled over his "spoken words" with accusations of racism. Gates says that a bronchial infection he picked up in China prevented him from yelling. (A photo of Gates immediately after the arrest, however, appears to show him with his mouth open wide, in mid-shout.) When Gate's asked again for Crowley's name—remember, at this point according to Crowley's account, all Gates still doesn't know Crowley's first name or badge number—Crowley told Gates that if he wanted to continue talking, they would have to do it outside of Gates' home. Crowley's explanation for this is that the "acoustics" in Gates' kitchen and foyer, where the men were arguing, made it difficult for him to communicate over his radio.

It would seem that Gates should have just let Crowley leave and be done with it. Another way of looking at it, however, is that Crowley told Gates, essentially: I will tell you my name if you come outside with me. If Gates was contemplating filing a complaint with the Cambridge Police Department about Crowley's behavior, and if he anticipated being told "there are three Sgt. Crowleys—which one was it?", then the reasonable course of action would be to follow Crowley outside.

The Arrest

When the men stepped out onto Gates' porch, according to Crowley, there were "several Cambridge and Harvard University police officers assembled on the sidewalk," as well as Lucia Whalen and "at least seven unidentified passersby." Crowley claims that the crowd was "looking in the direction of Gates," the implication being that his shouting and insults were causing a scene. Of course, the presence of several police cars and officer might also tend to attract passersby. And given the fact that these particular passersby were already there prior to Gates' exiting his house, that would be a reasonable assumption.

As Crowley left the porch, Gates continued to yell at him. Even though Crowley had implied that he would provide Gates with his name once they left the house, he did not. Gates' "outburst," Crowley says, caused the assembled police officers to appear "surprised and alarmed." This would appear to be an attempt on Crowley's part to establish evidence of disorderly conduct—"people were alarmed!" Crowley warned Gates at least twice that he was at risk of being arrested for disorderly conduct—upon the second warning, he wielded his handcuffs to demonstrate that he was serious. Then he stepped up onto the porch and placed Gates under arrest. Initially, Gates resisted him, protesting that he would fall without the use of his cane. Crowley "properly applied" the cuffs, loosened them at Gates' request, and hauled him to jail.

The Crime

Gates was charged with violating Chapter 272, Section 53 of Massachusetts' state code, which reads in full:

Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment.

Gates is clearly not a street walker, railer, or brawler. His language may have "accosted or annoyed" someone of the opposite sex—the only female whose presence at the scene was documented is Lucia Whalen, but we don't know how annoyed she was by Gates' comments. Gates was clearly not "idle," though he could be potentially be classified as "disorderly" or "disturbing the peace." The latter charge is dependent on Gates' being outside his house—presuming that his yelling wasn't audible on the street when he was inside—which would have been the case had Crowley not refused to fully identify himself to Gates unless Gates followed him outside. Whether one can be a "disorderly person" in one's own home isn't clear. But we suspect that if one could, then Crowley would simply have arrested Gates in his home. There's no evidence from Crowley's report that Gates' behavior escalated after they exited the house. In fact, the most offensive-sounding statement from Gates in Crowley's report—"ya, I'll speak with your mama outside"—was uttered while they were still in Gates' home. The emphasis on the bystanders in Crowley's report and the fact that Gates' "tumultuous behavior" was taking place "in view of the public" implies that, in Crowley's mind, Gates' behavior was legal inside his home and criminal on his porch. In which case Crowley's apparent insistence that he would only fully identify himself to Gates outside his house, because the "acoustics" were bad, sounds more and more like a trap to us.

What is clear is that the city of Cambridge has called the arrest "regrettable and unfortunate," and said that dropping the charges was "in the interests of justice." Crowley himself now says that he "regrets that I put the police department and the city in the position where they have to defend something like this." So if Crowley wasn't stupid, then what, exactly, does he regret?