Another Blog Post On Gates-Gate

August 3, 2009

by Roger Koppl

One comment on Gene’s recent post on the Beer Summit blasts “Obama’s PREjudice, his knee-jerk observationless, evidenceless accusation at Crowley.”  I think we need to remember that the police are monopoly representatives of state power.

Many serious people believe 1) that municipal police officers tend to be too eager to arrest people for, essentially, being disrespectful and 2) that black people, especially black men, are disproportionately at risk of inappropriate, arbitrary, or false arrest.  There is good evidence to support the view that black men get disproportionately severe punishments when convicted.  In particular, it seems that the death penalty is more likely when a black kills a white than when a white kills another person whether black or white.  Obama’s experience in Chicago would have put him in touch with both the literature on such themes and personal accounts of black people who felt strongly that they had been mistreated by the police.  The scandal regarding torture by the Chicago police bolsters the view that such perceptions may have been correct. 

One might also point to the 1994 Mollen Commission Report on NYC police corruption.  Let me quote just one bit of testimony (p. 48) that always stuck in my mind.

Question: Did you beat people up who you arrested?

Answer: No. We’d just beat people in general.  If they’re on the street, hanging around drug locations.  It was a show of force.

Question: Why were these beatings done?

Answer: To show who was in charge.  We were in charge, the police.  

I think all of us in the (“classical”) liberal tradition of David Hume and Adam Smith must remember that municipal policing is the central point of contact between state power and individual lives.  The monopoly position of the police invites abuse and sometimes we get abuse.  Radley Balko of the Reason Foundation has done great work on issues such as no-knock warrants,  tasering, faulty forensic science, and police shootings of persons and dogs.  See his great blog, The Agitator.

In the case of Professor Gates, you had an arrest of someone whose offense was shouting from his porch.  As well as I can determine, though I am surely no jurist, that behavior is simply *not* disorderly conduct in Massachusetts or anywhere else.  Also, Officer Crowley called him out from the kitchen, where he was shouting, to the porch, where he (Gates) continued to shout.  Thus, it seems rather as if the public disturbance (to the extent that such existed) was in part caused by Crowley’s decision to call him out to the porch. 

I read one cynic’s opinion on the web that Crowley’s action fits a pattern for creating an opportunity to make an arrest, but I don’t know of any data on that issue.  The fact that the charges were dropped is evidence that it was a bad arrest and that Crowley may indeed have acted “stupidly” in this instance, whatever his overall merits as a police officer may be.

The Gates case itself is unimportant.  What matters, is what the case represents in terms of police power in general in its racial dimension.

36 Responses to “Another Blog Post On Gates-Gate”

  1. Greg Ransom Says:

    This really wasn’t about shouting. It was about Gates refusing to cooperate with a cop with specific procedures he’s required by law to carry out. Gates wouldn’t let him do that, and essentially went postal on him.

    You can’t get around the fact that Crowley had a job to do.

    The house may have broken into because a man was there to attack someone in a domestic dispute, etc. — a cop has no way of knowing.

    Gates refused to tell Crowley if others were in the house.

    Gates offered up an ID with no address on it.

    And a cop can’t do his job unless he has some respect from and authority over those involved in a situation. Crowley had none of that from Gates.

    Everybody hates cops. But cops have to do their job.

    And Gates wasn’t letting Crowley do his job.

    Much of social order has traditionally been put in place by informal systems — arresting people and then letting them go is part of this informal process.

    The world is full of crappy people who put cop’s live in danger.

    I’m against a police state and against police corruption and against police abuse of their power, etc.

    But a Harvard professor needs to let a cop do his job — and not be a jerk attempting to pull ranks of class, status and power, as Gates is on record doing (“you’ll be sorry when you learn who I am” — and calling the chief of police directly to pull rank on Crowley).

    Gates was out to threaten and undermine Crowley — damage his reputation with the “racist” slander, and block him from doing his job by refusing to answer questions like an adult.

    When cops can’t do their job the cops are at risk and a dangerous world is made more dangerous.

    When it comes to status pulling primadonna’s and race card throwing creeps like Gates, I’m on the side of cops like Crowley.


  2. I thought the Gates case was a town versus gown issue: Class not Race. In any case, common sense dictates you don’t yell at a man with a gun.

  3. Eric H Says:

    I’ve always wondered what separates being arrested for committing a crime and being arrested for deviating from the officer’s textbook conception of how the arrest should occur. Cops seem to err on the side of letting the suspects know who’s in charge, i.e. they deem any deviation grounds for arrest. How far they should err is a local political decision; whether they should err or not should be up to them, not to the President of the United States.

    My priors caused me to prejudge Gates. College prof, politically and culturally influential, etc etc. He supposedly invoked his status during the arrest with the old “Do you know who you’re dealing with?” Why he did so, I couldn’t guess. To keep the officers from arresting him? To let them know who, in the “long run,” is really in charge?

    After hearing more about the arrest, I sympathize more with Gates than Crowley, and more with Gates and Crowley than Obama. In one lame photo-op, he may have dealt the application of Austrian economics to policing and law enforcement a serious blow.

  4. Roger Koppl Says:

    Well, Greg, Officer Crowley’s report says that he had received satisfactory evidence that Gates was in his own home. You may feel, as Jerry seems to, that Gates acted in an imprudent manner. Perhaps. But that’s not a crime. The report can be found here:

    It has recently emerged that some Hollywood, Florida police officers tried to frame someone so that one of them might avoid a traffic ticket. Here is a link for that:

    http://www.sun-sentinel.com/news/opinion/todaysbuzz/friday/sfl-hollywood-police-cover-up-buzz-brochu-m073109,0,2460841.story

    I think some of us may need to re-calibrate our sensibilities regarding municipal policing.

  5. Roger Koppl Says:

    “In one lame photo-op, he may have dealt the application of Austrian economics to policing and law enforcement a serious blow.”

    How so, Eric?

  6. Greg Ransom Says:

    I’m well aware of police misconduct.

    Everything I’ve read about Crowley and this episode doesn’t fit the “bad cop” picture.

    The police report confirms what I said — a Harvard professor should be an adult and respect the fact that a cop has a job to do, and he should be helping that and not be getting in the way of that.

    Note well that a Harvard ID did not establish residency. Crowley believed Gates’ word on the matter simply because he was a Harvard professor. But Crowley’s job wasn’t over and Gates insisted on going postal while Crowley was still in the middle of his job — trying to communicate with the ECC, among other things. Basically, Crowley was enforcing the rule that you can’t be a crazy person going postal in a police officer’s face while a cop is in the middle of trying to do his job. Seems like common sense to me.

    Cops who aren’t bad cops have a hard enough job doing their job — and what point do we draw the line with this sort of postal behavior? Would it be OK if Gates got out a blast horn and continually blew it in Crowley’s ear? What if he pepper sprayed the cop? There’s a line somewhere. You just want to draw it in a different place than Crowley — after the fact from your arm chair and with no real life experience as a cop.

    Roger writes.

    “some of us may need to re-calibrate our sensibilities regarding municipal policing.”

  7. Greg Ransom Says:

    You’ll notice the Hayek / Polanyi local knowledge / tacit knowledge argument at work were:

    “You just want to draw it in a different place than Crowley — after the fact from your arm chair and with no real life experience as a cop.”

  8. koppl Says:

    Greg,

    Crowley’s report says that he *was* done and was heading back to his cruiser. Anyway, Gates was not arrested for interfering with a police investigation, but disorderly conduct.

    I’m not trying to suggest that Crowley is a “rogue cop” or something like that. I’m just saying that 1) Obama’s “stupidly” comment was not without foundation and 2) (“classical”) liberals should probably be more sensitive to the suggestion that police abuses of different sorts are a real issue and such abuses may be more likely for black people than white people.

    I do think the word “stupidly” lacked the detachment and diplomacy appropriate to a Presidential comment on such matters, but it seems Gates was a friend, the substance of his remark was defensible at a minimum and probably true, he altered his tone promptly, and finally the guy sure makes fewer gaffes than other Presidents, don’t you think?


  9. Greg, it doesn’t seem to me that the issue here isn’t the dynamic between Gates and Crowley at the time Crowley arrived at Gates’s home, or at any point before Crowley ascertained Gates’s identity–which was not in question at the time of the arrest. Can we agree that, at the time of the arrest, Gates posed no credible threat to Crowley’s safety or anyone else’s? If so, thenhe issue is rather, I think, that Crowley engaged in aggressive force against Gates–handcuffing and confining him–when doing so was in no way required for defensive purposes. And it seems to me that that makes Crowley’s action in using force against Gates retaliatory and punitive, and so indefensible. I don’t get to engage in aggressive violence against people just because they’re rude to me, even extremely and irrationally rude. If I don’t, then Crowley doesn’t, either, presuming we don’t live in a police state.


  10. Oops: “it seems to me that the issue . . . “

  11. Sandy Ikeda Says:

    Anyone ever live next to a cop? Advice: Don’t!

  12. josil Says:

    I hope the choice isn’t between overpolicimg and underpolicing. But if it’s underpolicing, I wouldn’t like to live in your libertarian neighborhood.


  13. As long as Obama was devoid of information (a fact he gladly conceded), there is no way epistemologically he could have knowingly offered a sound judgment. Claims made without evidence are arbitray. Plantiffs who cannot prove their allegations have them dismissed. So it is in argumentation.

  14. Eric H Says:

    Roger–

    This has ramifications for “Hayekian” policing, or “Hayekian Law Enforcement Studies” because Obama, as President of the United States, contextualized the arrest with his comments and subsequent retraction and then expropriated responsibility for reconciliation from the local actors, those with the responsibility to understand what laws to obey and how, and those with the responsibility to understand how to enforce those laws and when. He said the arrest was about race, and presto! it was, and he knew how to take care of it. Never mind that there were Hispanic and black officers on the scene; Obama knew best. By inserting himself into a situation best managed by those who know the most about it, Obama altered the circumstances in which those people must act. Instead of changing law enforcement policy organically through interaction between the Cambridge police and those they protect, Cambridge policymakers, to be safe from a PR maelstrom, must now take into account the opinions of the President and 300 million YouTube watchers.


  15. The reason why I emphasized the “pre” in prejudice was that he was ill-equiped to proclaim a postjudice, a judgment made from evidence. Granted, let us take into account the reprehensible way in which police officers often behave themselves. This still does not undermine the fact that as long as he was ignorant of the circumstances, he could not have been counted upon to make a rational postjudice, even if he has unfortunately been the recipient of the sort of racial discrimination that we all cordially condemn.


  16. Eric H,

    I take your argument as a good explanation of the merits of decentralization.

  17. Roger Koppl Says:

    Thanks for chiming in, Michael. IMHO Obama lacked enough facts to make detailed comments or overall judgments on the episode and he did not make such comments. Even a few spare facts were sufficient, however, to suggest Crowley erred in arresting Gates.

    I may not be able to post again for a couple of days, but I hope to comment on the local knowledge argument, which I think might be misapplied here given the important facts of monopoly and discretionary authority. In the usual market application you have a kind of decentralized epistemic filter absent in the contexts under discussion.

  18. Tom Dougherty Says:

    Roger: Many serious people believe 1) that municipal police officers tend to be too eager to arrest people for, essentially, being disrespectful and 2) that black people, especially black men, are disproportionately at risk of inappropriate, arbitrary, or false arrest.

    Roger, the police got it right in the story below. These cops were not too eager to arrest anyone.

    Wikipedia:In the early morning hours of May 30, 1991, 14-year-old Konerak Sinthasomphone (by chance, the younger brother of the boy whom Dahmer had molested) was discovered on the street, wandering naked, heavily under the influence of drugs and bleeding from his rectum. Two young women from the neighborhood found the dazed boy and called 911. Dahmer chased his victim down and tried to take him away, but the women stopped him.[30] Dahmer told police that Sinthasomphone was his 19-year-old boyfriend, and that they had an argument while drinking. Against the protests of the two women who had called 911, police turned him over to Dahmer. They later reported smelling a strange scent while inside Dahmer’s apartment, but did not investigate it. The smell was the body of Tony Hughes, Dahmer’s previous victim, decomposing in the bedroom. The two policemen failed to run a background check that would have revealed that Dahmer was a convicted sex offender and child molester still under probation.[31] The officers laughed about the incident, one joking that his partner was “going to get deloused.”[32] Later that night, Dahmer killed and dismembered Sinthasomphone, keeping his skull as a souvenir.

  19. Greg Ransom Says:

    It’s all a matter of where you draw the line — and who has the responsibility and knowledge and experience that matters when this judgment call is made. And who gets to second guess it and why — in order to racially smear a man and smear a whole police department, for political and professional profit?

    OK to continually blast blast horns at a cop?

    OK to throw rotted refuse and rotted animals all around a cop?

    OK to throw smoke grenades at the feet of a cop?

    OK to repeatedly scream to the crowd that a cop just killed a child?

    OK to tear gas a cop?

    Just how much disruption and “postal” behavior do we think is compatible with the non-pathological functioning of police work?

  20. Eric H Says:

    Tom’s post reminds me of this thought experiment: what if an intruder bound and gagged Gates, hid him in the basement, and then successfully passed himself off as Gates to the responding officers? Would they be guilty of racism for not turning the house upside-down before they left the scene?
    Infrequent episodes like this, and the Dahmer situation Tom mentions, lead me to believe cops are trained to gather as much information about the scene and suspects as possible before signing off. This may mean they remain skeptical until hard proof of identity is discovered or offered. Isn’t it a feature, and not a bug then, that the police are forced to gather information rather than possess it all a priori? Doesn’t the fact that they must work to discover things play to the advantage of the suspect, slowing down the process of arrest to a realistic, human speed? What would happen to due process if cops were super-human androids with access to all there is to know about potential suspects? I should think it would disappear altogether.
    I think it is interesting that among Gates’ remarks, “Don’t you know who I am?” or “You don’t know who you’re dealing with,” cropped up. These statements imply Gates believed the police should have had a priori knowledge of his status. Thank God they didn’t: if a real crime had occurred in his home, perhaps the responding officers would have driven past and thought “Number such and such? Isn’t that the Gates residence? That’s that politically connected black professor from Harvard. Why should we help him? He’s a real *beep*.”

  21. Roger Koppl Says:

    I’m back on grid now and I’ve read the new comments by Tom, Greg, and Eric. I think all three were expressing disagreement with me, although I was unsure in all three case. Eric may have been musing rather than expressing agreement or disagreement. Anyway, I’m a bit taken aback by some of the rather dramatic examples given. They struck me as inappropriate to the facts of the Gates case as reflected in the official police report.

    Tom: I don’t know what sort of cop or what sort of person Crowley might be. But the Dahmer non-arrest may be a good example of the very issued raised by Gates-gate. Whether it should have or not, Gates-gate raised the issues of police racism and police abuse of authority. The Dahmer episode you cite was met at the time with charges of police racism and homophobia. The charge seems to be that the police didn’t take the episode seriously because the seeming homosexuality of the victim together with the race of the citizens calling 911 made the whole thing more of a joke than a serious police matter in the eyes of the responding officers. See the contemporary coverage in Time magazine: http://www.time.com/time/printout/0,8816,973592,00.html.

    Greg, I keep referring to the police report prepared by Crowley and you continue to respond without referring to it. Again, the police report written by Crowley gives a version of events that is simply not similar to the sorts of scenarios you are raising. He, Crowley, was all done and on his way out. But instead of simply leaving and being done with it, he called Gates out onto the porch notes his continued rant, then returned from the sidewalk up the porch steps of the Gates house and placed him under arrest. The suspicion of some that “the case is fundamentally about Cambridge Police Sergeant William Crowley’s unconstitutional effort to punish a citizen for, in the officer’s view, disrespectfully mouthing off to the badge-and-gun-toting man-in-blue” (http://thephoenix.com/Boston/News/87695-Gates-case-isnt-about-race/) may be mistaken as applied to this case. I don’t feel able to judge. But the larger phenomenon seems to be, unfortunately, all too real. And such abusive police behavior conforms fully to the famous line from Acton that (“classical”) liberals rightly quote repeatedly. I think it’s worth quoting the larger passage (as reported in Wikipedia) in which the famous remark occurs. I encourage you to substitute “police officers” for Acton’s “Pope and King.”
    “I cannot accept your canon that we are to judge Pope and King unlike other men with a favourable presumption that they did no wrong. If there is any presumption, it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or certainty of corruption by full authority. There is no worse heresy than the fact that the office sanctifies the holder of it. ”

    Why are so many of my pro-market brothers and sisters eager to apply Acton’s dictum to “left” politicians, but not beat cops? Are beat cops made of better stuff than Pope and King? Perhaps Crowley himself is. But surely the average beat cop is made of the same moral fiber as the average Pope and King.

    Eric: I think your earlier dig at Obama’s pretense of knowledge has merit in general, though I don’t think he overstepped the boundaries of reasonable judgment in the Gates case. (Even if he did, BTW, it seems Gates and Obama are personal friends, so we might cut him some slack on whole issue especially given how quickly he adopted a different language on the case.) That’s part of what I was getting at in an earlier post on his science policy, “Science and Truthiness (https://thinkmarkets.wordpress.com/2009/03/12/science-and-truthiness/). His recent announcement of a grants program in support of green cars may be another good example.

    In your last post you express the conjecture that “cops are trained to gather as much information about the scene and suspects as possible before signing off.” Do we have any evidence for that, Eric? Do we have any evidence that they act accordingly? Honestly, your comment seems more like a wish than a fact. Indeed, the Dahmer example suggests ordinary practice may often come well short of the ideal your comment elicits.

  22. Greg Ransom Says:

    Roger writes:

    “Why are so many of my pro-market brothers and sisters eager to apply Acton’s dictum to “left” politicians, but not beat cops?”

    Well, the cops I know tend to be much better people than the leftist politicians — and they have a much harder job.

    I may well be wrong or confused about the facts in the Gates-Crowley case.

    Even if I stipulate that Crowley made a mistake, which is very likely, the points I’ve made stand.

    1. Gates was outrageously out of line.

    2. Gates was interfering in Crowley’s effort to do his legal and written professional duty.

    3. The best and most professional of cops can’t do the job my family needs them to do if they are subject to outrageous disruption and intimidation.

    4. Cops on the ground with loads of background experience need some room to make their own judgment calls without having rank pulled on them by Harvard big shots or the President of the United States.

    5. Informal procedures of all sorts are part of law enforcement and every part of life. The line has to be drawn somewhere in the defense of civil liberties and against police abuse — but it can’t be so nonsensical that cops can’t function.

    Again, it’s a judgment call that Crowley was out of line. Perhaps he was. But folks make that point seem to overlook a lot of other important things.

  23. Greg Ransom Says:

    Is this something we should worry about?

    Police today arrested a man for _barking_ at a police dog, sending the dog into attack mode.

  24. Tom Dougherty Says:

    Roger, you are not alone in looking at every interaction between a white cop and a minority as a case of racism. If a white cop, as perceived by you, creates “an opportunity to make an arrest” as in the Crowley case, then it is racism. If a white cop and presumably heterosexual doesn’t make an arrest in the Damher case, then it is also racism (against the Asian victim) and homophobia. People like you have a world view that see a racist behind every tree. If a minority got a flat tire you would probably blame it on racism. I would bet if Crowley had been on the scene in early morning hours of May 30, 1991, and acted the same way he did in the Gates situation 14-year-old Konerak Sinthasomphone would still be alive today.

    But, Roger, how do you know it is racism? You know it is racism because when a cop uses too much force or too much authority it is racism. You also know it is racism when a cop uses too little force or too little authority. But that can’t be right. The way you really know it is racism is that you look at the skin color of the cop and you look at the skin color of the suspect and that’s how you know it is racism.

  25. Roger Koppl Says:

    Tom,

    If I am following your logic (my apologies if I am not), then you are making an argument similar to the statistician’s arguments about type I and type II errors. You are imaging, I think, that there is an arrest threshold and the big question is where to set that threshold. You think Crowley set is appropriately low, lest a higher threshold allows monsters such as Dahmer to get away with their crimes. You think I am refusing to see the inevitable tradeoff between enduring some needless arrests of persons who might best be left in peace and allowing more really bad guys to get away. Is that it?

    In a general sort of way, I completely accept that such tradeoffs occur. It seems to me that Crowley’s own police report makes it clear, however, that the arrest was inappropriate regardless of the operative threshold level. An arrest must be for probable cause regarding the crime charged and it seems to me (though I repeat that I am no jurist) that criterion was not met in this case. The threshold is real enough, but it does not illuminate the case at hand.

    Anyway, I think you’ve misconstrued my take on the race issue. My apologies for being unclear. I’ve been going at two issues: 1) abuse of authority and 2) racism. Though I have not yet said so on this thread, the latter is a big issue in part because of the former. If you had a magic wand that made abuse of authority disappear, I guess any personal racism of the police would not really matter to their job performance.

    Unfortunately, we have only one word, “racism,” to cover both willful bigotry and unconscious bias in decision-making. Add to that a major social taboo on racism and the fact that people glibly toss around the charge of racism and you have a social situation in which real conversation becomes extremely difficult. You, Tom, have been driven to say, “People like you have a world view that see a racist behind every tree.” I wouldn’t, like, crucify you for caving in to your vexation, but your comment is a bit of a conversation stopper. You are not asking my opinion or inviting me to clarify, but telling what I think and how I (mis)behave. I think that’s a problem in general in the US today. It has become hard to discuss race issues.

    With that thought in mind, Tom, I’d like to ask you about abuse of authority, leaving race to one side. Do you think the police sometimes abuse their authority? Do you think it happens often enough that we should be on the alert for it and thinking of ways to stop it? Do you think that such abuse as may occur is at least partly a product of the discretionary authority of local police? Am I mistaken to apply Acton famous dictum to police power?

    Let me tag on one last comment that I haven’t had an opportunity to make before. I am personally growing increasingly conscious of the problem of discretionary authority in law enforcement personnel. I think there are abuses and that these abuses are a real threat to our liberties. But I also recognize that we get less abuse than the logic of the situation might have led us to expect. If that is so, it is only because the human decency of most police most of the time overcomes the temptations to abuse and leads to a better outcome. I think it would be wise, however, to search for ways to rely less on that decency, to tax it less if you will. And that desire, of course, is pure David Hume: “Political writers have established it as a maxim, that, in contriving any system of government, and fixing the several checks and controuls of the constitution, every man ought to be supposed a knave.”

  26. Tom Dougherty Says:

    “With that thought in mind, Tom, I’d like to ask you about abuse of authority, leaving race to one side. Do you think the police sometimes abuse their authority? Do you think it happens often enough that we should be on the alert for it and thinking of ways to stop it? Do you think that such abuse as may occur is at least partly a product of the discretionary authority of local police? Am I mistaken to apply Acton famous dictum to police power?”

    I think these all great questions, which I don’t have the answers too. Unfortunately, the Crowley case is not about these questions in the media, it is all about race. If Crowley and Gates were both white would this case have been in the news to the extent that it was? No way. When Obama or others talk about this be a teachable moment it is meant teaching about racism or the use of authority between cops and minorities. However, I haven’t seen evidence that Crowley was racist in the incident with Gates or in Crowley’s background. I see this incident as opportunity for the race hustlers to make a buck by poisoning race relations.

  27. Roger Koppl Says:

    Okay, Tom, but I’m not “the media.”
    Gee whiz, give a guy a break! 🙂

    I suppose I give more credence to the “race hustlers” than you do, but I absolutely agree with what seems to be your view that our public race dialogue easily degrades into cant. On more or less all sides IMHO. I sure don’t have any wisdom on how to tackle that one.

  28. Tom Dougherty Says:

    One other thought is the issues you bring up in your questions about the police having too much authority or abusing their authority doesn’t seem appropriate in this case. This is a case where a cop is investigating a possible burglary or home invasion. My opinion is that I don’t think you will get much sympathy if one is arguing cops have too much authority investigating these types property or violent crimes, although I’m sure we disagree about the specifics of the Gates case.

    However, applying your questions to specific areas of the law such as drug cases, where cops are seizing property and cash because of possible drug activity, are definitely areas of police abuse. I think many people would agree that there is definitely police abuse here. There are probably many other areas that I can’t think of off the top of my head where police have too much authority.

  29. Keith Inman Says:

    Gentlemen (my apologies if a woman has replied and I missed it),

    Here’s the story I would relate, that strikes me as relevant here as well. A gentlemen goes hunting all night with his son, and is driving back into town. He runs a stop sign, as no one is out and about that early, but unseen by him, an officer sits in his marked car nearby. Seeing the gentleman run the stop sign, the officer, also on the alert for a stolen El Camino (yep, it’s an old story), starts after the traffic miscreant. He notices the car; an El Camino. He lights up the car, but the gentlemen, no stranger to police, or even to this officer, continues on without stopping. This, of course, angers the officer. The driver of the El Camino continues until he enters his driveway, with the officer right behind him. As both stop, both emerge from their vehicles, and of course, an “encounter” ensues. The officer tries to mace, then beat the gentleman. Failing to subdue him, the officer throws down his baton and states that he “would rather shoot you than fight you.” As he releases the man, he pulls his weapon. The man runs into his garage. The officer fires at least 3, and perhaps as many as 7, rounds into the garage, missing everything except the washing machine. The man finds a shotgun and fires three times at the officer; one misses, one hits him in the face, blinding him in one eye, and the third strikes him right at the edge of his vest. Unfortunately, even partially blocked shotgun blasts are devastating, and the officer expires. The man at the house is arrested, and charged with capital murder.

    Leaving much of the desiderata out of this story, my observation about this case has always been this: if the officer had been a better shot, HE would have been charged with (and likely convicted of) murder under color of authority. If EITHER of the involved parties had, just once, stepped back and chosen to de-escalate the situation, both would be alive. But both, feeling properly aggrieved, decided that this was the appropriate time to assert their authority over the situation.

    Substitute Crowley and Gates into that last sentence, and you have a different perspective on their situation. I’ve never been denied anything because of the color of my skin, so I cannot judge the actions of one who has endured a lifetime of such denial. I have never been challenged because of the color of the clothes that I wear, or because of the decoration on my chest, so I cannot judge the actions of one who must constantly defend his authority (however defined) because of such accoutrements. But I do know that both Gates and Crowley, defending a lifetime of bias and a career full of challenge, made choices for which they are jointly responsible. Gates may have reacted because of a perceived challenge based on his race; Crowley may have reacted because of a perceived challenge to his authority. Each chose to defend his ground; both must accept the consequences of the decision that each made.

    While we might mount defenses for both, the final outcome is that mutually defensible positions can nonetheless have tragic consequences.

    And if it is not clear, I’m neither attacking nor supporting any position taken by anyone so far in this blog.

  30. koppl Says:

    Hi Keith,

    Thanks for commenting. Your experience in law enforcement brings a perspective I lack even though, as you say, you were never out there toting a gun and wearing a badge. You’re a very diplomatic guy. Please don’t hesitate to be less diplomatic if you think I’m off base in some of my comments!

  31. Eric H Says:

    Roger–

    You’re right to call me out on the training issue. I should have made it clear that I recognize training and the results of training as two different animals. As far as whether or not there exists evidence that police forces in general “act accordingly,” I don’t know. If they didn’t, would more of us be in jail? I’m not trying to be facetious, just kind of musing…

    Speaking of musing, two passages from this thread have all sorts of interesting implications:

    Keith’s:

    “But I do know that both Gates and Crowley, defending a lifetime of bias and a career full of challenge, made choices for which they are jointly responsible.”

    Would that Obama used such language and left it at that!

    And your’s:

    “If that is so, it is only because the human decency of most police most of the time overcomes the temptations to abuse and leads to a better outcome. I think it would be wise, however, to search for ways to rely less on that decency, to tax it less if you will.”

    Broadly speaking, I’m of the opinion that human decency manifests itself in quantities inversely proportional to the amount by which it is taxed: more rules, less humanity; less rules, more humanity, etc. etc. There is an equilibrium point in there somewhere, and it’s the responsibility of local actors to find it, not Popes, Kings or Presidents.

  32. Eric H Says:

    I may have made a mistake in conflating “rules” with “taxes.” I take your use of “tax” to mean reliance on human decency itself to prevent situations like Gates Gate from occurring. Basically, you are saying that there should be more rules in place to reduce reliance on human decency because human decency manifests itself inconsistently.

    My bloviation about rules might not apply then. In my experience, an excessive amount of rules and directions has the tendency to stifle creativity and keep people from interacting with each other humanely.

  33. koppl Says:

    Hi Eric,

    Your last post correctly restates my “tax” point. Too many formal rules can be a problem. We generally like systems in which rules are few and general. But if you have a powerful actor who can employ discretion and is protected from competition, then such discretion may easily be a threat to others. Thus, in monetary policy we favor rules over discretion. Something similar is true of municipal policing as well, I think, although I’m not sure if any set of “rules” will solve the problem. I tend to think that we should try to gin up new institutional designs that would somehow institute competition in municipal policing even without a radical change in our overarching political institutions. In other words, we should pay more attention to designing liberty. Unfortunately, I don’t have an good institutional designs to suggest to local authorities.

  34. Eric H Says:

    I’m not so sure now…!

    I think, in terms of monetary policy, we may nominally favor rules over discretion, but in real terms discretion is the M.O. The Fed chief must supplicate before Congress occasionally, but in the end, the federal funds rate is in his and the Board of Governors’ hands. And that Congress he grovels before—I’m thinking more Geithner than Greenspan—they are allowed a healthy dose of discretion as legislators (think Barney Frank’s pre-crisis desire to “roll the dice a little bit” with Fannie and Freddie). Certainly there are obstacle courses of rules Federal Reserve chairmen and members of Congress must wend their way through in achieving their aims. In the process, bits and chunks of their discretion are knocked off, to the point that their discretion resembles consensus. But the process always starts with an “I think…interest rates should be lower, Fannie’s capitalization could be half what it is, my constituents need more jobs… etc., etc.,” fill in the blank.

    I basically agree with you: we need a rules framework that allows for discretion but hampers it at exactly the right moments. The problem with that is that identifying those “right moments” is a pretty subjective exercise and depends on who is in political power. The existence of racism prevents many black citizens from believing police discretion will be hampered, perhaps not in their favor, but in favor of impartiality.

    Isn’t discretion a major function of the judiciary as well? Judges use discretion all the time in sentencing, allowing evidence, testimony etc. Perhaps the key is not designing rules that hamper discretion, but that promote competition between discretions, e.g. judge versus jury.

    Maybe Gates-Gate wouldn’t have been an issue if there was competition between discretions in arrest situations; if arrested parties and witnesses were allowed to record their version of events and enter them into the public record. Is there a way of doing this without self-incrimination? Why do we consider the police report definitive? Just because the police collect information doesn’t mean it’s true. Innocence until proof of guilt only manifests itself in the courtroom, and that manifestation is a cost which is imposed by police discretion.

    My own pitiful Gates-Gate went like this:
    Me: Unwittingly going 35 in a 25 zone, I run a yellow light—not a stale yellow but one that turns from green to yellow a tenth of a second before I cross the line.

    Cop: Lights up, pulls me over.

    Cop: “Do you know why I pulled you over?”

    Me: “Was I speeding officer?”

    Cop: “You were speeding and you ran a red light.”
    Me: “Officer, that light was just turning from green to yellow, I—“

    Cop: “Don’t push it, sir.”

    Me: “Uhh…Okay.”

    Me, silently, in my mind: “Don’t push it?” What could he have meant by that? Was it a threat?”

    Of course I knew what it meant. If I shut up, maybe he wouldn’t make things more difficult for me. So I acquiesced, and sat in my car stewing that I was going to get pinched for two offenses instead of one. I really did make a quick mental calculation: do I press further immediately and risk a search of my car, or arrest? In the longer term, do I want to enter into a prolonged and costly process of discovery that would prove the traffic light cycled from green to yellow precisely when I entered the intersection? No. He came back, claiming he let me off with only a speeding violation because he found no prior offenses. In the scheme of things, no big whoop, I know. But I think it illustrates a kind of inequality in epistemic power—is that how to put it? He perceived, he acted. I perceived, and wanted to act, but had to keep quiet because I believed his perception definitive.
    Maybe if I had had a prosthetic eye camera like the one in this Reason magazine back page feature, things would have been different. Maybe Gates wouldn’t have felt as threatened if he knew his experiences were going to be recorded impartially and weren’t going to be revealed through the perception of the police alone.

    I may be way off base here. My legal knowledge is informed by Law and Order circa the early ‘90s and Matlock. Plus a smattering of Epstein. A volatile brew, I know.


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