Captain Brandon del Pozo On Crowley/Gates
Brandon del Pozo is a captain in the NYPD (now working for Internal Affairs on internal police corruption cases, but with plenty of experience as a beat cop in Brooklyn and Manhattan, and as a police instructor too). He is also a Ph.D. candidate in philosophy at CUNY. He has sent us a post with a different perspective on police discretion and the Gates arrest than that of my last post. We are publishing his post in the interests of furthering serious debate. Brandon asked me to make it emphatically clear that all views expressed here are purely personal, and that he is not acting as a spokesperson for the NYPD in any way. His post is below.
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From my own experience and what I have learned about the incident, I highly doubt that I would have ordered the arrest of Professor Gates for any charge. I do, however, think that based on his actions as alleged by Sergeant Crowley, his arrest was somewhat plausible within the universe of possible outcomes to the incident. That still does not mean that the cops in question weren’t acting “stupidly,” as President Obama suggested. It is possible to do a lawful thing that is stupid, and that is why officers have discretion in many cases. While it can be misused, discretion is there to prevent them from stupidly enforcing the letter of the law. That the arrest was unwise and imprudent has also been made clear by how quickly the charges were dropped and the apologies issued by the government of Cambridge.
On the other hand, I do feel that Professor Gates seems to have acted inappropriately. There was no good reason for him to converse belligerently with the responding officer from his first words, or accuse him of racism, or refuse to answer basic questions directly related to the scope of the officer’s legitimate investigation. Of course, Gates also had the prerogative to say nothing at all, but this is different from saying nothing constructive, and instead issuing verbal abuse. This is not how people should relate to police officers as officials who are ostensibly trying to ensure public safety, but at least as importantly it is not how people should relate to other people in their community whose behavior they haven’t had the chance to independently assess. Police officers are expected to bear much greater burdens than the average citizen in this regard due to the nature of their job, but the limits on these burdens acknowledge their core personhood.
So, to go through a few things:
Whether or not a person should be arrested for disorderly conduct depends on subjective assessments that are nonetheless important to make. (more on discretion later) These include the extent to which the interaction is actually in public, the extent to which he has genuinely impeded the investigation by being verbally combative with an officer who needs to elicit investigative information from him, or created a situation of genuine public alarm, and, admittedly more controversially, the extent to which he fosters a climate wherein it’s acceptable for people to harass, berate and otherwise annoy the police as they are trying to conduct routine investigations that are in the interest of public safety.
Two men are breaking open the door to a home in Cambridge, MA, in the middle of the day. Almost all residential burglaries happen during the day. This is when residents are least likely to be home. Commercial burglaries, on the other hand, almost all happen at night. This is when stores are most likely to be vacant. The time in question fits what we know about this type of crime.
Breaking open a front door is inconsistent with the behavior of people who live in that home to an extent that suggests the possibility of criminal activity to an impartial observer. In the widest range of cases, people who live in a home will enter with a key or be let in by another person who lives there. In certain, rare cases, a person who lives in a home will force its front door open. Unfortunately, this is one of the most common ways a person who has no permission to enter a home gains entry to it, along with forcing open a window. Good judgment, even by the layperson, indicates that a person breaking into a home is possibly committing a criminal act. This possibility warrants a call to the police, who have a duty to investigate such things; the citizen observer’s has no such duty to further clarify what she sees.
A resident of Cambridge is walking by, sees two black men she doesn’t recognize breaking open the front door to someone’s home, and calls the police to report a possible break in. This seems like the way a good neighbor should behave towards the people in her community. She should also have called if the men breaking in where white (as my own police experience has revealed a significant population of white burglars). The issue in that vein that troubles some is not that she called about Gates and his driver, but whether or not she would’ve called about Dershowitz and his driver. The important thing here is that what she did in this case was reasonable and in the civic interest. Suppose for a moment the woman knew a black man lived at the house, and made the call to protect his home from these other black men who were breaking into it. That seems like good civic behavior (and the source of many 911 calls in my career). It’s still good behavior even if she didn’t know the arbitrary fact that the home was owned by a black man.
To put a finer point on it: It does us very little good to wonder what the woman would have done if the door-breaker was white and anger ourselves with the possibility that there exist many people who wouldn’t have called the police on white door breakers but only black ones. What the woman did in the case of what actually happened with Gates was a morally acceptable act.
Sergeant Crowley responded to the scene based on the information provided by the 911 caller. He would have responded regardless of the race of the burglars; they are required to respond to all such calls. The police met the caller outside the home, and she reiterated what she said to 911. It appears she remained on the scene at the request of the 911 operator and made every effort to be a responsible witness to what she thought could have been a crime in progress.
The responding officer then encountered a black male at the location where he was informed that a black male had broken into a home. So far, then, he is confronted with consistencies that bolster, not diminish, the credibility of the caller’s account. It is now the officer’s duty to see if the person had permission and authority to break into the home or not.
The officer instructs the person to exit the house and talk on the porch. This is standard police safety practice. An unfamiliar building with unknown occupants that is the potential site of a burglary is not a safe place for an officer to enter, especially alone. If he is drawn into the home and attacked there, he can be locked in and will take longer to rescue. Kitchens have a variety of weapons, and rooms have limited sight lines and places for suspects to hide. Bringing a suspect to the porch is a prudent move for an officer.
The man knows what’s going on. He did, in fact, just force his own front door open. All accounts indicate the sergeant showed up moments later; the 911 caller personally informed him, in sum and substance, “he just went into the house a few seconds ago.” There is a continuity of events that indicates a reasonable person would understand why the police came to his door a few moments after he broke it open. The only thing that could indicate a race bias is the unobserved hypothetical that the police would not have been there if he was white. This doesn’t matter; for a homeowner of any race there is a facially plausible race-neutral reason why the police have come to the door.
Around this time, the person begins to accuse the officer of racism, at first refusing to cooperate with the investigation. This makes the investigation more difficult, and might make the officer wonder if he is safe. To assume Gates isn’t the type of man to use violence when he is angry and using obscenities is to emasculate him, or patronize him, or to resort to stereotypes based on age, stature, type of employment, etc. Anyway, early on, the sergeant concludes this man is not a burglar, but reports that the man continues to be verbally belligerent.
*[So at some later point the sergeant arrests Gates. I have said what I feel about his arrest. Some more general comments follow; the degree to which some apply to Gates and the sergeant depends on the relative veracity of differing accounts of the incident.]*
The police cannot be expected to leave a location simply because the person there is screaming at them and ordering them around, even if that person is apparently innocent and likely lives there. They should still thoroughly investigate. If this were a legitimate expectation of the police, then it would sometimes allow genuine criminals to berate cops into leaving the scene prior to a complete and thorough investigation of the crimes they have committed. Officers should leave when they are convinced that the investigation is complete, and that the situation is under control, regardless of the demeanor of a person.
The police need to foster an environment in which they can deliver public safety without being subject to obscenities, accusations and yelling from any party, even innocent parties. The judgments of policing are obviously difficult and subjective, and are often marred when they are made in the face of people issuing inflammatory comments even as the police are rendering routine services with an obvious cause. It is in the collective interest of citizens and police to promote an environment where the police can conduct an investigation calmly and with mutual respect. It cannot become commonplace for people to be allowed to scream at the police in public, threatening them with political phone calls, deriding their abilities, etc. Routine acts like rendering aid to lost children, taking accident reports and issuing traffic violations could be derailed at any time by any person who has a perceived grievance with the police. The police service environment is not the best venue for the airing of such grievances.
The police should not be cowed by threats of phone calls to people such as mayors, police chiefs and presidents of the United States, along with allegations that “you don’t know who you’re messing with.” It is traditionally whites who have had this type of crooked access and influence. These appeals to higher authorities are often meant to exempt the ruling castes from following the rules and laws that the rest of the community will be expected to follow. It happens, it is unfortunate, and it is not in the interests of justice for it to continue. Nobody trying to do their job fairly deserves to hear the equivalent of “My daddy donated fifty million to this university, and you’ll be getting calls from everywhere in the administration about raising my grade enough for this class to count as a distributive requirement.”
It is possible for a person to commit disorderly conduct by unabated screaming and verbal abuse in a public setting. Without drawing conclusions about the Gates case, there comes some point where a person is genuinely causing public alarm, and where he is acting with a rage that exceeds what we can expect from a reasonable person in a heated moment. The mere presence of the police conducting a legitimate investigation should not provoke continuous rage and epithets from such a person. One response is that the police should just leave if the investigation has been conducted successfully, and that this will calm the person down. In practice, this is indeed often the best thing to do. On the other hand, it should be noted that it is just as much the responsibility of the citizen to see that his actions are an inappropriate way to relate to police officers who have not, in the specific case at hand, acted unreasonably. This point may be hotly contested, but I believe it is true: there is no obligation for the police to hurry in their activities or to leave as soon as possible because they have incited the rage of a person who is acting unreasonably. There is a distinction between hanging around to show them who’s boss and working at a steady, professional pace, to be sure. But in the end the mere presence of the police cannot be seen as an acceptable reason for disorderly conduct, and should therefore not spur the police to leave a scene simply to de-escalate it. A police strategy of “winning by appearing to lose” emboldens citizens to attempt to get the police to lose in more and more serious matters, including walking away from situations where a person is genuinely guilty of a crime.
It is in the civic interest for cops to have discretion over violations and some misdemeanors. Any person who has been warned after committing a traffic violation, or told to empty a beer can instead of being summonsed for it, or who was let go with a warning from the clerk in the presence of an officer after shoplifting has benefited from officer discretion. Whether or not the sergeant in Cambridge used his arrest discretion soundly is a legitimate topic for debate, but the fact that officers should have it is pretty much off the table. I don’t think we want to live in a society where the police are obligated to arrest or cite for everything they observe or are informed of, and are limited only by practical constraints of how fast they can do these two things. In the end, the standards of proof that lead to arrests and citations are worded to incorporate the judgments of police officers and citizens: “reasonable cause to believe, etc.” and therefore we are better off selecting cops who are likely to have better judgment than taking the ability to make judgments away from them.
Assuming a cop is a racist is its own form of unwarranted bias. Because a person has chosen a career in policing does not mean that person is a racist. There are certainly racist cops, but if a person truly believes in the rights and responsibilities of the individual community member, then it will ultimately be that officer’s own conduct that determines whether he is a racist or not. Reports seem to indicate that Gates made accusations of racism before he had any meaningful interaction with the officer, who was called there by an impartial Cambridge resident to protect his home. Again, this is not a way to treat a person you have just met, regardless of the role he is acting in.
A responsible program of community policing would not have averted this type of encounter. Gates is not a store owner, hanging out in a shop all day and available to get to know the local cops. The last thing this professor wants to do is chum around with Cambridge cops so that they get to know him by face. He wouldn’t be inclined to make small talk with them about community issues, etc. Even if the sergeant were informed that they were responding to the residence of a notable (black) Harvard professor, this would not have necessarily helped: he would have responded thinking he was investigating the possibly burglary of a black professor’s home by one or two other black people. He would also assume that in almost every case, professors open their doors using keys in a routine manner.
The police are called to situations with the purpose of seizing control over them, examining them, and bringing them to a conclusion that serves the interests of justice and public safety as established by their oversight. Powerful/arrogant people—or those who have a certain idea of personal freedom that does not acknowledge emergency exceptions—find it annoying that the police can suddenly do this to their environment, when so few others can. This control also serves the safety of citizens who have become victims of a violent, uncontrolled situation. I am aware of the problems that this type of power can produce in certain people who wield it. All I can say is that I personally know cops who have been killed or badly injured at every time of the day, responding to both routine and critical calls, because they lost control over the situation or were unable to establish it in the first place. Police officers cannot be expected to do their work without this type of control, and they must be given a berth to establish it, or they have the explicit legal right to take that berth. It doesn’t matter who you are. Lives depend on it in a way that assiduously watching every episode of The Wire cannot adequately convey (it deals too much with long-term investigation and narcotics work and not enough with patrol operations, in any event).
This particular incident was not an instance of racial profiling. A small point worth clarifying. Profiling occurs when the police proactively investigate possible criminal activity, independently using the race of a person as a contributing factor for considering that person to be the suspect in a crime. For example, given a mixed population of drivers on a highway, they select out the black drivers for investigation with the belief that they are the ones who are most likely to be running drugs. This is obviously a whole other problem. In the case here, the officer was informed by a citizen that a crime may have occurred, and the woman stated the people who she observed were in fact black. It would have been profiling in this case if the sergeant went peering into the windows of Cambridge homes, leaving white occupants alone, and confronting the black occupants to see if they were burglars. It would also have been profiling if the sergeant drives past white door-breakers without investigating but stops and questions the black door-breakers he sees. Without a doubt, good cops stop anyone who is forcing a front door open. It should be followed by either arrest, or assistance.
I have come to expect a wide range of conduct from police officers, some of it excellent, most of it acceptable, and some of it sadly lacking. My feeling was one of being let down by both the sergeant and by Professor Gates. The sergeant is acting under the color of law, and all Gates is required to do is exercise his rights as a citizen. True enough. Still, I expect more from thoughtful and wise people than from people who are less reflective and considerate. Flying in from Asia can really wear a person out, I have experienced, and that’s worth noting on Gates’ behalf. Not being able to get into your own home after such a flight must be especially irritating. I don’t think it was a good outcome to have him arrested, but I also don’t think the officer involved did anything wrong initially to incite the very poor reception he got from of all people a man who is capable of making such exceptional observations and judgments. I have had hundreds and hundreds of encounters with every type of innocent person from every walk of life in every context, and the vast majority ended amicably. They ended this way, however, not only because I acted with dignity and restraint, but because the citizen did as well. I think that collectively our interactions resulted in not only a safer but a more civil and just state. This seems like the type of project Professor Gates is interested in and that the sergeant should be held accountable for.

