The Curse of Undue Deference

Radley Balko has an excellent article on how the Gates arrest last week demonstrates conservatives’ disturbing deference to government power when it comes to the police.

Commenting on Gates’ arrest, National Review’s Jonah Goldberg wrote that he counts himself among those who are “deferential to police,” and willing to “give cops the benefit of the doubt for a host of reasons.” That’s a common position among conservatives. At a Federalist Society luncheon a few years ago, Bush Solicitor General Ted Olson praised the Supreme Court for “putting more trust in our police officers” in recent rulings. Los Angeles Police Department officer Jack Dunphy (a pseudonym) oddly concluded at National Review Online that the lesson from the Gates/Crowley affair is that anyone who asserts his constitutional rights when confronted by a police officer risks getting shot.

This deference to police at the expense of the policed is misplaced. Put a government worker behind a desk and give him the power to regulate, and conservatives will wax at length about public choice theory, bureaucratic pettiness, and the trappings of power. And rightly so. But put a government worker behind a badge, strap a gun to his waist, and give him the power to detain, use force, and kill, and those lessons somehow no longer apply.

Police officers deserve the same courtesy we afford anyone else we encounter in public life—basic respect and civility. If they’re investigating a crime, they deserve cooperation as required by law, and beyond that only to the extent to which the person with whom they’re speaking is comfortable. Verbally disrespecting a cop may well be rude, but in a free society we can’t allow it to become a crime, any more than we can criminalize criticism of the president, a senator, or the city council. There’s no excuse for the harassment or arrest of those who merely inquire about their rights, who ask for an explanation of what laws they’re breaking, or who photograph or otherwise document police officers on the job.

Just read the whole thing.

FILED UNDER: Law and the Courts, , ,
Alex Knapp
About Alex Knapp
Alex Knapp is Associate Editor at Forbes for science and games. He was a longtime blogger elsewhere before joining the OTB team in June 2005 and contributed some 700 posts through January 2013. Follow him on Twitter @TheAlexKnapp.

Comments

  1. Conservatives defer to the police when it involves a black guy.

    Make Gates white, give him a rifle, a membership in the NRA, and perhaps a survivalist compound rather than a Cambridge townhouse, and the whole thing would shift.

    On the other hand, if Gates been smoking a cigarette at the time you’d have a lot of liberals supporting the arrest.

    We all believe in police power: over the other. Particularly noticeable when it’s conservatives dealing with race.

  2. Steve Verdon says:

    There it is again…race. The issue of race is largely irrelevant as it obscures the larger and more important issue: abuse of power. We love our cops, especially when they are abusing us. Talk back to a cop, you get arrested. Become agitated and they might shoot you. Fail to comply with their demands, no matter how out of line, and they will taser you.

    That this phrase from an actual cop goes by so blithely is simply astonishing,

    And you, if in asserting your constitutional right to be free from unlawful search and seizure fail to do as the officer asks, run the risk of having such holes placed in your own.

    Crispen Sartwell is right, we want to be operated like puppets and provided for like pets.

  3. JKB says:

    As pointed out in the previous article, we are all in violation of some law or regulation at almost any time during the day. Professor Gates was not arrested for yelling at a cop, he was arrested because his tumultuous behavior startled the public. Professor Gates problem is he continued the contact with the officer until there was enough probable cause for an arrest and he annoyed the officer to the point the officer declined to ignore the violation. The violation was the professor’s, the charge was within the officer’s discretion, the dismissal was obviously because it was below the threshold the DA wanted to prosecute.

    So the deference is because, when agitated, it is easy to commit an arrest-able offense that is within the officer’s discretion. Asserting your rights is not arrest-able but you won’t be charged with that, you will be charged with interfering or resisting or failure to obey a lawful order. You will take the ride and hope you can persuade the judge that you were not interfering, resisting or failing to comply when you invoked your constitutional rights. BTW, you will probably be charged with multiple offenses that will subsequently be dropped but they will raise your bail, costing you money.

  4. Wayne says:

    “Verbally disrespecting a cop may well be rude, but in a free society we can’t allow it to become a crime, any more than we can criminalize criticism of the president,”

    Making threatening comments about the President is a crime. Treating all speech as the same is wrong. There is limits is speech and actions. Someone throwing insults at someone is one thing. Two people screaming and acting irrational in each other’s face often can get them arrested if they refuse to stop in front of an Officer. The same applies when addressing a police officer.

    Yes there is no law that says a civilian has to display common courtesy to a police officer but there is no law that a police officer has to display common courtesy to a civilian. Most departments have policies to that affect but that is not law. Should they? Yes and the same apply to civilians.

    However there are many who are quick to pre judge and condemn an Officer while making excuses for civilians and not condemn their ill behavior.

  5. Thank you for letting us all know what an extremist bigot you are Mr. Reynolds. Oh, and double plus good extra thanks for letting all us conservatives know that we are racists, yet again.

    When government bureaucrats have to start making house calls involving domestic disturbances, robberies in progress, etc., perhaps this comparison will work a little better. Until then, may I concur that too much deference to authority (not just armed police) is a bad thing while concurrently noting that police have a very difficult job that is stressful in ways that many of us never have to encounter, much less deal with on a regular basis?

    It is not surprising to me that police may be viewed as overreacting from the standpoint of anyone who regards themselves as a law abiding citizen. But from the standpoint of a police officer in a situation where violence can, and does, erupt unexpectedly, why should anyone be surprised that they may be a bit on edge? I believe this was the gist of Mr. Goldberg’s point.

    I think Mr. Balko went a little too far in his assumptions regarding conservatives’ love of a man in uniform with a gun. Expecting the police to be perfect instead of good is part of the problem here. Abuses are a real problem that has to be addressed, but I’m not sure this is the way to do it.

    Anyway, I am like President Obama in that I do not know what happened inside Mr. Gates home. Unlike Mr. Obama, I didn’t immediately rely on a mindset that assumed that either Professor Gates or Sergeant Crowley was wrong, stupid, or racist.

  6. But from the standpoint of a police officer in a situation where violence can, and does, erupt unexpectedly, why should anyone be surprised that they may be a bit on edge?

    Except that’s not what happened.

    Mr. Gates is a tiny, gimpy 59 year-old in business casual attire who had already proved he was the owner of the house. Sgt. Crowley did not believe violence was imminent or even possible. Not unless he’s a very bad cop. He could see that Mr. Gates was unarmed — hard to conceal a weapon in khakis and polo shirt. He by this point knew he was Harvard faculty.

    Police officers are not allowed to arrest people for mouthing off. Sgt. Crowley very likely is the only law-breaker in this incident.

    The correct response from Sgt Crowley was, “Have a nice day. Bye bye!”

    Which is what conservatives would be saying about the incident if Mr. Gates was, say, Ron Paul or Rush Limbaugh. Or David Koresh.

  7. And by the way, “I’m a bit on edge” is not probable cause. I checked the constitution and nope, “on edge” cops is not listed as a reason to dispense with individual rights.

  8. Steve Verdon says:

    I think Mr. Balko went a little too far in his assumptions regarding conservatives’ love of a man in uniform with a gun. Expecting the police to be perfect instead of good is part of the problem here.

    But that is where they most often fail. They often are not good. How many cops will cover up for a crooked cop in their midst? Look at what happens to a cop who “rats” out a fellow cop that is breaking the law.

    Even a good cop, who covers up for a rotten cop becomes tainted with the rot and is forever compromised. From that moment on his career is always in jeopardy if it is found that he failed to do his sworn duty.

  9. Steve Hynd says:

    This deference to police at the expense of the policed is misplaced. Put a government worker behind a desk and give him the power to regulate, and conservatives will wax at length about public choice theory, bureaucratic pettiness, and the trappings of power. And rightly so. But put a government worker behind a badge, strap a gun to his waist, and give him the power to detain, use force, and kill, and those lessons somehow no longer apply.

    This passage could easily be rewritten to also apply to undue deference by conservatives to the military, I should think.

    Regards, Steve

  10. An Interested Party says:

    Professor Gates was not arrested for yelling at a cop, he was arrested because his tumultuous behavior startled the public for getting uppity to a cop.

    What nerve he had…how dare he do something like that…

    But from the standpoint of a police officer in a situation where violence can, and does, erupt unexpectedly, why should anyone be surprised that they may be a bit on edge?

    Yes of course, especially in this case…who knows, if the cop had waited any longer, maybe the professor would have hit him with his cane…

  11. Perhaps my perspective is tinged with the knowledge that my little town has lost three police officers in the last couple years. It makes me perhaps overly sensitive to the inherent dangers of their job.

    To phrase this argument as being only about constituional rights is missing my point entirely. Expecting police to not have their guard up at all times is what I am talking about. It is extremely easy for me to see how things can escalate very quickly in the presence of a policeman, especially one investigating a breaking and entering call and finding someone in the house, and every citizen has to realize this.

    FWIW, as I understand it, all charges against Professor Gates have been dropped. If a mistake was made, perhaps this is at least part of how it gets rectified.

    Part of my deference to the police I have encountered is my belief that I have little to fear from them. Perhaps I am naive, but there it is. I can also understand how and why that belief is not shared by everyone. Another part of that deference is my desire to have them come to believe as quickly as possible that I am in no way a threat to them, which is not something they can safely assume.

    Anyway, please don’t imagine or imply that I am in any sense advocating or excusing abusive police officers. As I noted it is a real problem, but I fail to see how mouthing off or yelling at a policeman, even if you are within your rights to do so, isn’t going to occasionally produce a suboptimal result, or worse. Asserting your rights is not synonymous with verbally abusing anyone. And if you are having an encounter with a policeman who is in the wrong, odds are you are going to be able to deal with it better later — after you are no longer dealing with that policeman.

  12. I’m also deferential to cops because I know they have tough, scary jobs. As a guy whose job involves sitting in his back yard typing I have great respect for people whose jobs involve walking down dark alleys after armed perpetrators.

    The cop made a mistake. That doesn’t mean I think he’s a bad cop or a racist. People f-ck up sometimes. You apologize, you learn, you try again.

    My problem is with the conservative commentariat which leapt almost in unison to take the cop’s side — a unanimity they would not have shown had Gates been a white NRA member.

    Crowley should have walked away, enjoyed a lovely after work beverage and bitched to his pals about that Harvard asshole who busted his balls. It should have ended there.

    Failing that all sides should have taken a beat to examine the facts and if they were wrong admit it and move on. And Obama should have stuck to his issues, not stick his presidential nose into the matter.

  13. Steve Plunk says:

    This conservative gives deference to police because I know I’m at a disadvantage. Why enter into a disagreement when you know you’ll lose. Of course Gates is a professor who is not used to being questioned so his perspective was different than most people.

    Balko’s right about everything but the conservatives point of view. We just know better most of the time than to start a dust up with a cop on the street.

  14. Ben says:

    This conservative gives deference to police because I know I’m at a disadvantage. Why enter into a disagreement when you know you’ll lose. We just know better most of the time than to start a dust up with a cop on the street.

    In other words, “Never mind about your rights, sonny boy. I can make your life a living hell”
    “Yes sir”

    Steve,
    Your comment is exactly the problem that Radley is raging against. The toleration, and even acceptance, of police abusing their authority, especially by those on the right.

  15. Do we know that Sergeant Crowley was abusing his authority? Or is this another convenient assumption?

  16. Ben says:

    Arrests for “disturbing the peace” are supposed to be to prevent riots. I have not heard any reports, even from the police, that the crowd outside was getting riled up at all. As a matter of fact, it was Crowley who persuaded Gates to follow him outside. Sounds like Crowley was doing exactly what he had to do so that he could have an excuse to arrest him.

  17. Michael says:

    The correct response from Sgt Crowley was, “Have a nice day. Bye bye!”

    It’s my understanding that the officer essentially said just that. It wasn’t until Mr. Gates, by his own initiative, followed the officer out of his house and into the street, and began making a fuss out there that he was arrested.

    Arrests for “disturbing the peace” are supposed to be to prevent riots. I have not heard any reports, even from the police, that the crowd outside was getting riled up at all.

    People get arrested for disturbing the peace all the time without riots being involved.

  18. Steve Verdon says:

    The cop made a mistake. That doesn’t mean I think he’s a bad cop or a racist. People f-ck up sometimes. You apologize, you learn, you try again.

    The cop in this case is completely unapologetic, thinks he did nothing wrong, would do everything the same, and shows absolutely no realization that he might have handled the situation better. Its would be an epic fail save for the fact that he didn’t taser, pepper spray or shoot Gates.

    Do we know that Sergeant Crowley was abusing his authority? Or is this another convenient assumption?

    That a 59 year old man is going to start a “public inconvenience, annoyance or alarm” in a upscale neighborhood near Harvard University? Please Charles, my neighbors occassional parties are far, far more inconvenient and annoying yet they never get arrested.

    As a matter of fact, it was Crowley who persuaded Gates to follow him outside.

    Right, and it is Crowley’s own report that noted this. Because if they had stayed inside then there’d be no disorderly conduct/disturbing the peace/causing a riot. Kind of hard to do in a foyer to someone’s home with only 2 people.

    Sounds like Crowley was doing exactly what he had to do so that he could have an excuse to arrest him.

    Ding, ding, ding. Winner.

    Yep, get him outside, see a few people in the crowd glance at each other, maybe start talking a bit more…oh looky, they are getting riled up! Better put a lid on it and arrest this dangerous rabble rouser.

    Michael,

    It’s my understanding that the officer essentially said just that. It wasn’t until Mr. Gates, by his own initiative, followed the officer out of his house and into the street, and began making a fuss out there that he was arrested.

    This is not true. Reading Crowley’s report he told Gates he would only continue the conversation outside. Why do it that way, because disorderly conduct needs to be public, that is the way the law is written.

  19. Steve Plunk says:

    Ben, I see Balko’s point but wouldn’t I be better off taking this argument to my city councilman or other higher up? That’s an argument I have a chance of winning as opposed to losing on the street and facing arrest. The follow up is very important.

    Doing things in this manner is tolerating the behavior but merely choosing the battlefield. Gates wanted to battle immediately and should have known his disadvantage. Now he looks foolish. So this right winger (without Harvard credentials) knows how to fight nonsense such as this.

  20. Michael says:

    That a 59 year old man is going to start a “public inconvenience, annoyance or alarm” in a upscale neighborhood near Harvard University?

    Claiming to residents that he is being attacked by a racist cop wouldn’t start alarm? And how does the proximity of a major University reduce the likelihood of civil unrest, especially when paired with claims of civil injustice?

    Please Charles, my neighbors occassional parties is far, far more inconvenient and annoying yet they never get arrested.

    If somebody called a noise violation on them, and they proceeded to yell at the officer in view of the public, they probably would be.

    Yep, get him outside, see a few people in the crowd glance at each other, maybe start talking a bit more…oh looky, they are getting riled up! Better put a lid on it and arrest this dangerous rabble rouser.

    So your theory is that it was all a big conspiracy by this officer to create a situation where Mr. Gates would have to go out of his way to make a series of bad choices, in order to arrest him? Wouldn’t it have simply been easier to arrest him for breaking and entering, which his neighbor accused him of?

    This is not true. Reading Crowley’s report he told Gates he would only continue the conversation outside.

    But it was also explicit in Crowley’s report that continuing the conversation was optional. Had Mr. Gates remained inside, the incident would have been over. It also says that Mr. Gates was warned at least twice, after he was outside, that his behavior was going to get him in trouble.

  21. steve says:

    What do conservatives think about First Amendment rights? If it is a crime to say mean things to police, shouldn’t we codify it? There was no mention of threats in the police report.

    Steve

  22. Ben says:

    If somebody called a noise violation on them, and they proceeded to yell at the officer in view of the public, they probably would be.

    And that would be an unlawful arrest. It is not a crime to yell at a policeman. “Contempt of cop” is not an arrestable offense. Someone who has the power to take away your freedom and potentially your life has to be held to a higher standard when it comes to defusing situations and having thick skin.

    So your theory is that it was all a big conspiracy by this officer to create a situation where Mr. Gates would have to go out of his way to make a series of bad choices, in order to arrest him? Wouldn’t it have simply been easier to arrest him for breaking and entering, which his neighbor accused him of?

    If the cop has just f’ing had it with a guy, and is getting screaming at and called a racist, you think its improbably for the cop to game the situation to make it more likely to able to arrest him for something, even just to shut him up? I think cops do that all the time. Its not a conspiracy, its just a cop who feels like someone has disrespected him and wanted to arrest him for something.

  23. Steve Verdon says:

    If somebody called a noise violation on them, and they proceeded to yell at the officer in view of the public, they probably would be.

    The point is it is annoying and inconvenient, yet they are not arrested simply on that. And the officer in question moved the conversation from where it was not going to cause public alarm, annoyance, or inconvenience to place where it would. Gates unfortunately let his anger get the better of him and he made a dumb move in following the police officer outside. Both acted stupidly, to quote the President. But one was acting under the color of law and has considerable power. I expect better of him, and he didn’t show that he was better.

    So your theory is that it was all a big conspiracy by this officer to create a situation where Mr. Gates would have to go out of his way to make a series of bad choices, in order to arrest him? Wouldn’t it have simply been easier to arrest him for breaking and entering, which his neighbor accused him of?

    You can’t break and enter into your own home. And no conspiracy, it was simply an abuse of power.

    But it was also explicit in Crowley’s report that continuing the conversation was optional. Had Mr. Gates remained inside, the incident would have been over.

    Yes, it was stupid of Gates to follow the officer outside. If he had merely slammed the door…or what was left of it and stomped back over to the phone to complain he’d likely have not been arrested.

    Still being stupid is not a crime, generally speaking, and for a police officer to take advantage of Gates’ anger to humiliate him is unprofessional.

    Oh, and you can’t arrest some one for breaking into their own home. That would be like arresting a 16 year old for masturbating and charging him with indecent behavior with a minor.

  24. G.A.Phillips says:

    any more than we can criminalize criticism of the president

    lol, man I’m willing to bet like a trillion dollars that some one if not a certain group of people are gonna try…….

  25. Akhi99 says:

    If both the cop and the prof acted “stupidly”, then why did the president excuse the stupidity of the prof who has a 27 page resume on Harvard’s web site and only focus on the stupidity of the cop?

    I have almost always been very distrusting of the police, but for some strange reason, I never got all uppity to the police. I have had police act out of line with me and try to ignore my constitutional rights, but for some strange reason, it did not make sense to me to insult the next cop I met for the mistakes of the last cop I met.

    59 y/o profs never do bad things, couldn’t hide a knife in his bag? The 59 y/o belligerent prof had already shown an inclination toward being unable to control himself.

    RIGHTS usually come with RESPONSIBILITIES. The only people who get one without the other are called CHILDREN and senile older persons.

    You have the right to free speech as long as you don’t scream “fire” in a crowded movie theater. All your rights are conditioned with responsibilities.

    You have the right to scream at a police officer in a narrow hallway and the police officer has the right to go outside so your screaming does not hurt his ears more than necessary.

    The whole point of arresting someone for the offense of disturbing the peace in order to PREVENT a riot, means that you don’t wait until the riot starts to do something proactive (that would be called being reactive, not pro-active).

  26. Gustopher says:

    If both the cop and the prof acted “stupidly”, then why did the president excuse the stupidity of the prof who has a 27 page resume on Harvard’s web site and only focus on the stupidity of the cop?

    The professor acted stupidly as a private citizen. People are stupid, accept it.

    The cop acted stupidly in the performance of his job — his job being to interact with the public, on a daily basis, with a gun and badge and authority representing the city/town/etc. The cop has — or should have been — trained to defuse situations, rather than inflame them. The cop had no excuse for acting stupidly.

  27. Perhaps my perspective is tinged with the knowledge that my little town has lost three police officers in the last couple years. It makes me perhaps overly sensitive to the inherent dangers of their job.

    So what does that have to do with the interactions between a completely unrelated police officer and a completely unrelated civilian in a completely different part of the country? Are you suggesting that Officer Crowley believed Professor Gates was about to attempt to murder him?

    Or are you just trying to confuse the issue by bringing up completely irrelevant details in hopes of generating an emotional reaction that will allow you to completely avoid dealing with the facts of what happened?

  28. tom p says:

    What I find amazing, is the # of people commenting here, who were so quick to point out that “they are only voting for him because he is black”…

    And yet now they are saying “race had nothing to do with this”

    Race colors everything in America, good or bad. For better or worse, at least we can discuss it.

  29. Stormy Dragon, well, no. I was just trying to explain why I offer deference in encounters with police as something over than a conservative knee jerk response to authority, especially to those in uniform and carrying a gun. Perhaps reading that in the context of the rest of the post would help make that clear. Or perhaps not.

    tom p, can you point out who here said that? I’m not saying it didn’t happen, I’m just asking who it was. I know it certainly wasn’t me. Sadly, race does color a lot of things, though everything is going a bit too far. Unfortunately, it remains harder to get past race than it ought to be. Are you sure we all want to get past race? If you woke up tomorrow and racism was gone, how would you know?

  30. An Interested Party says:

    Now, why on earth would the professor react the way that he did…

  31. anjin-san says:

    We just know better most of the time than to start a dust up with a cop on the street.

    Since Gates was in his own home, what does that have to do with anything?

  32. PROTIP: When you decide that because you feel bad about what happened three particular cops you will therefore automatically take the side of all cops, that is a knee jerk response to authority.

  33. Boyd says:

    I’m impressed that so many folks here are so smart they can reach inside the minds of Professor Gates and Sergeant Crowley and see what their intent was at every step of this encounter. You must be really impressed with yourselves. Oh, wait…you’ve already made that painfully apparent.

    Sheesh. I’m surprised you folks can walk through a door with heads that big.

    I should know better than to read one of Alex’s posts. It always seems to bring out teh stoopid.

  34. Drew says:

    Seems to me nobody comes out looking good here. Did the cop overreact? Probably. Was he looking to lure the “scholar” outside. Maybe.

    Did the “scholar” act like a little brat. Yes. Does he have a chip on his shoulder that he couldn’t control? Sure looks like it.

    Did the President show remarkably poor judgment in commenting on a minor “he said – she said” skirmish without knowing the facts. Yes.

    A couple weeks ago I accidentally set off a burglary alarm in our house at about 11:30 at night. I got it turned off by unhooking a wire – ooops, wrong action – and walked out into the garage to find two cops standing there in the open doorway. Apparently the alarm service knows when you cut a wire.

    Although in a foul mood, my reaction was “hey guys, I guess you heard the alarm and I went on to explain the situation and thank them for the quick response, in the case that it wasn’t really the owner.”

    I guess they are trained to do certain things. They were standing in an offset position so they couldn’t both be approached. Even though it was clear I wasn’t a crook they had to look at my drivers license. You could tell they were itching to look inside and inquired “is everything all right” as if to say, “is there someone inside and would you like to give us some signal?”

    But it was all cordial, professional – and over – in 3 minutes because of the way the principals behaved.

    It should have been that way in the Gates affair last week too. And it would have kept the most powerful man in the world from appearing on par with a cop and a grumpy “scholar.”

  35. Stormy Dragon, as you insist in misunderstanding my point in lieu of reinforcing your own prejudicial fantasies, … have a nice day.

  36. Steve Verdon says:

    If both the cop and the prof acted “stupidly”, then why did the president excuse the stupidity of the prof who has a 27 page resume on Harvard’s web site and only focus on the stupidity of the cop?

    Uhhhmmm because said Professor does not carry a gun, does not have special powers like being able to arrest people, and so forth. The police officer has additional power a non-police officer does not and as such should be held to a higher standard.

    Tom P.,

    What I find amazing, is the # of people commenting here, who were so quick to point out that “they are only voting for him because he is black”…

    And yet now they are saying “race had nothing to do with this”

    And who would that be? Don’t be coy if your going to be this obnoxious.

    Drew,

    But it was all cordial, professional – and over – in 3 minutes because of the way the principals behaved.

    It should have been that way in the Gates affair last week too. And it would have kept the most powerful man in the world from appearing on par with a cop and a grumpy “scholar.”

    I agree, doing the right thing–being polite and respectful as a default response to anyone–is usually a good approach. Still people have off days and what not. I’d hope police would be trained to some extent to try and difuse such situations vs. escalating them.

  37. Michael says:

    I’d hope police would be trained to some extent to try and difuse such situations vs. escalating them.

    From the police report, it seems the professor calmed down significantly immediately following his arrest. While we’re playing conspiracy theory, why not ask whether Mr. Gates was intentionally trying to get himself arrested?

  38. Jim Henley says:

    Perhaps my perspective is tinged with the knowledge that my little town has lost three police officers in the last couple years.

    Which town?

  39. Drew says:

    Steve –

    I’m just being a pragmatist, and despite desperate attempts here by some to villify one of the parties and exculpate others…….observing that it was a rather poor showing by all. Most sadly, the man we call Mr President………….speaking of holding people to higher standards.