I was reluctant to read Charles Ogletree's book on the by now much overblown confrontation between Henry Louis Gates Jr. and James Crowley. This was a garden variety event mismanaged by both the arresting officer and the arrestee. But for the fact that Gates is well connected and famous the case would not be remarkable.
But Gates teaches at Harvard about race and racism. So when he was arrested after a ruckus at his own home in Cambridge, Massachusetts, the fur was sure to fly. President Obama referred to the police behavior as stupid, thus polarizing left and right. Things were calmed only when the president agreed to have beer with Gates and the arresting officer. This was a case in which class determined the outcome.
When my clients get arrested for contempt of cop and charged with some minor offense such as interfering with an officer, or, if a member of the general public was within earshot, breach of the peace, no one outside the courtroom cares. These cases are typically resolved quickly and quietly.
But I picked up Ogletree's book, The Presumption of Guilt: The Arrest of Henry Louis Gates Jr. and Race, Class, and Crime in America, out of a sense of professional responsibility. I wanted to see what Ogletree could add to my understanding of the conflict between ordinary citizens and police officers. Ogletree taught me much, but not about the law.
The case is now familiar: Gates returned to his rented home in Cambridge with another black male after a trip to China. Exhausted upon arrival at his front door, the lock jammed. One of the men forced entry with a shoulder, a move that looked suspicious in the broad light of day to those in the neighborhood.
A police officer was dispatched. Officer Crowley arrived. He asked Gates for identification while in the home. Gates complied. Rather than leaving when shown an identification card making it clear that Gates belonged in the home, Crowley asked Gates to step outside. Gates was outraged and protested. There was a standoff that attracted the attention of passersby. Once Gates left the house, he was cuffed and arrested. Prosecutors declined to press charges and the case was dropped.
It is black letter law in every jurisdiction that a person detained by the police, even wrongfully detained, must comply with the officer's commands. Stepping outside to discuss the matter was not the constitutional outrage Gates thought it to be. The Fourth Amendment is not an instrument of protest in a police seizure. Gates was a fool to escalate the confrontation, even if he was the sort of fool I would root for each and every time.
Crowley, of course, was a bigger fool. He was dissed in public, and by a black man, no less. An arrest was inevitable, even if unwise. As Ogletree points out, in this confrontation, at least at the outset, Gates' race trumped his class. He was arrested for being black and proud in his own home. There is something deeply offensive and wrong about this.
So far, so good, and so obvious. But Ogletree fails really to grasp the significance of this confrontation. He claims to represent Gates. It is unclear whether that representation is in any civil capacity. For Gates' sake, I hope Ogletree does not advise him civilly. Not once in this book does Ogletree mention the havoc the doctrine of qualified immunity has wrought on claims of false arrest or illegal seizure arising under Fourth Amendment and brought under cloak of 42 U.S.C. Section 1983. This pernicious doctrine gives the benefit of the doubt to police officers in a close case. Gates' case is such a case; it has summary judgment written all over it.
The real story in this case is not that Gates was arrested. These sorts of arrests take place daily in the United States and are perfected against people of all races. The real story is the use to which this arrest would have been put if Gates were not a good citizen, buddy of the president's and a Harvard professor. Had Gates been a young black man on probation, the arrest might well have signaled a violation of probation proceeding, without benefit of a jury trial or even a suppression hearing. A person without means and influence would have been asked to stipulate to probable cause or pay a small fine to make sure the police were covered in the event of a civil suit. Gates got the Donald Trump treatment. Class mattered in this case, and was dispositive.
I fault Ogletree for writing half a book, but I still recommend the volume. The epilogue is a lengthy set of reports from black men about their experiences with racial profiling, harassment and misperception. Reading these reports was deeply moving and a present and necessary reminder that the color line still separates and divides in ways that are intolerable. It is perceived to be a crime in many parts of the United States to drive while black; skin color matters to investigating officers.
Ogletree is right to shine a light on race and racism in the criminal justice system. But the light he shines has been dulled by too many years behind a lectern preaching to the choir. He needs to spend more time in a courtroom getting his ass kicked from one end of the room to another to speak with the sort of raw energy necessary to inspire battle. I am not inspired to man the barricades for the leisure class just yet.
At one point in the book, Ogletree suggests eliminating peremptory challenges might help eliminate racism during jury selection. Perhaps. But it is so hard to get a case to a jury that I would still rather have challenges as a tool when selecting a jury. I would be willing to make a deal with the Devil if he were so inclined -- I'll give up peremptory challenges if we can also eliminate qualified immunity. Let's let the people decide constitutional cases and tell us what they think of the law. I trust them more than I do judges and the academy.
I've never met Charles Ogletree and odds are I never will. My heart aches at hearing about the role of race in the many miscarriages of justice that take place daily in this country. My heartache is compounded by the sight of a court system that has created legal doctrines to excuse all but the most blatant and obvious forms of misconduct. That Charles Ogletree, a Harvard professor, could write an entire book on a garden variety arrest and miss the legal significance of what went down makes my heart ache even more.
