Bill of Rights Lessons from the Nation's "Teachable Moment"
Public commentary on the Henry Louis Gates incident has revealed widespread popular confusion about the extent of our constitutional rights. If ever there were a perfect moment for Americans and their police to learn more about their bill of rights, this is it.
Let's start with the amazing Fourth Amendment to the US Constitution, a landmark in the history of personal freedoms. It was inspired in part by lingering American revulsion over the British Customs Act, which had allowed British forces to barge into American homes. The American response was a little disorderly conduct now known as the Boston Tea Party.
The Fourth Amendment is bold in its clarity: "The right of the people to be secure in their … houses … shall not be violated." Absent "exigent circumstances," an American's home is a legal sanctuary beyond the reach of any police officer not armed with a warrant.
Skeptical posts to my blog have revealed that many Americans find it hard to believe that we really have that much freedom. We really do.
In US v Payton , 445 US 573 (1980), a suspected murderer was known to be inside a private residence. During his arrest, police discovered a bullet-casing matching the murder weapon. The defendant moved to suppress the evidence, and succeeded at the US Supreme Court. Writing for the Court, Justice John Paul Stevens held that the police were not permitted to enter the premises without a warrant even though 1) they had probable cause that 2) a suspected felon was within the premises.
Thus Prof. Gates was within his constitutional rights to refuse Sgt. Crowley access to Gates' residence. Crowley's entry without Gates 'consent violated Gates' Fourth Amendment rights.
In Minnesota v. Olson , 495 US 91 (1990), a suspect in a robbery-murder was arrested inside a home which had been surrounded by police officers. Ruling the suspect's warrant-less arrest to have been unconstitutional, the Supreme Court pointed out that the home had been surrounded by police, which precluded any need to enter without a warrant. Prof. Gates' case is stronger than the defendant's in Olson , because Gates voluntarily presented himself at the door and claimed legal residence. Once the risk of flight has been eliminated, officers may not enter a private residence without a warrant.
People lose their keys and force their own doors all the time. When a resident in such a case claims legal residence, the police have to stop at the front door until they get a warrant, no matter how frustrating that may be.
Now, let's turn to the First Amendment freedom-of-speech principles involved in a charge of "disorderly conduct." Disorderly conduct statutes have been frequently challenged on constitutional grounds as overbroad and prohibitive of free speech. In 1975 the Massachusetts courts were forced to bring their "disorderly conduct" provisions into accord with an emerging line of Supreme Court decisions. Specifically, it was held that abusive and profane speech in and of itself could not shape disorderly conduct. The Massachusetts courts have subsequently adopted a factual approach which focuses on whether the allegedly disorderly behavior threatened an imminent breach of the peace (eg, "tumultuous" behavior).
What kind of behavior is sufficiently "tumultuous"? Case law from a number of states, including Massachusetts, has held that speech is only tumultuous if it rises to the level of "fighting words." In a New York case interpreting similar statutory language, Stephen v. New York , 581 NYS2d 981 (1992), the defendant was arrested for "clutching his genitals and shouting obscene remarks at a police officer." The court dismissed the charges, noting that the defendant's behavior was "not violent, tumultuous or threatening, but merely loud, derisive, taunting and vulgar …" Were the witnesses to the Gates' incident really frightened that Gates was about to attack a dozen armed officers? Did the witnesses fear personal bodily harm? It does not seem likely. If the onlookers had perceived Gates 'statements to be merely "loud, derisive, taunting and vulgar," then Gates' arrest would have to be ruled doubly unconstitutional.
Although Sgt. Crowley appears to have acted sincerely, ignorance of the law is no excuse, especially when the law we're talking about is the Constitution. Crowley invoked "standard police procedure" as his defense, but such procedures are not exempt from the requirements of constitutionality.
Admittedly, the Bill of Rights is a pain in the neck for our nation's police officers. It frequently permits criminals to escape the reach of the law. Its only justification is that it preserves our freedom, which is why it is our national treasure. Even at the cost of hampering law enforcement, these vital freedoms must be zealously defended.