Tumult in Harvard Square

July 24, 2009
Posted by Jay Livingston

“Tumultuous” was the part of the Henry Louis Gates story that seemed most unusual. White cop arrests a black man who has committed no crime except to challenge the cop’s authority – nothing much new here. But I don’t usually think of tumultuous as a word that comes quickly to the tongues of cops on the street, even around Harvard Square. But there it was in the report: Gates had been “exhibiting loud and tumultuous behavior.”

I’d forgotten that a police department is a bureaucracy, part of the larger bureaucratic structure of the law. The cop on the street may be just an ordinary male responding to a challenge to his authority. But the cop in the precinct writing up the report is a bureaucrat. And part of bureaucratic work is making cases conform to the regulations as written.*

Here’s one relevant passage from the ruling case in Massachusetts law on disorderly conduct:

to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior;

OK, that accounts for tumultuous. But why did Officer Crowley ask Gates to come out of his own house?

Explaining for the first time why he lured Gates out of his home, Crowley said he sought to protect himself and Gates from a potential intruder as he responded to a call for breaking and entering. (Boston Herald)

The explanation comes a day or two after the fact, or rather, after the facts, including the fact that Gates is a man in his late fifties who walks with a cane, and the fact that he showed the cop his ID.

This post-facto pretext went down well in the conservative press. The Wall Street Journal used it as what it called a “teaching moment”:

one lesson is that it’s usually better to cooperate during encounters with law enforcement so that matters don’t escalate needlessly. And if a cop asks you to step out on the porch, or away from your car, it’s probably because he’s concerned for his own safety.

Maybe the cop is thinking about his own safety. But maybe he’s also thinking about the law on disorderly conduct, which requires that the behavior be public.

`Public' means affecting or likely to affect persons in a place to which the public or a substantial group has access.'. . .

Inside your own house is not “public.” So if you want my name and badge number, step outside here where there are other people, and then . . . . you’re under arrest for disorderly conduct.


*According to one analysis, it was not the arresting officer who wrote up the report. Instead it was left to two officers who were perhaps more versed in the language of the law.

(Note: Much of what I’ve said here, it turns out, was already said by Mark Kleiman on his blog. Mark’s post is more detailed, somewhat more technical, and just generally better.)