Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

A Boston-Area Professor Arrested For Disorderly Conduct – Why?

Damage control for the Cambridge Police Department in the arrest of renowned Harvard University professor Henry Louis Gates Jr. has begun. The charges against him were dropped yesterday as lawyers for the Department announced that nobody involved in the incident had acted “at their best”.

For those of you who were living in a sound-proof room the past couple of days, police had arrested the African American Professor as he was “breaking in” to his own home because his door would not open. When police came to investigate and demanded identification and explanations, Professor Gates accused them of bothering him because he was black, suggesting that they were being racist. He ended up arrested for on charges of the Disorderly Conduct variety, handcuffed, and brought in. The public reaction began and the Commonwealth dropped the charges against him yesterday, although announcing that somehow the investigating officers actually had “probable cause” to arrest the man who was able to show he was merely entering his own home, provided positive identification yet had the temerity to opine that he was being hassled because of his skin color.

In an interview Tuesday, Professor Gates said the situation “shows our vulnerability to the caprices of individual police officers who for whatever reason are free to arrest you on outrageous charges like disorderly conduct.” Mr. Gates called a police report alleging he yelled at an officer and was uncooperative “a work of sheer fantasy.”

According to Professor Gates, he had returned to the university from a trip to China last Thursday afternoon and had trouble opening his front door, which was jammed. As he and the driver tried to gain entrance into the home, a passerby called police because she thought the men were breaking into the house. Professor Gates said he had no issue with the woman’s call.

The trouble began, however, when the police came. They apparently found him already inside his home. They asked him to step outside. Professor Gates declined the invitation, he says, because of the officer’s tone. According to Professor Gates, the officer asked that he prove his identity and the professor did so. The professor then asked the officer to do the same, asking for his name and badge number.

Now it was the officer’s turn to decline.

The debate continued until people began paying attention outside the home. It was then that the officer decided that Professor Gates was being disorderly and placed him under arrest.

Robert McCrie, professor of security management at John Jay College of Criminal Justice in New York, called Professor Gates’ arrest “gratuitous” because, he said, even if Mr. Gates had yelled, such conduct doesn’t amount to disorderly conduct. He said police departments need to improve training, especially when interviewing citizens at home. “We in America believe very much in the privacy of our own home,” he says.

And we do…just like we believe in the right to free speech.

Except, that is, when law enforcement tells us that we don’t.

Attorney Sam’s Take:

We have actually discussed the dilemma faced by Professor Gates before. Regardless of the issue of race, it is a situation most of us find ourselves in at some point in time.

Many are the clients I have seen who, for reasons good or bad, came into contact with the police and were immediately initiated into the “Hey, I’ll Bet I Can Make This Situation Worse” club.

When law enforcement comes upon what may be a crime scene, they bring their human foibles with them. They also bring a need to stay in control of the situation. If you communicate, through word or deed, that you do not agree that they are in control, then, to them, you are being “disorderly”.

Or worse.

But aren’t there limits on that? Do we truly lose our rights to be secure in our homes or to speak our opinion when the police come to call?

Check out tomorrow’s weekly Attorney Sam’s Take for some answers about the mysterious cloud of “disorderly conduct”. That is still a lot to be said, so I expect it will be a two-parter, concluding on Friday.

For the full article concerning today’s posting of the Boston Criminal Defense Lawyer Blog, go to http://online.wsj.com/article/SB124819548233769057.html

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