Obama Was Right About The Gates Arrest

On Thursday, President Obama weighed in on the arrest of African-American Harvard professor Henry Louis Gates, saying a Cambridge police officer "acted stupidly" when he arrested Gates for disorderly conduct. The next day, Obama backed down from his harsh comment.

Obama was right the first time.

I don't know if the police officer arrested Gates because of the Harvard professor's race. A lot of white people would say that if they mouthed off to a cop, they too would be arrested.

But one thing is clear -- Gates did not violate any law. Under Massachusetts law, which the police officer was supposedly enforcing, yelling at a police officer is not illegal.

There are clear decisions of the Massachusetts courts holding that a person who berates an officer, even during an arrest, is not guilty of disorderly conduct. And yet that is exactly what Gates was arrested for.

The Massachusetts statute defining "disorderly conduct" used to have a provision that made it illegal to make "unreasonable noise or offensively coarse utterance, gesture or display," or to address "abusive language to any person present." Yet the courts have interpreted that provision to violate the Massachusetts Constitution's guarantee of freedom of speech. So police cannot lawfully arrest a person for hurling abusive language at an officer.

In several cases, the courts in Massachusetts have considered whether a person is guilty of disorderly conduct for verbally abusing a police officer. In Commonwealth v. Lopiano, a 2004 decision, an appeals court held it was not disorderly conduct for a person who angrily yelled at an officer that his civil rights were being violated. In Commonwealth v. Mallahan, a decision rendered last year, an appeals court held that a person who launched into an angry, profanity-laced tirade against a police officer in front of spectators could not be convicted of disorderly conduct.

So Massachusetts law clearly provides that Gates did not commit disorderly conduct.

The Cambridge Police should be training their officers to know the difference between legal and illegal conduct. What Gates did was probably not so smart -- in general, be nice to people carrying guns -- but it wasn't disorderly conduct. At least not in Cambridge, Massachusetts.

That explains why the charges against Gates were dropped. It wasn't because the police were trying to defuse the situation. It was because Gates had done nothing illegal.

Arresting someone for doing something that isn't illegal is pretty stupid.

Then again, perhaps Obama was wrong. Maybe the police officer wasn't acting stupidly. He was just acting abusively. That is even worse.

A tip of the hat to Eric Posner of the Volokh Conspiracy.