By John Payton

On Thursday, July 16, Henry Louis Gates, Jr., professor and director of the W.E.B. Du Bois Institute for African and African-American Studies at Harvard University, was arrested outside of his Cambridge home for “disorderly conduct,” after several police officers confronted him for trying to open a door to his home. A neighbor had called the police when she saw Gates trying to open his front door, which was jammed shut. Gates was held for four hours then released. Here John Payton, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc. (LDF) shares his expert opinion.–The Editors

Henry Louis “Skip” Gates, a prominent member of the Harvard University faculty (and a member of the NAACP Legal Defense and Educational Fund Board), was standing in his home last Thursday afternoon, at about 12:45 pm, talking on the phone when a Cambridge police officer knocked on the front door and asked Skip to step outside onto the front porch.

Skip’s refusal (“No, I will not” is how the police officer reported it in the Incident Report) clearly perturbed the officer, who was operating on the premise that police should be obeyed. As Skip was retrieving his ID from another room to show the police, the officer entered Skip’s home.

(B. Carter -- Demotix Images)

The officer was not invited and was, arguably, not authorized to enter Skip’s home. There then ensued a verbal back-and-forth, which moved from the house to the porch and culminated in the officer arresting Skip.

There may have been no chargeable offense. The charge listed on the Incident Report is for general indecency and disorderly conduct: “Common night walkers, common street walkers, both male and female, common railers and brawlers, . . idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses . . .” Seemingly not applicable in these circumstances. At any rate, the charges have now been dismissed.

Legally, there was nothing improper about Skip declining to step outside his home to talk to a police officer. Nothing at all. The officer claimed that Skip was yelling at him. There is nothing illegal about yelling in your own home. Nothing. Little wonder that the “charges” have been dismissed.

Imagine for a moment what would have happened if Skip had obeyed the officer’s request to step outside and talk. Skip would have been on his porch with no identification. The officer would have asked him who he was and then, whether he could prove his identity. Skip is not allowed back in the house when he asks if he can get his ID; the Officer does not believe Skip when he claims it is his home. He arrests Skip on the porch.

Had Skip obeyed, the incident would have been reduced to an unidentified black man being arrested on suspicion of breaking and entering. At the police station, the black man would initially still not be able to prove who he was. The claim that he was the internationally renowned Harvard professor, author and historian Henry Louis “Skip” Gates would not be verifiable. Eventually, his identification would be established. But at that much later point, there would likely be no remaining controversy over the actions of the officer.

The only reason we are not talking about this second scenario is that Skip refused the officer’s request to step outside.

When should police be obeyed? That there is no categorical answer to that question is disturbing. Another version of that question is: Can you trust the police? The answer to that question too often is that you do so at your own risk. The police often act as though they have the authority to require answers or actions when they do not. They often use deception to get people to talk or take actions they have no power to require them to take. In some circumstances that may be considered “good police work.” But in other situations, it should be considered outrageous police work.

Clearly, a key to this puzzle is race. Skip Gates is not just a prominent member of the Harvard University faculty; he is also an African American. If we want to understand the Skip Gates incident, there is no way to leave race out of it. If the officer had found a white male, standing in his home, at about 12:45 pm in the afternoon, talking on the phone when he knocked on the front door and asked if the person would step outside onto the front porch, would that refusal have generated the same resentment from the officer? We all know the answer.

Should black people and white people have different expectations of police in these circumstances? No. Should a black home owner be able to trust that the police are not acting in bad faith? Yes. But those are abstract answers, unrelated to the reality of how police actually operate. The challenge is to see that the police change their ways and treat everyone with respect. We have a long way to go. Let’s hope that this incident results in a step on that path.

John Payton is President and Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc.

From Charles Ogletree, Gates’ Harvard colleague and attorney: Statement from Professor Charles Ogletree on Behalf of Professor Henry Louis Gates, Jr.

Brief Statement on Behalf of Professor Henry Louis Gates, Jr.

This brief statement is being submitted on behalf of my client, friend, and colleague, Professor Henry Louis Gates, Jr.  This is a statement concerning the arrest of Professor Gates. On July 16th, 2009, Professor Henry Louis Gates, Jr., 58, the Alphonse Fletcher University Professor of Harvard University, was headed from Logan airport to his home at 17 Ware Street in Cambridge after spending a week in China, where he was filming his new PBS documentary entitled “Faces of America”.  Professor Gates was driven to his home by a driver for a local car company.  Professor Gates attempted to enter his front door, but the door was damaged.  Professor Gates then entered his rear door with his key, turned off his alarm, and again attempted to open the front door.  With the help of his driver they were able to force the front door open, and then the driver carried Professor Gates’s luggage into his home.

Professor Gates immediately called the Harvard Real Estate office to report the damage to his door and requested that it be repaired immediately.  As he was talking to the Harvard Real Estate office on his portable phone in his house, he observed a uniformed officer on his front porch.  When Professor Gates opened the door, the officer immediately asked him to step outside.  Professor Gates remained inside his home and asked the officer why he was there.  The officer indicated that he was responding to a 911 call about a breaking and entering in progress at this address.  Professor Gates informed the officer that he lived there and was a faculty member at Harvard University.  The officer then asked Professor Gates whether he could prove that he lived there and taught at Harvard. Professor Gates said that he could, and turned to walk into his kitchen, where he had left his wallet.  The officer followed him.  Professor Gates handed both his Harvard University identification and his valid Massachusetts driver’s license to the officer.  Both include Professor Gates’s photograph, and the license includes his address.

Professor Gates then asked the police officer if he would give him his name and his badge number.  He made this request several times.  The officer did not produce any  identification nor did he respond to Professor Gates’s request for this information.  After an additional request by Professor Gates for the officer’s name and badge number, the officer then turned and left the kitchen of Professor Gates’s home without ever acknowledging who he was or if there were charges against Professor Gates.  As Professor Gates followed the officer to his own front door, he was astonished to see several police officers gathered on his front porch.  Professor Gates asked the officer’s colleagues for his name and badge number. As Professor Gates stepped onto his front porch, the officer who had been inside and who had examined his identification, said to him, “Thank you for accommodating my earlier request,” and then placed Professor Gates under arrest.  He was handcuffed on his own front porch.

Professor Gates was taken to the Cambridge Police Station where he remained for approximately 4 hours before being released that evening.  Professor Gates’s counsel has been cooperating with the Middlesex District Attorneys Office, and the City of Cambridge, and is hopeful that this matter will be resolved promptly.  Professor Gates will not be making any other statements concerning this matter at this time.

Professor Charles Ogletree
Jesse Climenko Professor of Law
Executive Director, Charles Hamilton Houston Institute for Race and Justice
Harvard Law School
Cambridge, Massachusetts