Do Police Officers Have To Identify Themselves?And other Henry Louis Gates Jr. arrest questions, answered by the Explainer.
Posted Wednesday, July 22, 2009, at 5:07 PM ET
Prosecutors dropped all charges against Henry Louis Gates Jr. on Tuesday. The prominent Harvard professor had been charged with disorderly conduct after breaking into his own home in Cambridge, Mass. This bizarre episode, which some say is an example of racial profiling—Gates is African-American—raises all sorts of questions for the Explainer.
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StumbleUponGates repeatedly requested the arresting officer's name and badge number. Gates says the officer provided neither, although the officer claims that he did, in fact, state his name. Was the officer required to provide this information?
Yes. Massachusetts law requires police officers to carry identification cards and present them upon request. Officers are also required to wear a "badge, tag, or label" with their name and/or identifying number. The law is aimed at precisely the situation in question—suspects who feel their rights are being violated. Few other states impose this requirement on their officers as a matter of law, but many individual police departments, such as the New York Police Department, have adopted it (PDF) as a matter of policy.
Gates initially refused to emerge from his home and provide identification. Was he required to?
No. There's nothing to stop an officer from requesting your presence on the front porch or asking you questions, but he cannot force you to identify yourself or come out of your house without probable cause. (The rules are different for drivers and immigrants, who are required to provide identification upon request.) If you don't feel like chatting, ask the officer whether you are free to go about your business. (If he answers no, you are being detained, which means the officer must acknowledge and abide by your full menu of civil rights, including the famous Miranda warnings if he intends to ask you any questions.)*
The arresting officer alleges that Gates shouted at him and threatened to speak to his "mama." He then arrested Gates for disorderly conduct. What, exactly, is disorderly conduct?
Behavior that might cause a riot. Massachusetts courts have limited the definition of disorderly conduct to: fighting or threatening, violent or tumultuous behavior, or creating a hazardous or physically offensive condition for no legitimate purpose other than to cause public annoyance or alarm. (The statute, however, just says "idle and disorderly persons," a formulation that is, on its own, patently unconstitutional.) Violators may be imprisoned for up to six months, fined a maximum of $200, or both.
The stilted language in the Gates police report is intended to mirror the courts' awkward phrasing, but the state could never make the charge stick. The law is aimed not at mere irascibility but rather at unruly behavior likely to set off wider unrest. Accordingly, the behavior must take place in public or on private property where people tend to gather. While the police allege that a crowd had formed outside Gates' property, it is rare to see a disorderly conduct conviction for behavior on the suspect's own front porch. In addition, political speech is excluded from the statute because of the First Amendment. Alleging racial bias, as Gates was doing, and protesting arrest both represent core political speech.
Got a question about today's news? Ask the Explainer.
Explainer thanks Carol Rose and Sarah Wunsch of the ACLU of Massachusetts.
Correction, July 28, 2009: The original version stated that mere detention triggers the reading of Miranda warnings. In fact, custody paired with interrogation triggers the warnings. (Return to corrected sentence.)
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Unfortunately, if you ask a police officer "Am I free to leave?" He may well refuse to answer, or try to deflect your question. The problem is that police and prosecutors "want it both ways." If they question you and you say something incriminating, then they want to claim that you were not in custody and it was a "consensual encounter." On the other hand, if you don't say anything incriminating or try to leave, they want to be free to charge you with "resisting" or "disorderly." There really are no 'bright line' rules on when someone is/isn't in custody (the courts use terms like "totality of the circumstances"), but most of the time the state (police and prosecutors) will prevail in having the situation called what they wish.
Arresting someone like this (for "disorderly" or "resisting") where there is not an underlying charge, is often a case of "complaint insurance." If the officer thinks a person will complain, they will arrest them and charge them, so if/when a complaint does come they can protest that the person was simply a complaining law-breaker. The charge is BS and dropped quickly by the prosecutor, but the police will still use it to try and tar the complainer.
I routinely represent people on these "BS" resisting charges. The prosecutor won't touch them, and if the officer insists on going forward I just request the taser logs and records and the case disappears in a puff of smoke. The police don't want to release those records. But the police really don't care. They figured "I tasered the M**F** and he spent a night in jail. That'll teach him." What makes it really frustrating is that the vast majority of these cases come from a few problem officers, whom their fellow officers will complain about -- but never on the record.
Contrary to what at least some police seem to think, people in this country still have some "rights" and simply because a cop barks an order doesn't mean that people are legally obligate to jump to comply, let alone get arrested/tased if they don't. What is really scary is the number of people who seem to think that unthinking compliance is a virtue. Many people say "you should just always do what the police say" and "the Cop is always right." Such people are not law-abiding, they are law-ignorant.
-- fozzy
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