Henry Louis Gates case: Should yelling at a cop be a crime?

WASHINGTON -- For some defense lawyers, the arrest of Harvard University professor Henry Louis Gates Jr. was less about racial profiling than about how people can be arrested simply for speaking angry words to a police officer.

The laws against "disorderly conduct" give the police wide power to arrest people who are said to be disturbing the peace or disrupting a neighborhood. In Massachusetts and elsewhere, the courts have said the "disorderly acts or language" must take place in public where others can be disturbed.

It is probably not a crime of disorderly conduct for a homeowner, standing in his kitchen, to speak abusively to a police officer.

According to his police report, Sgt. James Crowley said the professor was "yelling very loud" and "accusing me of being a racist."

Complaining that the "acoustics of the kitchen" made it difficult to communicate, the officer said he "told Gates that I would speak with him outside."

On the porch, the officer arrested Gates for being loud and abusive in the presence of several neighbors on the sidewalk. The charges were later dropped.

"You might think that in the United States, you have a right to state an opinion, even an offensive opinion. But prosecutors like to say you don't have a right to mouth off to the police," said Samuel Goldberg, a Boston criminal defense lawyer.

"Gates was saying, 'You are hassling me because I'm black.' I understand how that's offensive to a police officer," Goldberg said. "It's astounding to me to call it criminal."

Matt Cameron, a criminal defense lawyer in East Boston, said the state's law against "disorderly conduct" dates to the 1600s.

"It's a handy tool for the police because it is so broad and confusing," he said.

Police can arrest people, even in their own homes, for accosting them, interfering with an investigation or resisting a lawful arrest.

But Gates was not accused of interfering with an investigation.

"I would say it is not constitutional to arrest someone in his home just for being loud and abusive to a police officer," said Boston University law professor Tracey Maclin.

Lawyers who looked at the reported details of the incident say both men could have avoided a confrontation. Crowley, after learning that Gates was the homeowner and not an intruder, could have left and ignored the abuse.

For his part, Gates continued to loudly berate Crowley as he was leaving the house, according to police.

dsavage [at] tribune [dot] com