Peter Y. Sussman

(Originally posted on Huffington Post on July 25, 2009)

The police officer who arrested eminent Harvard Professor Henry Louis Gates Jr. is said to be an excellent and sensitive cop. He teaches a class in racial profiling. Here are a few discussion points he might want to add to the syllabus. They come from a white layperson who has written often about criminal justice issues and given a good deal of thought to the sort of ambiguous confrontation that led to Gates’ arrest.

These suggestions for the lesson plan are occasioned by the incident in which Gates became embroiled, but none is specifically intended as a comment on that case since there is no way for outsiders to accurately determine what occurred during the confrontation inside that house in Cambridge. They are advanced as points worthy of consideration in similar situations.

First lesson: If an officer arrests a citizen for an offense that is not the one he or she was investigating at the outset and arises solely from the officer’s interaction with the arrestee, then there is an extra burden of proof on the officer. When the arrest results from such a personal interaction, in the absence of imminently dangerous and overt threatening activity such as the brandishing of a weapon, it likely represents a subjective and suspect assessment on the officer’s part

There was no crime until the police presence itself created one.

and not a clear-cut violation of the law.

Second lesson: Officers who enter a home or a tense encounter suddenly, as most do at some point, must realize that their presence will heighten animosities that have no necessary relationship to illegal activity.

Third lesson (an elaboration of the second): People get angry. When angry enough, they are likely to swear or shout or verbally abuse the officers whose very presence sets off such outbursts. This anger and acting-out are understandable (albeit not commendable) emotional responses and are not an indication of illegal activity. It is not illegal to be angry or to shout. The First Amendment protects speech, and there is no law mandating citizen politeness to authorities. It is the officer’s duty to defuse tense situations with calming talk or such other means as would be helpful (see next lesson).

Fourth lesson: After the original cause for an encounter has been resolved — as it apparently was when Professor Gates proved he was the resident, not a burglar, in his own home — then the officer must urgently consider the
 friction his very presence is likely to engender … and leave the scene promptly. His or her job after the original reason for the encounter is resolved is to avoid escalation or the creation of a new issue.

Fifth lesson: Altogether too many people who have been cleared of suspicion in a crime are nevertheless arrested for resisting arrest or disturbing the peace or interfering with an officer in the performance of his or her duty. An officer’s hurt feelings may be legitimate and infuriating to him or her, but they are not an indication that a crime has been committed. The burden is on officers to do everything in their power not to incite such crimes or they become complicit in the infraction.

Sixth lesson (and the first to address race or class at all): When dealing with a member of a race or class with an ingrained distrust of police officers, based on past, individual police behavior or historical social-control practices — and even contemporary practices in some areas — it is incumbent on officers to understand the reasons for the residual hostility they are likely to encounter and take extraordinary measures to calm the resulting tensions peacefully and sensitively. Whether the distrust is merited in the circumstances of the current encounter is irrelevant.

Seventh lesson: When officers are white and suspects are not, there is an even greater chance that extraneous resentments may greet even the best-intentioned officer. It’s not fair that conscientious officers bear the burden of historical resentments engendered by others, but it is a fact that they must be prepared to address with a sensitivity that is based on imaginative as well as practical training techniques. They must be taught empathy, not just control, if they are to perform their duties equitably. And, once again, this is even more true when there is no longer evidence that a crime has been committed requiring any police presence.

Eighth lesson: With effective training comes a recognition that instinct is often suspect in dealing with “other” race and class groups, so methodical reasoning is all the more essential. For example, a reasonable assessment of a burglary suspect would certainly take into account that a middle-aged man who walks with the aid of a cane, wears rimless glasses and has a slight paunch — and no professional burglary tools in his possession — is most unlikely to be the culprit in a residential burglary. The burden of proof shifts to the officer, to prove his or her case.

These lessons are not a comprehensive list and they are not rules, but the kind of awareness they exemplify might have defused the tense Gates encounter short of arrest and would significantly reduce arrests of other innocent civilians nationally. Officers need to take continuing classes to familiarize themselves with the social divisions in a multicultural nation; they need to understand viscerally, not just intellectually, what their presence represents to others. Unless the police department itself is diverse, individual officers will not develop the deep cultural understanding they need to fulfill their professional responsibilities.

In the broader picture, Professor Gates’ reported anger and hostility are unfortunate but irrelevant. There was no crime until the police presence itself created one. Therein lies an urgent problem that law enforcement must address … urgently.