Professor Gates and Me

Although I met distinguished African American historian and Harvard professor Henry Louis Gates about 10 years ago when he was our commencement speaker at City College, I am certain he does not remember me. But he may soon learn about me and my lawsuit against San Francisco police officers when he consults Harvard Law School Prof. Charles Ogletree about suing the Cambridge officer who arrested him at his home on July 16.

Gates is a summa cum laude graduate of Yale, a MacArthur genius grant awardee, a PBS documentarian, the holder of 50 honorary degrees, and one of Time Magazine’s “25 Most Influential Americans” in 1997. But all his honors didn’t mean a thing last week when he was arrested at his Cambridge home by a white police officer who was responding to a possible break-in at his home. The officer had demanded to see identification from Gates who produced his driver’s license and his Harvard ID. The officer seemed to doubt that a black man like Gates could live in that upscale neighborhood.

When Gates demanded to know the officer’s name and badge number, the officer asked him to step out on to the porch. After Gates complied, the officer thanked him and then placed him under arrest for disorderly conduct. The officer later wrote in his police report that Gates had become “belligerent” and had called him a racist. The officer, later identified as Sgt. James Crowley, placed Gates in handcuffs and brought him in a squad car to the police station where his fingerprints and mug shots were taken and where he was locked up for four hours until he was released.

Gates disputed the allegations of Crowley’s police report which stated that he was engaged in “a loud and tumultuous behavior”. "That's a joke," Gates said. "It escalated as follows: I kept saying to him, 'What is your name, and what is your badge number?' and he ref use d to respond. I asked him three times, and he refused to respond. And th en I said, 'You're not responding because I'm a black man, and you're a white officer.'"

Five days after the arrest, the county District Attorney announced that he was dropping all the charges against Gates stating that it was “a just resolution to an unfortunate set of circumstances.’’

When asked about the Gates arrest at his July 22 White House news conference, Pres. Barack Obama said “ I don't know, not having been there and not seeing all the facts, what role race played…But I think it's fair to say, No. 1, any of us would be pretty angry; No. 2, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home; and, No. 3 ... that there's a long history in this country of African-Americans and Latinos being stopped by law enforcement disp roportion ately.”

Gates will consult his attorney about possibly filing suit against Crowley and the Cambridge Police Department and Prof. Ogletree will likely discourage him from filing the suit after informing him that the police officer may prevail on a claim of “qualified immunity” because of a March 9, 2009 Ninth Circuit decision in the case of “Rodis vs. City and County of San Francisco et al” that is currently on appeal to the U.S. Supreme Court.

The Decision's recitation of the facts of that case begins as follows: “On February 17, 2003, Rodel E. Rodis, an attorney and a locally elected public official, entered a drugstore near his office to purchase a few items. He tendered a 1985 series $100 bill, which lacked the security thread, watermarks, microprinting, and other anti-counterfeiting features of current $100 bills…” The cashier used a counterfeit detector pen on the bill which showed it was au thentic but nonetheless called her manager, Dennis Snopikov, for assistance. The manager used the pen again and it yielded the same result but he still called 911 to report a possible use of a counterfeit bill.

The first police officer to respond was Sgt. Jeff Barry who knew me from a verbal argument we had a few years before concerning a City College policy not allowing campus police officers to carry firearms on campus. He charged that our policy (I was an elected College Board Trustee at the time) endangered the life of his brother-in-law who was a campus police officer.

When Barry stepped into the store and saw that I was the suspect, he chose not to speak with either Snopikov or myself. Instead, he waited for Officer Michelle Liddicoet and another officer to arrive. When Liddicoet arrived and asked him what was going on, Barry pointed to me and told her: “It’s that lawyer. He hates cops.”

Liddicoet then assured Barry, “Don’t worry Sarge, we’ll take care of him.” She then proceeded to arrest me without checking to see if the bill was counterfeit. I was placed in handcuffs behind my back and paraded through the store before other customers and brought by a squad car to the police precinct where I was handcuffed to a bar in a holding cell. After the police officers checked with an official of the US Secret Service who verified that my $100 bill was genuine, I was released.

After I sued police officers Barry and Liddicoet for violating my civil rights, they filed a motion for summary judgment claiming that they were enti tled to qu alified immunity because they believed the bill was counterfeit. The federal judge denied their motion which the officers appealed directly to the Ninth Circuit before the trial was set to begin.

On August 28, 2007, the Ninth Circuit ruled in my favor holding that “arresting Rodis without any evidence he intended to use the bill to defraud the store or that he knew (or believed) the bill was fake was a violation of his Fourth Amendment rights. Further, it was clearly established at the time of the arrest that Defendants’ conduct was unlawful. Thus, both arguments Defendants put forth are without merit” and they were not entitled to qualified immunity.

The officers then filed a writ of certiorari to the US Supreme Court which granted the writ on January 29, 2009, vacating the Ninth Circuit decision, and remanding the case for further considera tion in light of its recent decision in Pearson v. Callahan.

After my case was remanded back to the Ninth Circuit, the judges reversed their earlier decision on March 9, 2009 holding that "Although the arrest was unfortunate, we cannot say that the officers' belief that (the bill) was fake was plainly incompetent... The arrest, therefore, was not clearly established as unlawful."

Instead of viewing the case objectively as they did earlier - whether under the “totality of circumstances” the arrest was reasonable, the judges now applied the subjective test of whether the officers’ belief that the bill was fake was “plainly incompetent.”

Under this new standard, the issue that Prof. Gates would f ace if Sgt. Crowley claimed qualified immunity is whether Sgt. Crowley’s arrest of him for disorderly conduct was “plainly incompetent”. If it was incompetent but not "plainly" so, then Crowley wins.

This new test accords virtual absolute immunity from liability to abusive police officers who use their badges to settle personal scores or show uppity minorities exactly who’s the boss locally, even if the president of the US is Barack Obama.