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by Ron Martinelli,
Ph.D., B.C.F.T., C.L.S.
Forensic Forum
Preface:
“Forensic Forum” is the first of many future
columns that I intend to write providing my forensic analysis on
certain “high profile” law enforcement incidents and issues
presented in the national media. As the law enforcement
community realizes all too well, rarely does the media or the
“celebrity TV CSI and cop show” watching community understand
police practices. These same communities also have little to no
appreciation of the dangers and daily stressors of police work.
My intended audience for “Forensic Forum” is the media, law
enforcement and “Joe Citizen.” I hope you all get something out
of this column, and that you will pass it on to others so that
can learn more about the difficult job of policing.
During
the past two weeks everyone in America and the international
community who has a television or a radio has learned something
interesting about police practices, racial relations and the
power of politics as a result of a police contact between the
Cambridge police and a black man. It seems that nearly everyone,
from politicians, to renowned community activists, to media
“talking head” pundits and police administrators, have opined on
the contact between Cambridge police officers and Harvard
University Professor Gates. Even President Obama stepped into
the fray without any knowledge of the fact pattern of this
incident to initially opine that the police officers involved
“acted stupidly.” President Obama has presented this incident to
the American people as a “teachable moment.” As a professional
who has studied the actual police reports in this incident, I
would like to offer my considered opinions. The Cambridge
Incident is indeed a “teachable moment.” But what have we as
Americans learned? Let the lesson begin...
Lesson
#1
“Just
the facts, ‘mam.” - Know the facts before you opine on anything
Quoting from Sergeant Friday of the old TV series “Dragnet”:
“Just give me the facts ‘mam; nothing but the facts.”
There
is a singificant different between the standards of “truth” and
“proof” used by “investigative journalists” and forensic
experts. Credible forensic experts must follow the legal
guideline of “preponderance of evidence” whenever we render
findings or opinions in written reports or when testifying
before the “Trier of Fact” (jury). Journalists have no such
legal mandate and therefore often play fast and loose with their
“facts”, which are often no more than mere speculation.
“Preponderance of evidence” may be defined as “more likely to
have occurred than not, based upon facts, evidence and a
totality of circumstances.”
The
lack of knowledge and mere speculation by uninformed journalists
and biased “community activists” does nothing to enhance our
potential for learning anything important about police practices
or the state of racial relations in this country. If anything,
such comments perpetuate stereotypical prejudices and fuel
racial devisiveness.
Lesson
#2
Criminal Profiling vs. Racial Profiling
“Racial profiling” occurs when police officers base their
involuntary encounters with citizens solely upon the color of
their skin. This is not only unethical and against department
policies but also a violation of the citizen’s 4th and 14th
Amendment rights to be free from unreasonable searches and
seizures.
“Criminal profiling” occurs when officers responding to a call
for service, or when involved in self-initiated patrol activity,
utilize the legal standards of “reasonable suspicion” or
“probable cause” to effect a detention or arrest of a person. In
such cases, race is only a pertinent factor if it directly
relates to a suspect’s description.
In the
immediate case of “Gates vs. The Cambridge Police”, or
“Professor Gates vs. Sergeant Crowley”, Cambridge police
officers were responding to a call for service initiated by a
“Reporting Person (RP),” neighbor Lucia Whalen, who reported to
a police 9-1-1 dispatcher that two men, one of whom “might be”
Hispanic, were possibly breaking into a home. While the 9-1-1
call transcripts do not indicate that the men were black, Ms.
Whalen did indicate to the dispatcher that she was not sure of
the actual race of one man and did not note the race of the
other. We are not yet privy to any audio or written transcript
of what the police dispatcher may have told the responding
officers with respect to the suspicious subjects’ race. However,
Sergeant Crowley has reported that when he contacted Ms. Whalen
upon his arrival, she told him that she had observed “what
appeared to be two black males with backpacks on the front
porch,... and that her suspicions were aroused when she observed
one of the men wedging his shoulder into the door as if he were
trying to force entry.”
What
is of import in this case is the basic information with which
Ms. Whalen was able to provide the dispatcher and Sergeant
Crowley: (1) It appeared that two men whom the neighbor did not
recognize appeared to have forced entry into a home by applying
brute force upon the front door; (2) the men were black and
wearing backpacks; and (3) there appeared to be a suitcase near
the front of the home. What is implied and may have been asked
of Ms. Whalen was whether she recognized either of the men as
residents of that home. This begs the question, “If the neighbor
(RP) had recognized Mr. Gates or the other man forcing entry
into the Gates home, why then would she have even called the
police?” People found by police to be breaking into their own
homes who are not recognized by their own neighbors as residents
is a rare occurance for police officers.
At the
moment of contact between Sergeant Crowley, his partner Officer
Carlos Figueroa and Professor Gates, the officers were involved
in the investigation of suspicious circumstances; specifically a
burglary or a home invasion in-progress.
Statistics consistently inform us that approximately 25% of all
officers in the U.S. are killed and injured responding to and
investigating “suspicious circumstances” calls each year. Among
the most serious high-risk calls for peace officers are possible
burglaries and home invasions in-progress. The majority of these
crimes take place during the day time and in relatively nice
neighborhoods because that’s where money and expensive property
are found.
Officers investigating possible burglaries and home invasions
in-progress are almost always at a tactical disadvantage.
Suspects (many of whom are armed) can see police arrive, and can
plan their ambush from positions of cover and concealment. As
has happened on two occassions this past month, at least three
police officers have been killed in the U.S. under these
circumstances. Home invasions are by their very nature
particularly violent and often deadly. To emphasize my point,
recall the recent killing of two well known parents of fourteen
disabled children in front of their children last month in
Beulah, Florida by a team of armed home invaders.
In
this case, due to the sparce information received from neighbor
Ms. Whalen, Sergeant Crowley and Officer Figueroa had only
moments to plan for their contact with any subjects inside the
residence. At this point, they had to be concerned with their
officer safety, making contact with any potentialy armed
occupants within the residence, assessing the possibility that
residents were being held against their will by armed home
invaders, and conducting a protective sweep for any armed
suspects inside the home.
Multi-tasking under the stresses of officer safety and the
uncertainty of the reported suspicious circumstances is no easy
matter, when one considers that Sergeant Crowley had to conduct
his initial assessment from a position at the front door of the
home where he was totally exposed. Under such taxing
circumstances, a police officer’s primary concern is of their
immediate safety, the safety of their partner(s) and the safety
of innocent residents who might be held as hostages. The
reasonable officer confronted with such difficult circumstances
is not concerned about the race of the person they are
contacting unless race is pertinent to a suspect description. In
this case it would appear that while the racial description of
the suspicious subjects being black may have been a pertinent
investigative clue, the observed and described behavior of the
subjects in possibly forcing entry into the home was more
important to Sergeant Crowley.
Being
inquisitive during any initial investigation of the
circumstances is both the perogative and responsibility of the
responding officers. This is not “racial profiling”; it is
“criminal profiling” which is a critical component of good
police work.
Lesson
#3
There
is a big difference between being “book smart” and being “street
smart.” Never be uncooperative and belligerent with police
during an investigation when time is compressed and safety is an
issue.
To
explain to those who are not familiar with police practices and
the legal standards of proof that provide guidelines for police
behavior during investigations; allow me to explain the legal
concept of “Reasonable Suspicion.”
“Reasonable suspicion” is defined as “specific and articulable
facts or circumstances made apparent to an officer which leads
the officer to believe that: (1) something out of the ordinary;
(2) suspicious; or (3) criminal in nature is occurring; and that
(4) there is some relationship between that activity and the
person(s) the officer is contacting. Reasonable suspicion
provides the officer with legal justification to: (1) stop and
detain the subject(s), and; (2) possibly search them for
weapons.
While
a detained subject is not under arrest, they are not free to
leave and must obey all reasonable investigative inqueries made
by the investigating officer. Failure to obey an officer’s
reasonable investigative directions or orders constitutes an
arrestable crime of “delaying, obstructing, or resisting a peace
officer during the lawful performance of their duty.”
The
goal of any detention is to investigate reports, circumstances
and apparent facts to determine: (1) whether any crime is or has
ocurred, and (2) if sufficient probable cause exists to
transition from a detention to a physical arrest and additional
evidenciary protocols.
Officers are trained to seek out information and evidence that
is both exculpatory and incriminating during their initial
investigation. In effect, they are continually evaluating their
contact with the subject(s) and gauging the subject’s responses
to reasonable and legitimate investigative inqueries and
directions. The officer(s) are continually asking themselves,
“What if anything is wrong with this picture?” In other words,
while being presented with information such as statements and
visual and audible evidence that include a subjects’ demeanor,
officer(s) are evaluating a “totality of the circumstances” that
may mitigate or aggravate their perceptions of that subject’s
veracity or innocence.
In the
immediate case, it is reported that upon reaching the front door
of the residence, Sergeant Crowley observed a black male, later
identified as Professor Gates, to be standing in the foyer of
the home. Sergeant Crowley, who was attired in full police
uniform, first asked Professor Gates to step out onto the porch
to speak with him. This is a standard officer and citizen safety
protocol conducted in order to: (1) remove the person from any
position of concealment in order to assess them for weapons; (2)
remove an innocent citizen resident whom might be a potential
hostage away from the hostage taker(s); (3) prevent the subject
from accessing any actual or potential weapons from within the
home; and (4) assess the responses of the subject contacted for
cues of deception or veracity.
Sergeant Crowley reports that when he asked Professor Gates to
step outside, Gates responded tersely, “No, I will not!” and
demanded to know who Sergeant Crowley was. The sergeant reports
that in response, he identified himself to Gates several times
and explained to the professor that he was investigating a
report of a burglary in-progress at the residence.
Officer Figueroa reports that when Sergeant Crowley asked for
Professor Gate’s identification (to confirm Gates lived in the
home), Gates yelled, “No I will not!” Sergeant Crowley and
Officer Figueroa both report that Gates continued shouting at
the sergeant, “Why? Because I am a black man in America!”
Sergeant Crowley and Officer Figueroa jointly report that when
the sergeant attempted to calm Professor Gates down and inquired
as to whether there was anyone else in the home, Gates yelled at
Sergeant Crowley, “You don’t know who you are messing with!”
Sergeant Crowley further reports that Gates yelled at him that
it was “none of (the officers’) business whether there was
anyone else in the home” and called him “a racist police
officer.”
Sergeant Crowley reports that while Professor Gates was acting
uncooperatively and yelling at him, Gates also picked up a
cordless phone, dialed an unknown number and began yelling into
the phone, “Get the chief! I am dealing with a racist police
officer in my home!” It was apparently at this point that
Sergeant Crowley called for additional police to assist him with
an uncooperative subject who might be a resident.
It would appear that, up to this point, Sergeant Crowley and
Officer Figueroa displayed remarkable restraint in response to
the apparent tirade and increasingly suspicious, if not criminal
behavior, of Professor Gates. In evaluating the circumstances to
this point, one should keep in mind the the officer(s) is asking
himself, “What’s wrong with this picture?”
If you
are not involved in law enforcement, here is a “reasonable
officer’s” forensic evaluation. We have two officers who have
responded to a possible burglary or home invasion in-progress
called in by a neighbor who does not recognize the two black men
with backpacks who she witnessed to forcibly enter a residence.
We
have one subject matching the description of one of the men who,
when contacted by a uniformed officer, refuses to come out of
the home, refuses to identify himself and refuses to answer
pertinent, direct and reasonable investigative inqueries; even
after the officer has repeatedly identified himself and has
explained the nature of the investigation.
Rather
than greeting the officers and calmly explaining to them that he
is a resident who had to force entry into his home because his
door was jammed, or he was locked out; this unidentified subject
now yells at the officer, calls him a racist police officer and
reacts in overly agressive and intimidating manner.
At
this point, the officers’ information of suspicious and possibly
criminal activity associated with this subject are enhanced, if
not confirmed. Neither investigating officer has been able to
assess this now “suspicious” subject to determine whether or not
he is armed; the second suspicious subject is nowhere to be seen
and both officers are in the open and exposed. The contact is
rapidly evolving; neither officer has physical control over the
now “detained” subject who is dynamic, animated and enraged; and
back-up officers have not yet arrived on scene. Are any of you
now beginning to ask yourself, “What’s wrong with this picture?”
I know I am; and obviously so were Sergeant Crowley and Officer
Figueroa.
After initially refusing to show Sergeant Crowley his
identification, Professor Gates reluctantly provided his Harvard
University faculty identification card to Sergeant Crowley.
(Producing a Harvard ID without a residence address rather than
a drivers license was a “Look at me, I’m important” power play
on Gates’ part because he did not produce his drivers license to
officers until he had been booked later that afternoon.)
Once
Sergeant Crowley had Gates’ Harvard faculty identification card,
he was able to contact and have Harvard University Police
respond to confirm who Gates was and that he resided in a
university owned residence. Once Sergeant Crowley’s initial
suspicions of possible criminal activity had been assuaged, he
then attempted to clear from the call by leaving Gates’
property. Apparently Gates felt that it was now his opportunity
to prosecute an engagement with Sergeant Crowley in the “Court
of Public Opinion” outside of his residence.
As
Sergeant Crowley was leaving the Gates property, the professor
followed him outside and repeatedly screamed at the sergeant to
again provide him with his name and badge number. The professor
then publically accused Sergeant Crowley of being a racist
police officer, and threatened the sergeant in the presence of a
gathering crowd of citizens and officers by screaming, “You
don’t know who you’re messing with! You haven’t seen the last of
me!”
Sergeant Crowley reports, and several other witnessing officers
apparently confirm, that in response to Professor Gates’ loud,
threatening and belligerent public display, the sergeant next
produced a set of handcuffs and verbally warned Professor Gates
that he was becoming disorderly. Sergeant Crowley then
repeatedly directed Gates to calm down and go back into his
home, or face arrest. When Gates ignored Sergeant Crowley’s
lawful orders and continued his tumultuous behavior outside, the
sergeant placed him under arrest for disorderly conduct.
What
lesson is to be learned here? You can have a fancy degree and
title that indicates that you are “book smart;” but that does
not necessarily equate to being “street smart.” Of all people
that one might expect to have a modicum of common sense and
racial tolerance, it would be a Harvard professor with a Ph.D.
who teaches African-American studies and race relations.
Further, never act deviant or uncooperative with police when
they have indicated to you there is a safety issue and time is
compressed. Provide direct answers to the officers’ legitimate
questions to recincile their suspicions. After the issue is
resolved, then approach the police with your concerns in a calm
and respectful manner.
Gates’
self-serving comment that he is “afraid of police because (he)
is black” just does not work for me because it simply does not
make any sense. If you as a black man were really scared of the
police and did not want them at your home, you would simply
cooperate with them to resolve their issues and they would
quickly be on their way. Sergeant Leon Lashley (who is black)
and Officer Carlos Figueroa were with Sergeant Crowley at the
time, so it is difficult to make the “white racist cops
harrassing a black man in America” argument. But that did not
stop the Professor from playing the “race card” immediately upon
being contacted by police.
Lesson #4
Being a racist and racism is a state of mind
What was Professor Gates affected by that caused him to act so
erratically and irrationally?
How about “racism?” Yes, in my opinion, the good professor of
African- American studies is by social and psychological
definitions a “racist.” Speaking forensically, Professor Gates
has already provided us with plenty of communicative and
behavioral cues of his racist mindset.
One
thing that I learned many years ago as a detective who
investigated real racists who had committed horrible hate
crimes, is that one is not born with prejudice or to be a
racist. These character and behavioral traits are learned and
inculcated by parents, relatives and close associates. Fledgling
and overt racists are empowered by groups, organizations,
schools or churches that they belong to that teach a racist or
separtist ideology. These entities act to solidify a prejudice
mentality.
The basic psychological profile of a “racist” may include, but
not be limited to the following components: (1) the person’s
life and professional career has evolved towards and is
myoptically centered around the singular component of one’s
race; (2) the person views all societal contacts and
interpersonal relationships in terms of their race, before they
consider any other components, rationale or mitigations for
others’ behavior towards them or others of their race; and (3)
the person’s consistent behavior suggests a myoptic and
obsessive paranoia that those not of his race are
“transgressing” upon him soley because of his race.
Race
was not a factor in this case until Professor Gates made it one.
That is because his singular mindset is “racism.” While it is
laudible to be proud of one’s racial heritage and one’s academic
accomplishments in enhancing opportunities for those within your
culture who you believe are socially disadvantaged; it is
absolutely unacceptable to cling to a racist mentality that
blinds you and infuses the naive and impressionable students and
citizens you effect with prejudice and racist diatribe.
Sergeant Crowley, is a decorated police supervisor who is
universally respected by his local law enforcement community. He
was hand picked by a former Cambridge Police Commissioner who is
black, to teach police - race relations and racial profiling for
the past five years at the Lowell Police Academy.
Current Police Academy Director Thomas Flemming says he has the
highest respect for Sergeant Crowley and calls the officer a
role model for all police officers. Are we being asked to
believe that a supervisor unanimously supported by his Police
Commissioner and a racially diverse department of officers,
experienced an acute onset of “racism” in this singular
incident?
Lesson #5
Sergent Crowley’s arrest of Professor Gates would ultimately
be seen by a court as lawful and without negligence or
deliberate indifference
In tactical communications classes, officers are
trained to let the subject have the last
word,
because (officers) have the last act. Unfortunately, the good
Professor Gates apparently never took that class.
Officers are trained in laws of arrest and legal update classes
that if a subject they are contacting, whether detained or not,
demonstrates elements of any crime in the presence of the
officer – that officer may take that person into custody for
that crime. In the immediate case, Professor Gates’ actions
fulfilled the elements of the crime of “disorderly conduct”
(Massachusetts) or “disturbing the peace” in California. Albeit,
the arrest for this misdemeanor crime is discretionary on the
part of the officer, that fact does not create any unlawful
action on the part of Sergeant Crowley.
The fact that the City Prosecutor (no doubt for political
reasons) decided not to prosecute Professor Gates, in no way
makes Sergeant Crowley’s arrest of the professor unlawful.
Furthermore, in my professional opinion based upon the totality
of the reports and evidence I have reviewed to date, the actions
of the arresting officers and the Cambridge Police Department
demonstrate no negligence whatsoever; let alone a level of
egregious, gross negligence, malice or “deliberate indifference”
required in a civil court to provide foundation for any civil
suit that Professor Gates might subsequently file in Federal or
State Courts against the arresting officers and the City of
Cambridge.
In actuality, it would appear that Professor Gates received
special treatment by the City Prosecutor who dropped the
disorderly conduct charges, most probably because of the
professor’s race and his friendships with President Obama and
the black mayor of Cambridge. It is doubtful that such
preferential treatment would have been afforded to a non-black
person under similar circumstances.
Lesson
#6
The
“Race Card” gets played every day. Protect yourself against it
It is a valid admonishment to officers to avoid inappropriate
“racial profiling,” based upon the past and historic wrongful
actions of law enforcement upon the minority community.
However, it is also appropriate to warn today’s officers that
there are many “Professor Gates’ “ out there who are waiting for
their opportunity to play the “race card” against the unprepared
officer.
Two of
the rules I teach in police practices classes are, (1) “You
cannot seek to control others, unless you are first in control
(emotionally) of yourself; and (2)
“Always have a studied response, rather than an emotional
reaction to resistance.”
If you the peace officer are acting appropriately during your
subject contacts and enforcement stops and you are suddenly and
aggressively engaged by someone displaying inappropriate
racially-oriented behavior, you should be asking yourself,
“What’s wrong with this picture?”
If the
subject’s response appears to be unreasonable, acute and
suspicious, your next response should be: (1) a studied
evaluation of the subject(s) for officer safety; (2) heightened
situational awareness in the event of an attempt at officer
distraction; (3) awareness of your own potential for a
heightened emotional, rather than a studied response to their
resistance; and (4) an immediate memorialization of the incident
by use of recording devices to preserve evidence and to protect
yourself against allegations of racial discrimination. Always be
prepared for the unexpected!
In summary, Sergeant Crowley did nothing wrong and was both
ethically and legally correct in the actions he took when he
detained and subsequently arrested Professor Gates. Sergeant
Crowley and Officer Figueroa responded to a possible crime
in-progress that could have easily cost one or both of these
officers their lives under different circumstances. Knowing the
potential for extreme danger was present, Sergeant Crowley
without hesitation exposed himself and climbed the front steps
of that home to contact persons inside no doubt mindful that if
armed suspects were indeed inside the residence and he was
ambushed, he might never see his family again. Men like Sergeant
Crowley are cut from a completely different cloth than Harvard
professors who cry wolf, play the “race card” and then seek the
apology of others for their embarrassing personal mistakes.
To those of you who disagree with my opinion, I would ask you
this simple rhetorical question: If Professor Gates’ home was
really being burglarized or home invaded and Professor Gates was
being held hostage at gunpoint; and the professor’s life or
property were saved by the officers’ legal intervention – would
you still define Sergeant Crowley as a “racist police officer”
who was “acting stupidly;” or would you call him a hero?
That’s
just my opinion. What’s yours? Be safe out there!
About
the author -
Dr. Ron Martinelli is a forensic
criminologist specializing in police practices and 4th, 8th and
14th Amendment litigation. He is a former police officer,
detective, police academy director, and Division Dean of
Criminal Justice. Dr. Martinelli is an adjunct professor of
forensic science, a Federal/State Courts certified police
practices expert, and a Certified Litigation Specialist in
Police and Corrections Practices, who is Board Certified in
Forensic Traumatology. He can be reached at:
Code3Law@martinelliandassoc.com |
September 2009 
