Harvard professor Henry Louis Gates Jr., an African-American scholar, was recently arrested at his residence by Cambridge police officer Sergeant Crowley who was investigating a reported break-in. Professor Gates was arrested after he yelled at the investigating officer repeatedly from inside the residence. He showed identification and then reportedly resisted a demand to step onto the porch. He did eventually follow the officer outside, where Gates continued to upbraid the officer. “It was at that time that I informed Professor Gates that he was under arrest,” the officer wrote in the report.
Law enforcement offices throughout the country no doubt sympathize with the officer’s plight in this situation. The officer thought he was going to get a “thank you” and Professor Gates thought he was a suspect because of his race. So if this case occurred in San Diego County, under California law, on these same facts, who was acting unlawfully: Professor Gates or the police officer? This is a routine type of question for criminal defense lawyers. San Diego criminal attorneys routinely defend cases that begin with an officer’s claim that the defendant was not cooperating while they lawfully preformed their duties.
While it is not unlawful to yell at a police officer in anger for a perceived wrong such as racial profiling, it is unlawful under California law, to willfully resist, delay, or obstruct a sworn law enforcement office, or an emergency medical technician, in the discharge or attempt to discharge any duty of his or her office or employment. This provision is commonly referred to as “resisting arrest.” Some law enforcement officers no doubt justify arrests under this provision for those that “flunk the attitude” test. Conviction of misdemeanor resisting arrest carries a fine not exceeding one thousand dollars ($1,000), or imprisonment in a county jail not to exceed one year.
Professor Gates may correctly argue, however, that for a resisting arrest conviction to be valid, a criminal defendant must have resisted, delayed, or obstructed a police officer in the lawful exercise of his duties. In California, the lawfulness of the officer’s conduct is an essential element of the offense of resisting, delaying, or obstructing a peace officer. If the officer was not performing his or her duties at the time of the arrest, the arrest is unlawful and the arrestee cannot be convicted under Penal Code section 148 (a)(1)(resisting arrest). Excessive force used by a police officer at the time of the arrest is not within the performance of the officer’s duty. An arrest made with excessive force is therefore unlawful. It is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest. Professor Gates would claim that after he showed his identification the officer’s duties ended and the excessive force began.
Arresting officer Crowley, on the other hand, may correctly argue that “the time of the arrest” does not include previous stages of law enforcement activities that might or might not lead to an arrest, such as conducting an investigation; it includes only the time during which the arrest is being effected. A conviction for resisting arrest under 148(a)(1) may be lawfully obtained only if the officers do not use excessive force in the course of making that arrest. A conviction based on conduct that occurred before the officers commence the process of arresting the defendant is not necessarily rendered invalid by the officers’ subsequent use of excessive force in making the arrest. For example, the officers do not act unlawfully when they perform investigative duties a defendant seeks to obstruct, but only afterwards when they employ excessive force in making the arrest. Similarly, excessive force used after a defendant has been arrested may properly be the subject of a Civil Rights lawsuit action notwithstanding the defendant’s conviction on a charge of resisting an arrest that was itself lawfully conducted. Sergeant Crowley would thus contend that the professor delayed and obstructed a lawful investigation by failing to cooperate before the arrest outside on the porch.
In any event, no matter who has the best legal argument, any criminal defense lawyer knows that a jury will apply a common sense approach to evaluating the conduct of both of the parties. Clearly, in this case, Professor Gates would not be convicted by a jury of his hypothetical California peers, whether he is absolutely right on the law or not. And, as California juries are historically reluctant to side against cops, Officer Crowley would also likely escape any claim for money damages based upon a Civil Rights violation.