One of the more interesting and important points my criminal law professor made in law school was the necessarily enormous discretion individual police officers have. This is necessary because there is no way to send anyone else to shadow every police officer to monitor her/his discharge of her/his duties. The problem comes from the profusion of crimes in the United States. As one criminal defense lawyer said emphatically in a video posted on the web, explaining why he would never talk to the police, there are circumstances in which it is unlawful to be in possession of a lobster. With so many potential crimes out there, it is foolishness to talk to the police, no matter how smart or well educated you are, because you cannot anticipate what crime you might accidentally admit to.
This point came to the fore with the recent arrest of Henry Louis Gates, Harvard professor, for "disorderly conduct." Now THERE’S a floppy, expansive term that just begs for gobs and gobs of interpretive leeway for any police officer. I would submit that it is, or should be, IMPOSSIBLE to commit this crime while standing in your own living room. Granted, whether Gates actually owned the living room was part of the question, but I should think Gates’ Harvard ID should have settled that, even if it didn’t have his address on it. Like lots of Harvard professors are in the habit of breaking and entering in broad daylight. And, in terms of ownership of the living room, note that the cop did NOT arrest Professor Gates either for breaking and entering, or for trespassing, either of which would have been appropriate if he really doubted that Gates lived in the house. In terms of "disorderly conduct," who else can define "disorderly" in your home if not you? And you should damned well have the right to be "disorderly" in your own home if you please.
And, of course, "disorderly conduct" is oh so convenient a charge to whip out for any cop who finds his authority under challenge, as the cop did in this situation. But Gates, as a citizen, has the right to challenge the authority of the police – all Americans have that right. We do not live in a police state, or at least we privileged white people do not. Arguably, Henry Louis Gates demonstrates that black people do live in a police state, where all that matters is the whims of the cop who happens to be standing in front of you at that moment. One law review author writes about the lawlessness of the American state relative to black people, and she’s right – slave owners were subject to certain legal restraints on the treatment of their slaves, but those restraints were effective nullities because no slave had any power to enforce them. Segregation was ALWAYS illegal, even before the 1964 Civil Rights Act, by dint of its violation of America’s founding proposition, that all men (and women) are created equal.
I would do what Professor Gates did because I think it’s important to keep cops from abusing their authority. Of course, they usually don’t abuse their authority with respect to me, because I’m a respectable, privileged, middle-class white guy. But I suspect whatever Professor Gates did in that situation was tame compared to what I would do, and at this point I’d be filing law suits right and left over the incident.