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Obama Missed a Moment to Defend Constitution

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By Colbert I. King
Saturday, August 1, 2009

Far be it from me to carp about the bonding over beer that took place Thursday evening at the White House. President Obama probably did the smart thing by playing Healer-in-Chief in the wake of the racially tinged national debate over the arrest of Harvard Prof. Henry Louis "Skip" Gates Jr. by Cambridge police Sgt. James Crowley.

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From all appearances, a good time was had by all, including Vice President Biden, who joined the threesome with a faux beer of his own. A political purpose may have been served as well. The White House surely wanted to get the cops and the conservative blowhards off Obama's back for accusing Cambridge's finest of acting "stupidly." Beer bonding, in this case, also may have helped calm America's racial waters, which, as we know, can be transformed into a tsunami with the slightest breeze.

But that wasn't enough.

Since the Cambridge bust, "teachable moment" has become the latest in-vogue expression. Thursday's round table in the Rose Garden presented one, with news cameras and reporters looking on. Unfortunately, Obama the politician trumped Obama the law professor, and he punted on the opportunity to teach an important lesson to the American people about the First Amendment, police powers and citizens' rights.

The president instead settled for sending a message of racial harmony when, in fact, race and law enforcement are sores on the body politic.

George Washington University law professor John F. Banzhaf III argues that Gates should not have socialized at the White House. Instead, he says, Gates should sue the Cambridge police for arresting him without legal justification.

I'm not sure I would go that far.

But Gates, it seems to me, has an obligation in the search for common ground to do more than sip beer and munch peanuts with the prez and the cop who busted him.

The professor and I don't share the same circles.

But this I know: Henry "Skip" Gates is well positioned to take a public stance against the police practice of arresting people for exercising their constitutional rights. It happened in his case. It happens far too often in this country, especially to the poor, the politically unpopular and people too financially weak to stand up for themselves. And it is a practice that cries out for correction.

Lowering the temperature over the Gates arrest is fine. Papering over the offense and treating it as if it were just a matter of two cool guys getting hot under the collar is not.

Unwarranted arrests are the bane of people and communities without clout. Obama and Gates know it. Beer and smiles all around won't make that fact go away. Neither will the continued abuse of "disorderly conduct" laws.

As Banzhaf noted in a recent news release: "The law in Massachusetts, as well as elsewhere, is clear: People cannot be arrested simply for being disrespectful to or shouting at the police, even to the point of shouting insults at them in public. Yet the practice is so common that the alleged crime has been given the name 'contempt of cop.' "

The city of Cambridge recognized that, even if Sgt. Crowley didn't. It agreed to drop the "disorderly conduct" charge against Gates because it knew it wouldn't stick.

D.C. Del. Eleanor Holmes Norton, also a constitutional law professor, pointed this week to a "Supreme Court case that says that talking discourteously to a police officer is not 'conduct,' because there is no action in talking, only words." Said Norton, "A citizen does not lose her/his First Amendment rights even when trash-talking or worse to a police officer."

But this is not about making it safe for rabble-rousers to abuse cops. Civility ought to be a hallmark of an open society. Speaking courteously shouldn't be an obligation of a citizen to a police officer or the reverse. Courtesy is a universal duty.

That said, discourtesy is also no excuse for the police to trespass on the Constitution.

Cops, when annoyed, have been known to arrest and charge people with "disorderly conduct" even though they know the charge won't make it to court. The whole idea of such arrests is to shut down, and shut up, the offender. So what if the person arrested ends up with a rap sheet and a mug shot in the files?

That outcome may be satisfying to the arresting officer, but it offends the Constitution, as it should every citizen, including the president. And Obama, also an officer of the court, should not have shied away from saying so.

He did with his silence. And, for that, a lot of citizens will continue to pay a steep and unfair price.

kingc@washpost.com


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