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Excerpted From: Frank Rudy Cooper, Masculinities, Post-racialism, and The Gates Controversy: The False Equivalence Between Officer and Civilian, 11 Nevada Law Journal 1 (Fall 2010) (387 Footnotes) (Full Document)



Suppose you read in the newspaper that a police officer responded to a report of a potential break-in and that he subsequently arrested the homeowner. Would those be enough facts to explain why the arrest occurred?

No? Let us assume the reporter added the following facts: The officer arrived at the home and found a person inside. The officer asked the civilian to join him on the porch. The civilian refused to do so. The officer said there was a report of a potential break-in. The civilian became offended at being suspected of the break-in. An argument ensued, during which the civilian spoke loudly. The argument continued as spectators gathered and other officers arrived. Eventually, the civilian stepped onto the porch. The first officer then arrested the civilian for disorderly conduct. Would those be enough facts to fully explain the arrest?

Maybe? Let us assume further you learn the following facts. Both the first officer and the arrestee are men. The officer is relatively tall and burly. The arrestee is relatively short and slight and walks with a limp. The officer alleges the arrestee made derogatory comments about his mother. At this point, it might occur to you that something about masculinity was influencing these events. After all, cops are known to be pretty macho and smaller men might be particularly reluctant to back down from a conflict, lest their stature be viewed as a vulnerability.

Suppose further that the arrest became a national controversy. What could explain the fact that all forms of media covered the story in detail for more than a week? How about the fact that officer James Crowley is white and the suspect, Professor Henry Louis Gates Jr., is black? Additionally, Crowley claims a witness told him two black men forcibly opened the front door. The witness, who says she is not white, but “olive-skinned,” denies telling Crowley two black men forcibly opened the front door. Moreover, Gates called Crowley a racist and shouted, “THIS IS WHAT HAPPENS TO BLACK MEN IN AMERICA!” as he was arrested.

Now it might seem this event was about race. Race could have influenced either Crowley's suspicion of Gates or his decision to arrest him. It certainly influenced Gates's charge of racism. The affair only died down because Barack Obama--the black president of this majority white nation, who had himself strode into the fray by saying the police acted “stupidly”-- hosted a so-called “beer summit.” Crowley and Gates had a détente with the president and vice president at the White House. A year later, the City of Cambridge Review Committee (Committee) issued a report concluding that Crowley and Gates had “shared responsibilities” for the arrest.

So, is this case about machismo or race? Although commentary on this case has generally concentrated on the question of whether Gates's arrest was race-based, some have answered in the negative on the grounds the arrest was mostly the product of machismo. In fact, the masculinity-based and race-based explanations are both correct. The arrest and its aftermath can only be fully understood by viewing the events in a multidimensional way that acknowledges that gender and race (as well as class and other identities) operate simultaneously, inextricably, and in a context-dependent manner.

A multidimensional analysis of the Gates arrest adds two important insights to the discussion. First, the arrest was a product not only of racial profiling, but also of a masculinity contest--a confrontation where one person will boost his internal or attributed masculine esteem at the expense of the other. Second, the public's response to Gates's claim of racism was so negative because of an ever-increasing pressure to be colorblind in this supposedly “post-racial” culture. This Article thus concludes that the Cambridge Review Committee's drawing of an equivalence between Crowley and Gates as having “shared responsibilities” for the arrest is symptomatic of what happens when machismo meets post-racialism. This is a false equivalence: as a police officer, Crowley is duty-bound to keep the peace and trained to deal with conflict; as a civilian, Gates is neither obligated nor trained to keep his cool.

To make that argument, this Article proceeds as follows. Part II tells the stories of the arrest, the public response, the Massachusetts disorderly conduct statute, and the Cambridge Review Committee's report.

Part III conducts a masculinities studies analysis of the arrest. It shows the arrest can be conceived of as resulting from the ways the parties challenged each other's masculinities, which resulted in a masculinity contest. Specifically, Gates's violation of the unofficial rule of deference to the badge created a masculinity challenge for Crowley, resulting in a masculinity contest between the parties that Crowley resolved by arresting Gates.

Part IV explains why post-arrest criticism of Gates should be seen as largely a product of the majority of the public's adoption of a post-racial ideology. Whereas colorblind ideology presumes the best way to reach an egalitarian society is to pretend race does not matter, post-racial ideology assumes we have reached that state. The ironic result of Obama's election is that it made it harder for the majority of the public to see Crowley as implicitly biased and easier for them to see Gates as the true racist for having called Crowley racist.

Part V concludes by linking the analyses of machismo and post-racialism in a criticism of the creation of a false equivalence between police officers and civilians.

[. . .]

Interestingly, Landor's comment seems to accept the rule of deference to the badge identified earlier as a product of hegemonic masculinity. If one violates that rule, it seems, resulting harassment is your own fault. Most notably for present purposes, one who violates the rule of deference forfeits the ability to claim racial bias. This assumes that an incident can only be a product of racial profiling or of a violation of the rule of deference, not both. This fits with the colorblind view of racism as an on/off switch. Absent explicit and expressed invidious racial motivations, an event is presumed wholly non-biased. For that reason, post-racialism links up with Gates's machismo, in the form of his refusal to defer to the badge, to create an excuse for Crowley's arrest.

But the fact Gates is accused of “playing the race card” suggests that something more is going on than mere substitutions of machismo or arrogance as explanations for the arrest. The racial profiling claim is itself deemed to constitute “reverse” racism. Not only is the claim “It's because I'm black” apparently always wrong, it is injurious to the subject of the claim. Thus, in the New York Post article, Landor claims “Gates acted toward Sgt. Crowley based on his own prejudice, stereotyping a white policeman to be a racist.” The slippage here is startling. As in the post-racial analysis of “playing the race card,” because Gates cannot prove his claim of racial profiling with an explicit expression of racism, it is false. And being false, it is itself racism. This is what happens when machismo meets post-racialism: the very claim of racism is flipped into evidence of “reverse” racism. Here, post-racialism creates a false equivalence between Crowley's actual (albeit implicit) racial discrimination in the form of assuming Gates's guilt and Gates's act of, at worst, incorrectly accusing Crowley of intentional racial discrimination.

Just as post-racialists falsely make claiming racism equivalent with an act of racism, the City of Cambridge Review Committee's shared-responsibilities approach creates a false equivalence between the civilian and the police officer. The Committee seems to expect Gates to strive as mightily as a police officer in the effort to keep the peace. The report says that once Crowley explained his presence and Gates provided identification, “the behavior of both men should have begun to change.” This is a false equivalency. The report acts as though a civilian who has been wrongly accused of a crime and treated brusquely by a public servant should be as mollified by the explanation as a police officer should be by proof there was no crime. But the civilian is harmed by the false accusation whereas the officer is not harmed by doing his job of investigating a false complaint. As Carbado explains in an autobiographical segment of his critique of racial profiling, it is painful to be wrongly accused by the police. In addition to being more harmed by the encounter than was Crowley, Gates was also less responsible for the encounter. Crowley is a police officer; he is supposed to be trained to deal with conflict. Gates is a professor; he is not trained to deal with conflict beyond those common to university classrooms. Moreover, despite the Committee's assertion to the contrary, it is not Gates's job to keep the peace. It was Gates's right to act obnoxiously when accused of a crime in his own home. It was Crowley's job to de-escalate the conflict. The Committee's attempt to impose “shared responsibilities” on Crowley and Gates thus creates a false equivalence between police officers and civilians.

In addition to criticizing the false equivalence between police officers and civilians created by narratives such as that in the Committee's report, we also need a scholarly program revealing that norms of masculinity, while invisible, strongly influence behavior, and that post-racialism, while explicitly progressive, hides implicit bias from view. This Article has been a starting point for that initiative.

Frank Rudy Cooper. Professor of Law, Suffolk University Law School

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