Packer’s due process “obstacle course” was on Tex McIver’s side when the Atlanta Police Department finally decided to charge him. The scholar’s description of the criminal process with which Tex was now engaged is a classic:
People who commit crimes appear to share the prevalent impression that punishment is an unpleasantness that is best avoided. They ordinarily take care to avoid being caught. If arrested, they ordinarily deny their guilt and otherwise try not to cooperate with the police. If brought to trial, they do whatever their resources permit to resist being convicted. And even after they have been convicted and sent to prison, their efforts to secure their freedom do not cease. It is a struggle from start to finish.[1]
Tex’s ample financial resources permitted him to put up a struggle, to resist being convicted, from start to finish. Among the arrows in his defensive quiver were two foundational premises of the American system of criminal justice.
The first arrow was his entitlement to be represented by counsel, mandated by the Sixth Amendment of the Constitution, which states “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” A standard text on criminal procedure states that one of the defining characteristics of the American system is that a criminal defendant “is entitled to the assistance of counsel and, if indigent, to have one appointed at public expense if incarceration will result from conviction.”[2]
One of the first things that Tex did after he shot Diane was to take advantage of his right to counsel. An emergency room nurse testified at Tex’s trial that there was something odd going on that fatal late night. While the medical staff were struggling to revive the injured woman and save her life, an older guy in a red polo shirt was conferring quietly with two other men in a nearby corridor. One of them was scribbling on a legal pad. The men had their arms on each other’s shoulders, like a football team in a huddle.
“This is what you’re going to tell them,” the nurse heard one of the men say.
“I had the impression,” she said, “of a plan being enacted.”
The older man in the red shirt was Tex. The man with the legal pad was his lawyer, and the third man was a friend who acted as his public affairs adviser. If the plan centered on Tex’s fear of Black Lives Matter excuse, it blew up in his face.
As the district attorney’s office got involved and Tex’s criminal exposure got significantly worse, he was able to afford the luxury of hiring two of the biggest, most experienced guns in the Georgia criminal defense bar: attorneys Bruce Harvey and Don Samuel. Just as Tex could spring for a top-of-the-line King Ranch SUV, he could also pay the fees of this pair of expensive lawyers and their supporting staffs.
The second arrow in Tex’s legal quiver was the presumption of innocence. No matter how bad things look on the face of it, no matter how dead certain a cop, a steely eyed prosecutor, or a clamoring mob are of a red-handed suspect’s guilt, every defendant in America is entitled to the presumption at their trial that they did not commit the crime with which they are charged—unless and until they are proven legally guilty after a fair trial or they make a valid confession to the crime. Standard law texts describe this presumption in ringing terms.
The American legal system is based on the presumption of innocence. A defendant may not be compelled to testify against himself or herself, and the prosecution is required as a matter of the due process of law to establish every element of a crime beyond a reasonable doubt to establish a defendant’s guilt.[3]
The presumption of innocence does not appear in the Constitution. But the U.S. Supreme Court established its place in American criminal law in an 1895 bank fraud case, Coffin v. United States.[4] In that case, the Court reversed a bank officer’s criminal conviction in part because the trial judge had refused to give the jury an instruction on the presumption. “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”[5] Most standard jury instructions in criminal trials today inform the jury of the defendant’s right to a presumption of innocence.[6]
The presumption of innocence is often misstated in lay writing and sometimes in legal discourse. Although many observers argue that the presumption should attach to a person as soon as they encounter the criminal justice system, and some mistakenly believe that it does, it does not in fact arise in law until the criminal trial commences. The prevailing legal doctrine was expressed by the Supreme Court in the case of Bell v. Wolfish, “The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials. . . . But it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.”[7]
As Wharton School Professor William S. Laufer has explained, “the perception of an accused’s innocence, whether factual or legal, is overcome by standards of proof associated with search and seizure of evidence, arrest, indictment, detention, and plea bargaining.”[8] In other words, police and prosecutors act on the presumption that a suspect is probably guilty, rather than innocent, once they have decided that the evidence meets the legal thresholds necessary to legally arrest the suspect, charge them with a crime, detain them, and search their premises. If everyone were actually presumed innocent at the outset of the criminal justice process, no one would ever be arrested and charged. On the other hand, conclusions about these supposedly neutral legal thresholds may be, and often are, influenced by racial and ethnic stereotypes—the lens of racial sorting.
There is a difference between legal guilt or innocence and factual guilt or innocence. Thus, the right to a presumption of innocence during a criminal trial does not bar, even in theory, the conclusions that we are all free to draw about all manner of things that we see and hear in our daily lives, including practical judgments about the factual guilt of a person arrested for or suspected of committing a crime. Based on the facts as we know them, or think we know them, or casually suppose them to be about an alleged crime, we are all perfectly entitled legally and constitutionally to decide for ourselves that the butler did it (unless we happen to be serving on a jury, in which case we are morally and legally bound to keep an open mind).
Invocation of this legal rule of evidence is a common resort of public figures. Politicians and other cultural stars often claim the right to a presumption of innocence when they are enmeshed in scandal, caught out in a circumstance that is not a crime but certainly an embarrassment. They are entitled to no such thing as a matter of law or constitutional protection. As law professor and former federal prosecutor Kim Wehle wrote, the presumption of innocence is “an overused and badly misunderstood phrase that gets tossed around whenever politicians are accused of wrongdoing. . . . Politicians who come under fire for abusing their office do not get a legal presumption of innocence. People only get the presumption of innocence if they are indicted and facing trial for crimes. The presumption of innocence is for criminal defendants, not presidents.”[9]
Thus, for example, it may or may not be the fair thing to do to reserve judgment on President Donald Trump, who has been accused of emitting tens of thousands of lies about important matters, adversely affecting national security and imperiling millions of American lives, during his term of office.[10] But giving him the benefit of the doubt about whether he lied is a social meme, not a requirement of law or the Constitution. It would be if he were charged with a criminal offense and on trial. For another example, Thomas Jipping, deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow at the Heritage Foundation, should have known better when he argued, “The presumption of innocence may be one of the casualties of the campaign against Supreme Court nominee Brett Kavanaugh,” during the latter’s contentious nomination hearing.[11] Indeed, the nominee may have felt like he was on trial. But he was no more entitled to the presumption of innocence than is any other political figure dancing on the red-hot griddle of public opinion. Whether the public gave Kavanaugh the benefit of the doubt had nothing to do with the viability of the presumption in criminal trials.
Tex’s social, economic, and political station amped up his due process rights. No one slapped handcuffs on him, or even questioned him, the night he shot Diane in the back. He wasn’t booked or locked up in an odorous holding cell, nor did he suffer the indignity of a publicly released booking photo, the social media equivalent of the infamous “perp walk.”[12] For three months Tex was free to stroll around Atlanta and rest up at his ranch while the police pondered his case. Except for whatever psychological or moral burden he may have felt about having shot his wife to death, Tex could go on about his life.
Tex also enjoyed the benefit of a heads up from someone in authority when the police finally made the decision to charge him. No cops showed up at his condominium or ranch to take him into custody. On the contrary, when he learned that warrants would be issued for his arrest, he arranged to turn himself in at the Fulton County Jail on the evening of Wednesday, December 21, 2016. The next day, Thursday, was Tex’s seventy-fourth birthday. He spent that day in custody, appearing before a magistrate judge for a preliminary hearing. On Friday Tex left the jail about 3:00 p.m. He was required to post a two hundred thousand dollar bond, surrender his passport, wear an ankle monitor, stay away from Diane’s former employer, and not carry firearms.[13] In all, it was about as painless a process as it gets for a person charged with manslaughter.
Things would go downhill for Tex from there.
By mid-April 2017 the Fulton County district attorney’s office was well along its way to indicting Tex for more serious crimes. One of the prosecutor’s last steps was executing several search warrants, including a search of Tex’s condominium. Investigators found a Glock semiautomatic pistol and ammunition stuffed in his sock drawer. A hearing was held on the charge that Tex had violated one of the conditions of his parole. During that hearing, a neighbor recounted an incident from several years past. Her tale illuminated Tex’s penchant for gunplay. The neighbor told the court that one day she mentioned to Tex that she had seen a buzzard on her balcony. A few days later, she happened to be a guest in the McIver’s apartment when the buzzard appeared on Tex’s balcony. The balcony’s sliding glass door was open. Tex got a handgun and fired at the bird through the screen door. The bird escaped unharmed. The judge was persuaded. Tex’s probation was revoked, and he was sent back to jail.[14]
A few days later a grand jury returned an indictment charging him with seven counts, including felony murder.
Many persons of color, minority ethnicity, and low income accused of crimes, even crimes less serious than those with which Tex was charged, never get to the top of the shining hill of due process in the first place. They have nowhere to tumble down from. For them, lofty presumptions of innocence, a solicitous right to counsel, and prosecutorial burdens of proof are mere table scraps from the banquet of due process protection that Tex enjoyed. These unfortunates start at the bottom of the criminal process and stay at the bottom. “The reality is that most of these due process protections are enjoyed by only a tiny minority of criminal defendants,” scholar William R. Kelly and federal judge Robert Pitman wrote in their book Confronting Underground Justice.[15]
In the words of Georgetown University Law Professor Paul Butler, the United States has “two systems of justice, separate and unequal.” Butler was commenting on an incident in Minneapolis in which a Latino journalist for CNN and his crew were arrested by police while broadcasting live from a demonstration, whereas a white colleague in a nearby location was treated courteously by the police. To law professor Butler, the incident illustrated how race and ethnicity define what he described as “‘opposite’ systems of justice—one for white people and another for racial minorities, especially African Americans, Latinx and Native American people.”[16]
Others see class and elitism as a major factor. Criticizing favoritism in the legal process shown by the Trump administration to the president’s confidante Roger Stone, author Radley Balko criticized America’s “tiered system of justice” and argued that “when someone gets a break from the laws that apply to everyone else because that person has unique access to power, it’s a net loss for justice.”[17] Representative Adam B. Schiff voiced the same concern after Trump commuted Stone’s sentence, which was based on seven felony convictions. “With this commutation, Trump makes clear that there are two systems of justice in America: one for his criminal friends, and one for everyone else.”[18] As outrageous as Trump’s abuse of his pardoning power may seem to critics, these cases amount to no more than an indiscernible fraction among the tens of thousands of criminal cases in which people whose name nobody knows suffer on the “opposite” side of the criminal justice system.
Whether the driving force is race or class or both, for all of its noble pronouncements, the American system of criminal law operates very much like the “inside/outside” system that historian Sven Beckert described in Empire of Cotton. One of the mechanisms of the American inside/outside system of law that short circuits due process and equal protection rights for the vast majority of persons of any race or ethnicity charged with crimes is that they never go to trial. The criminal trial is the point at which such important protections as the presumption of innocence and the prosecutor’s duty to prove all of the elements of a crime beyond a reasonable doubt kick in—not to mention the Constitution’s intended protection against arbitrary justice by ensuring trial by a jury. Instead of going to trial, however, most defendants enter into a deal, a “plea bargain,” with their prosecutor. They waive their procedural rights and admit guilt to something in order to avoid the risk of a harsher sentence. Judges endorse the process because it helps them “move the docket”—keep the criminal law assembly line humming along. A defendant who rejects the prosecutor’s offer and insists on going to trial runs the risk of angering the judge who might then impose a stiffer penalty than the one offered in the plea bargain. At least 95 percent of criminal convictions are obtained through plea bargains, according to Kelly and Pitman.
This is Beckert’s system of “inside/outside” law with a vengeance—a tiny stratum of “inside” defendants actually enjoy the rights enshrined in American criminal law theory. Those outside of this privileged few get pushed onto the grim Crime Control Model conveyor belt. The “tremendous power and discretion” that the system of plea bargaining gives prosecutors makes them “judge and jury as well as prosecutor since they determine who is innocent or guilty and also determine more often than not what the punishment will be.”[19]
This wasn’t how Herbert Packer thought that things would turn out in America. He was optimistic about the future of American criminal procedure when he wrote about his two models in 1966. Packer thought he saw a trend toward the Due Process Model, and the obstacle course that it erected. The pursuit of racial justice, he thought, would impel the course of the law in that direction.
Perhaps the most powerful propellant of the trend toward the Due Process Model has been provided by the Negro’s struggle for his civil rights and the response to that struggle by law enforcement in the Southern states—as well, it needs to be said, by law enforcement in some Northern cities. . . . Our heightened national consciousness about the problems of urban poverty likewise contributes to and sustains the trend in the direction of the Due Process Model.[20]
But the very factors that Packer thought would move the dial toward enhanced due process have had the opposite effect, according to many critical observers. “[T]his latest round of African American advances set the gears of white opposition in motion,” scholar Carol Anderson wrote of the white power structure’s reaction to black success in courts and Congress in her book White Rage.[21] The decisions of the Warren Court and the passage of major federal civil rights legislation in 1964 and 1965 were seen as existential threats by the established order of white power. “The coincidence of these circumstances and threats provided much of the motivation for launching a sea change in criminal justice policy, the birth of what has come to be called ‘tough on crime’ or ‘crime control,’” argue Pitman and Kelly.[22] Scholars Geoffrey Stone and David Strauss point out a broader reactionary trend in their book, Democracy and Equality: The Enduring Constitutional Vision of the Warren Court. Republican presidents have appointed about two-thirds of the sitting justices in the fifty years since Earl Warren’s retirement, preferring “nominees who would actively move the law in an aggressively conservative direction on such issues as gun control, affirmative action, campaign finance, and so on.”[23]
The politics of race and the glitter of corporate money have supercharged this reactionary trend. For fifteen years or more, “law and order” was the copyrighted hallmark of Republican politics, a centerpiece of the presidential administrations of Richard Nixon, Ronald Reagan, and George H. W. Bush. The latter’s 1988 presidential campaign attacked Democratic candidate Michael Dukakis for having supported good conduct furloughs for convicted prisoners. But this ostensible law and order campaign featured the deliberately cynical subtext of racial fear. The Bush campaign used attack ads and promoted news media articles featuring William Horton, a black convicted felon released on furlough who went on to commit a number of heinous crimes. Renamed “Willie” by Bush’s campaign manager—an act evocative of the slave masters’ arbitrary power over slaves’ names—the images of William Horton sounded the dog whistle of subtle but powerful racial allusion that became a lead player in the Republican political orchestra. Overlooked in most accounts is the role that Al Gore played during his contest with Dukakis for the Democratic presidential nomination. Gore first raised the issue of good conduct furloughs in an April 1988 debate with Dukakis (although without racial subtext). Gore’s law and order thrust failed to help him. But Republicans picked up on the issue’s racial potential, using grimly enhanced images of “Willie” Horton.[24] In Carol Anderson’s words, “Crime and blackness soon became synonymous in a carefully constructed way that played to the barely subliminal fears of darkened, frightening images flashing across the television screen.”[25]
Democrats learned that they could play the same tune on the same whistle. “The politics of crime control took an unusual turn in the 1992 presidential campaign when the [Bill] Clinton camp and the national Democratic Party decided it was time for liberals to be tough on crime and to take some of the political leverage for themselves.”[26] The result was the Violent Crime Control and Law Enforcement Act of 1994, a controversial tough-on-crime omnibus bill. Senator Joe Biden “reveled in the politics of the 1994 law, bragging after it passed that ‘the liberal wing of the Democratic Party’ was now for ‘60 new death penalties,’ ‘70 enhanced penalties,’ ‘100,000 cops,’ and ‘125,000 new state prison cells.’”[27] Money became “a key player” in this system as prisons and detention centers were increasingly “privatized,” run by large corporations.[28] The more prisoners, the more money these private interests make. It is no wonder that these private sector players “spend considerable sums of money on lobbying efforts to promote these policies.”[29]
Although Democrats backed away from their law and order politics, Donald Trump embraced the theme with vigor in his 2016 campaign, and in June 2020 announced in a Rose Garden speech that he was “your president of law and order.”[30]
This 180-degree turn away from Packer’s optimistic forecast has attracted substantial criticism from the proponents of critical race theory, “an intellectual movement that analyzes how the law maintains dominance and privilege of white society and how the law perpetuates the subordinate status of African Americans.”[31] The movement emerged in the 1970s, as a number of lawyers, activists, and legal scholars realized that “the heady advances of the civil rights era of the 1960s had stalled . . . and were being rolled back.”[32] The movement today is broader than the critical legal studies nucleus from which it sprang. It informs analytical thought in other disciplines such as education and sociology.
According to two of its leading proponents, critical race theory differs from traditional civil rights activism, “which stresses incrementalism and step-by-step progress” within the established system of law. Instead it “questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.”[33] In short, most of the Western intellectual canon—at least as it applies to law, ethics, and social issues—is rejected by critical race theorists. They argue that in spite of its high-minded constructs, that canon has not only failed to deliver justice fairly and equally to people of color, but justified the violent suppression of their justice rights.
Traditional legal reasoning assumes that there is only one “correct” answer to a legal problem. The application of ruling precedent and logic to a given set of facts—legal reasoning—will produce that one right answer. Critical race theory proposes that there can be many such answers, depending on how the decider interprets the significance of various facts and the soundness of ostensible precedent. Thus, a white decider may see a set of facts and principles in a way profoundly different from how a person of color or another ethnicity might see the same set. The movement has often excluded and sometimes disparaged white academics on the grounds that they are at best insensitive and unable to grasp or articulate the realities of minority experience, or at worst active agents sustaining a racist intellectual order.[34] “White males tempted to participate in the conversation were condemned in advance as interlopers, even imperialists.”[35]
The movement’s teaching and academic texts make frequent and prominent use of exemplary storytelling, sometimes anecdotal and sometimes wholly fictional. The use of such stories is unlike the traditional study of adjudicated law cases from which universal legal principles are divined and law students are taught to “think like a lawyer.” Another technique is investigating and constructing detailed background stories about the principals involved in landmark cases to show the influence of racial thinking in how the issues were articulated and decided. “One premise of legal storytellers is that members of this country’s dominant racial group cannot easily grasp what it is like to be nonwhite.”[36] The stories used in critical legal studies are intended to fill gaps in experience and perspective that never make it into the law books.
Dorothy E. Roberts is one of these intellectual critics. She holds appointments at the University of Pennsylvania in the Law School and in the departments of Africana Studies and Sociology. She writes and lectures on gender, race, and class in legal issues. Roberts wrote about the criminal justice system in 1993—almost thirty years after Packer’s expression of hope and twenty-seven years before the turmoil of the spring of 2020. The subordinate position of persons of color in the American criminal justice system, Roberts argued, is neither the result of benign neglect nor an accident. It is a system of intention:
Not only is race used to identify criminals, it is embedded in the very foundation of our criminal law. Race helps to determine who the criminals are, what conduct constitutes a crime, and which crimes society treats most seriously. . . . The American criminal justice system has historically served as a means of controlling blacks. This control is accomplished through very concrete means. Local police departments patrol black neighborhoods as if they were occupied territories. The idea of local control of police in most communities seems to most Americans to be as farfetched as the proverbial fox minding the hen house. Police serve not to protect black citizens, but to protect white citizens from black criminals. It is not surprising that many black Americans view the police with fear, anger, and distrust.[37]
Just one year earlier, the New York Times described these academic proponents of critical race theory as “legal scholarship’s newest kids on the block” who were working “to correct the problem of the law’s [white] voice.”[38] The emerging intellectual force included Latino, Native American, and Asian scholars as well as black professors. Since then, critical race theory has become a powerful and growing presence in contemporary analysis of race and law, in turn influencing lay activism and the political dialogue on public policy.
Not surprisingly, critical race theory has sparked resistance.[39] Among its critics are some prominent scholars of color and minority ethnicity.[40] Opponents of critical race theory object to its use of storytelling, its skepticism about traditional presumptions of objectivity and merit, and the proposition that voices of people of color and minority ethnicity are more valid than white voices on the subjects of race and racism.[41] According to the theory’s own proponents, its “adversaries are perhaps most concerned with what they perceive to be critical race theorists’ nonchalance about objective truth. For the critical race theorist, objective truth, like merit, does not exist in social science and politics.”[42]
Richard A. Posner, chief judge of the U.S. Court of Appeals for the Seventh Circuit and a lecturer at the University of Chicago Law School, is one of the harshest critics. “Every intellectual movement has a lunatic fringe,” he wrote in a book review for the New Republic magazine in 1997. “Radical legal egalitarianism is distinguished by having a rational fringe and a lunatic core. The latter is constituted by the critical race theorists and the other legal academics who have swallowed postmodernism hook, line, and sinker.”[43] Posner charged that the movement “turns its back on the Western tradition of rational inquiry, foreswearing analysis for narrative. . . . By repudiating reasoned argumentation, the storytellers reinforce stereotypes about the intellectual capacities of nonwhites.”[44]
In an extensive critique of critical race theory in 1989, law professor Daniel Subotnik warned that
[d]iscouraging white legal scholars from entering the national conversation about race . . . has generated a kind of cynicism in white audiences which, in turn, has had precisely the reverse effect of that ostensibly desired by [critical race theory advocates]. It drives the American public to the right and ensures that anything [critical race theory] offers is reflexively rejected.[45]
The late Harvard Law Professor Derrick Bell is often credited as the “movement’s intellectual father figure,” dating back to articles he wrote in the 1960s and 1970s.[46] As early as 1969 Bell wrote, “For the poor, the police do not protect, but contain; they do not assist, but rather harass, and their presence in the ghetto is not to keep peace but to maintain control.”[47] He later authored a legal textbook, Race, Racism, and American Law, which through six editions continues to be a major source for the study of the problems that its title suggests. In 1992, Bell told the New York Times that blacks were worse off and more subjugated in America than at any time since slavery. The only difference, he said, was that in 1992 there was “a more effective, more sophisticated means of domination.”[48]
Among Bell’s core beliefs was what he called “the interest convergence dilemma,” which held that whites would only support efforts to improve the lives of people of color when it was in their own interest.[49] He called a set of two corollary rules “The Derrick Bell Pre-Memorial Principle of Racial Loss and Gain.” Rule One, he wrote, dictated that “Society is always willing to sacrifice the rights of Black people in order to protect important economic or political interests of Whites.” Rule Two held that “law and society recognize the rights of African Americans and other people of color only when, and only for as long as, such recognition serves some economic or political interests of greater importance to Whites.”[50]
A 1992 profile of Bell described him as a “devoutly angry man.” Among the many at whom he was angry, according to the article, were his former black professorial colleagues at Harvard University. He was angry at a younger black colleague, Professor Randall Kennedy, a prolific author on issues of race, culture, and criminal law.[51] Bell was also angry at Henry Louis Gates Jr., a prominent black Harvard professor who had written a long article for the New York Times about the danger of black anti-Semitism. Gates had written that “[w]hile anti-Semitism is generally on the wane in this country, it has been on the rise among black Americans. . . . The trend has been deeply disquieting for many black intellectuals.”[52] According to the Times profile, Bell was critical of Gates and said that blacks “should be very careful about criticizing each other, because whites love it so much when they do.”[53]
Seventeen years later, Professor Gates would find himself ensnared in a confrontation with police that became a notorious example of what many saw as racially biased law enforcement. The incident thrust Gates and President Barack Obama onto the stage of high-profile political drama that was at least as instructive as any illustrative story conjured up by a critical race theory academic.
The original version of Harvard’s alma mater song described how “the good and the great, in their beautiful prime, thro’ thy precincts have musingly trod.”[54] By any measure, Professor Henry Louis Gates Jr. is one of Harvard’s best and greatest. The director of the Hutchins Center for African and African American Research at Harvard, Gates is an “Emmy Award-winning filmmaker, literary scholar, journalist, cultural critic, and institution builder” who has authored or co-authored twenty-one books and created fifteen documentary films. In 1981, Gates was a member of the first class to be awarded “genius grants” by the MacArthur Foundation.[55]
None of Gates’s stellar achievements were apparent to Sgt. James Crowley of the Cambridge Police Department, a white man, when he confronted Gates in the professor’s own home at 17 Ware Street on the afternoon of July 16, 2009. Nor would it likely have mattered much to a police officer who appeared to be most interested in forcing Gates to bend his knee to authority.[56] Within six minutes of responding to a vague and unfounded report of a possible burglary in progress at Gates’ residence, Crowley had confronted the academic in his own home, then enticed him outside and arrested him on a charge of disorderly conduct—which he could not have done inside the professor’s own home. Crowley’s cleverly engineered “cover charge” was dismissed when cooler heads prevailed.
Proponents of both sides of this incident have promoted lengthy versions of what happened, parsing each of the 360 seconds it took Crowley to arrest Gates. But the crucial facts are actually few, and they are undisputed.[57]
Gates had just returned to his home in Cambridge after a long flight from China, where he had been working on a new documentary project. He and his driver found that the front door to Gates’ house was damaged and jammed. The house was a residence provided to Gates by Harvard University. Gates entered through the back door, turned off the alarm, and the two men leaned against the front door to force it open. While they were thus gaining entrance to the professor’s home, a passerby saw the two men’s efforts. This first passerby in turn told a second passerby that what she had just seen might possibly have been an illegal entry, although she wasn’t sure—it could have been simply a resident having trouble entering his own home. The second passerby called the Cambridge Police Department and described the ambiguous situation. The police dispatcher raised the question of race for the first time in the process, asking the caller whether the men were white, Hispanic, or black. The caller replied that she was not sure about the two men’s race, but thought that one might be Hispanic. The dispatcher sent out a radio call, to which Sgt. Crowley responded.
By the time Crowley arrived on the scene, Gates was inside his home and calling the appropriate Harvard office to report the problem with the front door lock. Although both of the two passersby deny that they had said anything about black men, Crowley’s report shows that he had decided that the suspicious subjects were black men by the time he went up onto the front porch. What he saw inside the home was indeed a middle-aged black man. (The driver had since left.)
Crowley asked the black man to step outside.
Gates refused to come out, accused the officer of being racist, and said, perhaps repeatedly, “This is what happens to black men in America.” Crowley entered the house and asked Gates for identification. The professor produced both his Harvard identification card and his driver’s license, which confirmed his address as the very house in which the two men were standing. At this point it should have been clear from the documents that Gates was indeed in his own home. But Crowley inexplicably continued to act is if he doubted Gates’ explanation and the plain evidence of Gates’ identification documents. He refused to leave, although Gates asked him to. After he had shown Crowley his identification and observed the officer’s continuing doubt, Gates asked, “Why are you doing this? Is it because I’m a black man and you’re a white officer? I don’t understand why you don’t believe this is my house.”[58]
Crowley told the police dispatcher to keep sending backup police officers and to notify the Harvard police. By this time both men had become “heated.” Gates asked for Crowley’s name and badge number. Crowley told Gates he would give his credentials to him if the professor stepped outside. As the sergeant knew, the moment Gates stepped outside, he was in a public place, and rightfully or wrongly, Crowley could claim that the professor’s heated words were creating a public “tumult” under the Massachusetts statute. Gates was arrested, taken to jail, and booked. His mug shot was transmitted around the world by news media the moment the story of his arrest broke.
Within days, prosecutors dropped the charge, which not only was unfounded but was obviously a “cover charge,” an arrest tactic that policemen often use when a subject refuses to accord them the respect (i.e., deference) to which they incorrectly think their badge entitles them.
“What it made me realize was how vulnerable all black men are, how vulnerable all people of color are, and all poor people, to capricious forces like a rogue policeman, and this man clearly was a rogue policeman,” Gates later said of the incident.[59]
An official review of the incident by a panel commissioned by the city of Cambridge went to tedious length to establish that both men contributed to the tension. The report belabored the obvious fact that “the incident was sparked by misunderstandings and failed communications between the two men.” A sixty-four-page monument to anodyne verbosity, the report went further and blamed both men for not backing down. “Once Professor Gates showed Sergeant Crowley his identification and Crowley explained why he was at Gates’ home,” the report intoned, “the potential threat was diminished, and the behavior of both men should have begun to change. But instead of de-escalating, both men continued to escalate the encounter.”[60]
Only one of the two men, however, had a duty under law to de-escalate once the “potential threat was diminished,” and it was not Professor Gates. That man was Sergeant Crowley.
The law is clear that police have a duty to bear verbal abuse from citizens—assuming that Gates’ language was abusive, as opposed to merely accurately descriptive. As Georgetown Law Professor Christy Lopez explained, “The First Amendment generally prohibits law enforcement officials from arresting people for how they talk to (or yell at) the police. Even speech that is loud, disrespectful, profane, and insulting is protected in most circumstances.” This includes so-called fighting words that might not ordinarily be protected speech but are “construed more narrowly when the words are directed at police officers.” More is simply expected of police officers than ordinary civilians. In the words of the Supreme Court, “a properly trained officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.’”[61]
Unfortunately, many law enforcement officers either don’t know or don’t care about their duty to stay calm and carry on. “There is abundant evidence that police overuse disorderly conduct and similar statutes to arrest people who ‘disrespect’ them or express disagreement with their actions.”[62] The colloquial terms for the putative grounds for such arrests is “contempt of cop,” a play on the actual legal offense of contempt of court. The difference is that “contempt of cop arrests are by definition abusive: they are arrests made with no valid legal reason.”[63] Some officers, like Sgt. Crowley, are clever enough to realize that although they cannot make a valid arrest for being yelled at, they can make what is known as a “cover arrest . . . meant to help justify or explain an officer’s use of force or other exercise of authority where there may have been no legitimate justification for that exercise of authority.”[64]
Once Crowley had seen Gates’s identification, which conclusively established the professor was where he had a right to be, in his own home, he should have disengaged. As Cambridge lawyer Lowry Heussler observed in her acidic review of Crowley’s conduct in the case:
Read Crowley’s report and stop on page two when he admits seeing Gates' Harvard photo ID. I don't care what Gates had said to him up until then, Crowley was obligated to leave. He had identified Gates. Any further investigation of Gates’ right to be present in the house could have been done elsewhere.[65]
Clearly, Sgt. Crowley did not intend to gracefully let go of this insolent middle-aged black man. On the contrary, Crowley was actively escalating the police show of force by calling for more officers from two jurisdictions. “Crowley is upset and he’s mad at Gates. He’s been accused of racism. Nobody likes that, but if a cop can’t take an insult without retaliating, he’s in the wrong job. When a person is given a gun and a badge, we better make sure he’s got a firm grasp on his temper.”[66]
Crowley had just enough of a grasp on his temper to understand that if he lured Gates outside of his home into a public space, and fudged his report a bit, he could make a cover arrest for disorderly conduct.
By telling Gates to come outside, Crowley establishes that he has lost all semblance of professionalism. It has now become personal and he wants to create a violation of [the disorderly conduct statute]. He gets Gates out onto the porch because a crowd has gathered providing onlookers who could experience alarm. Note his careful recitation (tumultuous behavior outside the residence in view of the public).[67]
But
if the facts are as Crowley asserted in his arrest report, the arrest was unlawful. Nothing in Sergeant Crowley’s report, or any other evidence, suggests that Professor Gates’s “tumultuous” behavior went beyond words, and there is no evidence that these words, however loud, rude, or obnoxious were so inflammatory as to inflict injury or tend to incite an immediate breach of the peace. Professor Gates’s behavior, as described by Sergeant Crowley, falls squarely in the realm of speech protected by the First Amendment.[68]
A week after the incident, President Barack Obama held a press conference on his health care reform initiative. The last questioner asked him about the arrest of Professor Gates. Obama’s answer set off a frenzy of criticism from defenders of the police, tinged with charges of racial favoritism.
I don’t know, not having been there and not seeing all the facts, what role race played in [Gates case]. But I think it’s fair to say, number one, any of us would be pretty angry; number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home; and, number three, what I think we know separate and apart from this incident is that there’s a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately. That’s just a fact.[69]
In an effort to defuse tensions, the president invited Gates and Crowley to a meeting at the White House. After talking privately, the two men adjourned to the White House lawn, where they shared beverages and small talk with President Obama and Vice President Joe Biden. The media dubbed the meeting “the beer summit.” Gates has later stated that he has since decided that Crowley is not a racist.[70]
Trump’s first attorney general, Jeff Sessions, recounted a disturbing and peculiarly distorted version of the beer summit during an interview for a lengthy New York Times Magazine profile, published in July 2020 while he was trying to win back his old Senate seat, after having been dumped and disgraced by Trump:
The mantra was: “Back to the men and women in blue,” Sessions told me. “The police had been demoralized. There was all the Obama—there’s a riot, and he has a beer at the White House with some criminal, to listen to him. Wasn’t having a beer with the police officers. So we said, ‘We’re on your side. We’ve got your back, you got our thanks.’”[71]
Thus was the renowned and accomplished Harvard scholar Henry Louis Gates Jr. reduced to being just “some criminal” by the attorney general of the United States.
Incredibly, almost eleven years later to the day, and on the other side of the country, another black academic’s right to be in her home was rudely challenged by a Santa Clara University security officer. The confrontation with Danielle Fuentes Morgan, an assistant professor of English, was sparked by a visit by her brother, Carlos Fuentes. Police challenged the brother’s right to be in the neighborhood, demanded that Morgan vouch for him, and insisted that she produce identification to prove that she was entitled to be in the home. “No one ever wakes up in the morning thinking that these things will happen,” Morgan said. But, she added, “being Black in America means there is an expectation that you have to show your papers.”[72]
One can only sadly wonder how law enforcement officers see the less distinguished people of color with whom they daily interact.
Misconduct by armed law enforcement officers has been repeatedly shown to have every potential to escalate to fatal levels. But what about the conduct of supposedly law-abiding citizens at the margins of the criminal justice system who—like Tex shooting at a carload of teenagers—decide to enforce the law on their own terms?
Packer, The Limits of the Criminal Sanction, 149.
Allen, et al., Comprehensive Criminal Procedure, 5.
Lippman, Contemporary Criminal Law, 196.
Coffin v. United States, 156 U.S. 432 (1895).
156 U.S. 453.
See, for example, “Pattern Criminal Federal Jury Instructions” adopted by the federal Seventh Circuit, Section 2.03, “Presumption of Innocence—Burden of Proof” (“The defendant is presumed to be innocent of [each of] the charge[s]”); New York state court instruction, “Presumption of Innocence” (“Throughout these proceedings, the defendant is presumed to be innocent”).
Bell v. Wolfish, 441 U.S. 520 (1979), 533.
William S. Laufer, “The Rhetoric of Innocence,” 70 Wash. L. Rev. 329 (1995), 357, https://digitalcommons.law.uw.edu/wlr/vol70/iss2/2.
Kim Wehle, “Why the Presumption of Innocence Doesn’t Apply to Trump,” TheHill.com, August 8, 2019, https://thehill.com/opinion/white-house/456757-why-the-presumption-of-innocence-doesnt-apply-to-trump.
Glenn Kessler, Salvador Rizzo, and Meg Kelly, “President Trump Made 16,241 False or Misleading Claims in His First Three Years,” Washington Post, January 20, 2020, https://www.washingtonpost.com/politics/2020/01/20/president-trump-made-16241-false-or-misleading-claims-his-first-three-years/; Christian Paz, “All the President’s Lies About the Coronavirus,” The Atlantic, May 27, 2020, https://www.theatlantic.com/politics/archive/2020/05/trumps-lies-about-coronavirus/608647/; Michael Tomasky, “Why Does Trump Lie?” New York Times, June 11, 2020, https://www.nytimes.com/2020/06/11/opinion/trump-lies.html
Thomas Jipping, “Losing the Presumption of Innocence,” The Heritage Foundation, September 28, 2018, https://www.heritage.org/courts/commentary/losing-the-presumption-innocence.
For a discussion of the perp walk, its history, and the issues it raises about the criminal justice process, see Clyde Haberman, “For Shame: A Brief History of the Perp Walk,” New York Times, December 2, 2018, https://www.nytimes.com/2018/12/02/us/perp-walk.html.
Craig Schneider and Alexis Stevens, “Tex McIver Surrenders at Fulton Jail after Being Charged in Wife’s Death,” Atlanta Journal-Constitution, December 22, 2016, https://www.ajc.com/news/local/tex-mciver-surrenders-fulton-jail-after-being-charged-wife-death/ZAFjkWsjMupVrD8MHrm5SO/; “Bond Set for Prominent Atlanta Attorney Who Allegedly Fatally Shot His Wife,” ABC News, December 22, 2016, https://abcnews.go.com/US/bond-set-prominent-atlanta-attorney-allegedly-fatally-shot/story?id=44344792; Laura Corley, “Atlanta Attorney Charged in Wife’s Killing Is Free on Bond,” Telegraph (Macon, GA), December 23, 2016, https://www.macon.com/news/local/crime/article122711619.html.
Adrianne Haney and Michael King, “Judge Decides to Revoke Bond for Tex McIver after Gun Found in His Condo,” 11 Alive WXIA-TV, April 26, 2017, https://www.11alive.com/article/news/crime/judge-decides-to-revoke-bond-for-tex-mciver-after-gun-found-in-his-condo/85-434303848; Fennessy, “Tex and Diane McIver Had It All.”
William R. Kelly and Robert Pitman, Confronting Underground Justice: Reinventing Plea Bargaining for Effective Criminal Justice Reform (Lanham, MD: Rowman & Littlefield, 2018), 46.
Paul Butler, “Policing in the US is Not About Enforcing Law. It’s About Enforcing White Supremacy,” The Guardian, May 30, 2020, https://www.theguardian.com/commentisfree/2020/may/30/policing-in-the-us-is-not-about-enforcing-law-its-about-enforcing-white-supremacy.
Radley Balko, “The Roger Stone Case Highlights Our Pernicious System of Tiered Justice,” Washington Post, February 13, 2020, https://www.washingtonpost.com/opinions/2020/02/13/roger-stone-case-highlights-our-pernicious-system-tiered-justice/.
Peter Baker, Maggie Haberman, and Sharon LaFraniere, “Trump Commutes Sentence of Roger Stone in Case He Long Denounced,” New York Times, July 10, 2020, https://www.nytimes.com/2020/07/10/us/politics/trump-roger-stone-clemency.html.
Kelly and Pitman, Confronting Underground Justice, 11.
Packer, “Courts, the Police, and the Rest of Us,” Journal of Criminal Law and Criminology, 240.
Carol Anderson, White Rage: The Unspoken Truth of Our Racial Divide (New York: Bloomsbury, 2017), 99.
Kelly and Pitman, Confronting Underground Justice, 3. For a scholarly overview of the conservative trend, see Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of The Law (Princeton, NJ: Princeton University Press, 2008).
Geoffrey R. Stone and David A. Strauss, Democracy and Equality: The Enduring Constitutional Vision of the Warren Court (New York: Oxford University Press, 2020), 161.
Sidney Blumenthal, “Willie Horton the Making of an Election Issue,” Washington Post, October 28, 1988, https://www.washingtonpost.com/archive/lifestyle/1988/10/28/willie-horton-the-making-of-an-election-issue/4395a870-0f0e-4c5a-9eff-9ff1c009d59f/?; Erin Blakemore, “How the Willie Horton Ad Played on Racism and Fear,” History.com, November 2, 2018, https://www.history.com/news/george-bush-willie-horton-racist-ad.
Anderson, White Rage, 104.
Kelly and Pitman, Confronting Underground Justice, 4.
German Lopez, “The Controversial 1994 Crime Law that Joe Biden Helped Write, Explained,” VOX, June 20, 2019, https://www.vox.com/policy-and-politics/2019/6/20/18677998/joe-biden-1994-crime-bill-law-mass-incarceration.
For an overview of the private prison industry, see Kara Gotsch and Vinay Basti, “Capitalizing on Mass Incarceration: U.S. Growth in Private Prisons,” The Sentencing Project, August 2018, https://www.sentencingproject.org/publications/capitalizing-on-mass-incarceration-u-s-growth-in-private-prisons/.
Kelly and Pitman, Confronting Underground Justice, 6.
Ed Kilgore, “Trump Is Reviving the Disgraceful Legacy of ‘Law-and-Order’ Politics,” New York Magazine, June 3, 2020, https://nymag.com/intelligencer/2020/06/trump-law-and-order-politics-nixon-reagan.html.
Lippman, Law and Society, 442.
Richard Delgado and Jean Stefanic, Critical Race Theory: An Introduction, second edition (New York: New York University Press, 2012), 4.
Delgado and Stefanic, Critical Race Theory, 3.
See, for example, Michael Powell, “How a Famous Harvard Professor Became a Target Over His Tweets,” New York Times, July 15, 2020, https://www.nytimes.com/2020/07/15/us/steven-pinker-harvard.html?.
Daniel Subotnik, “What’s Wrong with Critical Race Theory: Reopening the Case for Middle Class Values,” Cornell Journal of Law and Public Policy, 1998, Vol. 7: Issue 3, 681, 684, http://scholarship.law.cornell.edu/cjlpp/vol7/iss3/1.
Delgado and Stefanic, Critical Race Theory, 45.
Dorothy E. Roberts, “Crime, Race and Reproduction,” Faculty Scholarship at Penn Law, 1993, 1945–46, https://scholarship.law.upenn.edu/faculty_scholarship/1383.
Stephanie B. Goldberg, “The Law, a New Theory Holds, Has a White Voice,” New York Times, July 17, 1992, https://www.nytimes.com/1992/07/17/archives/the-law-a-new-theory-holds-has-a-white-voice.html?.
For one detailed criticism, see Subotnik, “What’s Wrong with Critical Race Theory.”
See, for example, Randall L. Kennedy, “Racial Critiques of Legal Academia,” Harvard Law Review, June 1989, Vol. 102, No. 8, 1745–819. Available at JSTOR, http://www.jstor.com/stable/1341357.
See generally, chapter 6, “Critiques and Responses to Criticism” in Delgado and Stefanic, Critical Race Theory, 99–111.
Delgado and Stefanic, Critical Race Theory, 104.
Richard A. Posner, “The Skin Trade,” The New Republic, October 13, 1997, 40.
Posner, “The Skin Trade,” 42.
Subotnik, “What’s Wrong with Critical Race Theory,” 697.
Delgado and Stefanic, Critical Race Theory, 6.
Derrick A. Bell, Jr., “The Western Center on Law and Poverty,” Los Angeles Law Bulletin, October 1968, quoted in Randall L. Kennedy, “Derrick Bell and Me” (March 8, 2019), Harvard Public Law Working Paper No. 19-13, https://ssrn.com/abstract=3350497 or http://dx.doi.org/10.2139/ssrn.3350497.
Linda Greenhouse, “The End of Racism, and Other Fables,” New York Times, September 20, 1992, https://www.nytimes.com/1992/09/20/books/the-end-of-racism-and-other-fables.html?.
Fred A. Bernstein, “Derrick Bell, Law Professor and Rights Advocate, Dies at 80,” New York Times, October 6, 2011, https://www.nytimes.com/2011/10/06/us/derrick-bell-pioneering-harvard-law-professor-dies-at-80.html.
Derrick Bell, “Affirmative Action: Another Instance of Racial Workings in the United States,” Journal of Negro Education, Winter 2000, Volume 69, Issue 1/2, available atwww.questia.com. (Bell argues that affirmative action, originally intended to help blacks, was transformed so as to primarily help white women.)
Kennedy summarized Bell’s history and the relationship between the two scholars in Randall L. Kennedy, “Derrick Bell and Me.”
Henry Louis Gates Jr., “Black Demagogues and Pseudo-Scholars,” New York Times, July 20, 1992, https://www.nytimes.com/1992/07/20/opinion/black-demagogues-and-pseudo-scholars.html?.
Susan Chira, “At Lunch With: Derrick Bell; The Charms of a Devoutly Angry Man,” New York Times, October 28, 1992, https://www.nytimes.com/1992/10/28/garden/at-lunch-with-derrick-bell-the-charms-of-a-devoutly-angry-man.html?.
HR69, Website of the Harvard-Radcliffe Class of 1969, http://hr69.org/harvardiana. The song’s original lyrics have been changed to comport with demands for inclusion and excision of symbols associated with exclusion, slavery, and racism among other things. Thus, the “till the stock of the Puritans die” was deleted from the original lyrics. Matt Stevens and Anemona Hartocollis, “Harvard Seeks to Write ‘Puritans’ Out of Its Alma Mater,” New York Times, April 7, 2017, https://www.nytimes.com/2017/04/07/us/harvard-alma-mater-contest.html. Along the same lines, Princeton University scrubbed the name Woodrow Wilson from its school of public and international affairs, on the ground that the late president’s segregationist policies made him an “especially inappropriate namesake” for a public policy school. Lori Aratani, “Princeton Says It Will Remove Woodrow Wilson’s Name From Its Public Policy School,” Washington Post, June 28, 2020, https://www.washingtonpost.com/local/education/princeton-says-it-will-remove-woodrow-wilsons-name-from-campus-buildings/2020/06/27/26075bee-b898-11ea-aca5-ebb63d27e1ff_story.html. Georgia’s public university system announced that it would examine whether the names of any buildings and colleges at its campuses should be changed. Ty Tagami, “Georgia University System to Review Names of Buildings and Colleges,” Atlanta Journal-Constitution, June 17, 2020, https://www.ajc.com/news/state--regional-education/georgia-university-system-review-names-buildings-and-colleges/LzuItvOun7dFqoD9vxwSpK/. However, the president of Yale University rejected calls to “#CancelYale.” Valerie Pavilonis, “‘Cancel Yale’? Not Likely,” Yale Daily News, June 28, 2020, https://yaledailynews.com/blog/2020/06/28/cancel-yale-not-likely/.
Biographical details from “Henry Louis Gates Jr., Harvard University,” https://aaas.fas.harvard.edu/people/henry-louis-gates-jr.
For a book-length examination of the incident and its implications by a Harvard professor of law who was friend and legal counsel to Gates, see Charles Ogletree, The Presumption of Guilt: The Arrest of Henry Louis Gates Jr. and Race, Class, and Crime in America (New York: Palgrave Macmillan, 2010).
The description of the Gates arrest is based primarily on Ogletree, The Presumption of Guilt; “Missed Opportunities, Shared Responsibilities: Final Report of the Cambridge Review Committee,” June 15, 2010; Abby Goodnough, “Harvard Professor Jailed; Officer Is Accused of Bias,” New York Times, July 20, 2009, https://www.nytimes.com/2009/07/21/us/21gates.html; Krissah Thompson, “Harvard Scholar Henry Louis Gates Arrested,” Washington Post, July 21, 2009, https://www.washingtonpost.com/wp-dyn/content/article/2009/07/20/AR2009072001358.html; Chris Arnold, “Sergeant Who Arrested Gates Tells His Story,” NPR, July 24, 2009, https://www.npr.org/templates/story/story.php?storyId=106963782; Lowry Heussler, “Nightmare on Ware Street,” in Ta-Nehisi Coates, “The Arrest of Henry Louis Gates,” The Atlantic, August 12, 2010, https://www.theatlantic.com/national/archive/2010/08/the-arrest-of-henry-louis-gates/61365/; Donald E. Wilkes Jr., “The Arrest of Henry Louis Gates, Jr.,” Flagpole Magazine, December 1, 2010, 8, h8ps://digitalcommons.law.uga.edu/fac_pm/82.
Thompson, “Harvard Scholar Henry Louis Gates Arrested.”
Arnold, “Sergeant Who Arrested Gates.”
“Missed Opportunities, Shared Responsibilities: Final Report of the Cambridge Review Committee,” 3.
Christy E. Lopez, “Disorderly (mis)Conduct: The Problem with ‘Contempt of Cop’ Arrests,” American Constitution Society, June 2010, https://www.acslaw.org/issue_brief/briefs-2007-2011/disorderly-misconduct-the-problem-with-contempt-of-cop-arrests/, 3. (Quoting Lewis v. City of New Orleans, 415 U.S. 130.)
Lopez, “Disorderly (mis)Conduct,” 2.
Lopez, “Disorderly (mis)Conduct,” 4.
Lopez, “Disorderly (mis)Conduct,” 5.
Heussler, “Nightmare on Ware Street.”
Heussler, “Nightmare on Ware Street.”
Heussler, “Nightmare on Ware Street.”
Lopez, “Disorderly (mis)Conduct,” 2.
Michele Mcphee and Sara Just, “Obama: Police Acted ‘Stupidly’ in Gates Case,” ABC
News, July 22, 2009, https://abcnews.go.com/US/story?id=8148986
&page=1.
“Henry Louis Gates Jr. on What Really Happened at Obama’s ‘Beer Summit,’” New York Times Magazine, January 31, 2020, https://www.nytimes
.com/interactive/2020/02/03/magazine/henry-louis-gates-jr-interview.html.
Elaina Plott, “The Fall of Jeff Sessions, and What Came After,” New York Times Magazine, July 14, 2020, https://www.nytimes.com/2020/06/30/magazine/jeff-sessions.html.
Teo Armus, “‘I Wasn’t Surprised. I Was Just Hurt’: A Black Professor Says Campus Police Demanded Proof She Lives in Her Own House,” Washington Post, August 24, 2020, https://www.washingtonpost.com/nation/2020/08/24/santa-clara-campus-police-professor/.