Crowley v. Gates & Obama: the power of protocol

After a series of posts on this topic, here are some excerpts from a useful piece by Richard Epstein in Forbes (hat tip: Craig Ladwig)...

...one neglected, but critical, fact: Sgt. Crowley followed department protocol.

Protocols are used everywhere to handle situations where minor errors, slights and misunderstandings can generate serious consequences. Diplomatic protocol, for example, is not just an arid exercise in formalities. Its time-tested rules set out a standard operating procedure that eases ruffled feathers and cuts down on deadly confusion....

The hard logic about protocols carries over to police work. Crowley followed those when he approached Gates and asked him to come outside. Just knowing that one fact tells us who is likely to have misfired in that critical initial encounter. The point is now crystal clear given the release of the "Gates Tapes," which refer to Gates as an "uncooperative gentleman" without (until asked) racial identification. But before this information was released, President Obama missed this point when he jumped head first into a political minefield by suggesting that Crowley had acted "stupidly." Obama compounded his initial mistake by asking aloud why an officer had to put handcuffs on a man who used a cane. Again, the right answer is, the protocol admits no ad hoc exceptions: a cane could easily become a weapon.

But what about the arrest? Here the issue is somewhat more difficult to judge, even with the release of the tapes, precisely because there is no hard and fast protocol on how to respond to a person who has misbehaved from the get-go, as Gates surely did. At this point, his bad conduct put Crowley (and his confederates who arrived on the scene) to a set of hard choices about whether to back off or to arrest him for disturbing the peace. At this juncture, the right legal rule gives the benefit of a good faith judgment to an officer who followed the protocols at the initial stage....

Who, then, is likely to make a blunder--someone who follows the book, or someone who in righteous indignation falls back on his own deep-seated conviction that whites, police officers included, suffer from unconscious racial biases? Again the tapes go a long way to answering that question. It is no wonder that police officers, white and black, took offense at the president's remarks. The color of the uniform matters more than the color of the skin...

Professor Gates and President Obama would have done a lot better if they had reined in their own harsh charges. Sometimes silence is golden.