There’s an old legal proverb that “bad facts make bad laws,” but I think the converse is also true. Bad laws make bad facts. In the Gates case, you have an officer charged with enforcing a legal prohibition against “tumultuous” behavior. (Tumultuous? Really? Is that a word that any normal person uses?) Even worse, the standard jury instruction apparently allows for a conviction for “tumultuous” behavior that is intended to cause “public inconvenience, annoyance, or alarm.” Inconvenience? Annoyance? How is that defined? And doesn’t it give enormous discretion to the police officer on the scene? In addition, what if the speaker “intended” annoyance, yet no one was annoyed? They can still be punished?
I don’t think Gates should have been arrested. But that’s not the same thing as saying that the officer behaved “stupidly.” In fact, the officer made a defensible judgment call in enforcing a horribly drafted legal standard. Simply put, the law should not be prohibiting public “annoyance” or “inconvenience,” the law should use words that have an obvious meaning in everyday life (drop “tumultuous” from the standard, please), and the law should never, ever create the impression that intentions matter more than real-world effects.
I think it’s fair to say that we want police officers enforcing laws as written. It is equally fair to say that legislatures and courts should demonstrate some basic competence in drafting (and interpreting) the governing standards. In this case, a bad law created terrible facts — for Professor Gates and for Sergeant Crowley.