Skip Gates.jpgElie here. On Wednesday, I took a closer look at the woman who called the Cambridge police on Harvard professor Henry Louis Gates Jr. I wondered if she could be held liable under a good Samaritan statute, and asked if we should hold good Samaritans to a higher standard.
Most readers felt that the woman was beyond reproach. She saw “two black males with backpacks” attempting to enter a house, and most people — including Professor Gates and President Obama — felt she acted appropriately when she called the police.
Legal Blog Watch has published a great analysis suggesting that Gates’s arrest was unwarranted. Even if you take the police officer’s word about what happened inside the house, it was unlikely that a prosecution against Gates for disorderly conduct could have survived (at least based on the evidence we have now; there are rumors of tapes).
I understand that I am hanging far out on a thin limb, but I remain far from convinced that the woman acted appropriately. I do think, hypothetically, that there is a cognizable legal claim Professor Gates could have against the woman who turned him in. Here is the applicable Massachusetts “good Samaritan” statute:

Chapter 258C: Section 13. “Good Samaritans”; liability

Section 13. No person who, in good faith, provides or obtains, or attempts to provide or obtain, assistance for a victim of a crime as defined in section one, shall be liable in a civil suit for damages as a result of any acts or omissions in providing or obtaining, or attempting to provide or obtain, such assistance unless such acts or omissions constitute willful, wanton or reckless conduct.

On Wednesday, I suggested that the standard for liability was reasonableness, as opposed to “willful, wanton or reckless conduct.” Obviously, a recklessness standard is much more difficult to prove.
But after the jump, I make my case. And then Mr. David Lat slaps me upside the head makes his case … that I need to be Rule 11-ed right back to Tolerance 101.


ELIE’S ARGUMENT
Let’s start with the easiest arguments, Gates was the victim and he suffered damages. The Cabbed Caller was attempting to help Gates, by protecting his house from a possible break-in, yet through her efforts Gates suffered more harm. Arguably the reputational and psychological damages Gates suffered far outstripped the financial damages he would have suffered had there been an actual break in.
Now, yes, I understand that good Samaritan laws have been erected as a shield to protect citizens who try to help from overly litigious victims. But that doesn’t mean that they’ve completely eviscerated the opportunity for victims to get a judgment against a person who was trying to help, but caused more harm than good.
Okay, I can hear all of you screaming about the “intervening cause” of the police officers. Even people sympathetic to Gates believe that if anybody is liable, it is the cops, not the Cabbed Caller.
But that’s how I get to the Cabbed Caller’s recklessness in calling the police in the first place. It’s not intervening if you could reasonably foresee the actions that would result from your conduct. Could the Cabbed Caller have reasonably foreseen that calling the cops would lead to the arrest of whomever was in the house? I say yes. Where there are other actions that a reasonable person could have taken instead of bringing in the shock troops? I say yes.
Was it therefore reckless to call the cops in the first place? Well, for that I’d want to depose the witness. I’d want to know if she had any reason, at all, to believe that the cops would behave appropriately. And then I’d want to know if she had any reason, at all, to believe that the cops would behave appropriately when confronted by “two black men, with backpacks.”
Because if there is willful and wanton recklessness here, it rests with this person’s belief that the police would behave appropriately towards a black man in a Cambridge suburb after being “tipped” that there was a B&E in progress. I know that point angers people of all races — especially perhaps those who think we are just a few steps away from living in a happy racial utopia where justice is truly blind.
But justice is not blind, not even close, and at some point it becomes aggressively dangerous to pretend that it is. The Cabbed Caller knows, or should have known, that the police would overreact to the situation she presented them with. It was incumbent upon her to take her head out of the sand and engage with the world as it is, not as she would like it to be.
Her failure to do so, her decision to put her faith in the Cambridge police when there were other options at her disposal, constitutes recklessness. At least, that’s the argument.
Now, even though I don’t have ready access to case law — Above the Law is still waiting for its free Lexis and Westlaw passwords — I’m pretty sure that no court has ever held a person liable for calling the cops. The societal incentive for reporting crime probably outweighs the incentive to protect black people from police harassment. But just because it hasn’t happened yet doesn’t mean it won’t happen in the future. The laws are already there, and we are making progress.
Someday, it will not be okay to call the cops on any black person that appears in your neighborhood.
LAT’S RESPONSE
Elie, I don’t mean to be rude, but I am deeply frustrated. Your “Good Samaritan” argument is, quite frankly, ridiculous and embarrassing. I am glad to have this opportunity to clarify that, although it appeared on the site that I founded, I do not endorse it in any way, shape or form.
I am all in favor of occasionally “baiting” the readers — I do it a lot myself — but let’s do so intelligently. Lawyers — i.e., our readers — hate it when legal concepts are abused or used imprecisely (which is more often your problem).
With respect to this “Good Samaritan” analysis, however, we’re looking at a case of outright abuse, not mere imprecision. You’ve already been thoroughly spanked by the commenters, but I’m happy to add a few whacks of my own.
I don’t know where to begin — your analysis is even more trippy than the most whacked-out legal theories I was served up by professors at Yale Law School — but here are a few observations:
1. Good Samaritan laws are shields, not swords.
You write: “Now, yes, I understand that good Samaritan laws have been erected as a shield to protect citizens who try to help from overly litigious victims.”
You preemptively acknowledge a number of the arguments against your position, which is a clever rhetorical move. But to acknowledge an argument is not to refute it, and this is a perfect example.
Maybe some judicious use of capitalization will convey my point. Good Samaritan laws, including the Massachusetts statute you cite above, are SHIELDS, NOT SWORDS. They do not give rise to liability or causes of action, which is why — contrary to your suggestion — it is IMPOSSIBLE to find someone “liable under a good Samaritan statute.” You might find someone not entitled to the immunity from civil suit that a GS law offers, but the GS law itself does NOT establish liability.
If you want to question the conduct of the woman as an ethical or moral matter, and argue that “the Good Samaritan here wasn’t that good” (a la the Kaye Scholer Mom case), then fine. But don’t drop the L-bomb — i.e., bring in the law, legal concepts, and terms of art — unless you have a solid basis for doing so. I challenge you to find a case in any U.S. jurisdiction in which someone who placed a call to the police or 911 got in trouble under a Good Samaritan law because the police then acted inappropriately.
(You preemptively acknowledge, supra, your belief that “no court has ever held a person liable for calling the cops. The societal incentive for reporting crime probably outweighs the incentive to protect black people from police harassment.” EXACTLY — I couldn’t have said it better myself.)
2. There is no basis for a negligence suit by Gates against the Cabbed Caller.
Since the Massachusetts Good Samaritan statute provides no independent basis for liability, Gates would have to sue the Cabbed Caller under some other legal theory. It seems that you are arguing for a negligence claim, so I’ll respond to that (without considering alternate theories of liability).
You start with the question of damages, which is telling: “Gates was the victim and he suffered damages. The Cabbed Caller was attempting to help Gates, by protecting his house from a possible break-in, yet through her efforts Gates suffered more harm.”
Umm, shouldn’t we start with the question of liability?
I don’t think you’ve established your prima facie case here, Elie. You attempt to preemptively refute some of the arguments against liability, but you never establish liability in the first place (which is your burden, or Gates’s burden as the plaintiff).
The Cabbed Caller did not act unreasonably, and certainly not “wantonly” or “recklessly,” in calling the police. Professor Gates and President Obama have conceded as much. If you see two men, of any race, trying to force open the door to a house, it is not unreasonable to call the police. If anything, it would be unreasonable not to call the police.
Could the Cabbed Caller have taken other steps — e.g., walking up to Gates’s doorstep to investigate further, ask “what’s going on here,” etc. — that perhaps she wishes she had taken in hindsight? Sure. But it was certainly reasonable for her to leave this to the experts and call the police.
If anything, that decision — the decision to call the police, rather than to thrust herself into the situation directly — should be protected by a Good Samaritan law. She made a phone call that, in hindsight, she probably wishes she hadn’t made; but she did so in good faith, so she should be protected.
You then ask: “[Was it] reckless to call the cops in the first place? Well, for that I’d want to depose the witness. I’d want to know if she had any reason, at all, to believe that the cops would behave appropriately.”
Umm, why shouldn’t the question be whether she had any reason to believe the cops would act INappropriately? We’re not talking about the LAPD here. This is the People’s Republic of Cambridge, where even the cops buy their groceries at Whole Foods.
One other interesting point. I haven’t confirmed it myself, but according to one commenter:

Mass. bar studier here: Generally, reports made to police officers about potential crime are privileged if made in good faith. I don’t know what “good samaritan” laws you’re talking about, as they mainly involve whether or not someone who comes to another’s assistance could be held liable for negligently assisting the other. I bet the lady feels pretty stupid/terrible though.

Elie, I doubt that even you would claim that Gates has a defamation cause of action against the Cabbed Caller for fingering him as a burglar.
3. Damages are negligible.
Even assuming arguendo that the Cabbed Caller could be held liable on a negligence theory, the damages here strike me as minor. Sure, he was detained for a few hours (and considering how much Gates makes — you were a Harvard undergrad too, Elie, so you know he’s one of the highest-paid members of the faculty — his time is certainly worth money).
But I question the “reputational and psychological damages” that you claim Gates suffered. It seems to me that he is now a national cause célèbre, receiving huge amounts of public sympathy, and getting shout-outs from President Obama on national television. He has also kicked off a National Conversation About Race, which he is surely loving as an African-American studies scholar.
If anything, Gates should be grateful to the caller, for setting in motion a chain of events that has only increased his public profile. Prior to this, Henry Louis Gates was primarily a celebrity in academic circles. Now, he’s a household name.
In conclusion, I find this whole “Good Samaritan” analysis to be completely misplaced — a red herring, but too bizarre and not clever enough to be a good red herring. Please, let’s put it to merciful rest now.
ELIE’S REJOINDER
Ya, I’ll speak with yo’ mama outside.
Earlier: Gatesgate: More Links From Around The Web


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