Must Motel Owners Keep Detailed Registries and Give Them to the Police?

The Fourth Amendment protects “people, not places”, but in applying it the courts seem to care quite a bit about places, too. As Jason Miller’s explains in his useful note in the Seton Hall Circuit Review, while the Fourth Amendment principles behind hotel room searches are the same as behind any search (reasonable expectation of privacy awards standing for overnight guests), but hotels pose special fact-sensitive challenges, including registration under an alias, registration for a third party, paying with a fradulent credit card, exceeding checkout time, and the classic from Minnesota v. Carter–booking a room solely for the purpose of bagging cocaine.

But this week’s decision in Los Angeles v. Patel required the Supreme Court to examine hotel searches via a different prism. This was not a motion to dismiss evidence or a §1983 lawsuit, but rather a facial challenge brought by motel owners against a Los Angeles city ordinance that requires them to maintain a careful registration of hotel guests’ names, makes of cars, photo ID for cash payers, and sometimes credit card information. The information needs to be kept for 90 days and–which is the provision at issue in Patel–made “available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.” Failure to comply, a misdemeanor, is punishable by up to six months in jail and a$1,000 fine.

The reasoning for the ordinance are fairly obvious: in his dissent, Justice Scalia explains that “The purpose of this recordkeeping requirement is to deter criminal conduct, on the theory that criminals will be unwilling to carry on illicit activities in motel rooms if they must provide identifying information at check-in. Because this deterrent effect will only be accomplished if motels actually do require guests to provide the required information, the ordinance also authorizes police to conduct random spot checks of motels’ guest registers to ensure that they are properly maintained.” But it is also understandable that Los Angeles motel owners are well aware of other reasons why their clientele might not wish to be exposed in the registry, and see the ordinance as an interference with their business model (apparently, there’s a whole line of hotels called “Mr. and Mrs. Smith”!).

Can they successfully challenge the Fourth Amendment, even though in any individual guest’s case the police might be able to search a room with a warrant or a recognized exception? By a 5:4 majority, the Supreme Court answers this question in the affirmative.

Justice Sotomayor, who wrote the Opinion of the Court, found that the Fourth Amendment is as useful for a facial attack as any other constitutional provision. In doing so, she distinguished Sibron v. New York (1968), in which a facial attack failed, by arguing that the statute in Sibron was new and difficult to interpret (and therefore unlikely to be struck down.) Sotomayor provided several examples of prior facial attacks based on the Fourth Amendment, such as student athlete and employee drug testing schemes, and the successful challenges to drug testing schemes for candidates for office, warrantless arrests in the home, and luggage searches for people arriving in Puerto Rico from the United States.

In response to the government’s contention that the ordinance in Patel differs from those examples in that hotel searches under it will not be universally unconstitutional, Sotomayor points out that the applications examined in light of the constitutional challenges are only those that involve authorization or prohibition of conduct; by contrast, the searches that will still be constitutional (via a warrant or an exception) do not directly involve the ordinance itself. By contrast, in this case, the municipal code creates a sanction for noncompliance with the police search of the records themselves, which is what is at issue here, and not for noncompliance with the request to search a room (backed by a warrant or an exception).

The requirement to keep a registry and provide it to officers upon request, under threat of arrest, is problematic because it does not allow for an opportunity to obtain precompliance review by a neutral decisionmaker: “A hotel owner who refuses to give an officer access to his or her registry”, writes Justice Sotomayor, “can be arrested on the spot. The Court has held that business owners cannot reasonably be put to this kind of choice”. For the ordinance to be constitutional, it is not necessary to have overview of each and every request for hotel records; it is, however, necessary to have the opportunity for overview “in those rare instances where a hotel operator objects to turning over the registry. ” This overview could come in the form of an administrative subpoena which, by contrast to a full search, does not require probable cause. And if there is concern that someone might tamper with the records, the police can guard the registry until the issue is resolved.

In his dissent, Justice Scalia argues that the motel owners’ petition is not a “case” or a “controversy”, and that whenever facial attacks have succeeded, they were not aimed at the law but at its application. And on the merits, hotels (like cars, other businesses, and administrative agencies) can constitute exceptions to the normal search and seizure laws because they are closely regulated businesses. Scalia proceeds to examine the arrangement under the ordinance and argues that it provides a reasonable balance between governmental interests and privacy interests.

In a separate dissent, Justice Alito argues that not all applications of the ordinance are against Fourth Amendment law, which does not award protections in many situations equivalent to those in the ordinance.

A few thoughts:

1. The examples provided by Justices Scalia and Alito in the dissenting opinions present motels as hotbeds of dangerous criminal activity, complete with child porn, murder, sexual assault, and kidnapping. Justice Sotomayor obviously avoids these examples. I like to draw my students’ attention to the fact that factual patterns, and examples, often explain judicial opinions, in that they drive the judicial imagination to the scenarios in which the law is likely to act.

2. I wonder if the dissent were less vociferous if the challenge to the ordinance came from five-star hotels, and not from motels.

3. The majority opinion suggests that there’s an “easy fix” for the ordinance: an administrative subpoena that can be challenged. How long could it possibly take for the City of Los Angeles to produce the requisite form and make the ordinance constitution-compliant?

——–
Props to Mark Edwards for drawing my interest to this case. 

Eliminating Grand Jury in Police Violence Cases in CA? Good Intentions, Bad Idea

Senator Holly Mitchel, a well-intentioned and well-respected member of the California Senate, has proposed SB 227, which consists of the following:

Existing law requires a grand jury to inquire into willful or corrupt misconduct in office by a public officer in the county. Existing law also authorizes a member of a grand jury, if he or she knows or has reason to believe that a public offense has been committed, to declare it to his or her fellow jurors, who are then authorized by existing law to investigate it.

This bill would prohibit a grand jury from inquiring into an offense or misconduct that involves a shooting or use of excessive force by a peace officer, as specified, that led to the death of a person being detained or arrested by the peace officer. officer, unless the offense was declared to the grand jury by one of its members, as described above.

This idea is, of course, prompted by the recent failures to indict in the cases involving the deaths of Michael Brown and Eric Garner. It’s populistic, and I’m sure will have its fans, but it’s a bad idea for the following reasons:

1. It’s unnecessary. In CA, we haven’t had cases of failures to indict at the grand jury level specifically. This is simply not a problem in this state. If it ain’t broken, don’t fix it with hastily-made laws.

2. It’s cosmetic. Since the prosecutors control the grand jury anyway, eliminating it merely means that the prosecutors will decline to prosecute, rather than prosecuting and passing the buck, presumably, to the grand jury, which they also control.

3. It categorically treats one category of defendants differently than the rest in terms of their constitutional rights. One can think of other ways to handle sensitive inquiries into police violence–moving them from the county to the state, from the state to federal authorities–without taking away their constitutional rights. While there is no federal right to a grand jury, there is one in California. Grand juries are ineffectual, usually, as they simply do what the district attorney wants them to do, but they are, at least in theory, supposed to provide another inquisitorial mechanism and a control. If we want to eliminate them, let’s eliminate them across the board, not only for one category of offenders.

4. It is important to know all the facts. I’ve read numerous shrill, angry online voices arguing that it is racist to withhold judgment when one does not know all the facts. I find this alarming and massively disturbing. Police officers are people, too; they, too, deserve to benefit from doubt when they are criminal defendants; and no amount of screaming about what we are sure happened in a police-citizen encounter can overcome the simple fact that we were not physically there. An inquiry is designed to find out what the facts were. It is either effective, in which case we want to keep it, or ineffective, in which case we want to get rid of it, but it is outrageous to discard the facts when they don’t work for us politically.

Aquarius, Episode 12 – Spoiler Alerts

These are Hodiak, Shafe, and Walt (Hodiak’s son) sharing a beer in friendship, and toating to America, even though their fragmented and flawed understandings of what America has become pull them apart.

Hodiak, the WW2 cynic veteran, is just trying to do his job. Shafe, an early Vietnam veteran, is “not there yet” with respect to the anti-war movement. An Walt, about to be court-martialed for revealing what he knew, is embracing the movement and feels disenchanted with his country.

Disenchantment abounds in Episode 12. The murderers of the gay victims and the judge’s wife are caught and killed–one by the cops and one by his brother’s hand–and the cover-up of the deaths is truly masterful–the Thin Blue Line strikes again.

Oh, and apparently Mary gives birth to a dead son, and somehow Sadie procures a live one for her to replace him, partly to curry favors with Charlie – another incident that has no bearing on the real chronicles of the Manson family. I liked the aesthetics of juxtaposing the christening with Hodiak’s award of the Medal of Valor, but I’m not sure what was implied. Nor did I particularly appreciate the Ken Karn backstory which, again, tries to make something that in reality was plenty horrible without embellishment into something else.

This concludes our series on Aquarius, and we return to our regular blogging program.

Aquarius, Episode 10: Spoiler Alerts

Episode 10 is a buffet of pop psychology: everyone–Hodiak, Manson, Emma–is confronted with their parents.

In Manson’s case, the mother that had abandoned him as a child returns to propose a business deal, and their problematic relationship is exposed, ending in Manson essentially selling her to the Straight Satans. Like many incidents in the show, this one has no equivalent in what we know about Manson and the Family in the Los Angeles years, and is, in all likelihood, a plot manipulation to demonize Manson and show his capability for callousness and gratuitous violence. I find myself seriously questioning the premise of portraying a real, living man, who (at least theoretically–and probably only theoretically) could be released on parole, in this manner, and I doubt they could do this had it not been for the symbolic association of the main character with evil. While we know of several heinous murders committed by Manson and the family, reality was cruel enough in itself, and the fictional embellishments, if anything, diminish credibility and make it difficult to follow the show. I wonder if, twenty years from now, Aquarius, which is a fictional drama, will be the authoritative go-to story on Manson and the Family; I also wonder how many of the Family members will still be doing time and coming up for parole.

This episode also sees an effort to darken Susan Atkins’ character (in her case, whatever libel argument she might’ve had would be posthumous, and maybe that explains the choice) and to problematize the relationships between the girls.

Hodiak’s father, in his turn, accuses Hodiak of having returned from WW2 “with no soul”. He helps Walt, who is still interested in exposing government actions near the Cambodia border; but the newspapers, who were so eager in Chapter 9 to expose Joe Moran’s ethnicity, are suddenly reluctant to publish.

Finally, in this episode we see Shafe’s undercover gig begin to bear fruit, and we also see him discover what his homophobia, and the police department’s reluctance to investigate the actor’s murder, had wrought; the chatty man who hit on Shafe during the investigation was found murdered, likely by the man with the previous victim’s ring on his fingers. This, and an incidence in which Bunchy’s brother Arthur was murdered, is a reminder that overenforcement and underenforcement went, then and now, hand in hand.

Aquarius, Episode 9: Spoiler Alerts

Like Episode 8, Episode 9 deals with issues of race and racism within the police force, this time through the story of Joe Moran, who, unbeknownst to his wife, kids, and fellow officers, is Cuban. Having benefitted from the ambiguity in his last name, Moran persuasively convinced his wife that he was Irish, and advanced through the ranks, until… a Latino journalist, Sandoval, found out the truth and decided to “out” Moran as Cuban.

Moran’s fear that his wife will leave him leads him to attempt suicide, and Hodiak, who comes into the room, tries to help. He reveals to Moran that his father was Jewish, a fact that he also does not share widely in the department. It’s understandable why: in both episodes, the idea of affirmative action or of representation of women or “spics” is considered ridiculous. There’s not, I should mention, a black officer in sight.

Moran and, to a lesser degree, Hodiak, are examples of the quiet tragedies of “passing” and living a lie, which are echoed by the series’ exposure of sexual and marital hypocrisies. Moran reminds me a bit of Silk, the hero of Philip Roth’s novel The Human Stain, which is based on the life of Roth’s friend, Melvin Tumin.

Moreover, Moran reminded me of Osagie Obasogie’s recent book Blinded by Sight, in which he problematizes the idea that race is something that is “seen” by interviewing people who have been blind since birth about their experiences of race. The interviewees told Obasogie something fascinating: like seeing people, blind people experience race visually. Race is, therefore, not something that just “is” (Obasogie calls this faulty assumption “‘race’ ipsa loquitur“) but something that is created, manufactured, as presumably visual.

In one of the book’s vignettes, Obasogie tells an incredible, and horrible, tale of a trial for marriage fraud. The story is so astounding that I quote it in its entirety:

Leonard Rhinelander was the socialite son of a wealthy New York family. In the fall of 1921, he met Alice Jones through her sister Grace and the couple quickly became quite fond of each other. On at least two occasions during their first few months together, the couple–Alice was then twenty-two, four years Leonard’s senior–secluded themselves for days in New York City hotels where they were intimate. Over the next few years, Leonard took several extended trips at his father’s request that separated the couple, but they remained in touch through frequent letters proclaiming their love for one another. Leonard returned to New York in May of 1924, and the couple secretly married that October, as Leonard’s family was not fond of the former Ms. Jones. The couple lived in secret with Alice’s family for about a month, until a story appeared in the Standard Star, a local paper in New Rochelle, titled: “Rhinelanders’ Son Marries the Daughter of a Colored Man.” Thus, a wealthy White man from 1920s New York high society was exposed as having committed one of the biggest social faux pas one could imagine at the time: marrying a Black woman.

Alice was the biracial daughter of an English mother and a father described as “a bent, dark complexioned man who is bald, except for a fringe of curly white hair.” A few days after the story broke, Leonard was shown a copy of Alice’s birth certificate that documented her race as Black. Two weeks later, Leonard filed suit for an annulment. The reason? Fraud: Leonard alleged that Alice misrepresented that she was not colored to trick him into marrying her. The stage was now set for what some might characterize as, up until then, the race trial of the century: a legal determination of whether Alice committed fraud by “passing” as White or if Leonard knew Alice’s race before their marriage. Put differently, the question became what did Leonard know and, more importantly, what should he have known?

The strategy developed by Isaac Mills, Leonard’s attorney, portrayed him as mentally challenged and Alice’s physical features as racially ambiguous. The defense from Alice’s counsel, Lee Parsons Davis, was quite simple: there was no fraud as Alice’s blackness was visually obvious. Davis mockingly said to the jury:

I think the issue that Judge Mills should have presented to you was not mental unsoundness but blindness. Blindness . . . [Y] ou are here to determine whether Alice Rhinelander before her marriage told this man Rhinelander that she was white and had no colored blood. You are here to determine next whether or not that fooled him. Whether or not he could not see with his own eyes that he was marrying into a colored family.

After raising serious doubts about Leonard’s cognitive disability, much of Davis’ defense rested on showing that Alice’s race could be known by simply looking at her body. This became a central theme in Davis’ argument; he repeatedly asked Alice and her sisters to stand up and show the jury their hands and arms. But to hammer home this point, Davis wanted the jury to see all of Alice’s body–not just hands and arms that might darken over time with routine exposure to sunlight. Given the couple’s pre-marital relations, Davis argued that Leonard had seen all of Alice before being married, and that it was crucial for the jury to see the same intimate details of Alice’s body that Leonard did before marrying her. Against objections from Leonard’s attorneys, the judge allowed it. And what transpired was one of the biggest race spectacles of the twentieth century. From the Court record:

The Court, Mr. Mills, Mr. Davis, Mr. Swinburne, the jury, the plaintiff, the defendant, her mother, Mrs. George Jones, and the stenographer left the courtroom and entered the jury room. The defendant and Mrs. Jones then withdrew to the lavatory adjoining the jury room and, after a short time, again entered the jury room. The defendant, who was weeping, had on her underwear and a long coat. At Mr. Davis’ direction she let down her coat, so that the upper portion of her body, as far down as the breast, was exposed. She then, again at Mr.Davis’ direction, covered the upper part of her body and showed to the jury her bare legs, up as far as her knees. The Court, counsel, the jury and the plaintiff then re-entered the court room.

This dramatic revealing of Alice’s body to the jury composed of all White married men was stunning, especially for 1920s sensibilities. Once back in the courtroom, Davis asked Leonard, “Your wife’s body is the same shade as it was when you saw her in the Marie Antoinette [hotel] with all of her clothing removed?”Leonard responded affirmatively, to which Davis said “That is all.” Shortly after this display of Alice’s body to the jury and Leonard’s acknowledgement, the jury returned with a verdict in favor of Alice, finding that there was no fraud. To put a finer point on this: an all White male jury in 1925 ruled against a wealthy White male socialite and in favor of a working class Black woman because her race was found to be so visually obvious that there could have been no deception. The jury found that Alice’s body, and race in general, visually spoke for itself. Alice did not have to take the stand at any point during the trial. Her body, and the jury’s ability to observe it, was all of the evidence that was needed.

Joe Moran’s story is a televised representation of the lives of many people, such as Alice Jones, whose racial identity had to be constructed as “seen”. And it is a sobering reminder that, as late as the late 1960s, there were still people who were embarrassed and terrified to openly acknowledge their racial identities.

Aquarius, Episode 8: Spoiler Alerts

My commentary on Episodes 8 and 9 will focus, if you don’t mind, away from Manson and his antics, and on what I found more interesting: diversity within the police force as a prism for overall racial attitudes and discrimination.

Both episodes focus on “others” within the largely male and white police hierarchy. Episode 8 focuses on the “othering” of Charmain Tully, whom we all know already from previous episodes as a hardworking, talented cop. Charmain gets permission from the captain to go on patrol with the boys, which turns into a parade of sexual harassment and unmerited jokes at her expense at a diner. But as the viewers become more and more indignant on her behalf, a gunman approaches the table and shoots her two colleagues.

Charmain is, understandably, in shock, but Hodiak immediately orders her to compose herself, attempting a primitive version of hypnosis to extract the details. Charmain is certain that the shooter was white. Nonetheless, the captain declares open season on a black neighborhood. Hodiak is only able to dissuade him from that by cutting a deal with Bunchy, his Black Panther acquaintance, who helps him find the true culprit via his car model.

Here’s what happens next: Hodiak and Shafe quickly fall in line with the other officers, out to catch and “fry” the cop shooter. They find someone who matches the description, and there is circumstantial evidence, but no physical evidence. In a display of oppressive peer pressure, Hodiak makes it clear to Charmain that she must change the description she provided to match the culprit, and by doing so, to prove that she is “one of us”. To my disappointment, but unsurprisingly, she conforms to the pressure and the suspect is apprehended.

Some things, clearly, have changed, and some have stayed the same. At around the period portrayed in the episode, Jerome Skolnick first published his book Justice Without Trial, documenting what he referred to as the “blue wall of silence.”Much has been written about this since then, by Skolnick and others. Some are more optimistic than others, with some commenting on the deplorable approach toward whistleblowers and on the spillover effect of police perjury and ‘testilying’. As David Sklansky explains in Not Your Father’s Police Department, the increased diversification of the police force since the setting of Aquarius has not dented police culture. Female officers, GLBT officers, and officers of color, simply become “blue inside” and socialized to police norms. Which explains Charmain’s behavior in this episode.

I have some doubts about the plausibility of the scenario, though. Hodiak’s hypnosis of Charmain has her flash back to the crime, noticing mostly the hand holding the gun. We now know that such eyewitness evidence is very unreliable, due to the effect of weapon focus: it is a human tendency to focus on a weapon, which reduces the reliability of identification from scenarios that involve guns. While the police’s focus on their preferred suspect is a textbook example of attitudinal bias, I’m not at all convinced that Charmain described the right guy.

Aquarius, Episode 4: Spoiler Alerts

Episode 4 of Aquarius is an exposition of hypocrisies–in domestic law enforcement, in foreign policy, and in personal life.

At the forefront of the episode are two murders: the one Sam Hodiak is investigating, an intra-racial crime within the black community, and the one no one is investigating, the murder of a black teenager named Michael Younger in the hands of a white cop (“chokehold” is said to be referred to as “cop hold”.) When Hodiak comes to investigate the former, the message from the Black Panthers, on behalf of the neighborhood, is that they will not collaborate, nor will they hand him the suspect, until the other murder is solved and the culprit, a police officer well known to them, brought to justice. Among the Black Panthers is the man Hodiak falsely arrested in Episode 1, who tells him:

Bunchy: You pushed out the contradictions and gave birth to me as a black panther. It’s the dialectic.
Sam: I don’t understand what you’re saying, and moreover, you don’t understand a word you’re saying.
Bunchy: The dialectic. A conflict of opposites. As the man said, you may not be interested in the dialectic, but the dialectic is interested in you.
Sam: I think it’s way too early in the morning to quote Trotsky. Oh, look, it reads!

By “it”, does Sam refer to Bunchy or to himself? Bunchy accuses him of being “a racist cop in the most racist police force in the nation.” Perhaps moved only by the will to secure cooperation on his own investigation, or perhaps realizing a bit of the broader structural problem, Hodiak investigates Younger’s murder. He and Shafe crack it and prepare to go to internal investigations. But Cutler, promoted to lieutenant now, stops them. “You think that, after Watts,” asks Cutler, “this department going to admit a white cop killed a black teenager?” Shafe’s incredulity about the department’s decision to bury the murder, and his awakening to the bitter news about the status quo, will undoubtedly echo in many sympathetic post-Ferguson viewers’ thoughts, made more bitter because of the passage of time.


What did you learn in school today, dear little boy of mine?
What did you learn in school today, dear little boy of mine?
I learned that policemen are my friends;
I learned that justice never ends;
I learned that murderers die for their crimes,
even though we make a mistake sometimes;
that’s what I learned in school today,
that’s what I learned in school.

But Hodiak has his own awakening to go through, too. His son, Walt, has gone AWOL. Having served in covert ops in Cambodia, he has realized that the plan is “saturated bombing, killing children, arming crazies, destroying that civilization.” Hodiak is not blind to the atrocities of war or to the president’s deceit about the Cambodia front, but his moral compass is elsewhere: “if you want to win a war, you got to fight ugly sometimes.” But Walt is undeterred and plans to leak what he knows to the press.

What did you learn in school today, dear little boy of mine?
What did you learn in school today, dear little boy of mine?
I learned that Washington never told a lie;
I learned that soldiers seldom die;
I learned that everybody’s free,
that’s what the teacher said to me;
that’s what I learned in school today,
that’s what I learned in school.

I learned our government must be strong; 
It’s always right and never wrong;
Our leaders are the finest men,
And we elect them again and again;
that’s what I learned in school today,
that’s what I learned in school.

Finally, the Manson girls’ care and concern for each other (if only as fellow disciples) is contrasted, again, to the hypocritical sham marriages of, well, pretty much everyone else, such as the Hodiak and Karn families.

Aquarius, Episode 3: Spoiler Alerts

Two major themes emerge in Episode 3 of Aquarius: the two main characters as embodiments of the two criminal justice models and the fragmented and complicated image of Manson painted by the show.

The first half of the episode, and some scenes in the second half, see Hodiak helping Shafe solve the murder of Art Gladner, for which Shafe’s informant was falsely arrested. The investigation takes Hodiak into the noir-like environment of a strip club (“burlesque theater”, the owner corrects him). There, he uncovers a drug connection, which leads him to the culprit. It turns out that Hodiak himself contributed to the chain of events that led to the murder: by writing “snitch” on Gladner’s forehead, he marked him for execution; and, by breaking the new suspect’s arm, he advertised to the other players in the drug business that the suspect was under police control and surveillance. Hodiak does not seem to harbor any guilt or discomfort about his complicity, and his confrontation with Shafe floats this to the surface:

Shafe: He was a person.
Hodiak: Who sold drugs.
Shafe: You’re unbelievable. Whatever you want, you do it.”
Hodiak: It’s true. I can be a tad brusque”.

This dialogue, again building on the buddy-cops trope, highlights for 21-century viewers the transformative moment in American policing. Two important developments clash in the years immediately preceding this scene: the emergence of Mapp, Miranda, and Gideon, part of the Warren Court’s criminal procedure constitutional revolution, and the arrival of Richard Nixon to the Presidential seat, and with it efforts at bolstering and funding local police stations to counter the revolution.

If you will, the two officers are personal embodiments of Herbert Packer’s Two Models of the Criminal Process. Hodiak embodies Nixon’s commitment to the crime control model, where the police and prosecution are imbued with immense power and discretion and anything goes as long as crimes are solved and criminals brought to trial quickly and efficiently. By contrast, Shafe embodies the Warren Court’s commitment to the due process model, both in terms of adherence to constitutional requirements like the Miranda warnings and in the commitment to equality, illustrated also by his personal life (in this episode, an unknown neighbor paints the words “nigger lover” on his garage, intimidating his wife and child.) For Shafe, the worst thing that can happen is a procedural mistake leading to a wrongful arrest. For Hodiak, it’s delay in solving a crime.

These political perspectives are generational, too. Hodiak is a WW2 veteran, with a clear idea of right and wrong, leading him–three years before Daniel Ellsberg would leak the Pentagon papers–to assume that the war in Vietnam is justified and that his son, gone AWOL, is a war criminal. Shafe seems to be a Vietnam or Korea veteran, capable of seeing more shades of gray.

These aspects of the show, at this point, strike me as more interesting and convincing than the Manson family scenes. It seems that the show has a difficult point pinpointing Manson’s image: is he a religious leader? a common pimp? how much of his eventual terrifying violence is already in evidence through his malevolence? We see Manson enchanting girls with two-bit New Age speeches that might have been more effective in the Sixties; we also see him controlling and domineering them, treating them as property. But we also see him performing great violence, often with his signature knife. At the same time, some of the lines given to Manson have him effectively expose the destructive hypocrisy of the 1960s; his words to Ken, who comes to him at the bottom of his spiral of shame and self-hatred, are apt. After a particularly heartbreaking and distressing search for furtive sex in a park bathroom (a good reminder of how far we’ve come), Ken accuses Manson of making him a homosexual:

Ken: You did this to me.
Charlie: I freed you.
Ken: You broke me.
Charlie: You were already broken, Ken. I just pulled you out of your shell.

Manson’s perspective, of course, is far more in tune with our modern perspectives on homosexuality. One has to conclude that even a broken clock shows the right time twice a day.

How Should the Police Deal with an Armed and Violent Mentally Ill Suspect?

Today, the Supreme Court decided San Francisco v. Sheehan, 6:2 sort-of-in favor of the city (Justice Breyer recused himself–his brother decided the case in a lower instance.) The facts, taken verbatim from the case syllabus, are as follows:

Respondent Sheehan lived in a group home for individuals with mental illness. After Sheehan began acting erratically and threatened to kill her social worker, the City and County of San Francisco (San Francisco) dispatched police officers Reynolds and Holder to help escort Sheehan to a facility for temporary evaluation and treatment. When the officers first entered Sheehan’s room, she grabbed a knife and threatened to kill them. They retreated and closed the door. Concerned about what Sheehan might do behind the closed door, and without considering if they could accommodate her disability, the officers reentered her room. Sheehan, knife in hand, again confronted them. After pepper spray proved ineffective, the officers shot Sheehan multiple times [seriously injuring, but not killing her–H.A.].

What should the cops do under such circumstances? Sheehan sued the City, arguing that when dealing with a mentally ill patient, the cops are bound by the Americans with Disabilities Act.

In lower courts, the city tried to argue that the ADA does not apply to police dealings with an armed and dangerous individuals. However, before the Supreme Court, the city presented and argued a brief merely stating that there was no way to accommodate Sheehan under the ADA due to the circumstances, in which she was not “participating” in an activity from which she might “benefit”. The dissent, written by Justice Scalia, would deny the city relief because of this change of tactics.

But the majority opinion, written by Justice Alito, stated that the police officers had qualified immunity from Sheehan’s lawsuit, because their actions did not clearly violate her Fourth Amendment rights; Fourth Amendment doctrine at the time did not include a clear and explicit mandate to accommodate suspects with disabilities, and the question whether it should has been left open.

Bottom line:
1. The city does not have to pay; the cops have immunity.
2. We have no answer whether the ADA covers armed and dangerous individuals.
3. We have no answer whether an arrest is an “activity” covered by the ADA.
4. We have no answer whether not accommodating an armed, violent, mentally-ill suspect is a Fourth Amendment violation.

Some thoughts:

1. These sorts of situations are going to be really difficult to parse out constitutionally, because the devil really is in the details. The degree to which the police might be aware that the suspect is mentally ill and the extent of the threat she or he pose would vary from situation to situation, and whatever Fourth Amendment standard is adopted will have to take that into account.

2. Let’s set aside constitutional doctrine for a minute and look at sound judgment. If you were the cops, what would you do? Presumably, your decision whether to let things calm down inside before going in might depend on whether there are innocent people inside that are being threatened by the suspect, no?

3. It’s also important to keep in mind that this decision occurs in a context of overall public lack of trust in the police, and particularly in its discretion using lethal force. It’s interesting that the timing didn’t bait the Supreme Court into saying something about this more generally, or even attempt to answer the question of mentally ill suspects for the future. Perhaps this reluctance stems from their willingness to give the police a wide berth of discretion.

Homicide on Video: What Is It Going to Take?

Here is the unedited footage of the shooting of Walter Scott in South Carolina, three days ago.

I have now watched the clip three times–almost as many times as I watched the footage of Oscar Grant’s killing, and of Eric Garner’s killing, and of countless others. I am having a hard time seeing it as anything but murder, with a bloodcurdling effort to cover the murderer’s tracks after the fact. Then again, when I had watched the video of Oscar Grant’s killing, and of Eric Garner’s killing, and of countless others, those were also hard to interpret as anything but murder, and each of those times ended in what I can only describe as absolute legal impotence, and each of those times I’ve looked at my screen, incredulous, thinking, “what more could you possibly want/expect to see before you called this what it is?”

I am trying to imagine how this footage can be interpreted in a different way–what sort of teary-eyed testimony the cop might give in his own defense–and how a rational jury could possibly interpret this footage as anything but murder. I am trying to get into the head of the cop’s defense attorney, to think how he can possibly describe this footage in a different way. I can’t even imagine such a scenario. But you know what? I had the exact same thoughts when I saw Eric Garner’s killing, and we all know how *that* turned out. It seems like the evidence is getting better and better, but the results are not, and we are fast losing hope that there is such a thing as “perfect” video footage of murder.

Ask yourself, gentle reader: all those other times you saw unspeakable horror on video, did you not say to yourself, as I did, this time it’s the ultimate evidence? This time the evildoer won’t get away? What makes us think that this one, this last one, will be different? That this time someone has finally managed to catch indefensible evil on tape? That this one won’t be a hung jury or some involuntary manslaughter or somesuch? And if this one isn’t, what more could “they” possibly need to see what we see? What, if not this–if not Eric Garner–if not Tamir Rice–if not any number of videos we’ve seen–is going to be incontrovertible evidence of murder? Will there ever be incontrovertible evidence? What, for Heaven’s sake, is it going to take?

My heart is with the many sad and angry people in South Carolina who are trying to make sense of it, some of whom may have just realized that Ferguson is not a place, it is a state of consciousness. Yes, black lives matter. They should matter. But until all lives matter equally, none of us should feel calm, or safe, or contented.

The screaming, struggling civilian was a dark man with a face white as flour from fear. His eyes were pulsating in hectic desperation, flapping like bat’s wings, as the many tall policemen seized him by the arms and legs and lifted him up. His books were spilled on the ground. “Help!” he shrieked shrilly in a voice strangling in its own emotion, as the policemen carried him to the open doors in the rear of the ambulance and threw him inside. “Police! Help! Police!” The doors were shut and bolted, and the ambulance raced away. There was a humorless irony in the ludicrous panic of the man screaming for help to the police while policemen were all around him. Yossarian smiled wryly at the futile and ridiculous cry for aid, then saw with a start that the words were ambiguous, realized with alarm that they were not, perhaps, intended as a call for police but as a heroic warning from the grave by a doomed friend to everyone who was not a policeman with a club and a gun and a mob of other policemen with clubs and guns to back him up. “Help! Police!” the man had cried, and he could have been shouting of danger. 

–Joseph Heller, Catch-22