Tagged: 14th Amendment

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #365: TV COPS PUT A HOLD ON THE CONSTITUTION

chief_wiggumIf I’ve heard it once, I’ve heard it … Okay, I didn’t actually count how many times I’ve heard it. But I’ve heard it a lot. In cop shows. In police movies. In crime novels. In detective comics, and probably Detective Comics. Pretty much any gendarme genre. Those immortal words spoken by police officers everywhere, “We can hold you for 72 hours without charging you.”

Actually, the police can’t. But they do it anyway

What the oft-heard line is referring to is the policy of an investigatory hold . Under the practice, the police would place someone in custody without charging him or affording him bail – assuming he could afford bail in the first place – for a period of time. During this time, the police would investigate the crime more fully. At the end of the investigatory hold period, the person being investigated would either be formally charged or released.

Under the 14th Amendment right to liberty, people can only be denied their right to liberty if they are afforded full due process – you know; formal arrest, formal charges, bail hearing, trial. That whole megillah. Without those things, there’s a 800-pound gorilla in the room. A gorilla called the Constitution. (What, you thought I was going to say the gorilla was called Magilla?)

In some jurisdictions, the investigatory hold period is 20 hours. In some it’s 24 hours. In others, it’s 48 hours. In some – such as in Cleveland, Ohio until an administrative judge ended the practice in 2012 – it was 72 hours.

Investigatory holds happen for a couple of reasons, both of which are unconstitutional and illegal. The first is that if person is taken into custody and held pending an investigation, it usually takes between 48 and 72 hours for a lawyer to be able to get a writ of habeas corpus before a judge who can rule that the detainee be freed. That’s one origin for the incorrect police notion that they can hold suspects for 72 hours withoug charging them.

It should be noted, as well, that this paragraph applies to regular people who have been taken into custody. So-called military detainees or prisoners of an undeclared war who are rotting away in military prisons such as Quantanamo Bay need not apply. For a habeas corpus, that is, because they won’t get one.

The other reason for the investigatory hold is that the police misinterpret certain laws to claim that the laws give them the statutory authority to conduct investigatory holds. They don’t. But the police claim, incorrectly, that they do.

What frequently happens is that a state will pass a law requiring that when a person is arrested without a warrant, that person must be formally charged or released within some period of time. The statute will then set a time period which it intended to be the maximum period. Prisoners could always be charged or brought before a magistrate in less time than the statutory maximum, but it couldn’t happen in more than the maximum time set by the law. That statutory time limit varied from state to state. It could be 20 hours, 24 hours, 48 hours, or 72 hours depending on the state and the statute. (Do those numbers look familiar? They should.)


These statutes were intended to benefit people who has been arrested. They were meant to guarantee that those being arrested be formally charged or brought before a judge for a probable cause hearing and bail within a set time. They were meant to insure that people were not being held in custody indefinitely. The statutes were created, because formal charges and judges aren’t always available as soon as a person is arrested.

The police can arrest people, but the police can’t charge them with a crime. Only a prosecutor’s office can bring formal charges. In addition, the police can’t set bail or determine whether there is probable cause that those being arrested committed the crime for which they were arrested. That power belongs only to judges or magistrates. However, people aren’t always arrested when the prosecutor’s office is open or when court is in session.

People are frequently arrested at night. Or on the weekends. I represented a lot of people who had been arrested. (In fact, I’ll bet I only represented people who had been arrested.) So I can tell you from personal experience – not the experience of my having been arrested but the experience of talking to clients who had been arrested – a good number of them are arrested at night or on the weekend. That’s because a lot of crimes are committed at night or on the weekend.

Here’s the thing about prosecutor and courts. They have regular office hours. 9 to 5 type hours. Prosecutor’s offices and courts aren’t usually open for business at night or on the weekends. So people being arrested at those times can’t be brought before a judge or formally charged as soon as they’re arrested. They have to wait until the prosecutor’s office is open or court is in session.

The statutes I talked about earlier were adopted to make sure that people arrested after hours were brought before a magistrate or formally charged as soon as possible. So they’d set a time limit in the statute, mandating that charges be filed or magistrates be faced within that time limit.

Many police departments started using the statutes as a weapon against the people who were arrested, even though the statutes were intended to be a shield for the people being arrested. The police started interpreting the statutes as something that authorized them to take people into custody, while they investigated the crimes. They’d say, the statute permits us to hold suspects for what ever period of time is put into the statute without charging them or taking them before a judge. So the police would arrest a person to investigate a crime further, and hold the person in custody for the maximum time the statute allowed pending the results of that further investigation.

The practice is questionable. At best. At worst it’s unconstitutional and illegal. As I’m a glass-half-empty kind of guy, I’m going with the worst-case scenario. I say investigatory holds are unconstitutional and illegal.

I’m not alone in saying this.

Some District attorney offices have been polled as to whether they believe the practice of investigatory holds is legal. The district attorney offices polled routinely concluded it wasn’t.

The Supreme Court of the United States has held on numerous occasions that investigatory detentions are illegal. The court found such detentions to be arrests, and arrests which are made as a pretext for finding evidence violates the 4th Amendment protection against unreasonable seizure.

Courts also hold that detaining a person for investigation for a period of time longer than the earliest practical time that person could be brought before a magistrate is unconstitutional. So if a statute requires that the detainee be brought before a magistrate within 48 hours, but the police could have brought the detainee before a magistrate within 24 hours, the extended investigatory detention was unconstitutional.

Investigatory holds still exist. They shouldn’t. They violate the 4th Amendment because they’re unreasonable seizures. They violate the 6th Amendment, because police say the right to counsel doesn’t begin until formal charges are filed, so we can question this detainee without an attorney present as long as charges haven’t been filed. They violate the 8th Amendment, because they perform an end around to the Amendment’s requirement that people who are arrested are entitled to bail. They violate the 14th Amendment, because every one of the problems I just listed denies the detainee of liberty without due process of law. And they violate any concept of decency.

So the next time you hear the line, “We can hold you for 72 hours without charging you,” on TV, remember doing that wrecks and violates the Constitution. And there’s already too much wrecks and violates on television.

The Law Is A Ass


TNDocSavage07CovRossDoc Savage didn’t know he was doing something wrong. Neither did I. To be fair to Doc Savage, back then things were simpler. To be fair to me, so was I.

I didn’t first learn about Doc Savage’s, shall we say, experimental, surgical procedures, in Dynamite Entertainment’s Doc Savage v1 #7. No I knew about them before, I just never thought about them. But I did know about Doc’s, shall we say, unusual surgical procedures.

Oh let’s stop beating about the bush. “The Law Is a Ass” hasn’t lasted this long by my being evasive. No, the column and I have made it through thirty plus years by my being up front with you. So I’m going to stop being coy. No more using words like “experimental” and “unusual.” I’m going to call Doc Savage’s surgical procedures what they really are; invasive.

For years after Doc Savage captured a bad guy, he shipped them off to a private medical facility in upstate New York, where they would undergo “a delicate brain surgery” that removed their criminal proclivities. Then Doc’s medical staff trained these people on how to live better lives. After this, Doc set them up with jobs and returned the now-reformed – forcibly reformed – criminals to the world, where they would lead productive lives. I don’t know how long Doc did this. His biography in the Doc Savage Wiki says that he did it in the “early episodes.” But Doc Savage v1 #7 says he was still doing it in 1988.

The same comic also had one of the surgeons who worked at Doc Savage’s upstate Serenity Convalescent Center outing Doc and his memory manipulating machinations on national television. Later in that story, we learned several people were suing Doc for violating their civil rights and robbing them of their free will. We also learned the case had gone to the Supreme Court. At one point in the story Doc actually appeared before the Supreme Court. At another point, Doc talked about what would happen in the case, “once the chief justices have heard all of the testimony.”

I don’t know what’s more wrong the fact that Doc Savage was talking about the “chief justices” of the Supreme Court of the United States hearing testimony or the fact that Doc Savage performed unauthorized, nonconsensual operations on unwilling patients. I do, however, know which one is easier to discuss. So I’ll start there.

The Supreme court doesn’t have chief justices. It has a Chief Justice. As in one. Not chief justices as in plural. Only the person appointed by the President of the United States and affirmed by the United States Senate to be the Chief Justice is called the Chief Justice. The others eight justices on the Supreme Court are called Associate Justices.

See? Wasn’t that easy?

In addition, the Supreme Court doesn’t hear testimony. The Supreme Court is a court of appeals. Trials in federal cases are conducted in federal district courts. Those are the courts of original jurisdiction, which is to say the courts in which law suits originate. The circuit courts are the courts that would hear testimony, not the Supreme Court. After a trial, the case may get before the Supreme Court. But it would get to the Supreme Court as an appeal, not a trial.

Under the Constitution of the United States, the Supreme Court can be a court of original jurisdiction in cases involving ambassadors and other diplomats and in cases where a state is a party. Generally, the only cases which the Supreme Court entertains as a court of original jurisdiction are cases when one state is suing another. Those are the cases where the Supreme Court would hear testimony. In all other matters, the Supreme Court only hears oral arguments. I’d explain what oral arguments are, but they’re boring. For 28 years I made my living making oral arguments to courts of appeal. Trust me, I know. They’re boring.

Doc Savage’s case involved a group of plaintiffs who are people, not states, suing Doc Savage, another person not a state, for depriving them of their civil rights. A civil rights suit would not be a case where the Supreme Court had original jurisdiction. So the Supreme Court would not be hearing any testimony in the case.

See? Still easy.

And it should have been easy for Doc. He had legal training, after all. And even if he didn’t,  one of his best friends and top aides, Ham Brooks, was a top lawyer. He really should have known better. Back in those days when I was simpler and didn’t have any legal training yet, I knew there was only one Chief Justice and that the Supreme Court didn’t hear trials. Read it in the newspapers. So I don’t know why Doc forgot. Maybe he was an early test subject in one of his own judgment jugglings jobs.

Now as to the actual lawsuit alleging Doc Savage violated the civil rights of several people with his surgeries, that’s where things get a little trickier. Doc started this procedure back in 1934. Things were a little more lax vis-a-vis civil rights back then. In 1883, the so-called Civil Rights cases reached the Supreme Court. In those cases, the Supreme Court ruled 8-1 that the Equal Protection Clause of the 14th Amendment applied to governments but didn’t apply to people. So when Doc started his cranial conversions in 1934, he couldn’t violate anyone’s civil rights because he was a person not a government.

In addition, back in 1934, the use of leucotomies – or to use their more common and more pejorative name, lobotomies– were gaining acceptance among doctors treating mental illnesses. Even though they were controversial and criticized by some, lobotomies grew in both popularity and frequency well into the 1950s. So generally accepted medical practice might not have disapproved of what Doc was doing.

In 1934, even the courts didn’t disapprove of non-consensual surgeries on individuals that were deemed to be for the greater good. In a rather famous case – Buck v. Bell 274 U.S. 200 (1927) – the Supreme Court upheld a Virginia statute which called for the compulsory sterilization of the intellectually disabled. In upholding the law, Justice Oliver Wendell Holmes wrote oh-so-sensitive explanation that, “Three generations of imbeciles are enough.” So I doubt that at the time Doc started gelding gray matter, the Supreme Court would have stayed his scalpel.

Things are a little different now. The courts recognize the existence of several kinds of civil rights. The civil rights which receive the highest level of protection in the courts are the so-called first-generation rights. In the United States, these are the ones specifically enumerated  in the Constitution which deal with liberty and political activity. In the past several decades, however, several unenumerated rights such as the right to privacy are finding their protectors in the courts, too.

Among the unenumerated rights which are starting finding acceptance is cognitive liberty. This is the freedom that people have to control their own mental processeses. In Sell v. United States 539 U.S. 166 (2003), for example, the Supreme Court imposed limitations on when a state could forcibly administer antipsychotic drugs to a defendant who had been declared incompetent to stand trial for the sole purpose of making him competent and able to stand trial.

So the odds of the courts ruling in favor of the people who are suing Doc Savage for civil rights violations because of his nonconsensual noggin noodling are getting better. I’d like to think the courts are ruling in favor of people not being forced to undergo treatment for their allegedly aberrant behavior, because we’re a bit more enlightened now. But given the nature of some court decisions in recent years, it might just be that the judges are worried people might start using those decisions to prove the judges, themselves, are insane. Maybe the judges aren’t enlightened. Maybe they’re just protecting themselves against any future faculty fiddling.