Tagged: 4th Amendment

The Law Is A Ass

Bob Ingersoll The Law Is A Ass #389


Now I know the answer to the question.

For years people have been asking me, what kind of laws would the Marvel or DC legislatures – federal, state, or local – have passed in light of the super-powered activities in their respective universes?

Now you know the question.

So, what’s the answer? Well, after what happened in the Robin War story that ran through several of the Batman family of books earlier this year, I deduced what the answer to that question must be. A two-thirds supermajority of Congress must have passed an amendment to the Constitution. Then a three-fourths supermajority of the fifty states ratified said amendment and the amendment became part of the Constitution, the supreme law of the land.

What did said amendment say? Again, based on what happened in “Robin War,” it must have said, “Hey, you know that whole Bill of Rights thing? Offer void where prohibited.”

Seriously, there can be no other explanation for what happened in “Robin War.”

Now, if you’re good, you should also know the next question: What happened in “Robin War?” And I’ll get to that. But before I can answer that question, I have to tell a little of what happened in We Are Robin, the comic book off of which “Robin War” spin-off spun.

We Are Robin was a comic book about an African-American teenager named Duke Thomas, who was so inspired by Batman and his succession of Robin sidekicks that he created his own startup comprised of teenage crime fighting vigilantes. Everyone in the group adopted the non du guerre Robin and wore something with an identifiable element of the Robin costume on it. Maybe a red shirt or hoodie or baseball cap. But something that was red and had the Robin insignia on it. The Robins fought crime in Gotham City, and spouted the team’s catchphrase, “I am Robin,” more often than a pod of whales with a dozen extra blowholes.

Which leads us to “Robin War.” In Robin War #1, one of the Robins stopped an armed robbery. The Robin subdued the robber and had taken his gun. That’s when an armed police officer entered the store and, upon seeing two masked people in the store one of whom was holding a gun, made the not unwarranted assumption that both the actual perp and the Robin were robbin’ the store. While the police officer tried to make an unwarranted arrest – well, it was a warranted arrest, the officer just didn’t have a warrant – the Robin didn’t put down the gun as ordered and tried to explain that he was one of the good guys and had apprehended a robber. The robber used the confusion to try to escape. Which created a “shots fired” situation. Unfortunately, shots were fired by the Robin into the officer, accidentally killing him.

That’s when the Gotham City Council, led by Councilwoman Noctua, passed the most sweeping and unconstitutionally overreaching laws I’ve ever seen. Which is why I hypothesize that there must have been a “void where prohibited” amendment added to the Constitution. Otherwise the “Robin Laws,” unlike a real robin, could never have gotten off the ground.

The laws placed City Council “in charge of all police matters related to Robin matters.” They also made possessing or wearing “Robin paraphernalia” illegal. “Anyone seen in a Robin mask, or a Robin ‘R’ or whatever they wear [would be] immediately identifiable as a delinquent and subject to arrest.”

How broad and overreaching were these laws? Well, when Duke Thomas was walking down the street, he was arrested simply for wearing red sneakers. “Red means Robin. And in Gotham, Robin means you’re under arrest.” The shoes in question had no Robin indicia on them. No Robin logo. Not even an R. Duke was arrested simply for wearing red shoes.

In a world where the Constitution hasn’t been declared void, this law would be struck down as unconstitutionally overbroad. You can’t make it illegal for all people to wear red clothing, simply because some kids wore red clothing to play at being Robin. Under the law, people who were wearing red for perfectly legal reasons would be subject to arrest. Ringmasters could be arrested. Revolutionary War reenactors. Hell, firemen could be arrested for wearing their red suspenders.

In the height of the Crips and Bloods wars, did Los Angeles make it illegal to wear black or red? No. If they had Wayne Gretzky would have won the 1993 Stanley Cup playing for the San Quentin team, not the Los Angeles Kings.

Know what else would be unconstitutional? City Council ordering the police department to search every locker in a school “for evidence of any delinquent activity.” So guess what happened in Gotham City schools after the Robin Laws were enacted?

I know in New Jersey v. T.L.O., the Supreme Court of the United States ruled that a school environment does permit some easing of the search and seizure requirements of the Fourth Amendment. But even T.L.O. didn’t authorize the wholesale abandonment of the Fourth Amendment shown in this story. Or the sort of blanket searches committed in this story. Hell, they weren’t even searching for blankets.

The T.L.O. court said a high school search is reasonable if 1) there are reasonable grounds for believing the search will reveal evidence that the student or students whose property is being searched violated the law and 2) the search is related to the objectives of the search and not excessively intrusive. The searches conducted in this story didn’t meet either of the T.L.O. criteria.

Search of every locker in a school to find out whether any of the students might possibly have Robin paraphernalia? Not based on reasonable suspicion. Search every locker even those of students you have no reason to believe might be Robins? Excessively intrusive. Let silly things like the Constitution stop you from doing whatever you want? Naw, constitutions are for wussies.

Then there was the question of what the Robin Laws allowed Gotham City to do with the Robins after most of the Robins were arrested. In Detective Comics v2 #47, we learned the Robins were being kept in supermax jail cells suspended from the ceiling like bird cages. Because, well when you’re dealing with a bunch of kids wearing bird-motif costumes, why be subtle?

Some of these Robins were under the age of 18, so juvenile offenders. Juveniles are treated differently than adults. When a juvenile is arrested in New Jersey, the courts must hold an initial detention hearing by no later than the following day and both the juvenile and the juvenile’s parents or legal guardians must be present. They can’t be held in supermax conditions indefinitely. Moreover, the parents or legal guardians of a juvenile must be notified of the juvenile’s arrest and must be present anytime the juveniles are questioned. The juveniles can’t be held incommunicado.

You know, the Robin Laws in this story were so extreme and sweeping and illegal and unconstitutional, you’d think that Councilwoman Noctua, who spearheaded the laws, had her own secret agenda and was benefitting financially from the chaos the laws created. Turns out –


Noctua was lining her pocketbooks from the chaos created by the Robin Laws and using the laws to earn a place in the Court of Owls.

Of course, that doesn’t explain why the rest of the Gotham City Council agreed to these patently unconstitutional laws. But I only explain why legislatures in comic books can’t do the things they’re shown doing. I don’t try to explain why they do them. That way lies madness.

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

Bob Ingersoll: The Law Is A Ass #356: RICK CASTLE HAS A SEIZURE

127956_9905Aced her Captains Exam, my ass! Based on the level of knowledge Kate Beckett showed this week, she couldn’t have aced a Poker hand with a stacked deck.

The May 11th episode of Castle was a fairly typical episode of the show. I’m not saying that like it’s a bad thing. A fairly typical episode of Castle is entertaining and doesn’t insult your intelligence over much. A fairly typical episode of Castle, also means New York City homicide detective Kate Beckett and her husband, mystery writer Rick Castle, were investigating a murder.

The episode started with a Jane Doe running through some remote woods in upstate New York then out onto a road, where she was hit by a truck, and died. Someone had carved crosses onto the woman’s face, so the state troopers believed she had been attacked in the woods then chased until she was hit by the truck. The truck driver saw a dark figure wearing a mask emerge from the woods. Based on this, the state troopers classified the case as a homicide. There was a recent receipt from a Manhattan coffee shop on the victim, so the troopers called Beckett hoping she could help them track down the victim’s identity.

Accidental death by truck during a brutal assault, however, is too ordinary a case for a police procedural show like Castle. There had to be a complication. Something to give the case that audience-grabbing oomph just before the show broke away for the opening credits.

There was. First Castle recognized the facial cross carvings and the truck driver’s description of the assailant’s mask. Then Castle gave us that extra oomph.

When he was a boy, Castle chanced upon a murder in progress while walking through some woods. Castle saw the killer had carved crosses onto the victim’s face and that the killer wore a distinctive mask; the same crosses and same mask from the current Jane Doe case. Castle realized that the Jane Doe was the work of a serial killer who had been operating for thirty years.

The detectives determined that their killer du semaine must have hidden his victims’ bodies so none were ever found. They were classified as missing persons. No one knew they murder victims, let alone that there was a TV-styled serial killer involved.

No one, that is, until Castle put the pieces together. When Castle saw the killer the first time, the killer, for reasons known only to no one, didn’t kill the only person who knew about his mask and his penchant for carving facial crosses. The killer simply warned Castle not to tell anyone about what he saw. Because that’s what you want to do if you’re a serial killer who operates in such secrecy that no one even knows you exist; you leave the only person who knows you exist alive to talk to the police. Oops, let me rethink that whole not insulting your intelligence thing.

In the course of their investigation, Castle and Beckett end up interviewing a person and Castle immediately recognized that person’s voice as being the murderer’s voice. So with about ten minutes to go in the episode, Castle and Beckett knew who the murderer was.

Problem was they had no proof.

Then Beckett learned the murderer’s dead parents had owned a remote farm in upstate New York near where the Jane Doe died. The farm was now held in trust now and their suspect was the trustee. Castle and Beckett realized that this remote farm was a perfect place for hiding bodies.

Problem was they still had no proof.

Beckett knew she could never get a warrant to search the farm based solely on Castle’s thirty-year-old voice recognition. “And if I searched it without one, then any evidence I would find would be inadmissible.” Okay, so far so good. Beckett showed an understanding of search and seizure law that was more than good enough to you ace a captains exam.

Then Beckett proved she actually understood search and seizure about as well as Cookie Monster understands good eating habits. “But you’re not [a cop],” Beckett said to Castle. “It would be trespassing. You would be breaking the law. But if you found something… And I know how much this means to you. So whatever you decide, I will back your play.”

The show broke for commercial. But rather than watch AT&T’s Lilly profess her love of bedazzling again, I took the opportunity to start writing this column in my head.

Detective Beckett was correct, the Fourth Amendment did prevent her from searching the farm without a warrant. Beckett was also correct that the Fourth Amendment doesn’t cover the actions of private citizens and that if a private citizen searched the farm without a warrant then gave any evidence he found to the police, that evidence would be admissible, because there was no state action involved – state action being actions by any government, either state or federal. It’s called the Silver Platter Doctrine, a term first used in Lustig v. United States, 338 U.S. 74.

Where Beckett went wrong was classifying Castle as a private citizen.

If a private citizen conducts a search while acting as a government agent, then state action does exist. United States v. Jacobsen 466 U.S. 109. If the private citizen is working with the police, than anything the private citizen finds during an illegal search is every bit as inadmissible as evidence found by an actual police officer, because, in essence, the police did find it.

So the question is: Was Castle acting as a private citizen or as a government agent when he searched the farm? The answer is plain. But to make it plainer, let’s look at the test most federal courts use to determine whether a person is acting as a private citizen or a government agent.

It’s a two-prong test, because courts would never make anything so simple that it could be answered with only one prong. The prongs are “ 1) whether the government knew of and acquiesced in the intrusive conduct, and 2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.” U.S. v. Walther 652 F.2d 788, 791 (9th Cir. 1981).

Here Detective Beckett not only knew of and acquiesced in Castle’s warrantless search, she actually suggested that Castle commit criminal trespass in order to search the farm for the evidence to convict the murderer. Under the Walther test, there wasn’t enough doubt that Castle was acting as a police agent to give Thomas the Apostle pause.

And even Thomas would have stopped doubting when the show came out of commercial break. Castle didn’t drive up to the farm alone. Castle and Beckett drove up to the farm together. Beckett stayed in the car which was parked just on the other side of the farm’s property line and watched through binoculars, while Castle searched the farm’s barn. But Beckett didn’t want Castle “going in alone.” She instructed him to put his cell phone on speaker. Ever the dutiful husband, Castle gave Beckett a step-by-step account of what he found over his cell. At one point, Beckett even told him, “you’re gonna need more than that to call the police. Look around he may have keep trophies from his victims.” Beckett may not have been physically conducting the search, but she was directing it from long distance.

Was there state action? Hell yes! Castle’s search had more state than the 114th Congress. In fact, considering current gridlock, Castle’s search had a more government action than the 114th Congress. A lot more.

Beckett’s suggested plan of attack was one that guaranteed none of the evidence found on the farm would be admissible. Her plan actually jeopardized their chance of catching the killer. Unless, of course, she and Castle planned to lie on the witness stand about how Castle found the evidence.

But they wouldn’t do that, would they? Not even I am so cynical as to suggest that “Effective Perjury” is covered in the captains exam.