On October 7, Hamas terrorists launched a large-scale murderous invasion of Israel from the Gaza Strip, slaughtering at least 700 Israelis, injuring thousands, and taking at least 100 people–women, children, elderly folks–hostage. I am beside myself with horror and in constant touch with my family.
No explainers, as this is unfathomable, nor should you trust anyone already dispensing hot takes. Actual combat is still very much taking place in the streets.
The protest organizations in Israel are collecting funds for all affected communities here.
Israel Trauma Coalition will need all the funds they can get to help build resilience for the many thousands of affected families.
Kibbutz Nir Oz underwent a horrible massacre. Dozens were murdered or kidnapped in front of their families, and homes were burned. They can use your help.
Please do not get pulled into political arguments on social media and comments sections. You are likely wasting your time and exhausting your precious energy arguing with hostile bots.
If you need an uplifting community experience, numerous Jewish congregations are holding special services that can help your morale and make you feel less alone (such as the one I attended this morning at Temple Emanu-El, depicted above). These events are held with heavy police security for obvious reasons.
I still remember the incredible emotions that choked me as I took the last steps of the Oakland Marathon and realized that, yes, I was going to finish. Even with lots of experience racing endurance events, including some very long marathon swim, there was nothing quite like it. And the faces of everyone around me reflected that we had all undergone a very special experience, stretching body, mind and spirit to their limits, and that we would forever share that experience.
It is this direct appeal to common humanity that drives Christine Yoo’s fantastic documentary 26.2 to Life, which is now playing in select theaters and winning all sorts of incredible awards at film festival. With unparalleled access to the inside of San Quentin–the yard, of course, 105 laps of which add up to 26.2 miles, but also other areas of the prison, including the cells–this documentary has the potential to go where no work of advocacy has gone before.
Lots of tired, jargony academic pieces about carceral geography and mass incarceration blather about “bodies” and “embodiment”, but nowhere is the somatic experience of an incarcerated body more visceral than in this film. We see people living under the horrid conditions that are only too familiar to regular readers of this blog and using endurance running–their own bodies, pushed to their limit–to sublimate and divert anger, to release stress, to find liberation, to imagine commonalities and brotherhood with people running on the outside. In one memorable scene, runner Jonathan Levin talks of running as a physical form of doing penance for his crime, reminding me vividly of the incredible ending scene of the Buddhist film Spring, Summer, Fall, Winter… and Spring.
Other runners feature more prominently, and we get to learn their personal stories. Markelle “The Gazelle” Taylor, the fastest runner of the club, dreams of qualifying for the Boston Marathon and running it if he makes parole. Rahsaan “New York” Thomas finds his voice as a journalist and leader in prison (his work for the San Quentin News and for Ear Hustle is also featured in Adamu Chan’s recent documentary What These Walls Cannot Hold. Tommy Wickerd works hard to redeem himself from a life of violence and be as much of a good husband to Marin and father to Tommy II as he can from behind bars. These folks, and many others featured in the film, are people I know. Some of them I met in person, though most of them I did not; I did spend many many hours with their loved ones, and hearing from them, in the weekly #StopSanQuentinOutbreak coalition meetings that we document in FESTER. There was something heartbreaking in watching these very familiar people in footage from before the calamity would strike and terrorize them and require them to develop new forms of courage and work new psychological muscles.
What stands out in the movie is how it lends itself to bridges of empathy and perspective taking. Not pity–though the men’s stories are contextualized in a way that does not absolve them from accountability and yet evinces profound understanding of their circumstances–but the same sense that every one of us has felt upon embarking on a huge athletic undertaking. The same sense of exhilaration and terror that is evident in the first steps of the protagonist of Brittany Runs a Marathon; the same trepidation and enormous effort of the swimmers in Driven; the sense of dread, then relief, accompanying Alex Honnold’s heroic climb of El Capitan in Free Solo. Christine Yoo has elevated Taylor, Thomas, Wickerd and the other runners to their rightful place along these cinematic athletic heroes by bringing her viewers into communion with the most basic things we all share: our bodies and our striving to make something of our lives within them.
You must see this movie. And you also must consider financially helping some of the film’s heroes. As pioneering research by Alessandro de Giorgi shows, the first and foremost challenges for anyone on the outside involve their basic survival: finding a place to live and a job. Even phenomenal athletes are not exempt from this. Markelle sells amazing athletic gear you can wear in pride for your training and racing, and Rahsaan is doing wonderful journalistic work that requires support.. Too often we expect formerly incarcerated folks to hit the ground running with activism for their friends still on the inside, discounting the importance of getting their own lives in order. Let’s lend our fellow athletes a helping hand.
The fierce conflict that erupted in Tel Aviv’s Dizengoff Square on Yom Kippur showed how a classic political philosophy problem can come to blows. Religious organization Rosh Yehudi asked the city–seen as the bastion of civil rights and secular progress–for permission to hold an outdoors prayer with segregation between men and women. Municipal authorities refused: Tel Aviv does not hold segregated public events, a creeping problem in many municipalities in Israel. Rosh Yehudi leaders appealed the decision to the Tel Aviv District Court and were rebuffed, and nevertheless mysteriously announced that they have found a way to hold the prayer in a way that “upholds both halakhah and the law.” At the event, this way was unveiled: they did bring screens and dividers, and some of them were armed.
Secular people, angry at Rosh Yehudi’s flouting of the city and court mandates, interrupted the prayer loudly with noise and protest and removed the barriers. For religious people, this was a difficult sight to bear, as Yom Kippur is one of the only bastions of public religiosity that used to be tolerated and protected by the secular majority. Here is footage of the incident:
Video by The Holy Land, by Zahi Shaked
For more on this, you can listen to this interesting podcast, or read the opposing views of Daniela Gan Lerer and Meital Pinto. The incident also splintered the protest movement, as some thought the provocation would be counterproductive while others expressed the awakening of the secular public from decades of religious coercion.
To me, the incident underscored how much the serious issues that philosopher Moshe Mendelssohn raised in his book Jerusalem are still vividly present–and how they arise in Israel in much the same way that they arose in Germany in the late 18th century. Mendelssohn, a bright light of Western philosophy, in conversation with other Enlightenment greats like Lessing, Dohm, and Kant–whom he beat at an essay competition!–lived a life of deep contradiction (read all about his life in Leora Batnitzky’s book How Judaism Became a Religion.) He was an observant Jew who was at the same time versed in fresh Western philosophy; he wrote commentary on the Torah (which would later be banned by ultra-orthodox authorities) as well as hobnobbed with Berlin’s intelligentsia–even as he had to enter the city, where his own living situation was precarious due to his Jewishness, through the animal gate; he presented Judaism, to non-Jews, as a religion of reason, superior to Christianity in terms of its compatibility with science and reason, lauded ideals of the Enlightenment era, while at the same time explaining the importance of the embodied rituals that made Jews seem so alien to, and othered in, their European surroundings.
The advent of the modern state and the earnest focus on equality and civil rights (along with all the glaring blind spots that it had) brought to the forefront what came to be known as “the Jewish Question”: up until then, as my beloved dad described in his wonderful short story collection, Jewish communities lived amongst themselves, not really mixing up much with the general population, not regarded as full citizens, steeling themselves against pogroms and general hostility from the surrounding community, and pretty much self-governed by their own rabbis and authorities. But with new winds of civil rights and citizenship blowing in European countries, mostly in Germany, some thinkers figured that better integration and civil rights should be granted to Jews. For some thinkers, offering citizenship to Jews was important for the improvement of the Jews themselves, who were deemed backward and reviled based on their dress and customs (as well as their financial occupations); but for Mendelssohn, offering citizenship to Jews was important because Judaism should be regarded as a religion–the person’s private business, between them and their religious community–rather than a membership card in a political entity. In other words, one can be Jewish in their own home, following the customs and halakhic directives, and a full-fledged German or French citizen in the public sphere. The difference between religion and state, posited Mendelssohn, was the source of its power:
The state dictates and coerces; religion teaches and persuades. The state enacts laws; religion gives commandments. The state is armed with physical force and makes use of it if need be; the force of religion is love and benevolence.
This was directed especially as a critique of the practice of religious excommunication: Mendelssohn did not want to accord to religious leadership the statelike power of obliterating a person from their membership lists based on their inner faith or beliefs.
What’s remarkable about Mendelssohn’s writings, and his massive influence on the haskalah movement, is that they centered around the question of Jewish citizenship in European countries. The notion that Jews might at some point be citizens in their own nation-state did not come into the conversation. Just a few decades later, when the Hamburg temple would reform its liturgy, one of its main innovations would be prayer in German rather than in Hebrew, under the assumption that Hebrew was a dead language, irrelevant to the lives of the German-speaking congregation. The idea that, one day, Jewish people would congregate in a public place and pray in Hebrew was unimaginable.
The kicker is this: As my late, beloved colleague Gad Barzilai famously wrote in his book Communities and Law, most of the writings on multiculturalism–in many ways, a continuation of the Enlightenment-era debate–are the work of political philosophers examining the adaptation of ethnic and religious groups to largely Western societies in the United States, Canada, and Europe (Waldron, Nozick, Kymlicka, Parekh). Very little of this has engaged with non-Western societies, and particularly with Middle Eastern societies. Which brings us back to the peculiarities and endemic characteristics of the Yom Kippur conflict. One of the main admonitions of the protesters in the public debate about this was that the prayer gathering was deliberately (and provocatively) planned to take place not only in open, public place, but at a bastion of secularity. “If they want to pray with gender segregation,” goes the argument, “they are more than welcome to do so–in their own orthodox synagogues.” This argument, for me, echoes a Mendelssohnian concept of Israel as a European nation-state: the power of the state is secular and secularizing, and religion should be kept as the person’s private business, conducted in their private sphere, and certainly not endorsed by the state apparatus.
Contrast this to the position held by the organizers of the prayer gathering. Their position implies that Israel, unlike the Mendelssohnian state, boasts a unique religion-state nexus through its declaration of independence as a “Jewish and democratic country”, and has a special, privileged position for the Jewish faith that must be respected in the public sphere. The battles along this lines are many and varied, and only recently included the big blow-up over keeping Passover kashrut laws within public hospitals.
It may well be that “Jewish and democratic” are not harmonizable ideas, and that this conflict, along with its other manifestations, has brought to a head the fact that multicultural theories can produce neat analyses (and clearly defined disagreements) only in the situation that Mendelssohn and his intellectual progeny could envision: a seemingly secular state contrasted with religious subgroups. But even this is a bit farcical. The extent to which German society, presumably sterilized from religious contamination, was truly that–with Judaism having the same relationship with it as, say, Christianity–is highly dubious, and we know that many philosophers of the era (even Kant!) explicitly discussed religious elements in their state theories. Could it be that the relationship of religious Jews with their Jewish-and-democratic state is, in some way, analogous not to the relationship of Jews with 18th century Germany, but rather to the sublimated, seemingly invisible relationship of Christians and Christianity with 18th century Germany? If so, what this conflict does is bring to the forefront a sticky problem that permeated not Mendelssohn’s thinking, but the thinking of his contemporaries, who mistook hegemony for secularity and habitus for neutrality.
A week ago I was asked to comment on an announcement by the Governor of New Mexico who, reacting to a terrifying rise in gun violence in Albuquerque, issued an executive order that would suspend both open and concealed carry laws in Albuquerque and Bernalillo County, temporarily banning the carrying of guns on public property with certain exceptions. Following quite a bit of backlash from both parties, the Governor then limited the ban to parks and playgrounds.
Because this is not my area of expertise/publication, I quickly consulted with my colleague Prof. Jennifer Carlson, who is one of the nation’s most impressive experts on gun policy. Jennifer agreed with me that, even though the Governor’s action makes sense from both moral and practical stand point, it is not constitutionally defensible, certainly not in this judicial climate, after the Supreme Court’s recent decision in Bruen. Still, it’s worth asking ourselves the question whether, even if the constitution allows us to bear arms, it is a good idea to go ahead and do it.
Recently, the Bureau of Alcohol, Tobacco, Firearms and Explosives released a report on guns, which you can read here in its entirety. This NPR story provides some important takeaways which, in my opinion, all boil down to the same conclusion: anyone thinking that the world of gun ownership can be easily dichotomized into good guys/bad guys or legal/illegal guns is not seeing the full picture.
For one thing, it turns out that more than half of gun crimes utilize lawfully purchased guns. To this number, we must add a million stolen guns which were held in legal hands until recently. Notably, the vast majority of guns used for criminal activity are pistols, which a lot of people favor for legal personal use. I think the big question anyone considering a gun purchase should ask themselves is: are the chances that you’ll be using this gun to stop the proverbial bad guy anywhere near the chances of an accident in your household or your gun being stolen?
On a personal note, as many readers know, I was in the Israeli army for five years, engaging in no combat whatsoever (unless criminal appellate litigation counts, but it does not require guns.) For much, albeit not all, of that period, I walked everywhere with my M-16 strapped to my body, including to the bathroom. The idea of lugging around a thing that presented far more inconvenience and risk than comfort and safety holds no charm or mystique for me, and I suspect that, if the symbolic/emotional attachment to the idea of gun ownership is effectively stripped away, a lot more people will see the risk calculus as I do–because it is in congruence with the data.
Another great endorsement for FESTER comes from Prof. Keramet Reiter of UC Irvine, one of the nation’s most respected and productive scholars of extreme punishment and incarceration and the author of 23/7: Pelican Bay Prison and the Rise of Long-Term Solitary Confinement. Keramet is the director of UCI LIFTED, a phenomenal higher education program granting incarcerated people access to, and degrees from, UC Irvine, and also spearheaded the Prison Pandemic project, which collected first-hand accounts of COVID-19 in prisons and was one of our best primary sources.
Here is Keramet’s endorsement for FESTER:
Aviram, with Goerzen, has produced another tour de force unpacking a new legitimation crisis in California’s punishment infrastructure. Marshalling evidence from litigation, first-person narratives, administrative data compilations, and their own advocacy work, Aviram and Goerzen meticulously analyze how COVID-19 outbreaks in California prisons and jails cruelly terrorized incarcerated people and also exacerbated health risks in the surrounding communities. Impressively, the book reads like a true crime thriller – about the horrors wrought not by the people inside prisons but by the people running and overseeing those prisons. Poignant details of everyday life in prisons in crisis make vivid the book’s pointed policy critiques: information gaps about criminal legal system practices, in combination with dangerously inaccurate assumptions about the impermeability of prisons and jails, produce dangerous incarceration conditions. And dangerous incarceration conditions put us all at risk.
Myths can kill, and FESTER dissects a vicious one: the idea that prisons are worlds apart, isolated from their surrounding communities. With passion, rigor, and a flair for storytelling, Aviram and Goerzen show how California’s fealty to this myth placed whole cities at risk during the coronavirus pandemic, transforming the state’s overcrowded prisons into virus bombs that exploded outward. An indictment of a failed system and the politicians and judges who prop it up, this stunning book is also a call to action, laying out reforms that could save lives the next time a deadly virus proves that we’re all connected.
This week, SB 81, having been approved by the Senate, will land on Governor Newsom’s desk. The bill addresses judicial review of the parole board’s decision to deny parole. The latest edition of the bill, if passed, will add the following language as Section 3041.8 to the California Penal Code:
(a) Upon the denial of parole to a parole candidate, following a parole consideration hearing, the Board of Parole Hearings shall notify the parole candidate of their right, after completion of all applicablereview periods, to petition a court for a writ of habeas corpus.
(b) The parole candidate may request that the court appoint counsel for the purpose of preparing the petition. The court may appoint counsel upon this request.
(c) A parole candidate who has been denied parole after reaching their minimum eligible parole date as described in Section 3041, their youth parole eligible date as defined in Section 3051, or their elderly parole eligible date as defined in Section 3055 has made a prima facie case for relief and the reviewing court may not summarily deny a petition for writ of habeas corpus filed pursuant to this section.
(d) The court shall uphold a decision to deny parole only if the court finds, by a preponderance of the evidence, that the person presents a current, unreasonable risk of danger to others. If the court finds the parole denial was not supported by a preponderance of the evidence, the court may issue an order for a new parole hearing, with or without limitations as to what evidence the Board of Parole Hearings may consider.
The most notable aspect of this proposal is that it sets an evidentiary standard for the court’s decision. While the reasons for the parole denial will remain vague (“insight,” “nexus,” etc.), at least the evidentiary side of things will be better grounded.
This is not just semantic or technical. Recall how Gov. Newsom vetoed Leslie Van Houten’s parole, arguing that she was still a risk to public safety? And how the Court of Appeal called his bluff? Here’s what they said: “The Governor’s concern that there is more than meets the eye is, on this record, speculation, but the Governor’s ‘decisions must be supported by some evidence, not merely by a hunch or intuition.'” The latter part is language from In re Lawrence. It will be good to have all this grounded in actual probability and common sense, not just in the gut feelings of people whose default is to be overly cautious about release.
DO SOMETHING! If this seems like a good idea to you, call the Governor’s Office at (916) 445-2841 and express your support for more robust and well-framed judicial overview of parole boards.
Happy New Jewish Year to all. May we all become מתירי אסורים – unchaining those suffering in bondage – this year and always.
After much consternation and many compromises, AB 474 cleared the Appropriations Committee last week and is headed for a floor vote at the California Assembly. The bill regulates the markups at prison canteens, setting prices at a level that “will render each canteen self-supporting,” which effectively means a reduction in canteen markup rates from 65% to 35% for the next 4 years (until 2028). On January 1st 2028, CDCR may ratchet up the markup rate to make canteens “self-supporting.”
As someone interested in both prisons and food, I’ve organized events that classified correctional institutions as food deserts, and rightly so: the cuisine is horrendous. When I visited a Brazilian maximum-security prison a few years ago, I marveled at the organic vegetable garden that surrounded the facility and enriched the decent and nutritious meals served there. The battle to lower canteen prices reminded me of those experiences and raises the question: would we be so worried and upset about canteen markups if the regular meals were decent?
I think the answer is: it’s all about balance. A few years ago, I attended a panel about food and law, in which one of the speakers, a law professor and farmer, expounded on the need to bring native foods back to the communities, claim ownership of native crops, etc. etc. I raised the question of prison canteens, and the fact that some of the most oppressed people on the planet just want some comfort and simple pleasure from their food and might not be aggressively lobbying for heirloom beans. The guy almost chopped my head off and was incredibly rude and dismissive. By pure coincidence, linguist Janet Ainsworth was in the audience, conducting fieldwork on gender norms in academic settings, and wrote up the following (M was the anti-colonial radical-farmer-cum-academic guy, I was the F Qer who was thrice interrupted):
During their panel presentations, three of the four panelists invoked critical ideological positions as underpinning their presentations—both men and one woman. Specifically, one of the two F speakers referenced Critical Race Theory in her presentation, one M panelist referenced critical theory (unspecified), anti-racism, anti-subordination, anti-capitalism, anti-colonialism, and anti-neo-liberalism in his presentation; the other M referenced critical race theory, anti-capitalism, anti-racism, white privilege, and anti-colonialism in his presentation. Conspicuous by its near absence was feminist theory; it was referenced by one of the F speakers once in a response to a Qer. In immediate response one of the M panelists interrupted and responded critically to her suggestion that feminism had a progressive role to play in the topic; she immediately took an apologetic turn, beginning “Yes, yes, I didn’t mean to say…”
This session was marked by interruptions and negative assessments by the male panelists of the speaking turns of the F Qers. One M panelist interrupted F Qers on two occasions, the other M panelist interrupted F Qer speaking turns on six occasions. This more aggressive M panelist began one of his response turns with “I disagree with everything you said,” his response turn took 3 minutes and 52 seconds. (My qualitative assessment of that turn was that it was only very tangentially related to the point that the initial Qer had made.) The same F. Q’er began a follow-up turn, and after eight seconds, the same M. panelist interrupted again, beginning his turn with “No, what you must understand is…” His turn continued for 6 minutes and four seconds. The same F Q’er tried again to take a speaking turn; this time he interrupted her after four seconds. Two of the F. panelists at this point called him by name twice, in what appeared to be an attempt to open a space to speak for the F Q’er. He ignored both F. panelists and took another two minute and 18 second speaking turn. This M panelist interrupted the speaking turn of an additional F Qer later in the session, and he also interrupted the speaking turn of one of the F panelists in her response to a Qer.
Janet astutely remarked about this exchange:
One striking observation is that the male panelists who in their presentations most explicitly and frequently remarked upon their commitment to left-wing and critical theory stood out in the nature of their interactions with female questioners and co-presenters. They interrupted women, negatively assessed female contributions, and seemed unwilling to engage with them, instead taking long speaking turns that were irrelevant to the points earlier made by women speakers. This sample is far too small to suggest that male academics whose presentations prominently reference their commitments to left-wing political theory are more likely to discursively bully women academics. . . However, it does suggest that merely having an academic understanding of power, privilege, and hegemony is not sufficient to counter the tendencies of some male academics to utilize their discursive privileges to silence and discipline women in the academy even today.
But I digress (thanks for indulging me in this little exorcism; who hasn’t interacted with a chauvinist brute at a conference from time to time?) The point is that we must cultivate enough love in our hearts to fight two simultaneous wars. The short-term fix for the prison nutrition crisis is reasonable pricing at the canteen, because people must have access to something comforting and not torturous to eat. The long-term fix must acknowledge that even a 35% markup is an exploitation; canteen foods are goods that currently have no viable alternative. Incarcerated people can’t choose not to eat them, because the default option is inedible. Consequently, for people who want to eat what their palates recognize as food–100% of the prison population–the canteen has a monopoly, and the markup cannot be avoided. If canteens want to make a profit, improving prison food is the way to go; high pricing for luxury items is fair only if they are truly luxury items, not essentials.
The problem of short-term versus long-term goals is a mainstay in social justice struggles. I see it again and again. During COVID-19, as we describe in Chapter 4 of FESTER, activists had to tackle the trade-off between the short-term struggle to make vaccines accessible and increase vaccine acceptance (short-term life-saving measure) and the long-term struggle to save lives from pandemics and other diseases through population reductions (the only viable long-term solution to the prison disease problem.) The challenge was that the vaccines provided courts and politicians respite from the pressing questions of overcrowding, and were universally used as an excuse not to release nearly enough people.
Similarly, I would like to believe that we all want to eradicate rape culture, and that we all know that is a long-term struggle and a worthy one. At the same time, I would really love it if nobody got raped tonight (a short-term struggle.) For that reason, I advocate sensible behavior and caution: self defense classes, a buddy system, and a lot of judgment and circumspection around any situation involving alcohol. Long-term activists might bristle against this advice because it places the responsibility for rape prevention on the putative victims. This, I’m sorry to say, is nonsense; if you are assaulted it is not your fault! it is the fault of your assailant. And at the same time, we do not live in a world devoid of bad people, and if you get drunk or put yourself in vulnerable positions you are taking a risk that bad people will exploit the situation and do bad things to you.
Want another one? When we voted on death penalty abolition, activists argued it would only entrench life without parole, which was “the other death penalty.” Getting rid of the death penalty was a short-term struggle; getting rid of extreme incarceration, including life without parole, would be a long-term struggle. In response, I wrote this:
Unfortunately, the struggle against life without parole cannot begin until we win the struggle against the death penalty, which is within reach. This is, unfortunately, how political reform works: incrementally, with bipartisan support, and supported by a coalition. As I explain in Cheap on Crime, incrementalism produced the considerable reforms that occurred since 2008, and this one will be no exception.
The prison food struggle exhibits the same characteristics, and I think this requires a dialectic approach. I fully support the fight to reduce markups today, and at the same time I support continuing to fight for a world in which the food one is supposedly getting for free somewhat dulls the necessity for markup reductions. The problem, as we see with prison disease prevention and with rape prevention, is that sometimes short-term and long-term struggles can get in each other’s way. In those situations, I recommend thinking about the viability of the long-term goal and operating accordingly.
As I was preparing to teach the first Fourth Amendment class, I got an email from our appellate advocacy team: would I be willing to be on a panel about Idaho v. Dorff, an Idaho Supreme Court case that has been granted cert by SCOTUS recently? I read the whole decision – you can do the same here at this link – and honestly, I’m not sure how much of a big deal this is. Here’s the back story:
On a night in August 2019, a patrol officer from the Mountain Home Police Department initiated a traffic stop on a vehicle. The patrol officer reported witnessing the driver “make an improper turn,” “cross three lanes of traffic and then fail to use [his] turn signal.” Two men were in the vehicle: Kirby Dorff, the driver, and Mitchell Hall, a passenger. After the patrol officer stopped the vehicle in a grocery store parking lot, Dorff told the officer that he did not have a valid driver’s license or proof of insurance in the vehicle. During the time the patrol officer was speaking with Dorff and Hall, a K-9 officer arrived on scene with his drug dog, Nero.
The K-9 officer circled Dorff’s vehicle twice with Nero. Nero never entered the interior compartment of the vehicle.However, as Nero circled the vehicle, Nero directed his nose close to the vehicle’s seams (nearly touching the vehicle in many instances); entered the wheel well areas with his snout; and reached for the vehicle’s undercarriage with the same. On Nero’s second pass, body-camera footage from the on-scene officers shows Nero made two potential contacts, and one explicit contact, with the vehicle’s exterior surface: first, on the rear passenger side of the vehicle (briefly as he jumped up); second, on the front passenger side of the vehicle (again, briefly as he jumped up); and third, on the front driver side of the vehicle—this time planting his front paws to stand up on the door and window as he sniffed the vehicle’s upper seams. During this time, the K-9 officer made upward gestures, purportedly “[p]resenting areas for [Nero] to sniff.”The K-9 officer later testified that Nero alerted during his explicit contact with Dorff’s vehicle, i.e., after Nero stood up and put his front paws on the front driver side door and window.
Following Nero’s alert, on-scene police officers searched Dorff’s vehicle.In it, they found a pill bottle, folded papers, and a baggie—all containing white residue that later tested positive for methamphetamine.The officers also found “[a] purple container filled with a green leafy residue” in the trunk.
This led them to more searches and more evidence, all of which would fall apart if the initial search was unreasonable. Which, of course, Dorff claims it was. Here’s the footage from the search – you be the judge:
Exhibit A
Exhibit B
Fourth Amendment enthusiasts in the crowd may recall that, in 1967, the Warren Court replaced the trespass test with a subjective-objective privacy test: police action is a “search” or a “seizure” if it violates the target’s reasonable expectation of privacy. Anyone seeking to suppress evidence has to show that they had a subjective expectation of privacy in the premises/effects, and the court must find that it’s an expectation society accepts as reasonable. But in 2012, the Roberts Court held that they had never completely abandoned the trespass doctrine. Following up on this logic, the Idaho Supreme Court digs deep into 18th century British Law (I read 20 pages of Blackstone blathering so that you don’t have to) and found that the touching of the car with the dog’s paws is “intermingling,” which constitutes trespass to chattel, and is thus a “search.” Okay.
I have two thoughts about this. The first one is that, watching the videos, I think one could make a plausible case that the dog-on-car-door action in this case was a search even under the reasonable expectation of privacy test. The video is truly worth a thousand words. First of all, not to put too fine a point on it, Nero is a big-ass dog. It reminds me of Dr. Mortimer’s immortal words: “Mr. Holmes, they were the footprints of a gigantic hound!” And Nero was leaning on the window for a good six seconds, wasn’t he? That’s clearly visible in Exhibit B. I think the extent to which this was a menacing, intrusive situation can be sensitive to the size of the dog and to the length of the intrusion. Seeing Nero slobber in my car window would definitely make me feel like some boundary between me and the world has been intruded.
The second thought has to do with Nero’s handler, who seems to be motioning upwards and even, if I’m not mistaken, saying “up” at some point. This is related to my general disgruntlement about how our exploitation of animals extends law enforcement activities. The Fourth Amendment applies only to state action, which raises the question – what is Nero, exactly? A cop? An instrument of a cop? A civilian police employee or volunteer? Some animal rights theorists are pursuing animal personhood in the form of labor rights for police dogs. Is the determining factor whether Nero is his own agent, or following his handler’s command? Or is the extent to which his whole life revolves around being useful to humans in detecting drugs determinative in making anything he does into state action, regardless of whether he is responding to a command at that particular moment?
I talked about this with some eminent Fourth Amendment eggheads, who do not think this case will be a big deal in the long run. First of all, the Supreme Court granted cert but will likely not reverse and it just not that interested in Fourth Amendment issues. And second, this case can easily be limited to its facts. I’m not so sure. Consider the fact that the Golden State Killer was caught, in part, through removing DNA from the exterior of his car. Would that behavior now require a warrant? Does this mean we now treat every vehicle–not just vehicles located in the home’s driveway–as a protected constitutional zone?
Agatha Christie novels have such convoluted plots that they sometimes feel like protracted solutions to SAT questions. Sometimes I wonder why they’ve been so successful and continue to be so. This morning, at about 4am, a piece of the answer came to me.
I was listening to a terrific audiobook, narrated by the gifted Emilia Fox, and it was to her great credit (and perhaps my great detriment) that the narration was so fantastic that I could not go back to sleep. In the first few chapters she describes the train voyage of Mrs. McGillicuddy, in which she witnesses a horrible crime through the window near her seat.
I really recommend listening to the whole thing, but especially to the first few chapters:
The solution, etc., is interesting, but what I find really grabs my attention is Christie’s sensitive and deeply relatable description of Mrs. McGillicuddy’s frustration at not being believed. She doesn’t have to spell out “ageism” and “sexism” for the reader (or listener) to be irate on Mrs. McGillicuddy’s behalf, as she is being pooh-poohed by various railway employees who think she is fantasizing. The relief you feel when she gets to her destination–her old friend Jane Marple’s home–and is finally believed, her evidence taken seriously and respectfully, and her mind set at ease as Miss Marple takes over the investigation. Whether or not one loves the usual Christie machinations that follow, those first few chapters are such a gem.
