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Friday, March 05, 2004

Two new interesting legal issues today, an old Supreme Court matter and a new one.

First, the charming discoveries that are being found in Justice Harry Blackmun's papers, which have just been unsealed. Blackmun kept thousands of papers, including the notes that were passed on the bench. The most inflammatory are the papers describing the behind-the-scenes wrangling over Roe in 1972 and the war for the heart and mind of swing-vote Kennedy during Roe II: This Time It's Personal (a.k.a. Planned Parenthood v. Casey).

But the best one is a note delivered to Blackmun during an oral argument in 1973. If there is anything that summarizes the Court, judges generally, and the legal profession as a whole, it is this note. Imagine the solemnity as a law clerk tiptoes up to Justice Blackmun during the argument and delivers...

"V.P. Agnew Just Resigned!! Mets 2 Reds 0."

The second issue is Dudley Hiibel. Everyone needs to know about Dudley.

Dudley Hiibel: Marlboro-Man-Nevada-rancher-turned-patriotic-defender-of-rights.
Dudley Hiibel: drunken-redneck-pain-in-the-ass-who-should-just-give-his-damn-name-to-the-cop.

Which is he? See the police video for yourself. Importantly, you should not believe any of the heated opinion or rhetoric until you watch it and form your own opinion. No extreme statement about this video is likely to be wholly correct.

I think the following is a pretty fair assessment of the events, but again, watch the video for yourself.

1. Someone calls the cops and says that a guy is fighting with a woman in his truck. Earnest young Deputy Dove (most assuredly no relation) goes looking for him. Deputy Dove is played by Scott Wolf from Party of Five.

2. Drunken cowboy Dudley is parked by the side of the road. There are skid marks, but the truck is correctly parked. Dudley (played by veteran character actor James Gammon) is calm and talking to his 17-year-old daughter, who is in the passenger seat. She was mad earlier and started hitting him; apparently this is why the cops were called.

3. Deputy Do-Right pulls up and asks Dudley to come over the car. Dudley complies, though he keeps checking to see if he is illegally parked, because he has no idea why the cop is there. The cop demands Dudley's ID. Dudley is surprised, and sees no reason why he should hand over an ID. (His daughter had been driving.) The cop repeatedly demands the ID, Dudley repeatedly refuses and suggests that Officer Do-Right arrest him because the cop is clearly already disposed to do so. Officer Do-Right arrests Dudley and puts him in the back seat of the car; Dudley cooperates with the pat-down.

4. A second squad car pulls up, and two cops go get the daughter out of the truck. She has been screaming "NO!" as her father was arrested. She ends up roughly thrown to the ground, though it's not clear (to my eyes) whether she fell, or was thrown, or both. Dudley starts loudly saying (though not yelling) "Oh, big man. What a big man you are."

Dudley was fined $250 for resisting arrest. That conviction was appealed to the Nevada Supreme Court, which held 4-3 that the statute permitting officers to demand identification was not a violation of the Fourth Amendment because the new world order after 9-11 requires police officers to be more bold in their investigations. Dudley has appealed to the Supreme Court, which has agreed to hear the case this Term.

An interesting explanation of the case (and a brief summary of the relevant Terry standard) is contained in Dahlia Lithwick's essay in Slate, as well as links to some of the more heated rhetoric in the op-ed pages and the amicus briefs. And you can read all the relevant stuff on Dudley's website.

As Dahlia puts it, why is your name so private? But, as others would put it, what business did the cops have arresting Dudley for not giving his name, when there was clearly nothing going on? That's the issue. Is this like the Gestapo or the Soviets demanding "your papers"?

Now, having been as neutral as I can thus far, let me say this:

Dudley Hiibel's arrest is a goddamned travesty of justice that should have caused riots across the country, and the fact that the Nevada Supreme Court building is still standing is an infuriating indictment of America's numb passivity. Deppity Do-Rite's arrogance makes my blood boil, and even if Dudley was drunk, he was the cleverest drunk I've ever seen. Good answers for every question, cooperative where necessary, a damn fine civil rights defendant.

I strongly support the police, because they have a damned hard job. But Deppity Do-Rite was full of hisself and out of line. That's a problem, but a young cop getting out of line is not cause for a revolution. The real problem is that the police had a videotape to watch -- no he-said-perp-said confusion here -- and instead of dropping the charge, the police continued to press charges. And four justices of the Nevada Supreme Court affirmed with over-the-top rhetoric about 9/11. I think we can all agree that Dudley may have been drunk, but he sure as hell wasn't in al-Qaida. (No news on whether Safire will claim that there is evidence that Dudley had links to Saddam Hussein.)

And now for the inflammatory quote to wrap it up:

"When Hitler attacked the Jews I was not a Jew, therefore I was not concerned. And when Hitler attacked the Catholics, I was not a Catholic, and therefore, I was not concerned. And when Hitler attacked the unions and the industrialists, I was not a member of the unions and I was not concerned. Then Hitler attacked me and the Protestant church — and there was nobody left to be concerned." -- Rev. Martin Niemoller


 10:04 AM

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