Things we’ve forgotten: And things we wish we could forget
One of the worst things affecting the sold-out Providence Urinal these days, which the late and beloved lunatic legend Buddy “Vincent A.” Cianci correctly referred to as the “Providence Pamphlet,” given its having the heft of a baby’s pacifier, is not the takeover by the outside force that publishes USA Today, but its current lack of what is called “institutional memory.”
Gone from the Urinal are people like Bob Kerr, Scott MacKay, Charlie Bakst, Alan Rosenberg, Bill Reynolds and others who could give you a living synopsis of the state and stories related to what is now happening in Little Rhody and how they related to the past. These stories were as close to a history class about The Biggest Little as you could find, exploring the links between bygone events and today’s news.
Today’s Urinal is so lightweight as to be laughable, especially when they have the audacity to sell this fish wrap (although it might be tough to cover even a good-sized menhaden) for $3 a day, and $6 on Sunday. A copy of the New York Times Sunday edition is a day’s worth+ of reading and is the same $6, while you can get through a copy of the Urinal in 15 minutes. Thank you, USA Today.
The new executive editor, David Ng, is quite taken with himself and his experience, even to the point of dropping the name of famed journalist Peter Hamill, and the insecurity and self-absorption of that alone should warn people off. And you know he would not have a clue if someone asked him about “Raymond.” And while P&J are certain that new staff addition Amy Russo is a sweet, charming and wonderful person, the fact the Urinal considers her column about what it is like to move to Rhode Island from New York City feature-worthy is insipid, essentially taking time to inform locals about what they already know. Tell us more, Amy, you fahhh-scinate us.
And on the short side, how this clown Victor Davis Hanson is allowed to write for anything more than a QAnon leaflet is absurd, but he was given voice by the Urinal after its transition, becoming a featured columnist to “balance” the supposedly liberal op-ed opinions prior to the Urinal dumping all editorials. Gutsy move, or should we say shameless (and we’d add “whores” here, but that would be impolite).
So please hang in there, the lovely and fragrant queen of the State House, Kathy Gregg, one of three people in the state who can understand each year’s budget; the relentless G. Wayne Miller; and Alex Kuffner, the excellent environmental reporter who carries on a proud tradition on Fountain Street from Bob Frederickson to Peter Lord to Alex himself, highlighting that in the Ocean State, it might be a good idea to focus on natural resources issues, which even the morons in charge might twig to.
Other than those all-stars, may we say to the nattering nabobs (tip of the hat, Spiro) at the Urinal, go eff yourselves and keep counting the $3 a day for absolute crap. You have ruined a wonderful and respected RI institution, and that is a memory everyone will definitely retain.
If you are glued to the old-school broadcast TV, as are Phillipe & Jorge, you know you are spending nearly one-third of your time watching advertisements. And what a joy, n’est-ce pas?
Because of this, P&J consider ourselves connoisseurs of promotions for the fast-food chains and ambulance-chasing lawyers commandeering our intervals away from such highbrow shows as Downtown Abbey and Young Sheldon. (Note to NAMBLA: we watch the latter because it’s actually amusing, as longtime fans of Big Bang Theory. So piss off!)
But P&J have laughed out loud at the most recent attempt by Big Pharma to draw in customers via yet another phony “disorder” to treat the Great Unwashed (remember “Restless Leg Syndrome,” folks?). This is “Peyronie’s Disease,” and a cure to correcting a gentleman who may have a crink in his penis. (Apologies, but they said it first.)
While P&J would normally dismiss this as your usual ad agency scam to get the OK from a bunch of empty suits right after their three-martini lunches, we lit up when we heard one of the pitches on how to correct this devastating disease that threatens male humanity (and female, according to how far you want to “extend” this – insert snare drum rim-shot and audience applause here).
What caught P&J’s ears was that part of the professional advice given to PD sufferers was “stretching and straightening” exercises of the crooked organ. Well, take it from us, men have been practicing these “stretching and straightening” maneuvers on their johnsons by themselves for centuries with little or no advice from anyone named “Peyronie.” (“If that is indeed your name, Colonel Bat Guano.“– See, Dr. Strangelove, as P&J quickly go off course.)
Something to Marvel At: Marvel changes the Punisher’s logo after years of appropriation
On Monday, December 20, 2021, Marvel announced its new prestige comic book series featuring their infamous character Frank Castle, The Punisher. The title, releasing in March 2022, is described as “a series years in the making that will mark the definitive culmination of Frank Castle’s journey.” The new series will be written by Jason Aaron (The Avengers) and drawn by Jesús Saiz (Ka-Zar) and Paul Azaceta (Amazing Spider-Man).
The series is sure to include some big developments for the character, including a controversial change to his iconic skull logo. Many fans are outraged, as fans are prone to be, by this departure from tradition. But Marvel has an unusual reason for the skull alteration.
Introduced as an assassin hired to take out Spider-Man in the 1970s, The Punisher quickly evolved into Marvel’s quintessential antihero: a vigilante who deals out harsh justice by any means necessary. This brand of unrestricted aggression is a trademark of the character who is often placed on both sides (and sometimes directly in the middle) of the neverending battles between good and evil. The Punisher’s rash and sometimes cruel executions of justice have often received criticism within the Marvel Universe and in real life.
While not everyone may be familiar with The Punisher, they may recognize his iconic logo, a white skull with elongated teeth. In recent years, the symbol has been co-opted by police, people who serve in the military, and even far-right extremist groups. Though many claim to identify specifically with The Punisher’s unrelenting desire to carry out justice, it is hard to ignore the aggressive connotations of the symbol.
It raises the obvious question, why identify with such an inherently violent character? Why not with Spider-Man, or Captain America, or Superman, or frankly any character that is more virtuous in their pursuits? Some might reduce the answer to, “he’s a badass,” which I totally agree with, but so are Flash and Hawkeye. I could even see the argument for Punisher’s moral grayness, thus making him seem more relatable, but there are dozens of characters throughout pop-culture who display those same traits.
In recent years, we’ve seen Punisher’s iconic symbol constantly appropriated by individuals who favor aggressive and violent tactics. We’ve seen it utilized by massive numbers of police officers and throughout the military, as a subtle glorification of the violent aspects of their careers. More notably, it’s often used by far-right extremists such as The Proud Boys and other white nationalist groups. For these, it’s clear that they identify with Punisher’s use of brutal tactics to achieve their specific version of justice, but this runs quite contrary to the creator’s intention.
Punisher co-creator Gerry Conway is no fan of his character’s appropriation, stating in a 2019 interview, “It’s disturbing whenever I see authority figures embracing Punisher iconography because the Punisher represents a failure of the justice system…” In his ongoing efforts to combat those warping the intentions of the character he brought to life, Conway launched the Skulls For Justice campaign in 2020 hosted by apparel company Custom Ink. The campaign features t-shirts featuring the Punisher logo entwined with Black Lives Matter (BLM receives 100% of the proceeds).
“For too long, symbols associated with a character I co-created have been co-opted by forces of oppression and to intimidate black Americans,” Conway says on the Skulls for Justice merch site. “This character and symbol was never intended as a symbol of oppression. This is a symbol of a systematic failure of equal justice. It’s time to claim this symbol for the cause of equal justice and Black Lives Matter.”
Though Marvel hasn’t explicitly stated the reasoning behind the icon change, it could be representative of the company’s desire to distance the character from real-life violence. The meaning of any story is defined in part by audiences. Rebooting the icon is an effort to regain control of a character whose perception has evolved in unanticipated directions. Hopefully, this reboot can force new thinking into segments of our society that were seeing a different message in the classic icon.
The Pro-Life Self-Defeating Legal Trap: Be careful what you wish for
What happens if the US Supreme Court overturns the half-century of precedent on abortion? I discussed that in some detail three years ago (“News Analysis: What Happens if Roe v. Wade is Overturned?”, by Michael Bilow, Feb 20, 2019), and that article was updated when the Reproductive Privacy Act took effect on June 19, 2019, writing into RI state law the current federal standards underRoe v. Wade (and its lesser-known companionDoe v. Bolton decided on the same day) in 1973 andPlanned Parenthood v. Casey in 1992, in case the Supreme Court should overturn or weaken those.
Although a reversal of Roe would have little direct effect in RI because of this statutory protection, it would have drastic consequences in other states, many of which have “trigger” statutes that would ban abortion automatically if Roe were overturned. But the reasoning used to reverse Roe, if the Supreme Court does that, could threaten many other fundamental rights that have been assumed safely protected under American law until now.
With a strongly conservative Supreme Court reinforced by three members appointed by Donald Trump, it is widely expected that a case awaiting decision will significantly curtail or even completely eliminate the constitutional right to abortion prior to “viability,” usually considered to be 24 weeks into an ordinary 39-week pregnancy, recognized under Casey. InDobbs v. Jackson Women’s Health Organization, the State of Mississippi enacted a law clearly violating the Casey standard, intending to raise exactly the kind of litigation test that would offer an opportunity to reverse it. Dobbs received two hours of oral argument before the Supreme Court on December 1, 2021, after which most analysts concluded that federal protection of abortion rights is likely doomed by the time a ruling is due by June 2022.
The often-criticized aspect of Roe and Casey on a legal basis is that, undeniably, the text of the Constitution and Bill of Rights are silent on abortion, and indeed on any aspect of childbirth and reproduction. Unlike freedom of speech or press, free exercise of religion and right to trial by jury, this simply did not seem to enter into the mindset of the Colonial-era Framers, despite their finding time to explicitly prohibit quartering of soldiers in private homes.
The emergence of childbirth and reproduction as areas of life where individuals have constitutional rights against government interference first arose in a 1965 ruling,Griswold v. Connecticut, that invalidated a Connecticut state law that denied access to contraception even for married couples, finding a right of privacy in the “penumbra” (shadow) of the Bill of Rights. The court ruled: “We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred… Yet it is an association for as noble a purpose as any involved in our prior decisions.” In a 1972 case from Massachusetts that reaffirmed Griswold the year before Roe was decided,Eisenstadt v. Baird, the constitutional right of access to contraceptives was extended to unmarried people.
Over time, and especially in Casey, the right of privacy applicable to childbirth and reproduction came to be seen as grounded in the Due Process Clauses of the Fifth and Fourteenth Amendment: “…nor shall any State deprive any person of life, liberty, or property, without due process of law.” Most of the time, courts are concerned with “procedural due process,” which provides protections such as requiring notice of charges and fair trials before locking up someone and thereby depriving them of their liberty. However, there is another prong that courts have come to call “substantive due process” that prevents the government from doing certain things regardless of the procedures used. No one really likes the idea of substantive due process, because in practice it allows judges and courts to decide on the basis of their own opinions what topics are off-limits for legislatures and the political process. At the same time, no one has found any other good way to stop legislatures and politicians from enacting, for example, what Justice Potter Stewart in his Griswold dissent called “an uncommonly silly law” that since 1879 banned contraceptives in Connecticut.
Since the 1960s, only cranks and crackpots have been seriously concerned about whether states can ban contraceptives, and Griswold and Eisenstadt would be almost forgotten today if that was the limit of their significance, but they have become landmark cases because they laid the precedential groundwork for a series of rulings touching sensitive and controversial issues, well beyond abortion in Roe and Casey.
In 1967, the Supreme Court held inLoving v. Virginiathat state law prohibiting inter-racial marriage was unconstitutional, violating both substantive due process and equal protection.
Until the 2003 ruling inLawrence v. Texas, states were allowed to criminalize homosexual conduct between consenting adults, a practice upheld by a 1986 ruling inBowers v. Hardwick. Even as recently as 1986, the decision by the Supreme Court that there was no constitutionally recognized “fundamental right to engage in homosexual sodomy,” as the majority opinion phrased it, shocked most observers who expected the ruling to go the other way. After decades of criticism, Bowers was outright overruled by Lawrence, bringing private consensual sexual conduct within the scope of substantive due process protection. By 2015, the court, on the basis of both substantive due process and equal protection, ruled inObergefell v. Hodges that same-sex marriage was a constitutional right, citing the Loving precedent.
The Supreme Court withdrawing substantive due process protection from abortion, as could happen in Dobbs, would be the first time in US history where protection of a fundamental constitutional right was taken away after being recognized. In theory, it would open the door to a similar reversal on same-sex marriage or even allow reinstating criminal penalties for being gay. While this seems unlikely given current political realities – and it’s not clear what happens if people who have been married are suddenly declared unmarried – there is a dangerous slippery slope here. In theory, states might again be free to outlaw inter-racial marriage.
But there’s yet one more aspect social conservatives do not seem to have considered in fighting to return abortion as a political question to state legislatures: what kind of power would they then entrust to political vagaries? Between 1980 and 2015, China had what has come to be known as the “one-child policy,” imposing severe civil disabilities and ostracism for parents who chose to have more than a single child. In the face of widespread popular resistance and even non-compliance, China gradually backed off their population-control policy, allowing exceptions for rural farmers, in 2015 allowing a maximum of two children for everyone and finally ending the program only in 2021. But while China maintained its population-control policy in some form for over 40 years, there were horrific consequences ranging from forced contraception and forced sterilization to forced abortion; in the most extreme cases, cultural preference for sons rather than daughters encouraged female infanticide.
China is a one-party communist dictatorship where dissent is not tolerated, but what would happen if something like their one-child policy were adopted by a state legislature in the US? Under what legal theory could such a draconian policy be challenged? What, to put it bluntly, prevents a state government from mandating unwanted sterilizations and abortions? Shockingly, the Supreme Court in a 1927 case,Buck v. Bell, upheld the power of states then in the grip of the pseudo-scientific eugenics movement to forcibly sterilize people “for the protection and health of the state.” While hardly anyone thinks Buck would be followed by the courts now, it has never been explicitly overruled and remains, technically, valid law.
It turns out, as one of my philosophy professors often said, “What’s sauce for the goose is sauce for the gander.” It’s pretty clear whose goose is about to be cooked. The legal principle that extends substantive due process protection to your right to have an abortion when the government tries to stop you is exactly the same legal principle that prevents the government from forcing you have an abortion. One of the key factors distinguishing US freedom from Chinese-style dictatorship is rule of law: If the Supreme Court deteriorates to one more partisan rubber stamp in a hopelessly polarized political stalemate, we move inexorably closer to Chinese-style dictatorship. As the plurality warned in their opinion in Casey: “The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make.”
Until recently, I thought Thanksgiving was the quintessential American holiday: no politics, no religion, just friends, family and food. Then an Indigenous American told me that for them it was a national day of mourning.
Revelations like that put dampers on the enthusiasm.
Yet I still believe in the possibility of the American Dream.
Not the mortgaged house and 2.5 kids. Nor the flag waving, jingoistic, capitalist empire building. Not the country that splits its population into coasts and midlands, red and blue, black and white, rich and poor, citizen and alien, us and them.
I believe in our America.
Our America survived a fraught transition of power.
Our America took to the streets during a pandemic to protest.
Our America not only permits but encourages free speech and dialog.
And our America joyfully celebrates the holidays of many different religions.
Yes, America is flawed. Yet here we live.
This season, as we pause to celebrate and indulge, I invite you to take a few moments to remember the past, imagine a future, and continue working together to build our diverse and more perfect union.
– Mark Binder
P.S. This is my last issue as Interim Editor of Motif. It’s been a pleasure working with the writers and staff. Extra thanks to our fabulous designer, Francie Eannarino. I’m going back to my writing and storytelling. Please keep reading and supporting Motif, and follow me @markbinderbooks.
Phillipe and Jorge’s Cool Cool World: Greta changes in climate & deforming RI schools
Out of the Mouths of Babes…
We all now live in The World of Lies. Past and recent exemplars of this are: “The check’s in the mail”; an extremely obscene promise concerning oral sex; anything issued by the Pentagon; and, of course, anytime Donald Trump’s lips are moving.
But right up there are the most disgusting, shameless, and bloviating pronouncements put out by the recent United Nations climate change summit following their vacuous meeting in Glasgow. False claims of mighty success towards halting climate change were issued by more empty suits than you would find at a Brooks Brothers fire sale. (The U.S. “ambassador” to this farce was John Kerry. Say no more.)
People serious about changing the way we live saw no real progress except for absurd promises. These were essentially broken before the delegates boarded their planes, laughing all the way.
Hey, Californians, still toasting marshmallows over your fires? What’s the swimming like in your basements and down Main Street, you Midwest and Southern riverine dwellers? And how ‘bout them twisters in Texas and Oklahoma? Yeah, everything’s bigger in Texas.
This Glasgow summit was the fitting equivalent of what is known in Great Britain as a “Glasgow kiss.” That’s a head butt to the face of the person you are squaring up to, designed to break the nose of your opponent. Oopsy-daisy.
The quote of the week came from Greta Thunberg, the famous 18-year old climate change crusader for sanity and the future, who has more guts and brass balls than any of the UN and national government delegates. She spoke her mind to 100,000 demonstrators, “We say no more ‘blah, blah, blah.’ No more whatever the fuck they’re doing in there.”
Out of the mouths of babes…
The Ticking Bomb
Keep your eye on the potential political explosion over the awarding of a $5.2 million contract to the neophyte consulting firm ILO Group for education reform and school reopening strategies. As far as scandals go, this is a full Rhode Island. (And huge kudos to WPRI Channel 12 for uncovering this farrago and continuing to pursue it.) And we’ve only had a peek under the tent flap so far, it appears.
ILO was not formed until after Governor Dan “Who He?” McKee took office from Gina Raimondo. And ILO was not only full to the rim with McKee acolytes and backers, but was given the hands-on guidance of his staffers on how to submit the bid for the contract. WPRI discovered that ILO’S actual bent windfall was millions more than other more established firms. Experience? We don’t need no steeenking experience… especially when it involves the future of Little Rhody’s children, right?
At issue was the governor’s staffers involvement with ILO as a bidder, likely to craft the Request for Proposals (RFP) to their specs. P&J have had experience in issuing RFPs, and if you do a crooked one, you are able to make sure it has elements in it that favor a particular firm. To be a bit over the top, if Firm X has three albinos in upper management who speak Kiswahili, that requirement will be deftly hidden in the RFP, but can essentially screw other bidders who lack the Kiswahili-speaking albinos in their executive suite. “Sorry, we really needed to see that diversity for you to get hired.”
Because this RFP looked like a real hummer, the bid was turned into a Master Price Agreement, in which the state threw a bone to the firm WestEd, which has worked with state educators in the past and undercut ILO’s bid by what is surmised to be about $1 million, while making baby ILO rich.
The Department of Education and statehouse legislators have looked at this deal with raised eyebrows and sideways glances, but they know just what went on between ILO and McKee’s crew. Now the state police and attorney general Peter Neronha have also started looking into this rotten fish. You can expect our poised and persistent secretary of state, Nellie Gorbea, to keep this issue in the fore of the public eye and tear Who He? a new one, as she will likely face him in the 2022 Democratic gubernatorial primary.
You sleep with one eye open, Danny Boy.
Can Police Dragnet Search All Students to Look for a Gun?
On November 15 at 1:21pm, Principal Brooke Macomber of Coventry High School issued a statement: “The Coventry Police are currently in the building investigating a threat that was overheard during passing time. In an abundance of caution, upon becoming aware of this threat, we placed the school in lockdown and contacted the police… The CPD and State Police are in the process of searching all students, classrooms and belongings to ensure the safety of our school community.”
The next day, Coventry Police issued a statement: “On 11/16/21, Coventry Police Department arrested the student responsible for the lockdown incident at the Coventry High School on 11/15/21. No weapons were located and the student does not have access to firearms. The student was charged with Disorderly Conduct and the case will be referred to Family Court.”
Captain Matthew Blair of the Coventry Police told Motif in an interview, “Somebody overheard what they believe was a student say ‘he has a gun’ – those four words. A teacher immediately confirmed it, followed by a few other students that heard it in the hallway in between classes, so they immediately enacted what they call ‘hold from passing,’ which is basically nobody leaves class. And then after the school resource officer got involved, within the first couple minutes, they issued a lockdown for the whole school, until we were able to get more information. So they did that, were reviewing cameras and footage and talking to people involved. And they were unable to determine who exactly it was that said it, or even what group of kids it was said it. They basically had some kids in a hallway in hoodies that they couldn’t identify… After a few minutes, I personally got there along with the chief and a few other people. Because we were unable to determine the extent of the threat or what exactly had taken place and what the context of it was, the decision was made to begin to search the students and their bags, room by room, including desks, trash cans, and brought in ballistic-sniffing canines and they were able to conduct a thorough and full search of each student at the school, each bag that each student had. We passed the ballistic-sniffing dogs through all the rooms, did what we were satisfied was a thorough search of the common areas, classrooms, and then walking dogs through the hallways where the lockers were. The handlers in particular were confident that if there were a gun, they would have alerted to it. We were satisfied after all students were released, after the search was conducted, that the school was safe, and they were allowed to return to classes the following day.”
Individual students were searched for weapons by pat down, with male officers searching male students and female officers searching female students, Blair said, but that procedure found nothing suspicious and did not result in, for example, asking students to empty their pockets. Contents of bags and purses were searched more thoroughly, he said. The search faced practical problems in that about 1,600 students were on the premises at the time, he said.
As to the charges, Blair said, “The following day, the school resource officer was able to receive some tips from a few students and narrowed down the group of students that the comment came from to about four students, and then questioned those students individually, and basically was able to determine one of the students that actually made the comment, and the students that made the comment ended up admitting that he had made the comment.”
Asked why the comment might have been made, Blair told Motif the student said “that he was reenacting a video game. That was the statement he had made to the school resource officer, and obviously there’s a lot to that because he didn’t come forward and say, ‘Oh, no, I was just, you know, joking,’ or whatever, the day before, ‘I was making this comment,’ because it would have probably alleviated some of the issues, or much of the issues that took place the day before, but he didn’t do that. So whether that’s true or not, we don’t know. He didn’t have a gun with him; he was checked. He didn’t have access to guns as far as we know; that was followed up on. So basically, just a foolish comment made by a juvenile that kicked all that off.”
We asked Blair whether consent to search was sought from either the students or their parents and guardians. “No, no, and the reason for that is because of the exigency of the issue at hand. Obviously, a student may have a gun or comment that someone in the school had a gun, we had to make sure the student population was safe. There’s a public safety exception to the search warrant requirement, which is kind of what we would operate under in that circumstance: exigent circumstances, one, and then public safety exception would be number two. And we use kind of those exceptions to the search warrant requirement, which are well established in Supreme Court law, to conduct the least intrusive method of search that was available to us, which was the pat down search of the students to make sure that they were safe and get them out of there safely.”
What would have happened if a student refused to be searched? “We would have still had to search them or bring them into another area to hopefully reason with them if it was that big of an issue where they refused, and we would have gotten school staff and/or parents involved. That didn’t happen. No, I think as a matter of fact, quite the opposite thing happened where, at least from the feedback we got the parents were, as a general rule, overall satisfied with our response to the situation,” Blair said, and no one objected “get a warrant.” Could they discipline that student? Could they suspend that student, prohibiting them from entering school premises? Even worse, could they physically forcibly search that student? In short, can the school draw an adverse inference that a refusal to be searched constitutes a threat per se?
Did the school and the police handle this correctly? On social media, the bulk of comments approve of the dragnet search of all students, but it is important to step back and look at, among other things, the law.
Police would never be allowed to conduct such a dragnet search of all people in a public place, such as a shopping mall, outside of a school setting, on the basis of an unattributed claim that someone heard someone else mention a gun, although Blair made exactly the opposite argument: “You can’t take the the situation outside of the circumstances that were at hand, which was we weren’t able to identify the students at all. So at that point, it’d be similar if there was a lockdown at a shopping mall, the same circumstances would have been undertaken.”
Citizens have a basic constitutional right, in the words of the Fourth Amendment, “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…” (The RI State Constitution has a similar provision.) In practice, this means police must have probable cause, or at least reasonable suspicion, to seize (detain) a person and search them, and by definition such probable cause or reasonable suspicion applies only to a particular individual or small group, based upon evidence pertaining to them specifically.
The courts have held that while the Fourth Amendment protects school students, in the landmark 1985 US Supreme Court decision in New Jersey v. T.L.O., educators need only meet the lower standard of “reasonable suspicion” rather than “probable cause” in a school setting. In that case, two students were caught smoking tobacco cigarettes in the school restroom and one of them, identified by her initials “T.L.O.,” denied participating, after which the vice-principal searched her purse and found marijuana, rolling papers, a pipe, and – most damningly – a list of customers who owed her money from dealing drugs, as a result of which she was expelled and criminally charged.
The reasonable suspicion standard, enunciated in the 1968 US Supreme Court decision in Terry v. Ohio, requires “specific and articulable facts” – precisely the opposite of a dragnet search of everybody. Courts on many occasions held dragnet searches illegal, as in the 1979 US Supreme Court decision in Ybarra v. Illinois, holding that a search warrant for a bar and its bartender did not allow the police to search the customers who just happened to be in the bar.
Steven Brown, executive director of the RI chapter of the American Civil Liberties Union, told Motif, “The intrusive search of every student in the school under these circumstances is very troubling, but I am not sure there would be strong legal grounds for challenging it. Unfortunately, the courts have upheld mass searches of students under circumstances much less fraught than this.” Brown pointed to a 2011 US First Circuit Court of Appeals case, ironically involving the Coventry public schools and police a decade ago, Lopera v. Coventry, 640 F.3d 388, where a bitterly divided panel voted, 2-1, to affirm a lower court summary judgment of a lawsuit that arose out of a high school boys competition.
In Lopera, the Central Falls soccer team played as visitors against the Coventry soccer team, and immediately afterward there were allegations by about 20 Coventry football players – not soccer players – that the Central Falls players had stolen iPods and cell phones from their locker room. As the appeals court explained, “Central Falls is a racially diverse community, and the Central Falls team consisted entirely of Spanish-speaking Hispanic players, save for one Portuguese player. Coventry, by contrast, is predominantly non-Hispanic and white, and its high school reflected this. The Central Falls players allege that Coventry players uttered racial epithets during the game, calling them ‘spics’ and demanding that they speak English.”
The Central Falls coach, along with his assistant coach, searched his players and their bags, satisfying himself after a half-hour that nothing had been stolen, but then, the appeals court further summarized, the coach “testified, a crowd of fifty or sixty Coventry students and adults had gathered around the bus… members of the crowd yelled that they knew his players had the items. He testified that students and adults in the crowd stated that the players were ‘from the ghetto,’ knew how to ‘hide things’ and ‘lie good,’ and could not be trusted. The players recounted similar accusations and vitriol, including racial slurs like ‘spic…’ He also testified that members of the crowd stated that they would not let the Central Falls players leave until the items had been found.”
Someone called the Coventry Police and reported something like a fight or riot, causing several cars to respond and box in the Central Falls bus. The police then conducted their own search of the Central Falls players after obtaining the consent of their coach, although he later claimed that he was placed under duress by the near-riot and therefore his consent was not voluntary. No stolen items were ever found, and Coventry Police escorted the bus out of town for the safety of the Central Falls team.
At no point, it must be emphasized, did the appeals court hold that the search was actually legal: instead, the issue was whether the Coventry Police could have reasonably believed that the Central Falls coach had authority in loco parentis (in the place of a parent) to consent to the search of his players and whether they could have reasonably believed that his consent was voluntary. That’s the way qualified immunity for the police works: in the words of the appeals court, citing Supreme Court precedent, “The qualified immunity defense ‘is designed to protect “all but the plainly incompetent or those who knowingly violate the law.”’”
The ruling in Lopera was 2-1, with Judge O. Rogeriee Thompson dissenting on whether the consent to the search by the coach could be voluntary: “The appellants, a team of young Hispanic soccer players from Central Falls, Rhode Island were subjected to shockingly disgraceful and humiliating conduct by the police and their fellow citizens alike while visiting another high school in Coventry, Rhode Island. After playing a tense game against Coventry’s team, the Central Falls players were surrounded by a mob seething with racial animosity and casting false accusations of theft… My colleagues think that a reasonable officer would be unaware of the duress this state of affairs would inspire in the team’s coach… while he was surrounded by an angry mob and unable to depart with his players left little room for choice.”
The decision in Lopera acknowledges the considerable jurisprudential uncertainty about the scope of authority of school officials to search students, noting that T.L.O. limits but does not eliminate their ability to act in loco parentis, citing the 1995 US Supreme Court decision in Vermonia Sch. Dist. 47J v. Acton, ruling students whose parents refused consent to their being drug-tested could be banned from athletics.
Blair said about the recent gun search, “We operated under exigency, which those requirements are less restrictive, when you have a public safety emergency, and especially when you’ve got the safety and welfare of 1,600 students and 300-plus staff members at a public school, on top, in light of, what’s gone on in our country over the last couple decades. We take those things seriously. So that’s how we operate.” Asked directly to clarify, Blair confirmed that he was talking about school shootings.
But exigency is a legal doctrine that applies specifically and narrowly as an exception to seeking a judicial warrant when it would be otherwise required, such as to prevent the imminent destruction of evidence, and it is difficult to see that the police would not have had time to do that. The school was already locked down, there was a substantial presence of police officers and rescue workers, and calling a judge would have taken as little as 15 minutes. But would a judge have granted such a warrant for a dragnet search? Probably not.
Searching every student in a school is clearly a violation of the T.L.O. standard of “reasonable suspicion” which, by definition, must be based upon specific and particular information. The school officials and police in Coventry were certainly motivated by a fear that a student may have had a gun in school, but despite honorable intentions they have to accept that even high school students live in a free society with fundamental civil rights that must be respected. Blair was eloquent in defending each step of the process that his department followed, and it seems evident that they have the support of the community.
But a gun is not a magically dangerous object where mere possibility that someone may have mentioned one in a school hallway justifies the wholesale abrogation of basic civil liberties: remember that no one saw a gun, no one identified who possibly had a gun, and the dragnet search – regardless of its illegality – in fact found no gun. Even assuming for the sake of argument that an overheard remark constitutes a sufficient threat, “He has a gun” is still very different from “I have a gun” and nowhere near “I’m going to shoot someone.”
If a student who was subjected to the gun search sues, Coventry would try to argue a qualified immunity defense that there is no authoritative court decision saying they were in the wrong, but that is far from saying they were in the right. Given Coventry’s legal history of defending in court what Judge Thompson called “a mob seething with racial animosity,” this should be a road they are reluctant to travel.
Brown of the ACLU said, “We have not received any complaints about the [recent gun] searches. If we do, however, we will look into it more closely.”
As of press time, the Coventry superintendent and high school principal did not return telephone messages from Motif.
Undividing America: Editorial
Today, many people believe that the United States is deeply divided, and that makes us weak and vulnerable to manipulation. Social media and the pandemic have made it easier to stay in our comfort zones of home, friends, family, churches — among folk who think and look like “us.”
The metaphor of America as a melting pot doesn’t work anymore. No one wants to merge and abandon their core identity.
I propose reformulating our recipe as a well-seasoned gumbo; you can still taste each individual ingredient, and the entire dish becomes something extraordinary.
Working on this issue of Motif has moved me, and directly connected me with people I would never bump into in the Zuckerverse or Twitterblog. I hope the stories and images inspire you to get out and meet someone who is different.
Let us know what you think — and what you’d like to see next in Motif.
Thanks for reading.
Once in a Generation Dollars: Let’s Make a Deal
Welcome to The Squid’s Ink: we print Rhode Island’s dark and humorous truth
Since 2020, the Rhode Island state government has been sitting on the so-called “once in a generation” $1.2 Billion Dollars of federal funds. “We’re so used to having lobbyists tell us what to do that we kind of forgot how to think for ourselves,” said a source near the Independent Man.
Meanwhile, our team of hackers cracked the site and uncovered the following requests from prominent people and organizations… (The password was “ShowMeTheMoney”)
· Soon to be former Providence Mayor Jorge Elorza wants $71,797,600 to buy every resident an ebike. He also requested an additional $450,043,125 to build a weather-resistant dome over the city, and turn every street into a bike lane. “This will make Providence the greenest and fittest city in the United States,” Elorza said. “And you’ll never have to pay for parking again.”
· Meanwhile, the Department of Transportation countered with a proposal to “Pave The Bay.” DOT Director Peter Alviti, Jr. said, “Not only do roads equal jobs, but it will make us invulnerable to sea level rise.”
· Providence Mayoral Candidate Brett Smiley asked that the entirety of the $1.2 billion go to pay off the city’s pension liability. “This will make a lot of investment bankers very happy,” Smiley said. “And we’ll only owe another $60 million or so.”
· Interim Governor Daniel McKee first suggested giving high paying consulting contracts to members of staff, but backpedaled when reporters pointed out he’d already done that.
· Rhode Island Senate President Dominick J. Ruggerio offered to arm wrestle House Speaker Joe Shekarchi for spending rights. “Most powerful politician in the state my ass,” Ruggerio was heard to mutter.
· Meanwhile, the Rhode Island Republican Party proposed refunding the money directly to taxpayers. “If you elect us, we’ll give you $1,000,” said chairperson Sue Cienki. “It’s not a bribe if it’s your money.”
· Neil Steinberg of the Rhode Island Foundation was overheard suggesting donating the entirety of funds directly to the foundation. “Forget about politicians, we know what’s best.”
· The Trinity Rep Company asked for $160 million to fund a new Project Discovery Program. “Live theater is good for you,” said Artistic Director Curt Columbus. “We’re going to make a new generation of kids turn off their cell phones and sit still.” The Wilbury Theatre Group and the Gamm also raised their hands, shouting, “Forsooth!”
· National Grid actually invoiced the state for $780 million so that they could pay off their shareholders before transitioning the company’s operation to PPL of Pennsylvania. “We know we don’t deserve it,” said chairman Sir Peter Gershon. “But we’re going to leave, and we really don’t care anymore.”
· Developers Jason Fane of the Fane Tower and David Sweetser of High Rock, which owns the Superman Building said that they’d take $123 million each to go away.
· Convicted bank swindler Joseph Mollicone, Jr. asked for $15 million. $12 million to pay back the money he still owes, and another $3 million, “just because.”
· Brown University put in for a $400 million grant, saying that while its endowment was doing quite well, “We think Dr. Ashish Jha did such a great job, we’re going to buy him another building. Or three.”
· Full Disclosure: Motif Publisher, Michael Ryan asked for $5 million to “Take it to the next level and go national.” He also promised to take the money and double writer’s pay. Then he plans to spend the rest on a vacation home in Northern Pawtucket.
News Analysis – William Blackstone: The First White Guy
On Indigenous People’s Day, an alternative to the official Columbus Day holiday on October 11, 2021, a few dozen attendees at Veterans Memorial Park in Pawtucket protested the recently erected stainless steel statue of William Blackstone, who is primarily remembered because the Blackstone River and Blackstone Valley were named for him.
Melissa DaRosa, an at-large member of the Pawtucket City Council, attended the protest, she told me, “to stand with the Narragansett Indian tribe and to learn more about what this monument signifies… some people are saying this is capturing a beautiful history but for some that history is less beautiful.” I asked her, “What’s your objection specifically to the Blackstone statue?” She replied, “Would we put up a statue of Hitler?”
But Blackstone was far different from Hitler. As the marker at Blackstone Memorial Park near his burial site in Cumberland notes, he was “founder of the town of Boston, and the first white settler in Rhode Island.” He was otherwise unremarkable, even forgettable: an Anglican clergyman born in England in 1595, he sailed to North America in 1623 and settled what is now Boston. He had a falling out with the Puritans (who were anti-Anglican) that led him to relocate to what is now Cumberland, Rhode Island, in 1635, a year before Roger Williams settled in Providence. He had neither slaves nor servants, cultivated new species of fruits and vegetables, lived alone in the solitude of the woods with a large library of books until he married at the age of 64, had a son, and died at the age of 80 in 1675 – about a month before the outbreak of King Philip’s War that would mark the utter collapse of relations between the settlers and the indigenous Native Americans.
Bella Noka, a member of the Narragansett Tribe who organized the protest, said she wanted the statue taken down. “If I were to be raped, and I was to be violated in the worst way possible, do you think I want to walk by that same man every single day and look him in the face, and people praise and see a statue 14 feet high, looking down at me every day? No, I would not,” she said. “To think that they can even raise a voice on what this man has done, the atrocities that they have done. He’s not the only one: I’m not blaming just him. There were hundreds of them, there were thousands of William Blackstone… He’s just another face. But you think because somebody wears a collar he was a righteous person? Well, ask all the altar boys how great the priests were.”
In her view, Blackstone bore responsibility for the entire settler program. “Blackstone is the one who afforded that [mindset] that you can come in and take over our land. He died with 200 acres. How did he get those 200 acres? Did we just give it over to him because he’s a jolly good old friend? No, it was taken. We don’t give up land and we didn’t have a value on land, because land does not belong to people. It belongs to Mother Earth as the creator. We are to protect her. We are to give to her because she gives so much back to us. So, for them to come and have ownership and parcel things off, in the name of greed, or their right to do that is a shame on them.”
Historically, Blackstone had good personal relations with Narragansett chiefs Miantonomi and Canonchet and with Wampanoag chiefs Massasoit and Metacomet. Both Blackstone and Williams opposed the “doctrine of discovery,” the legal justification that European settlers could claim land without the consent of the indigenous aboriginal residents; both argued that proper title to land required treaties with and payments to Native Americans. (See “Providence Plantations: The Real History”, by Michael Bilow, Jul 13, 2020.)
It was Randy Noka, the husband of Bella Noka, who in a wide-ranging 40-minute interview asked what seemed the most resonant question: “Why put up a statue about him, if he was such a recluse then what the hell’s he doing being recognized like that for?” I answered, “My guess, and I don’t know this, I think the city was just totally blindsided by it, they figured the river is named after him, the valley is named after him, his name’s on everything.” Noka pointed out that these names replaced Indian names: “It was the Pawtucket River, Pawtucket Valley. Whoever changed the name… if he was such a weirdo out in the wilderness and kissing trees and whatever, then why the hell, why change the river? What did he do, even for his own kind?”
I asked, “Are you saying that being the first white settler in the land, he doesn’t deserve a statute for that?” Noka answered, “Oh, he’s the first one, so we’ll put up an ugly – no disrespect to the artist – an ugly monument, rename a river, rename a valley, whatever, because he was the first white guy. How prejudiced is that? How about the first Black guy that came here? They don’t know that person because he was probably brought from Africa as a slave.” Eventually, Noka summarized his perspective: “He went over in the woods, lived by himself, but happened to be the first white guy, so let’s put up a statue, rename a valley and a river. Well, that’s even more insulting!”
All That Happened Was Nothing: Right Wing Recall Fizzles
Earlier this month, Motif reported on a recall measure against North Kingstown school committee member Jennifer Lima. So what happened? Nothing: October 12 came and went and the committee petitioning for the recall didn’t turn in any signatures at all. The rumor around town is that they only gathered about 700 signatures, fewer than a quarter of the 3100 they needed. They had ample financial backing, from the Gaspee Project and their extensive dark money network of donors. Despite the money that littered the town – all-town mailers, glossy flyers, polished website – the record was of total failure.
But no matter, the bullies pivoted on a dime, and they were out in force at the School Committee meeting that very evening. Nobody mentioned the recall at all – what recall, what are you talking about? Instead, they were there to protest terrible things found in school library books. (The two that are getting the most attention are The Absolutely True Diary of a Part-Time Indian by Sherman Alexie and Gender Queer: a Memoir by Maia Kobabe.) Of course we didn’t even get to that because shortly after the public comment began, the meeting was totally derailed by people refusing to wear a mask.
No police were on hand to enforce the mask mandate, so the chair adjourned the meeting and that was that. Of course that made the bullies angrier because they were going to be denied their moment to complain, so they shouted more. I thought it was good to leave the pro-covid crowd alone and didn’t stick around, so I didn’t see that much. But one of them posted video of the disruption on social media where an attentive high school student copied it before he thought better and deleted it. My favorite moment on the video was a guy in the back shouting “Free speech! First amendment!” over and over. I’m not sure what he thought he meant by that.
Lesson of the whole episode: These people are nothing but bluster and their financial backers are paper tigers. They simply do not have the clout they claim. They can certainly be disruptive, and they are bullies, but they can’t accomplish or change anything because they don’t have the votes. They’re like a four-year-old throwing a tantrum. He learns he can disrupt the family and get attention, but the attentive ones learn that their parents’ plans don’t actually change. They still leave him with a babysitter, but now everyone’s in a bad mood.