Samuel Bagenstos On The Mistaken Decision To Jail Kim Davis

Over at The New Republic Samuel Bagenstos offers some spot-on analysis of the decision to jail Kim Davis, ” the Rowan County, Kentucky, clerk who defied a U.S. Federal Court order requiring that she issue marriage licenses to same-sex couples” and concludes:

To many observers…the drama is the point. By making a prominent example of those who obstinately refuse to comply with federal-court orders, they believe, we send a strong message that no individual is above the law. But what is the lesson courts are teaching in these cases: that the constitutional principle of equal citizenship is a basic commitment, or simply that judges are powerful people who, like parents, are not to be messed with? Sometimes, basic constitutional principles cannot be enforced without drama; without the 101st Airborne, the Little Rock schools would not have been desegregated. But federal judges should always be focused on vindicating the rights of those who invoke their jurisdiction. If the judges can vindicate those rights without demanding an ostentatious show of submission to their authority, they should do so.

I agree with Bagenstos: the real issue here is not Davis’ stance, it is the denial of legal rights to same-sex couples. Theirs is the story worth covering; Davis is merely fodder for mockery. (And sadly, too much of it is about her looks, her multiple marriages, and her adulterous life. The hypocrisy of the publicly religious is an old and well-worn joke; the marriage of that brand of humor with sexism and misogyny ensures a deeply unedifying discourse around this issue that only serves to obscure its relevant details.)

Judges cannot be expected to think too deeply about their participation in political theater and how their rulings and orders can be made to perform on its stage. Some, of course, are more self-aware about this possibility for co-optation than others. The judge who jailed Kim Davis was, presumably, not a member of the Left or the Right in his capacity as a judge, and thus cannot be castigated for having handed the Religious Right its latest hobby horse, ridden by its latest hero. But there is a great deal of wisdom in Bagenstos’ claim that from a jurisprudential perspective, one committed to revealing in each ruling the sinews of the legal, political, and pragmatic principles at play, the right thing to do in this case was to affirm constitutional principles of equal citizenship and not the power of the courts to compel obedience.

The former kind of ruling immediately forces a conversation about the rights and claims of citizenship, about the basic promise of a republic–remember, ‘res publica’, a nation of laws, equality before the law, the greatest political and moral deliverance of the modern, post-empire era; the latter merely brings us to face with the oldest, crudest forms of legal positivism, that the law serves as a cloak for the supreme power of a sovereign entity, which can enforce its decrees by crude force, handcuffs, and detainment. A conversation about the former would have shone the spotlight of bigotry and hypocrisy on Davis; the latter let her claim it as her due for heroism.  A tour of the talk-show circuit, and perhaps even a book contract await her.

Protesting Gaza: After Gaol, A Day in Court

This morning, I reported to the New York City Criminal Court to be arraigned on charges of disorderly conduct (blocking traffic)–these stemmed from my arrest during a civil disobedience protest staged outside the Israeli mission to the UN on July 29th. My half-day in court was not as tedious and onerous as my day of imprisonment. It couldn’t possibly be, but it had its moments all the same.

I arrived promptly at 9AM, and soon thereafter, met–besides those who had been arrested and charged similarly–attorneys from the National Lawyers Guild, who would represent us at the hearing (three, I think, were present in all; I am grateful to all of them for their help.) I was quickly advised about my legal options: accepting the charge of ‘adjournment contemplating dismissal’ (ACD)–a deferment for six months, during which time the charge would remain open and after which could be dropped; a plea of ‘guilty’, which would result in a $125 fine and a misdemeanor conviction that would stay on my record for a year; a plea of ‘non-guilty’, and thus the possibility of a trial. The consensus seemed to be that accepting the ACD was the way to go–in case I was offered that option by the state (which seemed likely, as I had no priors.)

From there on, the waiting began. From our total of twenty-nine, groups of three or four were called in to the courtroom, and their cases disposed of. Unfortunately, it soon became apparent that I would be among the last to be called. I soon found out why; the papers pertaining to my case were nowhere to be found. I groaned. Perhaps I would have to return to court on another day? Fortunately, a little later, at 11:45 AM or so, the papers were sent over from the DA’s office and my arraignment proceeded.

I waited in the courtroom for a little over ten minutes. In that time, two other defendants–not from our group–went up to be arraigned, both on charges of marijuana possession; one of the two young men had been arrested in the public housing building he lived in. (Great, I thought, a perfect use of police and court time.) Soon thereafter, our numbers were called; we walked up, heard the charge and the offer of the ACD. I accepted, and that was that.

As noted above, my case remains open for the next six months. In all probability, the charges will be dropped at the end of that period. If I am arrested again in the interim, this current charge will appear on my record as a prior, thus possibly complicating the charges at my next arraignment.

My many thanks again, to those who spent the day in gaol with me–all of whom I met again today (including Norman Finkelstein, Corey Robin, and Benjamin Kunkel). It was a pleasure to renew their acquaintance. And to be reminded of the reason why we were handcuffed, imprisoned temporarily, and then made to appear in court today, some six weeks later.

I would do it again.


A Day in Gaol, Part Deux: Notes on Police, Precincts, and Penality

Spending a day in jail has some social scientific value for the temporarily detained; it enables a closer, albeit short-lived, look at the systems of policing and criminal justice. And because I often expend much time on this blog railing against the excesses of the New York City Police Department, it makes especial sense for me to offer a few observations on my interactions with them on Tuesday last.

First, the arrest itself. The NYPD was scrupulous about providing warnings to those that lay down on Second Avenue; we were told that we were obstructing traffic and had to clear the intersection, failing which we would be arrested. We were not immediately bum-rushed. After the warning was repeated, and those who did not want to court arrest had moved out, the police moved in. I was hauled to my feet but I was not treated roughly. The handcuffs placed on my wrists–the plastic variety–were painful, and a couple of tightening tugs made them more so. The arresting officer then placed his fingers through their central loop, making them even more painful. I told him I had no intention of absconding, as I had deliberately courted arrest; he replied he had to follow arresting procedures. Fair enough. We were then bundled into the wagon, un-seatbelted, and  thus susceptible to being thrown around, forward and backwards, when the wagon braked or took corners. The driver of the wagon thankfully opened the doors when we arrived at the precinct, and assured us he had turned on the A/C, but it hadn’t worked, thus leaving us sweltering. I believe him; he sounded sincerely apologetic for any discomfort caused to us.

I had been a little nervous about the arrest because I did not want to get shoved around or slammed to the sidewalk, but none of that occurred. There was no animosity directed at the police by the protesters and the police seemed more bemused than anything else by our doings.

Second, my booking at the precinct. The central irony of the precinct–as Corey Robin and I both noted in our conversation after we had been released–is that while it is a zone of legal enforcement, it feels, and very often is, a lawless zone. You come face to face to unblinking, resolute bureaucracy, beholden to its procedures, and their utter rigidity, all the while knowing that the police can stretch and violate them with impunity. The incarcerated are always aware that they are powerless, that the police can exert all manner of power over them. You might seek redress later, but that will not, in any way, diminish the terrifying powerlessness when a policeman got in your face, or pushed you, or otherwise abused you in any other way. There is also the depressing empirical fact that the long arm of the law rarely reaches out to accost a policeman. You are at the policeman’s mercy. Questions may be treated with a blank stare or a noncommittal reply, and very little helpful clarification about procedure is offered. It is here that you most sense a figurative forcing of you to your knees. The swagger, the cockiness, the brusqueness of the cop; these are all external manifestations of the confidence they posses in their imperviousness to any forms of pleading or redressal.

Third, my time in the holding cell. This is a continuation of the previous state; you are imprisoned; it can be a terrifying feeling.. The police are taciturn and reticent; they do not offer helpful responses to questions put to them, and requests for the lessening of personal discomfort are responded to with visible reluctance; you do not get straight answers on when you may expect to be booked and released. (One Bangladeshi cop was kind enough to tell us we would be released soon; in an effort to reach out to him, I told him my father had fought in the war of liberation for his erstwhile home; he offered me a tight smile and walked away, telling me his wife was from Mumbai.) You sense the police bound by procedures of due process but you also sense that they may at any time, at their own whim, decide not to follow them.  (The refusal–and then later, grudging agreement–to provide water despite our constant requests seemed one instance of this.) The irony of the co-existence of the arbitrary with the rules of law is reinforced. You draw companionship from your fellow prisoners if you can. I was lucky to be with my partners in civil disobedience; their companionship sustains you; it is far more uncomfortable to be with those who are strangers. (Note: at one point late in the afternoon, a middle-aged Cuban gentleman was brought into our cell; he had been arrested for panhandling. He claimed he had merely been asking a friend for some money. His English was not as good as his Spanish, and he seemed a little discombobulated. The police had a field day with him, cracking several jokes at his expense as he was led out and in and otherwise subjected to other procedures. I presume the police code of conduct includes no strictures on gratuitous mocking of the incarcerated.)

My imprisonment was exceedingly brief; I only suffered minimal discomfort (one of my fingers is still slightly numb). I am privileged and lucky. Many others who deal with the police and the penal system are not.


Why Get Arrested? Why Perform Civil Disobedience?

A Facebook friend of mine asked in response to my posts and photos about yesterday’s protest at the Israeli mission to the UN:

It seems as though you all knew you were going to get arrested and almost seem proud of that? Isn’t there a way to protest without being arrested?

This is a very good question. Let me attempt to answer it, building upon a response I initially wrote in the comments space of my Facebook page.

My friend is right. There are ways to protest without being arrested. I have taken many political actions, participated in many rallies and protests, all without being arrested. I have written blog posts, held up banners, shouted slogans, and marched through city streets in sub-zero temperatures. These forms of protest suffer from one disadvantage: they are often not as politically effective, or as rhetorically and substantively powerful as civil disobedience actions, which culminate in protesters getting arrested.

Consider yesterday’s action for instance. If some hundred or so protesters had shown up, shouted some slogans, all the while confined to the pen the NYPD had put up for us, and then finally dispersed, their energies dissipated, the associated political message would have all too quickly been lost. Yet, precisely because twenty-six folks were arrested and put into jail, we have had a day and perhaps more of social media buzz. Some folks already know what is happening in Gaza, yet others will learn about it for the first time. More conversations will be sparked, and perhaps some might be inspired to take action as well–of whatever form they choose.

Civil disobedience actions are thus more effective in raising political consciousness. Moreover, they are more disruptive of the social order; they send the message–to those watching, to those on their way to work–that business cannot proceed as usual. They impose costs, and thus send a message that political stances, strategies and tactics, such as the US’s support of Israel with a seemingly blank check, lead to domestic costs. Getting arrested shows you are willing to incur a cost yourself – like spending time in jail. It shows your commitment to the cause, which is an expression of solidarity for those who are far more viscerally involved in the political struggle. Getting arrested, and undergoing all the discomforts it entails, sends a message that the cause at hand is not a trivial one, that it has somehow evoked people to step forth and expend time and energy in this fashion. It is not a pleasant experience, and thus provokes the question: Why would people be willing to undergo handcuffing, being pushed around by cops, and being confined in a holding cell?

Imagine millions of American citizens doing the same thing, shutting down traffic, clogging up the jails, bringing all work to a halt. Could the US government really continue with its policies if that was the case? They could, if all they had to deal with was large, vocal rallies. (As they perhaps did at the time  of the Iraq War.)

Politics, political action, and rhetoric go together. Getting arrested is a form of speech; it speaks loudly to the cause it represents. It is another arrow in the quiver of the political activist, one which if used well, can be singularly effective.

Protesting For Gaza: A Day in Gaol

Earlier today, during the course of a peaceful civil disobedience action–at the Israeli mission to the UN, on Manhattan’s East Side–protesting the humanitarian catastrophe currently underway in the Gaza Strip, twenty-six protesters, including moi, were arrested and taken in custody. The protesters included Norman Finkelstein, my Brooklyn College colleague Corey Robin, and my cellmate for the day, the writer Benjamin Kunkel.

Finkelstein had sent out a call last night–via social media–for the protest to take place this afternoon. I was not sure whether I would be able to take part as I had spent most of Monday feeling distinctly unwell thanks to a cold, cough and slight fever. But I awoke this morning feeling rested, went for a run, and decided on my return that I would join Norman Finkelstein (and others) at the protest. I called my wife and told her of my plans, asked her to pick up our daughter from daycare, and headed out. (My wife, bless her heart, was fully supportive, perhaps entirely unsurprising for someone who had spent many of her university days working with a student group called Committee for Justice in Palestine.)

I arrived at the Israeli mission to find our small group clustered across the street. We waited for about forty-five minutes, during which time our numbers grew, all the while chanting slogans. At noon, after a small discussion, Norman announced that the civil disobedience action would involve blocking traffic on Second Avenue.  Which is what we did. At half-past noon, approximately hundred protesters marched out into the middle of Second Avenue, linked hands, and lay down. The police asked us to move; some protesters did, others did not. I continued to lie down.

A few minutes later, I was hauled to my feet and handcuffed. I did not resist arrest by going ‘boneless.’ The plastic handcuffs used by the New York City Police Department are never pleasant on the wrists, and this occasion was no exception. After standing around for a little while, continuing to chant, I was put into a police paddy wagon and taken to Manhattan’s 7th precinct.  Eight others accompanied me.

Getting arrested and booked is a tedious business. The paddy wagon was hot and stuffy, and we had to wait outside the precinct–mercifully, with the door opened for us by the driver–to be called in. Once we were let in, our handcuffs were cut off–again, mercifully, because my fingers were starting to go numb by this time. We were then searched, some forms were filled out, and we were ushered into a filthy holding cell. There were nine of us in it. The remaining protesters were put into two other cells (the arrested women had one to themselves.)  We were not allowed to make any phone calls; we were asked to take off our shoelaces; we could not take food or water into the cell.

The waiting now began. My companions included two grizzled Vietnam veterans and two very young students. We chatted among ourselves, engaged in some friendly verbal jousting with the police, and engaged in a great deal of passionate political discussion. (Kunkel and I also chatted about many other topics on the side.) One of the Vietnam vets told us harrowing tales of his time in that war, and about the experiences that convinced him  it was unjust and immoral. Our partners in the cell adjoining were also engaged in similar discussions and at one point, as they burst into song, we joined them for Solidarity Forever. There was no water to drink and we were given none. (Apparently, there were vending machines in the precinct lobby, but we could not use them.)  At  four pm, we were told our wait was almost over, but it dragged on a for a little while longer.

Finally at around seven or so, we were released one by one. My call came at a quarter after. I was given a desk appearance ticket and told to appear in court on September 9th. I had been charged with disorderly conduct. I collected my belongings, called my wife to let her know I had been released, and walked outside to be greeted by members of the National Lawyers Guild and other folks come to show support. I waited for my cell companions to join me outside. We briefly chatted, took a few photos, and then I left with Kunkel and Robin for a much-needed dinner. (Dumplings and soup in Chinatown.) Two hours later, I was back home in Brooklyn. My daughter was fast asleep so I missed kissing her goodnight. My wife was still awake, and we chatted for a bit about the day’s happenings.

My actions today are insignificant in the extreme. They will not stop the Israeli government from attacking Gaza; they will not bring the carnage ensuing there to a halt. But I’m still glad I went, got arrested, and inconvenienced myself for a day. It was a small price to pay. I often write politically tinged posts here, I express political opinions in person to my friends and family. I have felt strongly about the terrible carnage taking place in Gaza, but have not managed to do anything concrete about it. I wanted to indicate American support for Israel is not unanimous, to let those know who protest for Palestine and Gaza that they are not alone. I wanted, somehow, to do something about a feeling that surges within me, from time to time, that no policy which entails–as an almost inevitable side-effect–eighty percent civilian casualties, can ever be morally or politically justified.

I’ve never been arrested before at a protest, and I have certainly never deliberately courted arrest. Today, when the moment came, it felt like an easy decision. My friend Corey Robin lay down next to me, ready to be hauled away in handcuffs, and lying there, preparing to do the same felt, for many reasons, the right thing to do. In the course of an eternally indecisive life, marked by all too much cognitive dissonance, that is a rare feeling, one to be treasured.

Addendum, July 30th: Here is a follow-up post defending the use of civil disobedience actions as a form of political protest and action.

Addendum, July 31st: A follow-up critiquing Bernard-Henri Lévy’s claim that pro-Palestine protesters are guilty of ‘selective outrage.’

Addendum, August 1st: Some brief notes on my interactions above with the police and the penal system.

Woody Allen’s Guide to Civil Disobedience and Revolution

Today is Easter Sunday. Jesus was a Jew and a rebel. So, on this great day in Jewish history, and in honor of Jewish rebellion, here is Woody Allen on civil disobedience and revolutions.

In perpetrating a revolution, there are two requirements: someone or something to revolt against and someone to actually show up and do the revolting. Dress is usually casual and both parties may be flexible about time and place but if either faction fails to attend, the whole enterprise is likely to come off badly. In the Chinese Revolution of 1650 neither party showed up and the deposit on the fall was forfeited.

The people or the parties revolted against are called the ‘oppressors’ and are easily recognized as they seem to be ones having all the fun. The ‘oppressors’ generally get to wear suits, own land, and play their radios late at night without being yelled at. Their job is to maintain the ‘status quo’, a condition where everything remains the same although they may be willing to paint every two years.

When the ‘oppressors’ become too strict, we have what is know as a police state, wherein all dissent is forbidden, as is chuckling, showing up in a bow tie, or referring to the mayor as ‘Fats.’ Civil liberties are greatly curtailed in a police state, and freedom of  speech is unheard of, although one is allowed to mime to a record. Opinions critical of the government are not tolerated, particularly about their dancing. Freedom of the press is also curtailed, and the ruling party ‘manages’ the news, permitting the citizens to hear only acceptable political ideas and ball scores that will not cause unrest.

The groups who revolt are called the ‘oppressed’ and can generally be seen milling about and grumbling or claiming to have headaches. (It should be noted that the oppressors never revolt and attempt to become the oppressed as that would entail a change of underwear.)

Some famous examples of revolutions are:

The French Revolution, in which the peasants seized power by force and quickly changed all the locks on the palace doors so that the nobles could not get back in. Then they had a large party and gorged themselves. When the nobles finally recaptured the palace they were forced to clean up and found many stains and cigarette burns.

The Russian Revolution, which simmered for years and suddenly erupted when the serfs finally realized that the Czar and the Tsar were one and the same person.

It should be noted that after a revolution is over, the ‘oppressed’ frequently take over and being acting like the ‘oppressors.’ Of course by then it is very hard to get them on the phone and money lent for cigarettes and gum during the fighting may as well be forgotten about.

As always, in the best comedy, there is enough truth to make our laughter just ever so rueful.

Note: Excerpted from ‘A Brief, Yet Helpful, Guide to Civil Disobedience’ in Without Feathers (Warner Brothers, New York, 1975), pp 111-112.