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Canard Watch: ‘Exempting’ Congress from the Affordable Care Act

“Wait a minute,” I thought, listening to this Affordable Care Act talk on the radio this week, “What is the deal with this ‘exempting’ members of Congress from the law? Aren’t they already within the scope of the individual mandate?”

The Affordable Care Act requires Americans to have any health insurance, whether it’s from an employer, a spouse, or a parent. If a person doesn’t have health insurance, that’s what the new state exchanges are for: a place to go get health insurance. As federal employees, members of Congress and their staffers already have health insurance, so “exempting” them from the ACA requirements doesn’t make sense because there’s nothing to exempt them from.

It turns out that this “exemption” talk comes from a bad faith amendment to the Affordable Care Act, inserted by Republicans, that would have required members of Congress to obtain their health insurance from a state exchange. The amendment ended up being part of the law, but now that’s creating a problem:

Large employers — defined in the law as employers with more than 100 employees — aren’t allowed onto the insurance exchanges until 2017, and only then if a state makes an affirmative decision to let them in.

But the federal government is the largest employer in the country. So Grassley’s amendment means that the largest employer in the country is required to put some of its employees — the ones working for Congress — on the exchanges. But the exchanges don’t have any procedures for handling premium contributions for large employers.

That’s where the problem comes in. This was an offhand amendment that was supposed to be rejected. It’s not clear that the federal government has the authority to pay for congressional staffers on the exchanges, the way it pays for them now in the federal benefits program. That could lead to a lot of staffers quitting Congress because they can’t afford to shoulder 100 percent of their premiums. (There’s also a smaller issue related to how retiree benefits might be calculated. But I’m only willing to go so far into the weeds here.)

So, is Congress trying to “exempt” itself from the Affordable Care Act? No: Congress is trying to undo a bad faith amendment that will result in, at the least, confusion as to what health care members of Congress actually have, and at worst, make health insurance way more expensive than it has to be, all while failing to address the purpose of the law, which was to get everyone insured (which members of Congress already are, anyway).

The FactCheck.org article linked above notes that there is no special plan just for members of Congress; they have access to the same health insurance plans that all federal employees have. However, by virtue of their being members of Congress, they have—separate and apart from their health insurance plans—perks that other federal employees don’t (again, regardless of which insurance plan they choose):

In addition, members of Congress also qualify for some medical benefits that ordinary federal workers do not. They (but not their families) are eligible to receive limited medical services from the Office of the Attending Physician of the U.S. Capitol, after payment of an annual fee ($491 in 2007). But services don’t include surgery, dental care or eyeglasses, and any prescriptions must be filled at the member’s expense.

House and Senate members (but not their families) also are eligible to receive care at military hospitals. For outpatient care, there is no charge at the Washington, D.C., area hospitals (Walter Reed Army Medical Center and National Naval Medical Center). Inpatient care is billed at rates set by the Department of Defense.

So, no, Congress doesn’t have any special plan just for itself. And any perks that a member has come as a result of that person’s status as a member of Congress, not as a result of an insurance plan that person has chosen. No non-Congressman could have access to those perks under any insurance plan because only a member of Congress can have them.

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The Problem with ‘Regular Order’

Why are House Republicans so reluctant to use the normal Congressional operating procedures to get what they want?

Answer: Because they wouldn’t get absolutely everything they want. For years, this has been what “compromise” means in Congress: Republicans get everything they want, while Democrats get a portion of what they want. When Democrats complain that Republicans are being intransigent because they (Republicans) refuse to give an inch while at the same time demanding that Democrats give a lot, it’s the Democrats who are refusing to come to the table and negotiate.

Get it?

Me either.

You Get Nothing. You Lose.

This really needs to be the response to House Republicans’ hostage-taking and disingenuous demand for a fictional “compromise”:

[H/T to The Daily Show.]

Tying Obamacare to the Train Tracks

Will Saletan at Slate discusses why the Republican threat to shut down the government over Obamacare is outrageous:

They’re planting the assumption that the reasonable, moderate, even-handed thing to do is to “negotiate” a “compromise” between the Democratic and Republican positions on the Affordable Care Act. What they’re hiding is the absurdity of the Republican position: that a law passed by both houses of Congress, fully debated in a subsequent presidential election, and unsuccessfully challenged in more than 40 legislative votes by the losing side should be subject to repeal, defunding or delay because a single party, narrowly controlling a single chamber of Congress, otherwise refuses to fund the rest of the government.

This is exactly right. When Rand Paul asks, “Why don’t we actually bring it to Congress and try to figure out how to meet somewhere in the middle?” he’s intentionally ignoring something important. “We”—meaning Congress—have already “brought [Obamacare] to Congress” in the form of a vote that passed the legislation. Radical Republicans like Paul and Ted Cruz want a do-over on Obamacare simply because they have more leverage now than they did in 2010. But it’s beyond disingenuous to pretend that this is the first time we’re having a necessary conversation about Obamacare. We had that discussion. They had their chance. Now it’s over. They lost.

Adopting Littermate Puppies: Don’t Do It

With cats, the more the merrier: littermate kittens entertain each other and wear each other out so a single cat isn’t clawing at your furniture all the time. Littermate cats are fine because cats are generally solitary animals and don’t bond with humans that much. Dogs are different. They’re pack animals, so they bond with each other. They’ve also been bred for 10,000 years to bond with humans.

Littermate syndrome breaks all of that. When you adopt two puppies from the same litter—or even two puppies from different litters that have been brought up together and are of the same age—they bond to each other more than they bond to their humans. This isn’t the way it’s supposed to work. Because they’re so bonded to each other, littermates experience tremendous anxiety when they’re separated.

So why not just keep them together? If they don’t like it, then why separate them?

First, one of the puppies will become dominant and the other submissive. This means that the submissive dog will generally be dependent on the dominant one and won’t have a chance to develop into his own doggy-person. The dominant dog, as well, will get an over-inflated sense of himself. He’s a badass compared to his submissive littermate, but once he gets out into the world, he’ll find that he’s not such hot stuff. Rather than learn how to socialize with other dogs, he’ll become frightened and wait for the opportunity to get back to his submissive buddy.

Second, the bond between the two littermates will be stronger than their respective bonds to their human and to other dogs. At their worst, littermates will ignore commands from humans and will spend all their time at the dog park with each other instead of with other dogs.

Sorry, that’s not the worst case scenario. The worst case scenario happens a few years after you get them. The dogs become increasingly aggressive and fight each other, leading to actual injury, especially if they’re both male. They’ll also increasingly ignore their humans and run amok. Because why would they pay attention to humans when they’ve got each other?

The first rule of littermates is that you do not get them. The second rule of littermates is … well, you know. But if you have them already, the remedy for assuaging littermate syndrome is to separate them basically all the time. Separate walks, separate training, separate sleeping (and separate crates if you’re crate-training), separate feeding. You’re essentially working twice as hard to undo the reason why you got littermates in the first place; i.e., to keep them together. With littermates, you’re actively working to keep them apart.

And that’s dumb. It’s like the story of that famous wrestler who was drowning but refused to take off his heavy gold accoutrements as he flailed in the water. He died.

Once a dog is matured—that is, after a year or so—you can get another dog because the first one has bonded to its humans and has an identity all its own. There’s no problem with having multiple dogs, provided they’re in different stages of development.

The seed of this issue comes from experience. My friends were coaxed into getting littermates by a foster boarder. In retrospect, someone with dog experience should have known better, meaning this boarder was either negligent in not knowing about littermate syndrome; or, if he did know, really irresponsible in pushing littermates on them.

My friends had no idea what littermate syndrome was. For the first week and a half, they crated the dogs together (bad idea), let them hang out together all the time (bad idea), sleep together (bad idea), and walked them at the same time (bad idea). They noticed a lot of play-fighting, but chalked it up to “that’s what puppies do.” The fighting seemed more aggressive than the play-fighting at the dog park, but then they thought, “Well, dogs in a pack play differently with each other than they do unfamiliar dogs.”

One of the dogs injured himself (unrelated to fighting; he basically banged his arm into the wall while running really fast). Because the two of them fought so much, the injured dog had to be crated so that he didn’t further damage the arm. This is when we realized there was a problem: he howled and howled when he was put into a crate by himself. It wasn’t the crate; they had been in a crate before and did just fine, but they were together. It was only when one of them was separated from the other that the howling started.

They mentioned this problem casually to a neighbor who also just got a puppy. The neighbor mentioned that he and his girlfriend had thought about getting littermates, but the Humane Society they got the puppy from refused to give them littermates and then explained littermate syndrome to them. That’s where my friends first heard about it.

If puppies seem excessively bonded to each other, it might seem cruel not to take both of them, but the excessive bonding actually lets you know that something is wrong. In the future, it’s not like the dogs will be able to be together all the time. There will be times when the dogs will be separated: if one has to go to the vet, for example. This separation results in terrible anxiety that does the dog no good. They also need to be trained separately so that they each know how to respond to commands and also won’t be distracted by each other. And finally, problems will arise in the future that you can’t predict. Many of the articles we read about littermate syndrome ended with, “And I had to give one of them up.”

It’s possible to raise littermates, but it’s difficult and time-consuming. And the best option for everyone—dogs and humans alike—is just not to do it in the first place.

Sources of Actual Information

http://www.veterinarypartner.com/Content.plx?P=A&A=995&S=1
http://blog.betternaturedogtraining.com/2013/07/18/littermate-syndrome/
http://buddyschance.typepad.com/positive_dog_training_blo/2007/04/adopting_litter.html

On ‘RoboCop’ and Telling a Story Well

Needless to say, spoiler alert.

The first RoboCop—as violent a movie as ever was made by Paul Verhoeven (or anyone else, for that matter)—was a great movie. It was great because it didn’t hold your hand and trusted that you could follow along without being told what was going on. In other words, you’re a grown-up, so here’s a grown-up story told in a grown-up way. Some of the best literature out there is “the best” because it invites your interpretation (for example, Ralph Ellison’s Invisible Man) instead of telling you what’s going on.

In the new trailer for the RoboCop remake starring Joel Kinnaman, the scientist character (Gary Oldman) warns of the new cybernetic cop, “The human element will always be present.” This is the kind of hand-holding that makes movies bad. That little bit of dialogue is supposed to clue you into what’s to come; i.e., the new RoboCop machine will have a 21st-century crisis as what’s left of his humanity tries to assert itself over his computer programming. But we didn’t need to be warned.

In the original RoboCop, we sat back and watched the movie unravel. Here is how Verhoeven, with a great script by Ed Neumeier and Michael Miner, showed us a story instead of telling us a story.

We watched as RoboCop was born of a multinational corporation’s limitless greed as it attempts to build a law enforcement robot that it can sell to both the police and the military and also find a profit center in “spare parts for the next twenty-five years.” We watched as Alex Murphy was brutally killed. Yes, he technically died (as becomes clear when Johnson points out, while The Suits are debating whether to keep a perfectly functioning human arm, “He’s legally dead. We can pretty much do what we want.” The response from Miguel Ferrer: “Lose the arm”). In the remake, Murphy is still alive, but basically wheelchair-bound. That’s not as compelling (especially for the critics out there who want to make a Frankenstein comparison).

Then we watched as RoboCop’s latent humanity slowly came to the surface. First when his old partner, Nancy Allen, confronts him in a hallway and proclaims, “Murphy, it’s you!” Then, he drives back to his old house, only to find it abandoned and up for sale. Finally, he confronts the people who killed him. And they manage to recognize him, too. (“You’re dead! We killed you!” yells the bristly doctor from ER after RoboCop delivers one of his signature phrases: “Dead or alive, you’re coming with me.”)

The story really comes to life through the directorial choices. In spite of Showgirls, Verhoeven knows exactly what he’s doing. The character RoboCop is revealed slowly: first, all we see are the heads-up display POV shots as he’s being built. There’s a vague reflection of RoboCop in a mirrored surface during this part. Then, when he’s finished, he’s brought into the police station, but can be seen only behind frosted glass. Finally, we get the full reveal when he’s led into the cage where he rests and ingests the “rudimentary paste” that keeps his organic parts alive (“Tastes like baby food!” Johnson gleefully exclaims).

Verhoeven isn’t done yet. RoboCop is deconstructed back into a person as quickly as he was constructed into a robot. When he’s betrayed by his maker—OCP and the nefarious Dick Jones (in shoes that no one but Ronny Cox could ever fill)—he’s attacked by his own police force. His visor is broken and we see a human eye inside the helmet. What? There’s more than just the chin? His humanity is slowly returning, revealed bit by bit just as his robot-ness was revealed bit by bit. And the audience is intrigued. Just how much “person” is there in that outfit?

robocop-visor-eye-murphy-600x337

Finally, before the last confrontation between the dad from That ‘70s Show, the dad from Twin Peaks, and the bristly doctor who gets crushed by a helicopter on ER (which, by the way, is a way better fate there than the one he suffers at the end of this movie), RoboCop takes off his helmet. He puts the drill in one side of his head, then the other. The bolts holding his helmet on come out. He tells Nancy Allen—his voice now devoid of the robotic reverberation it had when he first started stopping crime—“You may not like what you’re going to see.” It’s a moment of tension not unlike the tension the parents faced in W.W. Jacobs’ short story The Monkey’s Paw: Oh, god, what grotesquerie lies behind the door? Do I need to look away?

And then—boom!—cut to a close-up of what’s left of Alex Murphy’s humanity. He’s got a human face, for sure. But it’s encased in a robot’s head. He wears a sad expression, or maybe it’s just a blank expression. Do RoboCops have feelings? He refers to Alex Murphy in the third person and the past tense (“Murphy had a wife, a son, what happened to them?”), as though that identity belongs to a dead person.

RoboCop-Alex-Murphy-Unhelmeted

But the pièce de résistance comes at the very, very end. RoboCop has just killed Dick Jones, the evil corporate executive who had been in cahoots with the criminals all along. He’s saved the president of the company, The Old Man, from being killed by Jones. The Old Man fixes his tie and says, as though a cyborg foils a hostage attempt every day in this building, “Nice shooting, son. What’s your name?” RoboCop does a quarter turn back to the camera and says, “Murphy.”

weller-robocop

Roll credits.

That’s how you tell the story of a human who becomes a robot and slowly regains his humanity. The original RoboCop is excellent precisely because it’s not heavy-handed. No one is out there doing plot explication to let the audience know “This is about regaining lost humanity in an age of technology! This is about the military-industrial complex! This is a metaphor for corporations taking our humanity away!” This film is a representation of the old writer’s adage show me, don’t tell me.

This lack of finesse is what disturbs me about the new RoboCop. Admittedly, it is only 2 1/2 minutes, but throughout the trailer, I get a sense that we’re being told what’s happening instead of being shown what’s happening. And the expert hands that took us on Murphy’s journey from human to robot and back to human is absent; Joel Kinnaman looks like a normal guy wearing motorcycle gear. The original RoboCop was designed to look like a robot, not like a person. That was intentional. He’s not The Six Million Dollar Man; he’s basically a metal shell with a small amount of human inside. And that human, by the way, is jealously guarded until the final act, when the shock of seeing Peter Weller’s face again—albeit encased in that metal shell—puts the audience on notice that he’s no longer RoboCop, but “Murphy.”

Or maybe I’m an old man ranting about hating new things. If this new RoboCop is good, I will be pleased. If it’s not, then I will be sad.

‘Devices and Services’?

So, Steve Ballmer is retiring so Microsoft can focus on “devices and services“?

That’s a huge change. Microsoft has never been a “device” company; it’s been a “software” company. That’s how Windows became ubiquitous: “you make the hardware, we’ll make the software.” Of course, the reason for this change is simple: everyone else is becoming a device company. Apple has long been a device company—they’ve always made both the software and the hardware—but the success of the iPod and the iPhone prompted Apple to go so far as to change their name from “Apple Computer, Inc.” to “Apple, Inc.” to emphasize that they also made consumer electronics. Google now makes its own Android phones.

But Microsoft? The only success Microsoft had with “devices” was the Xbox. The Zune was a colossal failure. So, too, appears to be the Microsoft Surface RT, which has sold about two million units in eight months, compared to three million iPad Minis in three days last November. (Of course, this hasn’t stopped Microsoft from spending more money on jabs at Apple, but if they want to soak up their $900 million bath, they’re going to need to do better than making fun of Siri. Though note that in that ad, Windows 8—not the Surface specifically—is the focus. Hmm.)

I guess there are two business mantras in conflict here. One mantra is: do what you do better than anyone else. This requires sticking to one thing, or a few things. A company can’t do everything better than everyone else. Microsoft made boatloads of cash during the ’90s by doing one thing well: Windows. During the ’90s, computers became a standard component of the home and the office (though it’s hard to believe when computers were more than a novelty!). The question was, “What will these computers look like?” Microsoft’s business model made Windows-based computers cheaper than Macs, and so the answer was, “These computers will run Windows.” Microsoft succeeded by introducing Windows to the home user via their business influence; you use Windows at work, so why not use Windows at home? And Windows became ubiquitous at work because Microsoft’s business offerings (Office, Windows Server, Exchange, Active Directory) all played nicely together, so it made sense for companies to do full-on Microsoft everything. (This was especially beneficial for multinational companies, as Active Directory can scale to gargantuan proportions.)

But the blessing was also a curse. Everything Microsoft did was Windows-based. Everything revolved around Windows. With the iPod, Apple changed from being Mac-centric to being consumer-centric. iPod. Apple TV. iPhone. iPad. And so on. These devices can all exist separately, but they can also exist together in a harmonious, Apple-centered household where Mac OS is but one component of many.

Which brings me to the other mantra: change up the business model when it’s not working. Microsoft appears to want to try this one, even though they have yet to make a consumer electronic that people want (again, the Xbox is the outlier). It could be, though, that they just don’t know what people want. Windows 8 on the tablet is about the same as Windows 8 on the computer. I hate Windows 8 on the computer. It’s designed for a tablet, but a computer isn’t a tablet. I hate Windows 8 on the tablet. It’s designed for a computer, but a tablet isn’t a computer. By trying to create one operating system that does both things, Microsoft succeeded in creating an operating system that does neither very well. With iOS, Apple has acknowledged that different devices have different requirements; I’m going to interface with Mac OS differently from the way I interface with the iPad.

On the “services” front, Microsoft is actually doing pretty well. SkyDrive is very easy to use, and its integration with Office makes life easy. While I haven’t used the new Outlook webmail system, all the reviewers really like it. This, however, is software, and Microsoft knows how to do software. Unlike Windows 8, it’s device-independent software; email is email, and cloud storage is cloud storage, no matter what you’re using to access it.

Microsoft knows how to do software. Believe it or not, Windows XP has been around for twelve years, and it’s still around. It’s still a perfectly serviceable operating system. You’d be hard-pressed to say that about any twelve-year-old operating system. Windows XP still commands 39% of the the desktop operating system market. And Office? Well, “Word” is as synonymous with word processing as “Kleenex” is with facial tissue. Microsoft is good at software, and yet it continues to want to play with the other kids at hardware, which is something it’s generally failed at.

I suppose that’s the point of Ballmer leaving: Ballmer is part of the old guard, and on top of that, he’s not really an innovator. He’s a manager. Microsoft’s thinking must be that their failure so far in the hardware world has been because they don’t know how to make hardware that people want, and that’s because the people at the top don’t know how to make hardware that people want.

Getting rid of Ballmer might solve the ossification problem, but here’s another problem: does Microsoft want to play along with the other kids, or does it want to destroy them? If Microsoft wants to create an “iPad killer” or an “iPhone killer,” it needs some truly creative people. Apple’s hegemony in mobile devices is largely because it got there first. With the iPhone and the iPad, Apple framed the debate in terms of what such a device is expected to look like and how it’s expected to work, because, really, there was no all-touchscreen phone before. There’s a reason why most of the smart phones out there look like iPhones: Apple got there first and set the expectations. Once someone else has defined what a product category looks like and does, a new thing in that category can’t go too far toward upending people’s expectations; otherwise, it will be too strange and weird to buy. This means that hardware competitors (like Microsoft) either need to stick with the established design or not only revolutionize the design, but also convince consumers that this revolutionary design is something they want. That’s a pretty tall order. Steve Ballmer couldn’t do it; they’re hoping there’s someone else out there who can.

Cell Phone Search Incident to Arrest Coming to a Supreme Court Near You

The Justice Department has filed a petition for a writ of certiorari in the Supreme Court, arguing that police should be able to search the contents of the cell phones of arrestees as part of a valid search incident to arrest.

This brings the federal government into a conflict that has been going on for some years now, as cell phones have become ubiquitous. Different states have different rules, and so do different federal circuits. Some states’ rules are judicially prescribed, while others are legislative.

What a country!

United States v. Wurie, the case at issue, begins like this: an officer spotted someone making what appeared to be a drug sale from his car. After the transaction was complete, the driver left and police arrested the buyer. The buyer told the police that he had purchased the drugs from the driver of the car, a crack dealer in South Boston. Police followed the driver, then arrested him. At the police station, they confiscated his keys, a significant amount of cash, and two older flip-style cell phones. On one of the cell phones, there were repeated calls from a contact labeled “my house.” Police found out that the number associated with “my house” was an address in South Boston close to where the defendant parked his car. They drove to the house and saw a mailbox with the defendant’s name on it. Police then obtained a search warrant and found drugs, cash, and guns inside.

The legal theory on which the government hangs it hat is the search incident to arrest (SIA) doctrine. A valid arrest allows an officer to conduct a warrantless search of the arrestee’s clothing and anything associated with the arrestee or within the arrestee’s immediate control. The purposes of this search are: (1) officer protection, to make sure the arrestee doesn’t have anything dangerous on his person; and (2) evidence preservation, to make sure the arrestee doesn’t destroy evidence within his control.

To be sure, if the Supreme Court does take up Wurie, there will be a lot of talk about the reasoning behind SIA. In its petition, the government makes a deceptively simple argument: “Look, Supreme Court, in prior cases dealing with SIA, you said the police can search anything on the arrestee’s person. A phone is anything on the arrestee’s person. So therefore you can search it. Seacrest out.”

Wurie, though, will be making the same arguments made by defendants in prior state-level cell phone search cases, including People v. Diaz (California), State v. Smith (Ohio), and Hawkins v. State (Georgia). The argument is this: “Supreme Court, back when you decided all those SIA cases, we were talking about wallets, purses, and cigarette packs. Those can only hold a finite amount of stuff. But a cell phone can store way more stuff; therefore, there’s too great a risk of an officer going on a treasure hunt on a cell phone. Therefore, you can’t treat a cell phone like a wallet just because it’s the same physical size and is on the arrestee’s person.”

In Smith, the Ohio Supreme Court held that a cell phone was unique when it came to SIA and couldn’t be searched absent a separate warrant. In Diaz, the California Supreme Court basically punted on the issue because California’s Fourth Amendment case law comes from the U.S. Supreme Court, and since the U.S. Supreme Court hasn’t given a special exemption to cell phones, California didn’t, either. In Hawkins, the Court of Appeals of Georgia held that police could examine some, but not all, of the files on a cell phone, where the scope is limited to files that might reasonably contain the object of the search.

There’s also a federal circuit split. In United States v. Finley, the Fifth Circuit characterized a cell phone as no different from any other container on an arrestee’s person. Now, with Wurie, we have the First Circuit saying something else. Because there’s a circuit split, the Supreme Court has little choice but to take up the issue.

The government has an uphill battle when it makes the “just keep doing what you’ve been doing” argument. One of the major reasons why SIA exists is to prevent spoliation of evidence. Why can’t the police just take the cell phone and search it later? The government contends that there’s a possibility the phone could be remotely erased, but that’s not a terribly realistic possibility. As the First Circuit pointed out, the police could take the battery out. Or put the phone in a Faraday cage, where it would be shielded from electromagnetic waves. And police don’t have to take that much time when searching a phone, either; the Cellebrite UFED is a device police departments use to extract the contents of a cell phone in minutes. The police could seize the phone without searching it and have ample time to get a warrant. Once the phone is away from the arrestee’s immediate control, the exigency that gives rise to the SIA (fear of spoliation of evidence) vanishes. The government will have to address this problem.

But it doesn’t end there, of course. As I note in my recently published law review article, things get dicier still when police are accessing data that are not stored on the phone but is instead stored with a remote computing service, like Google or Apple. That issue isn’t before the Court now, but it will be in a few years.

The status quo argument is both a blessing and a curse. It’s an argument that succeeds only if the justices accept the premise; i.e., that a cell phone is no different from a wallet or a pack of cigarettes. This means that they’ll have to address why a cell phone is the same as a wallet and a pack of cigarettes, which—given the storage capacity of a wallet compared to that of a cell phone—will be an unenviable task. The majority/concurrence split in United States v. Jones, the recent GPS-tracking case, suggests that the Justices are prepared to engage with the substance of the technology, rather than relying on the old tried-and-true (and increasingly threadbare) method of analogizing the technology to something found at common law. With Wurie, or any other cell phone search case, there’s actually the possibility of a meaningful technology-centered decision.

The Myth of the ‘Consensual’ Police Encounter

As far as the Supreme Court is concerned, you’re in police custody when (1) the police physically restrain your liberty; e.g., by placing you in handcuffs, or (2) when you’re in a situation where a reasonable person wouldn’t feel free to leave. When you’re in the back of a squad car, in a jail cell, or in handcuffs, you’re clearly “in custody.” But what about when police are in your living room? Or when they’re on a bus, blocking the exit? Are you in custody then?

The answer is important. Police don’t have to read the Miranda warning unless you’re both in custody and being interrogated. Appellate lawyers argue all the time about whether the defendant was “in custody” at the time of the questioning, meaning the confession should have been suppressed at trial. Custody is also helpful for determining whether you’re involved in a Terry stop. New York’s “stop and frisk” law—recently ruled unconstitutional as applied—is a form of the Terry stop, which is a brief detention an officer uses to confirm or deny that the target of the stop is about to be, or recently has been, involved in criminality. If you’re being “detained”; i.e., a reasonable person wouldn’t feel free to leave, then during the Terry stop, police can conduct a limited pat-down of your outer clothing if they have reason to believe you’re armed and dangerous.

You’re not in custody, however, if your interaction with the police is consensual. A consensual stop is the flip side of a detention or being in custody. The Supreme Court has always maintained that there are situations in which a reasonable person would feel free to leave. If you continue the police encounter even when a reasonable person would feel free to leave, then guess what? You’re not in custody anymore; now you’re in a “consensual encounter,” which sounds more like a really lame erotic lawyer thriller. And that means a whole host of prophylactic measures designed to prevent police abuse of authority (including the Miranda warnings) no longer apply. Because, hey, you’re choosing to be there. It’s not like the police are forcing you to stay.

But the authors of a new article in Florida Coastal Law Review conducted a semi-scientific survey of eighty-three undergraduates at a “medium-sized, southern private university” in which the students were approached by campus security and asked what they were doing there. All eighty-three students answered the officers’ questions. After the encounter, they were asked why they didn’t leave. Routinely, their reasons centered around the officers’ authority.

It would be even more interesting to do this experiment again with students of different races and look at the race breakdown. As LeVar Burton mentioned on CNN a few months ago, as a black person, he’s got to be extremely conscious of his actions when he’s stopped by police. He has to acquiesce to authority in a way that no white person will ever have to; otherwise, the officer could perceive his actions as a threat and use deadly force.1 In the real world, a well-mannered white person could get away with asking, “Am I being detained?” and then walk away. But a black person? These days, just about anything innocuous counts as a “furtive movement.” Being shot by the police is probably a statistically unlikely scenario, but being booked on the often-specious charge of “obstruction of justice” or “resisting arrest” is much more likely.

In any case, the acquiescence to authority is alarming, especially as the Supreme Court continues to chip away at Miranda and especially as multiple big-city police departments use “stop and frisk” in unconstitutional ways. Back when Miranda was decided, the Court used contemporary statistics and other information (including police department manuals advising officers on the finer points of coercive interrogation) to conclude that police interrogation had gotten out of hand. This law review article is hopefully the beginning of more data-driven analysis about the existence (or not) of the reasonable person who would feel free to leave.


1. Critics who sniff at the existence of “white privilege”—almost all of whom are conservative white men—don’t believe this is a thing because the pre-textual stop is something they’ll never, ever experience in their lives. Ever. Never. In holding part of New York’s stop and frisk policy unconstitutional, Judge Scheindlin noted that 87% of stop and frisk targets were either black or Hispanic. To say nothing of state “immigration” laws that allow officers to ask suspects for proof of immigration status. How many of them are white?

‘Amish Mafia’ Is the Tawdriest of the Tawdry

You’d have thought reality TV exploitation had hit bottom with Here Comes Honey Boo Boo, a show designed so that the rest of America gets could laugh at the backwoods, rural hickness of Honey Boo Boo, Mama June, and the rest of the family. Presenting rural Americans as exotic and worthy of gawking at is nothing new to the United States, but Honey Boo Boo is at its most crass because, even if Mama June is in on the joke, it’s clear that the show contributes greatly to their income, making it coercive in a way that Duck Dynasty—another rural American sideshow—isn’t.

Anyway, I thought I’d seen the bottom of reality TV until I watched an episode of Amish Mafia. The show purports to be about a secretive cabal of Amish “enforcers” in Lancaster County, Pennsylvania, and the reason why you’ve never heard of these enforcers before is that the Amish don’t like to talk about it and actively cover up its existence. Intriguing!

There’s another reason you’ve never heard of the Amish mafia: it’s all made up. Because I apparently have nothing better to do, I checked in on the Amish mafia and found it lacking in veracity.

  • The show itself begins with a disclaimer that some scenes are recreated so as to respect the “innocent” Amish who may have been involved. There’s a tip-off right there.
  • David Weaver-Zercher, a professor at Messiah College in in Pennsylvania, has written several books about the Amish and maintains that an “Amish mafia” doesn’t exist. Ditto, says Donald Kraybill, a professor at Elizabethtown College in Pennsylvania, who studies the Amish and other Anabaptist groups.
  • But that’s just what you’d expect from a conspiracy, right? Of course no one would be able to find evidence of the conspiracy’s existence. However, in one scene, the main character—”Lebanon” Levi, the godfather of this organization—collects “protection” money from a store in Lancaster. The store is not named, but is identifiable. According to the store’s owners, the idea that the Amish would collect protection money is chuckle-worthy. Discovery Channel did film there, but got permission by telling the owners that they were shooting a documentary about the Amish.
  • It may certainly be true that the cast members used to be Amish. Or maybe they never were. According to Weaver-Zercher, a person is “Amish” only if he or she is baptized into the church, which is to say that there’s no such thing as being “ethnically” Amish. The cast members of Amish Mafia don’t appear to have been so baptized. In any case, the cast seems to be recruited from around town. Lebanon Levi is Levi Stoltzfus, who may be a member of the Neptune Fire Co., the fire department in Richland, Pennsylvania.

Of course, if Discovery Channel is foisting a ruse on the viewers of Amish Mafia, who gets hurt? Even if the show is a ridiculous, over-the-top, and unbelievable ruse, as when Lebanon Levi decides that a “barn fight”—a transparent appeal to fans of mixed martial arts, who may share demographic characteristics with fans of this show—would be a great way to raise cash. Michael Shank, who criticized Amish Mafia in November, says it’s the actual Amish who get hurt because they’re being misrepresented. And because the Amish don’t deal with outsiders, they really have no way to defend themselves. And even worse than that, there are real problems within the Amish community that could be the focus of greater scrutiny, but are overlooked in favor of hyperbolic, fictional problems.

What could be worse than that? Maybe name-dropping some horrible real-life stuff in order to build up a character. A character identified as “Merlin Miller” from Holmes County, Ohio comes into Pennsylvania with the intention of taking over Levi’s operation. Merlin claims to run the Amish mafia in Ohio, and the scriptwriters have him referring to the real-life case of Samuel Mullet, an Amish religious fanatic who was convicted last year of hate-motivated crimes against other Amish. He also sexually assaulted the members of his little group. Amish Mafia uses the Mullet story as a grotesque jumping-off point for the Merlin character to claim that he is even worse than Mullet, so look out!

Putting aside the offensiveness of Amish Mafia, we’ve really come full circle with reality television, haven’t we? Amish Mafia is a fully scripted television drama that tries to pass itself off as a “reality” show. Why not cut out the conceit and just call it a fully scripted television drama about a made-up thing called the Amish mafia? Of course, that wouldn’t engender as much interest, but the preposterousness of the whole idea makes one wonder how many people out there really do tune in because they’re entranced by this apocryphal cabal that no one is willing to talk about. Then again, there are still people out there who think that “professional” wrestling is real.

I had hoped that once we got through our fascination with reality TV, we’d go back to scripted TV. Turns out the next iteration of reality TV is just badly scripted reality TV presenting itself as unscripted reality TV. I guess the soap opera hasn’t died out, after all.