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Elie Mystal

Elie Mystal is the Managing Editor of Above the Law Redline and the Editor-At-Large of Breaking Media. He’s appeared...

Joe Patrice

Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a litigator at...

Between fake drug bust prom proposals and pulling people over out Christmas gifts, police departments across the country are trying to improve their image in the worst way possible. Joe and Elie discuss how this isn’t so much “cute” as “a glaring violation of the Fourth Amendment.”

Transcript

Above the Law – Thinking Like a Lawyer

The Police Have An Image Problem… And This Isn’t Helping

04/28/2017

[Music]

Intro: Welcome to ‘Thinking Like a Lawyer’ with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

[Music]

Joe Patrice: Hello, welcome to another edition of ‘Thinking Like a Lawyer’. I am Joe Patrice of ‘Above the Law’ and with me — oh, he is going to jump in always —

Elie Mystal: We are actually in our office.

Joe Patrice: We are.

Elie Mystal: Like not the crappy conference room, like our actual like workspace.

Joe Patrice: Yeah, this is our actual workspace, soak it in listeners, well you can’t, but it is nonetheless a workspace that we have all to ourselves because all of the other editors aren’t here today.

Elie Mystal: I can take my pants off, this is awesome.

Joe Patrice: Yeah, I mean, I figured I’m shocked they’d been on this long. So yeah, so we’re back, we are doing our usual Above The Lawing thing, this is an exciting week for us, by the time people hear this we will have a Law Review winner which is our annual contest where schools send in their funny videos, and we judge them, always fun, check that out.

Elie Mystal: As one does.

Joe Patrice: Yeah.

Elie Mystal: But that’s something that grabbed my gears about today as they often do.

Joe Patrice: How do you know?

Elie Mystal: So, I just got back from San Francisco and I flew out there for the NALP Conference, it’s the National Association of Law Placement Conference. It’s a very good conference, I’ve been writing posts about that, but because it was San Francisco I flew out with my family. I’ve got two young children. I got a 4.5-year-old and a 1.5-year-old. I did not get beat up — beaten up by flight attendants.

Joe Patrice: Good job.

Elie Mystal: Nobody challenged me to fight as —

Joe Patrice: In fairness, dragging you through the aisles would have been difficult.

Elie Mystal: They would have had to commit to it. You know what I am saying?

Joe Patrice: They would have to fight off a lot – they would have to fight off a lot more than they could do.

Elie Mystal: But in case — then I see there was a family flying back, there was a woman flying back from San Francisco with two, I think, 60-month-olds and she was trying to get her stroller kind of through the plane and somehow the flight attendant got pissy with her, grabbed the stroller, hit her in the face, almost hit her children, threatened, another passenger was like, you shouldn’t be doing that, bro; the flight attendant was like, come at me, and it became another YouTube sensation.

This is American as opposed to United but they were all kind of crappy airline carriers. We flew JetBlue. But the thing — anyway, the thing that occurred to me as I was kind of thinking about my own horrible cross-country experience and watching this crying Argentinean mother, when I was a kid parents got to board first, parents flying with small children got to board first, right up there with disabled people, which makes sense, because when you have small children you’re basically disabled at that point.

Like your ability to interact as an able-bodied person has been severely reduced by your urgence that you’re trying to herd into the plane. It makes sense for parents to board first, you can kind of get all your crap onto the plane, you can get your kids on the plane and secured, but that doesn’t happen anymore at many airlines in part because they’ve figured out how to monetize people’s desires to get on the plane first, so now disabled people still have to board first because that’s an actual regulation.

Joe Patrice: Right.

Elie Mystal: But then it’s first class, and then super this class, and then people with points and upgrades, and then people who buy the exit row seats because the airlines have also figured out how to monetize safety regulations. And then parents have to board basically when the plane is already half full, I mean, it’s still — you still have courtesy parent boarding in a lot of airlines before general boarding, but because of all of these other special classes of passengers parents are boarding the plane when that’s almost half full, which is terrible, which is how you get into situations where bags are flying and kids are almost getting hit in the face, and whatever, it’s a classic situation where the market has figured out how to monetize something. And I believe the federal government needs to come in and regulate that parents should be able to get on the goddamn plane first because they’re traveling with their stupid children, right?

Joe Patrice: Yeah.

Elie Mystal: Now, on the other side when the plane lands, I’m totally with the same rule being applied in the reverse that parents should be expected to deplane last, let all the able-bodied people get off the plane, scurry off, get to their baggage carrousel, and their Ubers and whatever and parents should get off the plane last, slowly, marshalling their children and all their bags off the plane. What do you think?

Joe Patrice: Well, I don’t know about that last bit because I feel from my perspective I would think that parents who have to go to another terminal to connect to something or going to have a real bear of a time, so I would hate to have them be the last ones off because they have to actually move themselves to another terminal. Sure, I actually didn’t — I have an encountered an airline that doesn’t still let the small children board first but —

(00:05:00)

Elie Mystal: You don’t think you have but —

Joe Patrice: I wouldn’t be shocked.

Elie Mystal: I am sure you have, it’s just —

Joe Patrice: Yeah.

Elie Mystal: — because they still get to board early, I’m just saying it used to be where they literally got to go on first along with actually disabled people, and now it’s just early, it’s a courtesy pre-board but after again all of these other classes of passengers have been able to get on the plane.

Now, look, a lot of — I wrote a post about this one on ‘Above the Law’ and I posted on Facebook, and of course, I got the perfect troll, mid-20s White women, no kids, I pay full price for my ticket, why do I have to — one of those people and because I have a lot of parents on my Facebook feed, they are basically are in the process of eating her right now on my Facebook. So —

Joe Patrice: Yeah, I just don’t — I don’t even understand why somebody would want to be on the plane first, I mean, I want to be on the plane as moments before it closes as possible, I don’t want to have to deal with everyone climbing over me or anything, I want to be the last one on and just go. It just seems like that makes more sense.

Elie Mystal: You realize the plane can’t leave until everybody is on it.

Joe Patrice: Right.

Elie Mystal: But now she was making an argument that she paid full price and deserves equal access to the overhead bins and blah, blah, blah. She also made the frankly ridiculous point that — she said something like parents with well-behaved children don’t need to bring a lot of bags on the plane, which is just is the thing that —

Joe Patrice: Sounds ludicrous.

Elie Mystal: — you would say perhaps if you’ve never had children or dogs or any human empathy.

Joe Patrice: Yeah, which I don’t, but even I get that you might need them.

Elie Mystal: Yeah, on our way out to San Francisco we actually were sitting next to a next row of a family that clearly was the first time they’ve flown with the children and hadn’t thought things through. So they didn’t have a lot of bags, and of course, their kid screamed and cried and whined in the entire freaking flight until my wife, so sick of their kid, started like giving her our shit, like just stuff that we had brought for our children that this family had not thought to bring for their three-year-old. We started giving it to her so that she could have an opportunity to keep her kid calm and it helped us for the rest of the flight.

Joe Patrice: Now, here’s a tax that I think parents should have to pay for being on planes, but I think would be a reasonable one. I don’t understand why we have the rules set up as we do where you have to pay through the nose to check a bag but to bring it on and create a problem for everyone else is free, carry-on bags and access to the overhead bins we should be making people pay for that convenience, otherwise you should check it. I think that would solve a lot of these problems because then nobody needs to — nobody gets to feel like I’m being excluded by boarding last because I’m not going to have overhead space. You don’t want overhead space, everyone wants to do the free thing which is check it.

Elie Mystal: Right.

Joe Patrice: That would help a lot.

Elie Mystal: And I promise you, the people who would end up paying more and bringing less would actually be non-parent.

Joe Patrice: Yeah.

Elie Mystal: Because as a parent you understand how important — one of our legs during our flight, one of the gate people was like, oh, do you want to check your diaper bag? No, ma’am. And nobody on the plane wants me to check the diaper bag.

Joe Patrice: Better question, do you want me to check this diaper bag?

Elie Mystal: Anyway, so that’s my new regulation of the week, but we want to talk about something more legally related.

Joe Patrice: Yeah, I mean, airline regulations are kind of the whole reason we’re in this boat or the lack thereof.

All right, well, we were going to talk legally about the police as a general matter, and more — I guess, it’s more about their efforts to — we’ve talked over the years obviously both on in print and on the podcast about things that police have done that are bad, but we want to talk about their efforts to be good and to show kind of their civic helpfulness.

Elie Mystal: #notallcops

Joe Patrice: Exactly, and I think I’ll set the tone for this with a line from ‘The Simpsons’ as one does, there’s an episode where Homer tries to be a good father and the kids say to him, dad, your half-assed over-parenting is way worse than your half-assed under-parenting. That’s where I think we come out like framing this discussion a lot.

Elie Mystal: You want to talk about the prompt cop.

Joe Patrice: Yes, so making the rounds on the media right now and you might have seen a few different stories making the rounds, they are usually couched in all sorts of, oh, isn’t this adorable and great, but there are a couple stories right now about police taking time out of their busy day of fighting crime to —

Elie Mystal: To abuse their power.

Joe Patrice: — to abuse their power to help out people going into problem. In one of the stories that’s very prominent — let me pull up the exact details.

(00:10:04)

This is the more minor one in my eyes, but this is from Massachusetts, a driver was pulled over by police but the ticket he got was not from the officers conducting the traffic stop. Boxford Police said a few officers volunteered Sunday to help with a promposal. The officers were attempting to pull over Eli Jordan’s potential date but it turns out he was able to avoid the multiple traps along his usual driving route.

They set road blocks to get this kid to be stopped so that he could be surprised by his girlfriend with a will you go to prom with me. Problems here, one, why are they doing this in the first place, but two, roadblocks, they’re inconveniencing other people to do this. All right, whatever. Then she came in with a sign that said the only ticket you will be getting is to prom.

Elie Mystal: Oh.

Joe Patrice: Yes, meanwhile —

Elie Mystal: There’s the drug bust one, right?

Joe Patrice: Yeah, meanwhile in Georgia it’s so much worse. In Georgia there’s a video going around of this what the cop pulls over a couple in a truck and literally runs them through a drug bust, the guy is in on it but the woman is getting freaked out as it gets increasingly close to the level of we’re going to have a video about them at a remembrance.

The guy gets put in handcuffs, the woman is freaking out, and then it’s a weed thing, and then all of a sudden he comes out with a prom say yes or you’re under arrest.

Elie Mystal: Do I need to point out that the couples in these situations like does that just go without saying?

Joe Patrice: I thought it did go without saying though we should probably point that out.

Elie Mystal: Yeah.

Joe Patrice: This doesn’t — this isn’t a big deal in the Black community to have the cops.

Elie Mystal: No, I don’t think stopping a couple for a fake drug bust in the Black community would be an appropriate way to ask a girl to prom or a guy to prom or a marriage proposal or really do anything other than make somebody pee in their f**king pants, right?

Joe Patrice: Yeah.

Elie Mystal: I had a situation here in New York City recently during the Neil Gorsuch confirmation hearings, I was listening to him in the cars, I was just driving into work and Lindsey Graham was pontificating and he says, Lindsey Graham, I voted for both of Obama’s Supreme Court nominees and I just as one does, starts screaming in my car, three, three, Obama had three nominees.

Joe Patrice: Yeah.

Elie Mystal: So I’m at a stoplight, I don’t know how I looked, but I’m animated even though I’m performing for only myself. There’s a cop in the lane to my left and the cop in the passenger’s side motions to me to roll down my window at the stoplight at which point my bowels start getting involved, I was a little bit okay, I was hoping for the best because the cop on the passenger’s side happened to be African-American, so I was like, well maybe he’s only going to beat me, like that’s literally how my mind is working.

So I rolled down my window and he just says, brother, are you okay? Because I was screaming to no one right in my car. I was in fact okay and then he said, good luck, getting to work and I drove off.

So be a little bit more serious here. I think the issue is that there is a level at which we do want police to be kind of positive people in our communities, White or Black, we want to feel like we can interact comfortably with the cops that they aren’t this kind of paramilitary force of control and fear and danger. And so, it’s hard to — you want to be — I don’t want to fully criticize some of these community efforts, right, because this is part of community policing involves being a part of the community. However —

Joe Patrice: Yeah, well, I mean, sure that’s like giving running a Toys for Tots program. This is actually utilizing the most extreme instances of the possibility of fear and pilots. They’re literally handcuffing people as part of a prank that doesn’t see — that doesn’t help the community outreach that in fact plays upon the way in which there’s a community problem.

Elie Mystal: It’s funny because you’re actually supposed to be terrified.

Joe Patrice: Yeah, it kind of proves the point of what’s going wrong here. And it’s not the first time that something like this has happened. Last year there was the story going around the holidays of police pulling people over and then giving them Christmas gifts and it was all great and people were smiling afterwards, most of whom were I’m sure the only videos where people thought this was funny, the ones where people didn’t, I’m sure didn’t make it to the social media package.

(00:15:05)

But the problem and Orin Kerr made this point at the time he wrote an essay about this, the problem is all of these things violate the Fourth Amendment no matter what. You don’t —

Elie Mystal: So you are saying the Fourth Amendment doesn’t have a sense of humor?

Joe Patrice: Yeah, the whole prohibition on illegal searches and seizures don’t have a JK exception, you don’t get to utilize the power of the State to pull people over and let go, but don’t worry, it’s a good reason.

Elie Mystal: This is the – this is as we learned in the case of Superbad V McLovin, right?

Joe Patrice: Oh, that guy, take a punch.

Elie Mystal: But yes, why is this happening? Part of the reason why this is happening is because there are police forces around the country that understand they have an image problem.

Joe Patrice: Which is good, good to have.

Elie Mystal: But here’s the thing, people have been using the — oh, they’re just some bad — the bad apples analogy, I think kind of completely wrong, right? People are saying they’re just some bad apples as a way to say most cops are decent, a couple of cops shoot people for no reason, those are some bad apples.

The full saying is that a few bad apples spoils the bunch, spoils it, not should be disregard — not can be clearly picked out and discarded and then you can enjoy the rest of your bunch of apples. No, it spoils the whole freaking bunch. So what these things that we’re seeing, these stops, these happy coincidence stops, what they’re really doing is trying to say, no, a few good apples makes the whole bunch of rotten apples not taste so bad.

Joe Patrice: Yeah.

Elie Mystal: Which doesn’t work just to close that point, which does not — which is not how the phrase works, and how the analogy works and it’s not how policing works, right? If you’ve got cops that are behaving poorly it means all cops then could be behaving poorly and you don’t get to know which one you got when you get pulled over, you don’t get to know if your drug stop is fake or not when you get pulled over.

Joe Patrice: Right, yeah, and that’s the crux of the problem here. The way in which these efforts to show positivity are couched in as we were just saying the idea that the joke is that like they don’t — they may not be positive, that is a problem, that is not helping your image problem. More Toys for Tots programs, more like just community mentoring things, more not doing things that are typically considered policing as a step toward outreach is the answer.

Elie Mystal: So Joe, as a White — as our resident White man on ATL, really the only full-time White male editor on site.

Joe Patrice: Yeah.

Elie Mystal: How do you — how would you suggest handling, how do you handle or would you handle it when — if you are stopped without probable cause because what we’re — jokes aside, what we’re talking about are people being stopped without probable cause and then the police saying, ha, ha, ha, here’s your — regardless of whether or not the police are trying to like give you a pat on the back or hit you up on something illegal, how would you advise handling it when you are stopped in your mind clearly without PC?

Joe Patrice: Well, so I’m going to actually pawn this off on somebody else because I don’t want to appear to be giving legal advice to anybody who might be listening but —

Elie Mystal: Yeah, yeah, yeah.

Joe Patrice: — our good friend, friend of the podcast the Texas Law Hawk has some good videos about this about exactly what to do in the case of being pulled over that allow you to preserve all of your objections to the fact that it is an illegal stop without provoking the officer, without trying to say, no, I’m not going to let you do that, you can say, well, I’m reserving this objection but — and they’re humorous and – they are about Santa Claus being pulled over and stuff. So he makes — he educates while he has fun.

Elie Mystal: Yeah, Santa Claus is also White. Obviously the —

Joe Patrice: Not in his video.

Elie Mystal: Oh really, he had like a Latino Santa Claus.

Joe Patrice: I can’t remember but I don’t think in that video, no, whatever.

Elie Mystal: Me too. Checkout the Texas Law Hawk.

Joe Patrice: Yeah.

Elie Mystal: Absolutely. Yeah, I mean, look, as a minority in this country my options are limited. There’s a time and a place for combating police brutality in excess, and for me that time in place is when I’m sitting in the comfort of my own home with my own keyboard writing posts on Above the Law.

Joe Patrice: Yeah.

Elie Mystal: In the actual streets, my only option is to be as docile and non-threatening as I can possibly imagine being and just reserve any objection for some kind of later date when I’m not kind of in danger.

(00:20:04)

Joe Patrice: Yeah.

Elie Mystal: I got to treat it — it’s that — I know for some White people, this is going to sound like I’m exaggerating, I am not.

Joe Patrice: Okay.

Elie Mystal: I have to treat the police in the same way that I would treat a mugger, here, here’s my wallet, here’s my keys, take whatever you want, do whatever you want, just don’t hurt me, like that is literally the only kind of safe and acceptable way to interact with police officers. Where I get into a little bit more, “trouble” is not the right word, but the closer cases for me is when I’m not even stopped, so like it’s the guy — it’s the cop in the other lane, or it’s when I’m walking through Grand Central and there’s an officer there and he says hello to me, like the closer cases for me are when I am clearly not involved in a custodial stop, when I am clearly free to go.

Basically just how polite I’m supposed to be to police officers, I mean, it’s a question, how jokey I am supposed to be in San Francisco all and where we started, we are on the trolley thingy and an officer gets on and I remember I’ve got my two kids with me and the officer has like a star, a San Francisco PD star sticker and he gives it to my son and he plants it right on my kid’s Spider-man baseball cap and my kid is, oh, thank you officer and I’m like I’m sitting there just like I don’t like any of this.

Joe Patrice: Though in fairness that is the kind of good community outreach we were talking about. It was not playing on the fact that I could put you in handcuffs.

Elie Mystal: It was just here’s a sticker, right?

Joe Patrice: Yeah.

Elie Mystal: But as a parent you’re also kind of sitting there and I don’t want my kid to read how massively uncomfortable I am because you want your four-year-old to grow up with a somewhat positive view of the police. So I’m kind of both sitting there thinking like I don’t like this, I certainly don’t want him like — I later kind of certainly took the sticker off, I certainly wasn’t going to let him just walk around San Francisco with a goddamn police sticker on his hat.

But in real-time I had to also be like, thank you officer, and when the guy got off the trolley, I’d be like, oh, wasn’t it cool, how the nice policeman gave you a sticker as a member of the State, yeah — like all of these things are going on in my mind. So I understand why you — exactly as you say the police have an image problem and it’s good for them to know that and it’s good for them to try to think creatively through how to work on their image problem, but, man, it can still be very scary when you actually have to interact with the police even if they’re trying to be nice.

Joe Patrice: I want to go back to the Massachusetts story because I want to read the end of this article from WCVB just to add more. The end of this article notes, “Police said besides playing cupid, they are also available for birthday parties, photo shoots, and donut tastings.” One, obviously donut tastings. Two, their point is they could do this same, harass people into being terrified for their well-being for other things, which is nice, I mean, it’s nice. I mean, you have to get out there, like if you’re a musician you have to play weddings and bar mitzvahs too, and apparently there’s just not enough crime in Massachusetts that they can do this for everybody.

Elie Mystal: Can you imagine if somebody — I mean, was it you — it was either you or Brandon who was joking about this recently about me, I have — occasionally I have —

Joe Patrice: There’s a person named Brandon who he knows.

Elie Mystal: Oh sorry.

Joe Patrice: Whatever, go on.

Elie Mystal: I occasionally have barbecues at my house in Westchester and one of you guys was joking about how because I said, invite whoever you want, and one of you guys said, oh, so I’ll invite my friend the cops, and I was like, well, no —

Joe Patrice: That was not me.

Elie Mystal: — no, no, that’s don’t invite them. And it was obviously a joke, but can you imagine somebody jokingly inviting a police officer to my house.

Joe Patrice: To do a drug bust for a surprise.

Elie Mystal: Surprise, you’re not actually —

Joe Patrice: Listen, the only way that there can be the threat of imminent arrest as a surprise is if it is in fact a stripper at the end. Like I think that that one has reached a point where we’ve seen enough that when we get. So these folks aren’t prepared to do that and I guess maybe there’s more to this Massachusetts story, I don’t know, but they’re not prepared to do that, I don’t think that they can get away with it.

Elie Mystal: They are only going to stare for the donuts.

Joe Patrice: Yeah, yeah, so I think that that was a fun discussion, well, not really, kind of said. You were going to say something about the America’s shining hope for the future and bridging all of these gaps, which is Pepsi Cola.

(00:25:00)

Elie Mystal: Oh yes, I was going to say that that all of this discussion is kind of how we end up with a Pepsi commercial, right? With the belief and the feeling that the police are really good guys and if you just gave them a Pepsi, they wouldn’t tear gas you during your protest, right? Like the logic of the Pepsi commercial while horrifying to many in the media who saw it, there was a logic there that Pepsi had that wasn’t — that didn’t come out of nowhere and that’s what they were trying to push.

Joe Patrice: Yeah.

Elie Mystal: And apparently our co-editor, Catherine, because I don’t want his name go out to people without giving their title, had showed me a stat where it was like 75% of Latinos and 50% of Blacks didn’t find that Pepsi commercial offensive and so then a lot of the reaction to that was kind of in a media cauldron, which I understood — I understand 50% of the Black community — Black community doesn’t speak with one voice.

75% of Latinos, that was surprising to me, and that there was also like some not insignificant percent who felt that the commercial improved their view of the police, which again — which is what we’re talking about with this image thing. There are people who think that the only problem with the police is that we don’t give them enough hugs or Pepsis or jokey Fourth Amendment violations.

Joe Patrice: Yeah, yeah, look, I think what this said more about was the terror to our society that is any member of the Kardashian clan. I mean, the fact that any of them can show up and warp a narrative like that is more terrifying to me than anything else we’ve discussed today.

Elie Mystal: Many people who read my article said that that was the first time they were able to distinguish Kendall from Kylie.

Joe Patrice: Oh, there you go, I mean, I don’t know the difference, but —

Elie Mystal: But I do work.

Joe Patrice: Yeah, I mean, I’ve never delved into trying to figure out the difference, which I think — I think I’m a better person for that.

Elie Mystal: It does make you a good person.

Joe Patrice: Okay, yeah. Well, I don’t know about that, I’ll quote you on that totally out of context later. Anyway, so thanks for listening everybody, we do this every couple of weeks, you should be subscribed so you get every episode as soon as it comes out, downloaded on to your device that you listen to things through.

You should also give us reviews, not just the stars, but actually write like, Joe and Elie are super-cool on our — wherever you’re downloading it, because it helps — it goes into the algorithm that puts us a little bit higher up on the searches when people say, I want to listen to a law podcast and they end up listening to us then. You can download the —

Elie Mystal: Which is not what they were looking for.

Joe Patrice: Yeah, exactly, which I’m assuming that’s not what they came for, if they did, they come directly to us, so we want to be found. The Legal Talk Network app has all of our sister podcasts on it, so you can listen to all of those, and yeah, Twitter, you’re at @ElieNYC, I am @JosephPatrice, that’s it, read Above the Law and listen to this and we’ll talk to you soon.

Elie Mystal: Catch you next time.

[Music]

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Episode Details
Published: April 28, 2017
Podcast: Thinking Like a Lawyer - Above the Law
Category: Legal News
Podcast
Thinking Like a Lawyer - Above the Law
Thinking Like a Lawyer - Above the Law

Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.

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