Manos: The Hands of Fate

No, really. We’re going to talk about Manos: The Hands of Fate, one of the worst movies ever made, with a rare 0% on Rotten Tomatoes. Even the title (“Hands: The Hands of Fate”) is terrible. The movie isn’t just bad, it’s downright incompetent. It might not even be possible to make a movie this bad anymore; two guys with an iPhone would have infinitely better production values.

The immediate reason for talking about this is that the guys from Rifftrax, i.e., the ones responsible for the absolutely classic MST3K episode featuring the movie, just did a live riffing of the movie on August 16, 2012. You should have been there. They’re doing Birdemic in October, just in time for Halloween. The way it works is that the three of them show up live in a theater—this time it was in Nashville—and the show is broadcast live to theaters around the country. It’s an enormously good time.

Anyway, believe it nor not, there is a very, very important legal issue to be discussed here. A legitimate one, one which has been the subject of some of the most significant U.S. Supreme Court decisions in the last fifty years. Remember the two teenagers making out in the convertible that kept getting busted by the movie’s Barney Fife equivalent? They represent a perfect opportunity to discuss loitering and its enforcement. There aren’t any spoilers here to speak of—it’s not like it’s possible to spoil this movie anyway—so here we go.

I. Loitering

At common law, “loitering” was a crime, defined as “to be dilatory; . . . to stand around or move slowly about; to stand idly around; to saunter; to lag behind; to linger or spend time idly.” Black’s Law Dict. (6th ed. 1991). It should tell you something already that the current edition of Black’s defines it differently, “The criminal offense of remaining in a certain place (such as a public street) for no apparent reason,” and then goes on to suggest that loitering is generally viewed as a vague offense which is hard to enforce constitutionally. Black’s Law Dict. (9th ed. 2009).

Generally speaking, loitering tends to be looked down upon by American culture both currently and historically. Laziness and idleness have never been regarded as laudable by the smart set. But it’s notoriously hard to pin down why in such a way that distinguishes mere idleness from the more acceptable activities of relaxation or leisure. Which has, historically, led to “loitering” being the pretext for some pretty discriminatory law enforcement practices. A cynical take would suggest that the difference between “loitering” and just “going for a walk” have to do more with the race and class of the person doing the. . . well, not very much. . . than with the precise nature of the “not very much.” So when it’s a white and/or middle class person, it’s an acceptable leisure activity, but when it’s a black and/or poor person, it’s loitering, and the police ask you to move along.

This is not an (ahem) idle argument. The 1960s and 1970s saw quite a run of cases where law enforcement officers were using charges of “loitering” to disrupt civil rights protests and generally harass minorities. Edwards v. South Carolina, 372 U.S. 229 (1963) is perhaps the leading case. On the pretext of “breach of the peace,” the police arrested a bunch of black civil rights protesters who were singing outside city hall in Columbia, South Carolina. The protestors contested their arrests as infringements of their First Amendment rights to freedom of expression, freedom of assembly, and freedom of the right to petition the government for redress of grievances. The Supreme Court of South Carolina upheld the arrests, but the U.S. Supreme Court reversed. But that didn’t end the issue. South Carolina was at it again in Henry v. City of Rock Hill, 376 U.S. 776 (1966). The facts were almost the same, and the South Carolina Supreme Court again upheld the arrest of black protesters and had to be reversed by the U.S. Supreme Court twice.

But civil rights protests and First Amendment issues aren’t the only issues in play. “Loitering” or “breach of the peace” has also been used to harass people who just “look out of place.” Edmund Lawson was a dreadlocked black man who was arrested more than a dozen times while walking through a “white” neighborhood in San Diego. He eventually filed suit—pro se, remarkably enough—and won all the way to the Supreme Court. Kolender v. Lawson, 461 U.S. 352 (1983). The Supreme Court observed that the loitering ordinance:

. . .vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest. An individual, whom police may think is suspicious but do not have probable cause to believe has committed a crime, is entitled to continue to walk the public streets “only at the whim of any police officer” who happens to stop that individual under § 647(e).
Kolender, 461 U.S. at 358.

The Court held that such an ordinance was impermissibly vague. Indeed, loitering ordinances are one of the only kinds of law that charges of vagueness are routinely successful in overturning. The basic idea is that for a law to be valid, citizens must be able to tell whether or not their behavior comports with the law without a police officer having to tell them one way or the other. Put another way, one’s compliance with the law cannot turn on an officer’s opinion.

These cases came to a head in City of Chicago v. Morales, 527 U.S. 41 (1999). In a bewildering array of opinions (no less than six of them) the Court overturned a Chicago loitering ordinance targeted at gang activity. You can read the opinion for yourself—it’s kind of a doozy—but the basic idea is, again, that citizens need to be able to tell what the law actually requires and that legality cannot rest on the discretion of the police.

II. Necking Teenagers

So in light of all of that, let’s return to our amorous couple. The cops bust them no less than three times, always while the couple is making out in the guy’s car on the side of the road. The cops always tell them to move along. Is this okay?

Potentially. First of all, there’s nothing wrong with the cops telling someone to move along, even if there’s no statute or ordinance giving them that authority. This only becomes a problem if the cops arrest you for not complying. “Contempt of cop” is not a crime. But if the police politely ask you to beat it, and you politely comply, that’s the end of the story. Similarly, if they politely ask you to beat it, and you politely refuse, and they leave you be, that’s also the end of it. No harm, no foul. This can become a problem if it’s frequent enough to amount to harassment—and getting busted three times in one night is starting to look bad—but things really need to get out of hand on that score before there to be any kind of cognizable injury. There has to be some assertion of state power before there can be an infringement of anyone’s liberty, and a request not backed by the explicit or implicit threat of arrest isn’t much of an assertion.

Second, the cops may actually have had more than just loitering in mind here. And we’re not just talking about making out in public either. The couple were in a car parked on the side of a public road. If the couple had walked to where they were and the cops found them, that’d be one thing, but the addition of a vehicle changes things somewhat. If the police determine that a particular vehicle is causing a danger to public safety based on its position, they’re generally allowed to move it, even if there’s not a “No Parking” ordinance in play. “Hey, you’re blocking traffic” is an objective enough standard that vagueness doesn’t enter into it. Of course, that’s a pretty weak argument in this case, because we’re talking about the middle of bloody nowhere in the blasted wastelands of West Texas (All hail!). There isn’t any traffic to block. Still, “Go make out somewhere not on the side of a public road” is probably a request that most courts would let slide.

But third… they were drinking. In a car. Even in the 1960s, before most states had really toughened up their DUI laws, this would justify a bust. The cops don’t seem to have seen the drinking—though with these two idiots, one might have trouble believing that they’d be able to find the moon—but even a whiff of alcohol would have justified a sobriety test which both of our teenagers may well have failed. If they were under age, that’d be another problem.  The drinking age in Texas was 21 until 1973, when it was lowered to 18, then raised to 19 in 1981 and finally back to 21 in 1986.  The movie was made in 1966, so the couple are quite possibly under age.

III. Conclusion

Granted, some of the most important cases about loitering were handed down after Manos came out. But even by then, the courts were increasingly skeptical of vesting unlimited discretion in police officers. An order to disperse or otherwise vacate the area that wasn’t based on some objective criteria—like traffic safety—would have been problematic even in the 1960s, though the fact that the kids weren’t engaged in any activity protected by the First Amendment would have hurt their case before the 1980s. Still, today it’s pretty difficult for the police to arrest people for simply being in public with no obvious reason. Freedom of movement and the protections of due process are firmly established in US law.

Bet you didn’t think there was any legitimate topic in a movie this bad, did you?

15 responses to “Manos: The Hands of Fate

  1. Huh. I hadn’t realized that they still had actual loitering laws on the books. I know that several college campuses maintain compulsory ID requirements which are selectively enforced (as one Public Safety guy explained to me, it’s so they can easily eject actual trespassers causing trouble without having to pin a particular infringement on them) and there’s been a number of “must have X amount of change in pockets” laws (they frequently show up in those “Crazy Laws” compilations) that were likely put into place to be able to run off panhandlers.

    Actually, on a side note, how much leverage do public restaurants have to run off patrons who’ve finished their meals? A McDonalds in Camden near where I used to work had a prominent sign informing patrons that once they finished their food, they had to immediately leave the premises and that employees had the right to tell anyone that they were finished with their food. As I understand it, it was largely a matter of homeless people squatting the booths, and it does follow that a restaurant has a right to decide patronage, including deciding that the guy who’s been nursing the same coffee for the last two hours is taking up space that a paying patron could be using, but it seems like it sets up the same situation where the rule can be applied selectively.

  2. “The facts were almost the same, and the South Carolina Supreme Court again upheld the arrest of black protesters and had to be reversed by the U.S. Supreme Court twice.”

    This brings to my mind a question I have had for a while; what power does the federal Supreme Court have to force the … ehm, other Supreme Court? What could they do if SC Supreme Court basically just shrugged and ignored them?

    • In some cases the federal courts can use the federal marshals and state courts can use local sheriffs (e.g. to seize property to satisfy a judgment), but in many cases there’s no direct way for the courts to enforce their decisions. Instead, the courts trade on their legitimacy as an institution to ensure that, if push came to shove, the legislative and executive branches would do what needed to be done.

      For an historical example of this, see Cooper v. Aaron, in which the entire US Supreme Court (all nine justices signed the opinion) clarified for Arkansas that yes, it really meant that business about school desegregation. More generally, the Court held that its rulings regarding the US Constitution are part of the supreme law of the land and states cannot nullify or ignore it. After the Cooper decision was handed down, the Arkansas government continued to take steps to oppose desegregation for a while but ultimately complied with the decision.

      • James Pollock

        In theory, the executive will take steps necessary to enforce the court’s decisions (up to and including landing federal troops in a disobedient state). Of course, sometimes to Court doesn’t see eye to eye with the executive, which is where things REALLY get interesting. (See, for example, President Roosevelt’s heartfelt concern for the aging members of the Court, and his resulting offer to appoint more justices for the most aged of them to help out with all the work.)

  3. Especially in more country places, at least as late as the 1980’s, underage drinking was more-or-less tolerated. Unless you were belligerent, falling down drunk, or otherwise a problem or potential danger to yourself or others the common response was “pour out your bottle and move along/go home”.

    • That was certainly the case where I grew up (yes, in a rural area). I went to my first bar at age 15 (the drinking age was 18), and most bars didn’t even bother to check IDs. I doubt my appearance fooled anybody. As long as you minded your manners, didn’t overindulge (I never ordered more than two drinks), tipped appropriately, and left at a reasonable hour (don’t stay till closing), there were no problems. In some respects, it’s probably sensible — I never went through the college “party” phase. I already had a pretty solid idea of how one should behave while drinking.

    • The thing with selective enforcement is that all laws are selectively enforced to one degree or another. Proving that they’re being selectively enforced in a discriminatory way can be pretty difficult.

      But that’s a different question entirely. Here, we’re talking about a type of law, the loitering or “breach of the peace” ordinance, where the problem is vagueness, i.e., it can be difficult or impossible for an otherwise law-abiding citizen to know whether or not they’re obeying the law. With drinking laws, there’s really no question. You’re either breaking the law or you’re not. Whether or not the cops arrest you for it is up to them, but it pretty much always is up to them anyway.

  4. Gomer Pyle equivalent? I think you mean Barney Fife, but it’s all Mayberry in the end. Interesting article, especially since I got to go to the screening.

  5. Christopher L. Bennett

    I always figured that the cop’s problem with the couple in the car was more a matter of public lewdness. The level of amorousness the teens exhibited onscreen might have been considered inappropriate for a public place at the time — and even if it weren’t, there was certainly the possibility that they could, err, escalate beyond osculation, and seeing that they were in a convertible, that could lead to indecent exposure and the like. Which could indeed pose a traffic hazard if other cars came by.

    • Turns out making out in public, or at least what they were shown doing on camera, isn’t generally illegal. It certainly doesn’t appear to be in Texas. And it’s generally not okay to arrest someone because the cops think they might do something illegal. “Probable cause” is limited to crimes that have already been committed or are in the process of being committed. We’re not generally in the business of “pre-crime” just yet.

      • James Pollock

        “We’re not generally in the business of “pre-crime” just yet.”

        Isn’t that what a Terry stop is for?

  6. While I don’t have any comments on the issues raised here, it does propose for me another article discussing the many, many labor laws and human experimentation protocols that would have been broken by Gizmonics Institute (particularly the Deep 13 lab.)

  7. Well, my father was the cop who kept busting the couple in “Manos,” and in real life he was an El Paso lawyer. I don’t recall that he ever defended anyone arrested for loitering, but in his lawyer role he no doubt would have believed that he, in his cop role, was overstepping his authority. Still, I grew up in west Texas in the ’60s, and it was certainly not uncommon for cops, especially in small towns and rural areas, to enforce their own set of rules upon members of the public.

  8. I wonder if they would have elicited some noise complaints as well. In the kissing teens’ first scene, they seem to be listening to a loud obnoxious rock song on the radio.

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