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.
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.
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?