Dear Readers,

I will most likely be on near-complete hiatus until December. Please enjoy the two latest posts on hipsters, complete with hiply punctuated titles, and continue to challenge me and each other in the comments. I will read them.

In addition, this next month would be a great time for to submit your own observations on the world of fuzzy english. I look forward to them.

Too pertinent to pass up: Superman has been re-drawn for a new series focusing on his younger years. More than one writer is already calling him the world’s first super-hipster. See the art for yourself.

hip/ster (part two: white is the new black)

 There are two more questions remaining. The first is, Are hipsters evil?

You may be chuckling at how silly a question that is. But you’ve probably never been to, or read Time Out’s article on “Why the Hipster Must Die” because “cultural zombies” are killing New York cool. I have more links if you want them. And you’ve probably never been really irrationally ANGRY at this jerk-off with the mustache wearing a scarf, or really freaking teenagers debating the musical merits of Vampire Weekend.

My very hip (no -ster) friend Travis shared a couple of articles with me, one called “Hipster: The Dead End of Western Civilization.” In it, writer Douglas Haddow, who infiltrated high-level hipster parties, describes quintessential hipsters (“She’s wearing big dangling earrings, an American Apparel V-neck tee, non-prescription eyeglasses and an inappropriately warm wool coat”) who claim to not be hipsters (because it’s a dirty word).

Haddow is mad as hell. “An artificial appropriation of different styles from different eras, the hipster represents the end of Western civilization – a culture lost in the superficiality of its past and unable to create any new meaning…While previous youth movements have challenged the dysfunction and decadence of their elders, today we have the ‘hipster’ – a youth subculture that mirrors the doomed shallowness of mainstream society.”  

In response is Dave Monaghan’s “In Defense of Hipsters,” to which I am admittedly more partial. Monaghan concedes that hipsters are “shallow and superficial” and that they’ve appropriated past fashions and styles into a strange mish-mash. But to claim, as he suggests Haddow does, that hipsters are nihilists who believe in nothing, and thus inferior to previous youth cultures, is “Leftist nostalgia” that both romanticizes hippies and their predecessors, and ignores the things hipsters actually do stand for.

Monaghan takes some time to explain what hipsters actually do believe in, and gives suggestions as to why hipsters tend to appropriate “working-class styles (Papst, burritos, v-neck T-shirts),” and that’s “because they initially tend to represent cheap options,” and since hipsters live in cities without (usually) corporate salaries, they have to go cheap, and create pastiche  (kind of a medley of imitation).

I’m guessing this hipster picture to our right was taken using a polaroid camera found in a flea market somewhere. It may be harder to find, expensive to buy the film, and shittier quality, but it just looks vintage, baby. Hang on, my Fleet Foxes vinyl is skipping. Yeah, I buy vinyl.

Yes, Monaghan admits, we’re often looking at the white children of privilege. But many are “deeply engaged political activists on every important progressive front, [or] genuinely good musicians or artists, who think deeply about social and philosophical issues.”

I leave the verdict up to you. I do want to discuss another aspect of Hip-6, which is what Monaghan calls “[liking] irony more than is healthy.”

What he may mean is that it has become hip to like things ironically. For instance, we all of a certain age ironically like Saved By the Bell. We (most of us) realize it is not a sitcom genuinely worth critical praise, and so we like it in quotation marks. We like it while winking at it, acknowledging that it’s bad. But we used to genuinely like it. We grew up, yes, but is our ironizing of our own past indicative of a more troubling decline in sincerity? A refusal to actually put ourselves out there and admit we have feelings? 

We’ve all heard that sarcasm is a defense mechanism. But what if an entire generation is starting to defend itself from…itself?

Think about I Love the 80s and all its spawn. We’re ironically liking that stuff – liking it because it’s bad, laughing at ourselves for liking it so no one else will.

Think about “self-conscious dancing,” where either you throw out your elbows all crazy like a drunk London mod kid, or you (and I am guilty of this) deliberately exaggerate your dance moves to such an extreme that no one could take them seriously – thus ironizing your dancing. Or what about the fact that so much dancing among young people these days occurs back to front, grinding up on each other – so as to avoid eye contact, intimacy, and real emotion.

This potential epidemic (dun dun DUN) is laid out better by another blogger here. I particularly enjoy the commentary on “the duckface.” You’ve seen the duckface, and you’ve probably made it. It’s made by people who want to throw up the white flag in advance: “I’m being silly, I’m making myself look bad in this photo before anything else makes me look bad, to deflect all potential future embarrassment.” Whew. It’s a workout to explain, and yet we understand how it works. The blogger of Dusk in Autumn theorizes (and gives examples) of how the duckface did not exist so much back in the 80s, but now is here to stay – visit!

(Can be coupled with ironic dancing for double whammy – they’ll be laughing WITH you!)

I love Dusk in Autumn’s other examples – porn, horror movies, sitcoms – and would gladly devote some back and forth counterexample time to the other culture junkies among you. So go read the entry.

Ironic hip has trickled down, by the way. Go take a look at t-shirts being sold in chain stores now, even Wal-Mart, and you’ll see some retro logos (Tootsie Roll Pops, Hawaiian Punch, Sesame Street), for which at least part of the appeal is in being an ironic walking billboard (I’m selling this product, but not really, right?). The other part is in faux vintage.

So there’s another verdict for you to make – are today’s youth plagued by a decline of sincerity? Hmm, I bet there’s a TV anchor out there just waiting to tie this to our recent rash of suicides (or at least rash in suicide coverage).

And now the final question you’ve all been waiting for – is Hip-6 a departure from the past in its separation of white and black culture? 

We all know that white kids still like bumping to hip-hop music every now and then – ironically, you might argue. But that’s not what we’re talking about. We’re talking about Arcade Fire – there was one Asian in the audience that I saw, the rest white – and She & Him, and Band of Horses, and Vampire Weekend, and Sufjan, and all those other arguably hip artists out there who are mostly white and sell mostly to white audiences.

I can’t claim credit for this idea, either. I got it from a New Yorker article called “A Paler Shade of White” (clever), and another blog, wayneandwax. I grant you that the lead singer of Bloc Party is black, but come on, he’s English black.

That may well all sound racist to you, as racist as Mailer claiming all Joe Black wants is the “apocalyptic orgasm.”

Okay, maybe not that racist. But it should provoke you into some kind of response. Maybe the resegregation of pop culture, if it exists, accounts for why Hip-6 is seen like Haddow and others to be soulless. Maybe, if this exists, it has other implications – troubling? – for race relations. Maybe it’s because we’re a generation who think interracial relations should be legal and stuff, yet we knew, in our heart of hearts, that Zack and Lisa weren’t going to last longer than an episode.

Although I’m pretty sure hipsters like Obama. But come on, he’s practically English black.

hip/ster (part one: everything old is new again)

Note the retro headphones, very hip, and the chocolate brown color palette, also hip, especially when paired with blue (see also: Wes Anderson).

I had intended to write this post at my high water mark for hipness, that is, after attending the local Spoon/Arcade Fire concert. I did not get around to it, and perhaps this is just as well, seeing as I was only at the concert as a result of my corporate connections (aka my dad) and my ability to afford overpriced drinks and t-shirts.

When you think about it, that really makes me the perfect illustration not for hip, but for hipsters.

First, let us note that the first OED entry for “hip” comes from 1904: “At this rate it’ll take about 629 shows to get us to Jersey City, are you hip?”

Hmm. Not sure how much that aids us starving etymologists. I suppose the meaning there is “are you aware” or “are you in”?

The OED lists the origin of hip as American, but otherwise unknown. It compares the word to “hep” (first entry 1908, meaning “well-informed” or “stylish”) before chickening out with “hipness, the condition or quality of being hip.”

Hep is most famous probably for spawning hep-cat, and that gets us closer to the jazz musicians and beatniks of the 40s and 50s when American hip really started to flourish. But let me give you two examples which illustrate just how hard it is to nail down hip:

1958 entry for hep: ‘in the know’, ‘possessed of good taste’, or to indicate simple understanding…The boppers quickly changed the word to ‘hip’. Use of ‘hep’ was then regarded as a sign that the speaker was not the right sort.

I submit that that makes sense – hip became hip, and hep became square. But what about

1972 entry for hep: “it is, of course, a commonplace of the jazz language that hep is a white man’s distortion of the more characteristically Negro hip.”

Here, hip came first, hep was the (still square) knockoff, and – enter a running motif – the black man birthed hip and whitey clung on for dear life. Granted, Miles Davis actually declared the birth of the cool, but he meant the same thing, and lots of white boys have put up his poster in their NYU dorm rooms as a result (I could be talking about anyone, anyone at all; you don’t know me like that).

The people who were hip, or hep, in the 50s are all dead now, and there memories were so addled by heroin and uppers anyway that it’s hard to get a reliable source on this. For sheer feel-good appeal, I like the origin John Leland suggests secondhand in his enjoyable work Hip: The History:

The British linguist David Dalby traces the likely origins of hip to the Wolof verb hepi (“to see”) or hipi (“to open one’s eyes”). So from the linguistic start, hip is a term of enlightenment, cultivated by slaves from the West African nations of Senegal and coastal Gambia. The slaves also brought the Wolof dega (“to understand”), source of the colloquial dig, and jev (“to disparage or talk falsely”), the root of jive.

According to Leland, hip then became a way of coding your messages, of resistance. Slaves could use their own slang that the boss man didn’t know. Sooner or later, the boss man got onto the guest list at Studio 54, and so the words had to be changed all over again.

I call this feel-good because it fits in with the way we understand the hip to work – when mom (or Jay Leno) gets the joke, it’s not hip to tell it anymore, and so we move on. Hip slashes and burns through the forests of fad. Yeah, man; put that in your pipe.

It also explains why so much about hipness has involved the intersections of the black and white races.

Norman Mailer – you know Norm – wrote a controversial essay in 1957 called “The White Negro: Superficial Reflections on the Hipster.” I was shocked first to find that “hipster” existed back then, and then to find that Mailer believes black people devote their lives to the search for the biggest bestest orgasm they can possibly find.

No, really. The Negro, because of his more marginalized place in society, because he has to struggle and fight his way through life, became schooled in “the art of the primitive, he lived in the enormous present, he subsisted for his Saturday night kicks,” getting pleasure not from his mind but from his body, creating jazz, “the music of orgasm, good orgasm and bad.”

Bad orgasm could be an entry of itself. I think what he means though is catharsis of negative emotions – ranting, venting, that sort of thing (a la Chic blowing off steam by writing the song “Fuck Off” after being denied access to Studio 54, then changing it to “Freak Out” so that mom and Jay Leno could play too – except maybe disco was never hip).

Things really got interesting when all the nice college boys in Greenwich Village (Jack Kerouac, Allen Ginsberg) started brushing elbows with the jazz hepcats in the same neighborhood. The result was the “white negro,” whom Mailer takes a long time (and I can’t always follow him) diagnosing as a “psychopath,” in the way that James Dean’s character was in Rebel Without a Cause – looking for an orgasm (read: thrill) because mom and dad (read: conformity) suck and there’s nothing better to do (read: no God, I Hate Ike).

In fact, Mailer starts his essay by asserting that hipness had recently flourished because of the atom bomb, and the new realization that we might “be doomed to die as a cipher in some vast statistical operation in which our teeth would be counted, and our hair would be saved, but our death itself would be unknown, unhonored, and unremarked…death being causeless [read: meaningless], life was causeless as well.”

It makes one wonder if it is then a coincidence that hipsters have once again been on the rise post-9/11. John Leland paraphrases Mailer by saying hip “is a strategy for survival in the face of terror.”

Leland, who’s thought about this more than maybe anyone, has singled out several “convergences of hip” in American history:

1) The 19th centurty’s rise of minstrelsy and white/black entertainment intersections, coupled with Emerson, Thoreau, Melville and Whitman providing “the formal groundwork for hip”

2) 1910s and 1920s urban migrations – Harlem Renaissance, Lost Generation, Jewish immigrants

3) Post-WWII, the Bebops and the Beats; hip’s “golden age”

NOT beatniks, which were derivatives of Kerouac and his pals (who did not sip coffee and play bongos – they tripped their faces off and died lonely deaths), and NOT the hippies, which were counterculture and quite different in ways it would take a while to explain

4) “Urban collapse of the 1970s” and “DIY media: punk, hip-hop music, graffiti, break dancing, skateboarding…”

NOT “Breaking 2: Electric Boogaloo,” except in an ironic way (see 6)

5) 80s and internet explosion, Wired magazine, “turntablists and remixers”

6) Now

I think this potentially neglects Kurt Cobain, Douglas Coupland and Generation X, but I’m not going to quibble with Leland.

6, then, in which hipster has become a kind of pejorative term (remember pejorative?), concerns us for the second half of this entry. What does a Convergence-6 Hipster look like?

Like this, thank you Paste magazine.

Recognize anyone you know? Probably yes, because these days thanks to the interwebs, itunes, and Zooey Deschanel, you no longer have to live in Andy Warhol’s attic to pick up on the hippest trends.

That’s part of what fascinates me about 6-Hip. It’s like we’re in a race between the actual hip crowd and the marketers and lonely teens who want to exploit their hepi “awareness.” And if I dress like a hip person, and use the same words as a hip person, and like the same music – even if I just got it off of some website, does that make me any less hip?

As we all spiral closer and closer to a zero-delay time between something being hip and its also being blasted to all corners of the globe, will hip CEASE TO EXIST?

Or will hip go underground and put Steve Jobs out of business?

Bully (with a little bitch and faggot)

“She’s fabulous, but she’s evil.”

Thanks to Mean Girls, I am well aware that when I go to the kitchen to get to the box of Teddy Grahams for the fourth time in an hour, I am eating my feelings. This 2004 film – insert joke about how Lindsay Lohan used to not be so completely messed up – also gave us too gay to function, boo you whore, and that funny early moment about Man fighting the dinosaurs and the homosexuals.

We know that the film was based on a non-fiction book by Rosalind Wiseman called Queen Bees and Wannabees: Helping Your Daughter Survive Cliques, Gossip, Boyfriends, and Other Realities of Adolescence. But cultural representations work on many levels; does Mean Girls provide a survival aid, satire, or something worse – does it help enshrine the very behavior it purports to reject?

Regina George is hot, remember, as are her cohorts, and hot so often equals good that audiences are bound to be confused. As one girl says in the movie, “One time she punched me in the face…it was awesome.” Damian’s comment could just as easily be reversed: she’s evil, but she’s fabulous.

There’s a documentary that shows American soldiers in Iraq blasting “Flight of the Valkyries” late at night as they go on a raid. This idea is surely cribbed from Apocalypse Now, which may have gotten it from real life, but which broadcast and celebrated the idea in a uniquely cinematic way. Is that movie a criticism of the Vietnam War? Probably. But at least in one case it’s given more ammunition to psychological warfare and to terrorizing local populations.

Now think about Mean Girls. Was it created to provide a message that was anti-clique, anti-mean? Probably. Did it spawn imitation Burn Books? Surely. There’s a facebook page called “I have been personally victimized by Regina George,” liked by over 32,000 people, the front page of which is dominated by people recounting their favorite, mostly nasty, lines from the movie. On the subject of burn books, one girl says, “I wrote one” with a heart, and another says, “haha me and my friends made one…. we got in trouble as weel!!” You can jump from there to the page “i wish i had a burn book <3” which is only seven months old, but liked by over 600, and has these instructions: “hey! ever wanted a burn book? have you made a burn book? post some stories here of who (first names) you hate and why you hate them! (:”

There’s, and a wikiHow on making one.

Burn Books are at least on the same family tree as Columbine-era hit lists or death lists, especially when you consider that most of the latter are just the angry ventings of lonely or confused (usually) guys. But which is which? When is a burn book more than a joke, and when is angry web venting more than catharsis?

Dave Cullen’s Columbine is one journalist’s attempt to correct some of the myths that he, among others, helped create in the aftermath of that school’s shooting. Immediately after the shooting, the story of the Trench Coat Mafia took hold, and we believed that these killers were “outcasts” getting revenge on the jocks and popular kids who had bullied them.

Even though this story was not accurate, it still provided an ironic response from America, as schools cracked down on kids wearing trench coats and pretty much left everyone else alone. That’s a blanket statement, but I distinctly remember which two kids in my 8th grade class were the subject of post-Columbine controversy. Long coats, black fingernail polish, the rumor, and probably the existence of, a death list or something like it, and some angry outbursts.

Reading Columbine, I have been shocked by the amount of writing Eric Harris did which gave evidence of a very troubled, potentially violent psychopath (Cullen takes some time to explain how experts have characterized Harris as such). Some of it was turned in for school assignments. The worst of it was public on his website, “murderous rants” which targeted certain students by name and which local law enforcement had printed out and kept in a file over a year before the shooting. There’s more outrageousness; read the book.

Yet Cullen painstakingly paints a portrait of two young men who had friends, who did alright with girls (Eric better than Dylan, yet Dylan went to prom with a date three days before the killing spree), who drank and carried on, and who, in fact, bullied younger students.

Time out. What does “bully” mean? I’ve read that it has Dutch or German roots in words for lover or brother, and tells us this:

Meaning deteriorated 17c. through “fine fellow,” “blusterer,” to “harasser of the weak” (1680s, from bully-ruffian, 1650s). Perhaps this was by influence of bull (n.1), but a connecting sense between “lover” and “ruffian” may be in “protector of a prostitute,” which was one sense of bully (though not specifically attested until 1706).

Much as Teddy Roosevelt tried to keep it happy, bully kept descending from lover until it approached the jerks we all know today.

But while bully-ing surely exists today, do bullies? I haven’t been around elementary or middle schools much lately, but just as criminals don’t look like the Hamburgler, I have a feeling bullies can be difficult to pick out of a crowd (perhaps because everyone in the crowd is one, or potentially one, or sometimes one). Are there still kingpin bullies like we see on TV and in movies? And, again, beyond the obvious (the taking of lunch money), what constitutes bullying?   

Georgia, like most states, has passed anti-bullying legislation, and recently even gave it a facelift. This is how the General Assembly defined bullying:

(a) As used in this Code section, the term ‘bullying’ means an act which occurs on school property, on school vehicles, at designated school bus stops, or at school related functions or activities, or by use of data or software that is accessed through a computer, computer system, computer network, or other electronic technology of a local school system, that is:
(1) Any willful attempt or threat to inflict injury on another person, when accompanied by an apparent present ability to do so; or
(2) Any intentional display of force such as would give the victim reason to fear or expect immediate bodily harm; or
(3) Any intentional written, verbal, or physical act, which a reasonable person would perceive as being intended to threaten, harass, or intimidate, that:
(A) Causes another person substantial physical harm within the meaning of Code Section 16-5-23.1 or visible bodily harm as such term is defined in Code Section 16-5-23.1;
(B) Has the effect of substantially interfering with a student’s education;
(C) Is so severe, persistent, or pervasive that it creates an intimidating or threatening educational environment; or
(D) Has the effect of substantially disrupting the orderly operation of the school.

Is this thoughtful, or too expansive to be useful? Do we need another term? Does bullying feel too juvenile to accurately describe the adult-level abuse that happens in high school (and beyond)? The government campaign “Stop Bullying Now!” is clearly targeted at “tweens” and youngers, and probably just preaches to the bullied choir.

The bullying that I saw as a teacher, if I had to call it that, was like guerrilla bullying. It was almost purely verbal, and it happened very quickly and very often. Just little things that were said, especially in the halls or at lunch when fewer people were listening. But it happened in the classroom, too, which drove me up the wall. You try keeping a room full of thirty teenagers from never saying anything nasty about each other.

Let’s assume you define it and identify it and have the time to do something about it, and an administration willing to back you up on it. If you catch a bully, what do you do with him or her?

Newsweek, spurred by a recent rash of news-making teen suicides, asked “Should School Bullying Be a Crime?” Jessica Bennett discusses the case of Phoebe Prince, who may have been driven to kill herself because she was taunted as a “whore” and “slut” at school, but who also “had tried to kill herself before the epithets, was on medication for depression, and was struggling with her parents’ separation.” So then what? Are we to judge bullies by their actions or by their success?

Bennett seems to want to elicit sympathy for Prince’s bullies – some of whom now are being bullied themselves, the subjects of threats. Dave Cullen, in his book trailer, has a Capote-esque moment where he admits a fascination with and empathy for Klebold: “Dylan really had a big impact on me. He was a really, really depressed kid. I found out that I couldn’t really transmit who he was or why he did it until I understood his pain, until I saw the world from the same miserable perspective that he did.”

This all leads to another of the bully cliches, probably true: they’re all insecure themselves. But Regina George is never hinted to have a miserable perspective, never painted as a victim – savvy teen audiences can smell that kind of stuff out, and it always smells too forced. But what’s the alternative? That she’s just plain mean? Mean from a vacuum? Part of the axis of malignancy? Making her such lessens the chance of making the movie more than a morality play.

I once read an article by Karen Keely about teaching Anne Sexton’s Transformations, which is a collection of poetic adaptations of Grimm tales. Keely discussed the work of folklorist D. L. Ashliman:

Ashliman argues that “the greatest overall theme treated in fairy tales is the restoration of justice,” although, as he notes, “Fairy tales expose and correct individual cases of the misuse of power, but the institutions are never challenged” (47-48). The tales are thus essentially conservative, leaving in place the systemic structures that allowed for the initial injustice to occur.

It’s the paradox behind “the king is dead; long live the king!” The monarchy, and its cruelties, is eternal until you abolish the monarchy.

Yes, there’s that nice bit in the gym where some of the girls vent their feelings and perform trust falls, but humor ironizes even that sequence – Tina Fey will not be caught in a net of pure pathos. After all, doesn’t one girl say, “I’m sorry I called you a gap-toothed bitch. It’s not you’re fault you’re so gap-toothed.” We laugh because bitch remains in place. Regina gets hit by a bus, but the death of a wicked queen in a fairy tale only brings us a new queen – it does not bring about a more revolutionary power-sharing system. Mean Girls may have eliminated one Burn Book, but “bitch” isn’t going anywhere.

Except it’s alright, because the girls who say it to each other are friends, right? It’s a kind of reclaiming of the word – girls call each other bitch in jest, I suppose, to eliminate the sting of being called it by a non-ally. And why stop there? The Vagina Monologues has a section on “Reclaiming Cunt.” Of course reclaiming words is never easy – we are all to some extent familiar with the debates over the n-word – but it’s a well-intentioned enterprise.

But Tina Fey herself rejected this tightrope walking. In the movie, Cady has an epiphany when she realizes she was drawing too fine a line between “acting” a bitch and being one. Sometimes the act can be divorced of its intentions – calling someone bitch, or faggot, even in jest, may have the same psychological effect as doing it with malice. Dave Cullen shows us that most journalists called the Trench Coat Mafia story an assertion, or a theory, but that didn’t matter; the only thing that mattered was “repetition.” You hear something enough, it doesn’t matter if they’re calling it a rumor. You hear certain language enough, it doesn’t matter if the speaker is being satirical. A rumor floated around that the Columbine killers were gay, too, but that didn’t stick in part because it wasn’t repeated.

This brings us back to the question of representations. Cullen reports that experts, on examining the bombs made by Harris and Klebold, were relieved to find that the killers didn’t fully understand how to wire them. They did not want to be any more specific, lest copycats learn from Columbine mistakes. Artists should have comparable standards of responsibility, if only self-imposed.

You may think Mean Girls is harmless, or at least not making existing situations any worse than they are, and that’s probably true. Entertainment is allowed to be entertaining, and wisecracking irreverence is doubtless a more effective way to get any point across to a teen audience (see also making gay sex jokes while discussing the Supreme Court).

But with a rash of bullying/bashing/suicides comes a rush of news coverage, which provides us with new tactics and taunts which we may not have dreamed up ourselves, and this will almost surely lead to a new wave of cultural representations – Lifetime movies, Laramie Project-style earnest theater pieces, and so on. Just imagine how difficult it would be to responsibly represent Harris and Klebold, and how easily those images could be twisted to other effects and purposes. It can’t hurt to examine what movies and books and art really does – how it affects us, and if it promotes positive change, aids future bullies, or offers a false catharsis:  

“Ding dong the witch is dead!  (Long live the witch!)”

Any ideas on what can or should be done to abolish the bully monarchy?


 “911, what is your emergency?” 

I’ve read at least one article that says this introduction is increasingly becoming “where is your emergency,” since so many calls are placed with cell phones these days. Regardless, the emergency part is taken for granted. They do not ask “do you have an emergency?”


So let’s say, to pick an example out of the blue, you were on I-85 N outside of Durham, NC and your car was in ruins. You would say, “There’s been a car accident.” The dispatcher presumably does not then say, “Oh, so this is an investigation then, not an emergency.” Similarly, if you say, “Someone here’s been shot,” they do not say, “well, I’m glad that’s in the past and the danger is gone. We’ll send an ambulance to pick up the pieces.”


This may be because of how we as a society use the word emergency (denotations courtesy of M-W):


1. an unforeseen combination of circumstances or the resulting state that calls for immediate action

 2. an urgent need for assistance or relief


Obviously there is a need for immediate action in our examples. Ambulances, police cars, even fire engines may be needed in one or both cases. Things need to happen.


But what if you’re at a gas station, and you were shot six blocks away, thirty minutes ago, and the police come up to you and ask, “what happened?” You say, “I’ve been shot.” Does this constitute an emergency?


This past Tuesday, in Michigan v. Bryant, the Supreme Court had to examine that question. Background info on the case is provided by SCOTUSblog and wikipedia, with some details thrown in by yours truly because, after waiting over two hours in the cold D.C. morning air, I attended the arguments.


In 2001, Detroit police officers responding to a call found Anthony Covington lying beside his car at a gas station with a gunshot wound in his abdomen.  In response to questioning, Covington indicated that he had been shot six blocks away and thirty minutes before by a person named “Rick,” and had driven himself to the gas station.  He gave the address of Richard Bryant’s residence as the scene of the crime.  Covington was eventually taken to a hospital, where he died several hours later.  At Bryant’s murder trial, Covington’s statements to police were admitted as “excited utterances,” and Bryant was convicted.


The odd phrase “excited utterance” is used here because that is an exception to hearsay. Hearsay, more or less, is when you try to testify to something somebody else said – in this case, a police officer testifying as to what Covington said to him. Hearsay is usually not admissible, because, obviously, you could be making it up, and why not just let the person testify for him or herself? But as any good mock trialer or lawyer knows, there are always exceptions to hearsay.


In general, hearsay exceptions usually come into play when the statements made are by circumstances such that they are more than likely to be “reliable” aka, true. This is why statements by a co-conspirator (why lie when you’re implicating yourself?), or excited utterances (think “Ouch! Charlie bit me”; it’s hard to fake an exclamation, or ejaculation, at least in the grammatical sense), or deathbed declarations (why lie when you’re about to die?).


Covington could have qualified either for excited utterance or deathbed, since he did die shortly after, but either way his statements were objectionable under what is called the Confrontation Clause.


Grab your pocket Constitutions and turn to Amendment 6: “the accused shall enjoy the right…to be confronted with the witnesses against him.”


The purpose of confronting a witness is that you get to cross examine him then, and turn him into a puddle of Matlock mush as you expose his lies. If a witness is dead, or otherwise not testifying, his or her statements are usually inadmissible.


Confrontation Clause and reliability had a bout for the title in the case Crawford v. Washington, in 2004. Michael Crawford stabbed Kenneth Lee in the chest because allegedly Lee had previously attempted to rape Crawford’s wife. Mr. Crawford said that he was acting in self-defense because Lee had a weapon, but Mrs. Crawford at one point stated that Lee did not have a weapon. This next bit is slick. In Washington law, a spouse cannot testify against a spouse (unless it’s a divorce proceeding or the like), so Crawford’s defense was to keep out his wife’s testimony. But, even though she would not testify, prosecutors attempted to admit her statements to police into evidence, saying they passed the test of reliability (why lie when it makes your husband look bad?). Crawford’s defense then said you can’t admit her statements because Crawford would not have the chance to cross-examine Crawford – how convenient, since they don’t want her to testify in the first place.


SCOTUS said, you’re right, Confrontation trumps reliability, at least when the statements at issue are “testimonial” in nature.


Now, with testimonial, you may have just had an image of someone in church with their eyes closed and their hand raised, talking about that time they went on a mission trip and saw a poor person and realized they needed Jesus. That might qualify. It’s hard to know what the Court thinks testimonial means, because they do not define it in Crawford. It seems to mean statements that would be identical to ones you give in court – the lawyer says, “What happened?” and you say “Charlie bit me.” That’s testimonial, and inadmissible if you’re not going to testify.


 One result of Crawford, by the way, is that some domestic abuse and sexual assault cases are harder to prosecute unless you have a victim willing to testify against an assailant – which just ask Rihanna is not always present.


Enter Davis v. Washington, which provides a definition of testimonial, or at least a negative one.


“911, what is your emergency?”

“Davis just beat me up and ran away.”


Michelle McCottry, who made a similar 911 call after being beaten, did not testify in court. But her call was admitted into evidence because, as the Supreme Court would later say, it was not “testimonial” in nature. Instead, she was simply offering information to the authorities so that they could deal with an “ongoing emergency.”


I want you to tell me what a “non-ongoing emergency” would be. Take a look at the definition again. An emergency calls for action, by definition. That implies something will be going on. So what’s the deal?


Back to Covington at the gas station. Is this an “ongoing emergency”? The Justices kept peppering the attornies with hypotheticals – perhaps the gunman is in the gas station, or about to run amok through the city. The police don’t know  if he is or not. But then any statement made by a victim of violent crime to the police would be admissable?


JUSTICE SCALIA: Only when he’s excited, right? Only when the victim who has been the object of a violent crime is excited. 


I’ve read that Scalia gets on average the most laughs during arguments. Tuesday was no exception, as this line and others drew chuckles.


Then Scalia, who by the way authored Crawford and Davis, got into some grammatical nitpicking that got me very excited:


JUSTICE SCALIA: Well, if it was an emergency, he wouldn’t have asked, “What happened?” He would ask, “What is happening?”


But later Anthony Kennedy dryly rejected this:


JUSTICE KENNEDY: Well, I’m not sure that policemen should read Crawford before they perform their — their peacekeeping duties. The — no — no one questions the right of the police to — to ask these questions and to use the word either “happens” or “happening” or “happened.”


Later, it was determined that it was not what the police said (they would ask the same questions whether there was an ongoing emergency or not, since they did not know yet), but what the declarant said. Here Alito got in on the verb tense fun:


JUSTICE ALITO: So, you concede that the line is not between a statement about he is hitting me with a baseball bat as opposed to he just finished hitting me with a baseball bat and is headed out the door? That is not where the line is drawn.


Because that would be silly. And yet, lesson: if you have been the victim of a violent crime and a police officer comes up to you, use the present tense. “He is shooting me. He is in the act of being named John Johnson. I am wanting to press the charges.” 


Chief Justice Roberts then posed an example where even the past tense, “The man in the gas station shot me,” would indicate an ongoing emergency – he’s right over there, we need to control the area – while still implicating a suspect in a “testimonial” sense. And that’s what Michigan argues happened here, since the police later went to where Covington said “Rick” had shot him and took measures to secure the area. 


I hate to break this to you but there’s not going to be much of a button on this entry because the opinion of the Court won’t be handed down for months. But here’s another fun Scalia moment:


JUSTICE BREYER: Now you have my whole train of thought. If you want to say Judge, there is nothing but the emergency rule, you are perfectly free to say it.



Those Supremes, they are just one laugh after another.


And for a good laugh, read my friend’s discussion of the Phelps case. You know, he’s the guy who takes his family to the funerals of soldiers in order to bash gays. Well, the father of a soldier sued for emotional distress, and that case made it to SCOTUS on Wednesday. When I left the Court, there were already people camping out to be there for Snyder v. Phelps. There was also a young kid who was wearing a neon shirt that said “GOD HATES GAYS. REPENT OR BURN IN HELL.”


He was accompanied, ironically, by someone who looked a whole lot like a drag queen.


 And even if she didn’t have a rod and reel, she was at least what I would call an ongoing fashion emergency.