The continuing saga of the poo bomber

Nothing, and I mean nothing, escapes the reach of federal judges. I attribute much of that eagle-eyed commitment to justice to the fact that most Article III judges (except me) have their own special and, sometimes ornate, toilets. But, I digress, albeit only slightly.

When an aggrieved litigant allegedly decided to poo bomb the public restroom in a federal courthouse in order to protest something or the other, to the slammer the poo bomber went for seven days.  Viewed in the light most favorable to the poo, the facts (that I never get tired of restating) are these:

The supervisor of the courthouse’s cleaning company, Christina Mason, arrived to clean the restroom after receiving a call requesting that it be cleaned. She smelled feces from the hallway, and when she opened the door she could not enter the restroom because feces were on the floor where one would need to step to get inside. The restroom was unusable because it was so soiled. She saw that seventy-five percent of the floor was covered in feces, in chunks. She also saw feces smeared in spots on several walls in different areas. In fact, some of the feces were smeared more than two feet up on the walls. Feces were smeared on the paper towel and toilet paper dispensers, on the toilet paper itself, and on part of the toilet seat and the left side of the toilet bowl. There was also urine in the toilet, which had not been flushed; no feces were inside the liquid in the bowl. Mason testified that the feces were not only all over the bathroom but were “smear[ed] in spots,” and not splattered. Strong’s plaid blue boxers, which were covered in feces, were found by Mason draped over the wastebasket where Strong admits he placed them because they were “destroyed.”

The state of the bathroom was so bad that Mason, who had fourteen years’ experience at the courthouse and training in
cleaning up bodily substances, was initially at a loss for how to clean the restroom. She devised a plan and first used paper towels and disinfectant to remove the feces from the floor. She then cleaned the restroom three times with a bleach and water solution, and discarded the soiled underpants, the potentially soiled rug that had been outside the restroom, and the clothes she had been wearing using a biohazard bag.

On matters of perspective and toilets, Hercules and the Umpire (July 23, 2013) (quoting  United States v. Strong, No. 12-1842 (1st Cir., July 19, 2013)).

The (alleged) poo bomber sought review in the First Circuit because, for among other reasons, he thought the evidence insufficient to convict him of acting intentionally. If you include the dissent, and the photographs attached to the decision, the discussion by the First Circuit goes on for 57 pages. Two judges voted to affirm the conviction, and one judge voted to reverse.

Believing that the urge to poo in this peculiar circumstance implicated the Fifth Amendment, the able lawyer for the man with enormous bowels has petitioned the Supreme Court to clean up the mess.  See here.

I bet the Supreme Court can one-up the First Circuit.  Indeed, I just can’t wait to see the words “poo,” “poo bomb,” and “active liberty” used by one or more Justices in a lengthy opinion or even in a passionate dissent. Now, that would provide the makings of a law review article for the ages!

RGK

PS Thanks to Mike Scarcella, staff writer for the National Law Journal.

14 responses

  1. I wonder how many people I am racing right now to publish my first ever law review article regarding the constitutionality of taking a shit. I can think of seven.

  2. There’s got to be some kind of Presidential medal for Ms. Mason. Not just for her heroic sacrifice for the halls of jurisprudence (or closets, as the case may be). For her meticulousness as well. That kind of planning and hard work at least earns some title with the word laureate in it.

  3. Pingback: "The continuing saga of the poo bomber" | Internet Tax Lawyers

  4. Virgil, agreed. She is the hero of this story.

    Interesting that Judge Kopf, you describe him as an aggrieved litigant protesting something or other, but he’s arguing that he did not act intentionally. Maybe I just took too many First Amendment-type classes in law school, but I’d be fascinated to see a First Amendment analysis of pooing in protest. I mean, where does it fall on the expressive spectrum compared to flag burning? Or nude dancing? And who doesn’t want to see Scalia take his razor sharp pen to this set of facts in any event?

    Well, I might be fascinated in theory, but in reality I think I’d be happier if I never read the phrase “feces, in chunks” again in my life. Which brings me back to my point and Virgil’s, that Ms. Mason is the true hero here.

    • chocolatetort,

      I agree that counsel is bright and has guts, and for that she should be lauded. For her client, seven days in a dismal jail is a big deal. For the courts, that is another matter.

      All the best.

      RGK

  5. I would have felt better if it were a deliberate protest. The judges could get on their hands and knees and use the Constitution to clean it up, as they seem to use it for that purpose on a daily basis anyway.

    Torruella is one of my favorite judges (yes, I have them). From his dissent in Iguarta de la Rosa v. US (CA1, 2005):

    Those born in Puerto Rico have since 1917 been born citizens of the United States. See Jones Act (Puerto Rico), Act of March 2, 1917, § 5, ch. 145, 39 Stat. 951 (1917); 8 U.S.C. § 1402. The right to vote is a fundamental right inherent in citizenship… It is fundamental because it is preservative of all other rights by adding the validating imprimatur of the ballot box to the business of government. Furthermore, it has been considered a fundamental right since at least 1886, see Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), and repeatedly thereafter in a variety of circumstances, see Bush v. Gore, 531 U.S. 98, 104 (2000);…

    The indefinite disenfranchisement of the United States citizens residing in Puerto Rico constitutes a gross violation of their civil rights as guaranteed by the Fifth Amendment and by international treaties to which our Nation is a signatory…. The total default by the United States of its constitutional and international obligations with respect to the citizens of the United States residing in Puerto Rico, release me from any obligation to give stare decisis recognition to our prior decisions in Igartúa I and Igartúa II. “Our Constitution . . . neither knows nor tolerates classes among citizens,” Plessy, 163 U.S. at 559 (Harlan, J. dissenting), and yet what we have in this case is without a question the creation and perpetuation of a class of sub-standard, second-class citizens, with less rights than those enjoyed by the main class of U.S. citizens….

    Because the normal avenues of government are not open to the United States citizens who reside in Puerto Rico to end the limitless and unconstitutional (see Downes, 182 U.S. at 380 (Harlan, J. dissenting) colonial condition that deprives these citizens of the equality that should be inherent in United States citizenship, it becomes incumbent upon the judicial branch to take such extraordinary measures as are necessary and appropriate to protect the rights of this discreet and insular minority. As an initial remedy, I would reverse the judgment of the district court and remand for the entry of a declaratory judgment consistent with the views expressed by me and stating that the United States has failed to meet its obligations under Article 25 of the ICCPR [International Covenant on Civil and Political Rights]. “This is of the very essence of judicial duty.” Marbury, 5 U.S. at 178.

    De la Rosa is yet another case of judges interpreting “the supreme Law of the Land,” U.S. Const art. VI, cl. 2, out of existence sua sponte. The ICCPR is a validly enacted treaty, but judges don’t like what it mandates–the abolition of all forms of official immunity. They would rather gnaw their arms off than interpret a Constitution that abolishes judicial immunity.

    RGK’s standard for judicial character–tested only when a judge must issue a ruling contrary to their personal self-interest–is one judges fail so often that it is remarkable (e.g., Glasser) when it is met. Judicial corruption is as predictable as the sunrise.

  6. Alas, judge, the Supreme Court denied cert this week, meaning the poo bomber will not have the chance to sully the pages of the U.S. Reports. The legal community will have to wait until the Supreme Court encounters a more appropriate case for a full explication of the intersection between the Fifth Amendment and feces. Let’s hope that never happens.

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