Self-Defense Claim Based on Clothes of Victim

The killer said he feared the victim

was armed “because his pants were falling down” and his hands were in his hoodie pockets.

Hoodie_manReporters Jeff Weiner and Arelis R. Hernández in the Orlando Sentinel describe a killing and claim of self-defense in Florida today, raising similarities to the controversial acquittal of George Zimmerman for the killing of Trayvon Martin using Florida’s “stand your ground” self defense standard.

The victim’s hoodie or sagging pants should not be considered as evidence of violence.  We should not be “profiling clothes.”   This includes hoodies and this includes “saggy pants.”

There’s more discussion of the legal consequences of sagging pants, hoodies, “thug wear,” and government’s attempt to regulate what we wear by indirect and direct means in Dressing Constitutionally.

But this is certain:

No one deserves to die for what he or she is wearing.  And the law should never suggest otherwise.

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Hair and Nudity on Stage: “Just Like the Hippies Did”

HairHair, “The American Tribal Love-Rock Musical,” came to the stage recently at the Hoogland Center for the Arts in Springfield, Illinois. As reported, the musical was presented complete with a “controversial nude scene.” Director Jen Wallner reportedly included the scene because it shows vulnerability: “They’re showing themselves for everything they have, just like the hippies did.” 

While this particular production does not seem to have garnered the attention of concerned citizens, as did a recent production of Love! Valour! Compassion! in Grand Rapids, Michigan, the musical has had its share of controversy, resulting in the 1975 Supreme Court decision in Southeastern Promotions, Ltd. v. Conrad. There, municipal authorities in Tennessee, seeking to safeguard the “best interests of the community,” denied an application to produce Hair. As discussed in Dressing Constitutionally, while the promoters of Hair won their case, the Court avoided deciding on the constitutionality of applying nudity and obscenity laws to the musical. Several months after Southeastern Productions, the Court in Erznoznik v. City of Jacksonville, applied First Amendment protections to expressive nudity against a local ordinance prohibiting the display of nudity in films shown at drive-in theaters. 

Dressing Constitutionally explains the Court’s separation of nudity from obscenity in cases such as Miller v. California and Erznoznik, and identifies the areas where continued government regulation of nudity in artistic productions is possible: in otherwise regulated mediums, like television; when regulation occurs in a government funding scheme, as seen in the Love! Valour! Compassion! situation; and when the regulation targets the “secondary effects” of the nudity.

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A School’s Suspension over Dress Code Violation Sends “Mixed Messages” to Transgender Teen

Last week, high school administrators suspended a transgender student, Staceyy Holidayy, for wearing a shirt that violates the girls dress code, despite allegedly forbidding her from also using facilities designated for female students.

As reported, Staceyy purposely violated the dress code by wearing a backless top to bring attention to the administration’s inconsistent treatment of her gender identity. She told reporters, “I don’t know how they can suspend me because I broke rules for girls when I can’t use the girls restroom or locker room.”

The administration disputes Staceyy’s claims, telling reporters it was agreed that Staceyy would use the nurses office for the restroom and changing. They thought it would be “safer” for her to do so rather than use the regular facilities.

6a00d8341c730253ef01a3fc4fe450970b-250wiThe administration also assured reporters that it adheres to California’s legal requirements in place to protect transgender students. However, Staceyy alleges that she was not given a choice in the matter. Thus, the arrangement may violate the law’s requirement that a student “be permitted to … use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”

Signed into California law just last August, the School Success and Opportunity Act, or AB1266, requires a school to allow a student choice in gendered assignments like restrooms, classes, and sports teams. Despite the need to protect LGBTQ youth from institutionalized bullying, the law is under threat as anti-LGBTQ groups successfully organize for its repeal.

For transgender students, ascertaining equal protection and relief via constitutional means is not a guarantee and indeed, such avenues can take years and can be immensely expensive. With affirmative legislation like California’s law, however, a student may be afforded protection and more effective means for recourse. Indeed, in Staceyy’s case, the administration is quick to discuss its compliance with AB1266 in its accommodations for Staceyy.

As far as the suspension goes, however, AB1266 has little to say. Some commentators have lauded the administration’s recognition of Staceyy’s gender by enforcing the girls’ dress code against her (though one wonders whether it is generally so strictly enforced). But regardless of gender identity, the fact that any student is suspended for two days over an arbitrary dress code violation leaves little room for applause.  

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Modest Dressing at the Frick Collection

Apropos of discussions about “hijab” as modest dressing including head covering for women, Vermeer’s famous painting “Officer and Laughing Girl,”


now on exhibit at the Frick bears an interesting description: “A gentle radiance illuminates an officer and a modestly dressed young woman engaged in the pleasantries of courtship.”

Is it the headcovering that makes the woman in the 1657 Dutch painting modestly dressed?


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Hijab Hysteria

From my piece over at Women’s Review of Books:

The legal policing women’s headscarves is rooted in a mélange of sexism, xenophobia, religious bias, and racism. Unlike the niqab (veil), hijab as sartorially expressed by the headscarf does not obscure the face. While the niqab can raise concerns about identification and anonymity, which may be rational in some situations, such as a trial in which the identity of a person is a central issue, the headscarf evokes anxieties of a less logical sort.


Read more here.

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Protesting “Obamacare” While Masked – – – Police Officer Reportedly Arrested For Wearing Guy Fawkes Mask

According to a report in the Sun Sentinel by Lisa J. Huriash relying on a police report,  a “North Miami Beach police officer has been arrested, accused of refusing to take off a mask he wore while on the street protesting the federal government’s new healthcare law.”  The protesting police officer interestingly adopted the Guy Fawkes mask (pictured below) made popular during Occupy protests, as a symbol.


Guy Fawkes Mask

According to the police report, the protesting police officer  wouldn’t tell police who he was, “stating his anonymity was his cause, thus the mask. … He stated the mask was used by movement groups around the world for protest.”  He was also carrying a gun, but was charged only with obstruction of traffic and “wearing a hood or mask on the street.”

The charge may be a difficult one to make stick.  Florida’s anti-masking laws derive from attempts to criminalize KKK activities and are thus linked to intimidation and civil rights violations.

The Florida statute §876.21 definitely applies to the reported conduct:

Wearing mask, hood, or other device on public way.—No person or persons over 16 years of age shall, while wearing any mask, hood, or device whereby any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer, enter upon, or be or appear upon any lane, walk, alley, street, road, highway, or other public way in this state.

BUT, another Florida statute, §876.155 limits the provisions the various anti-masking statutes, stating these statutes will apply only if the person was wearing the mask, hood, or other device:

(1) With the intent to deprive any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws or for the purpose of preventing the constituted authorities of this state or any subdivision thereof from, or hindering them in, giving or securing to all persons within this state the equal protection of the laws;
(2) With the intent, by force or threat of force, to injure, intimidate, or interfere with any person because of the person’s exercise of any right secured by federal, state, or local law or to intimidate such person or any other person or any class of persons from exercising any right secured by federal, state, or local law;
(3) With the intent to intimidate, threaten, abuse, or harass any other person; or
(4) While she or he was engaged in conduct that could reasonably lead to the institution of a civil or criminal proceeding against her or him, with the intent of avoiding identification in such a proceeding.

This is unlike statutory provisions in other states, such as New York, which prohibit “loitering while masked” or indeed the new Canadian criminal provision specifically aimed at protesting while masked.

The Florida statutory scheme could certainly be construed to include the protesting police officer’s acts under subsection (4) above, given that he stated he was trying to avoid identification (to protest anonymously) and that he was reportedly charged with another violation (obstructing traffic).

Constitutionally, the protesting police officer could also challenge the charge as a violation of the First Amendment.  The likelihood of success on the challenge is mixed, a subject I discuss in the book, Dressing Constitutionally.

Where Is Your T-Shirt Made? And Who Makes It? Under What Conditions?

In her terrific new article for Mother Jones, Dana Liebelson discusses the links between India’s “sumangali” girls who work to save for their dowries and the clothes for sale in the West:

You won’t find a Western clothing manufacturer that openly approves of sumangali labor, but cracking down on it is a different matter. That’s because textile supply chains are vast and mind-numbingly complex. The average Indian T-shirt begins in a cotton field in western states like Gujarat and Maharashtra, where fluffy, plum-size balls are harvested by workers who generally come from the lower castes. From there, the balls are shipped in trucks to warehouses and sold to spinning mills, where machines (like the kind that cut Aruna’s hand) process raw cotton bales into thread. Then workers weave the thread into strips, dye them, and send them to factories that do final processing.

As Liebelson writes, it isn’t simply that the supply chains are “complex,” it’s also that manufacturers including retailers have great resistance to transparency.  As I’ve suggested elsewhere, one possibility is to demand labeling on our clothes that would reveal not only its source but the conditions under which it is made – – – there could be a  label “sweat free” analogous to the label “organic.”   And there’s more on the relationship between work (including labor under chattel slavery) and the clothes we wear in the chapter “dressing economically.”

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ACLU Accuses Retailer of Racial Profiling in Anti-Shoplifting Policy

As the holiday season begins, retail stores vamp up to sell merchandise to crowds of shoppers, but also to stop shoplifting. Retailer, Hot Mama, is in hot water for its particularly aggressive anti-theft policy, which has employees racially profiling customers according to the ACLU of Colorado.

Hot Mama is a large nationwide retailer, selling women’s clothing in over 40 stores and online. Their anti-theft policy tells employees to identify a potential shoplifter if “a customer that doesn’t look like the typical Hot Mama shopper.” Once identified, the employee should “stick to potential thieves by following them everywhere in the store. Make them feel uncomfortable. Ask questions.” The policy warns that,hot-mama-inside

“Shoplifters will try to make YOU feel uncomfortable. They may say: ‘Are you following me because of my race?’ Please respond: ‘We like to give each customer one-on-one service.’ Don’t worry about making them uncomfortable. That is your goal in this situation. The more uncomfortable they become, the quicker they leave…forever.”

The ACLU of Colorado finds the language of the policy laden with “subtle and not-so-subtle” references to racial profiling of customers —

“The curious phrasing of this description of a ‘potential thief’ suggests that it is a subtle coded encouragement of racial targeting. Who is and who is not a ‘typical Hot Mama shopper’? A review of Hot Mama’s website, which features an overwhelming proportion of white women modeling the clothing, suggests the answer. The price point of the clothing, along with the dearth of models of color on the website, suggests that Hot Mama regards its ‘typical Hot Mama shopper’ as an upper-middle-class white female, and that it is persons of color who are more likely to be identified as ‘potential thieves’ on the ground that they don’t ‘look like the typical Hot Mama shopper.’”

Moreover, the ACLU notes that the policy’s acknowledgement that customers will ask if employees are racial profiling creates a suggestion for employees to do so. The ACLU also references a Hot Mama manager who questioned the racialized policy and was told that some stores had “problems with black gangs.” Saying the policy is in violation of federal and state law, the ACLU adds that the policy “creates an environment in which people of color will be followed, intimidated, and have their rights violated when attempting to shop at Hot Mama.”


The ACLU’s action against Hot Mama is not isolated — just in October, both Barneys and Macy’s made news and faced lawsuits for alleged racial profiling to mitigate shoplifting. The Macy’s suit includes allegations against the NYPD for their role in the shoplifting prevention operation, creating clear state action for a possible Equal Protection challenge.

As the holiday shopping season begins, hopefully stores will learn from these mistakes and make sure to prevent theft with a non-racialized means, implementing policies that do not disproportionately impact shoppers of color. It may be wise for businesses to avoid policies that give an employee the goal of making a customer so uncomfortable that she will “leave … forever,” when the customer asks whether she is profiled for her race. Indeed, such strong language leads one to wonder whether the policy is meant to prevent theft, or to prevent certain groups from shopping at their stores and from wearing their clothing.

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Continuing to Blame The Hoodie

450px-Jun&Ai_(5)George Zimmerman, charged (albeit belatedly) and notoriously found not guilty of the killing of Trayvon Martin, is in the news yet again, for another involvement with the law based on allegations of his violence.

For some, this (re)opens the issue of the trial for the death of the 15 year old Martin.  This includes pundit Geraldo Rivera, who famously blamed Trayvon Martin’s “hoodie” and continues to do so.  Rivera writes that although Zimmerman

may be nuts now, but was he nuts then? That’s the bigger issue, whether he is crazy because of the trauma of Trayvon’s death and his trial and being broke and besieged and aimless or was he crazy the night he killed the kid?

This seems within the realm of possibility.  However, the validity Rivera’s obsession with Trayvon Martin’s hoodie as “thug wear” seems less plausible, arguing that even if Zimmerman did not act in self defense but was

a hunter looking for game that night, picking a fight because with his hand near that concealed weapon ready to draw and fire he knew he had the advantage, the verdict would have been closer.

Still, he would have been acquitted, because of the hoodie.

As I argue elsewhere, hoodies are ubiquitous items of clothing having no connection with the propensity to commit violence.

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