The Steal (9 page)

While Hoffman was a media creation, protected by publicity, reveling in it, and talking about shoplifting as a revolutionary act, in the real world, at the exact same time, an ordinary human being was chewed up for allegedly having committed the crime and by the publicity surrounding it. Being in the spotlight cost him his job, defamed him, and affixed a stigma to him that nothing could erase. Far from seeking to steal to make a political point, what happened that day is barely known. But that this man was victimized by the event shows the reality of shoplifting in the lives of those who have been accused of committing the crime. What Hoffman treated as a joke is grim and earnest. The shame and burden of being exposed as a shoplifter cannot be erased.

In Louisville, Kentucky, the same year Hoffman was promoting
Steal This Book
, a young black photojournalist, Edward Charles Davis, was launching a legal battle over whether a police flyer showing photos of people who had been accused—but not convicted of—shoplifting violated their civil rights. The battle would eventually reach the Supreme Court.

Born in Louisville, Davis began shooting pictures at an early age. His father was an army photographer, and his mother, a social worker, “took pictures as a hobby.” The family lived in West End, an African American neighborhood scorched by looting in the riots after Martin Luther King Jr.’s assassination in 1968. Davis attended a local community college and then took to the street to document street protests and young people all over his city.

On June 14, 1971, Davis was detained for allegedly shoplifting several eight-track tapes from Consolidated Sales, a five-and-dime store in the neighborhood. Years later, he said, “I don’t remember what happened.” Nineteen years old at the time of the alleged shoplifting, Davis was the only black photographer working for the
Louisville Courier-Journal
and the
Louisville Times
. Consolidated Sales declined to prosecute, and the police dismissed the charge. Eighteen months after Davis was detained, though, in November 1972, the police in Louisville and the Tri-Cities, which also comprises Bloomfield and Lafayette, Indiana, printed a flyer with the names and photos of ninety people identified as “subjects known to be active in the criminal field of shoplifting.” There was nothing unusual about this. Both police departments had been distributing such flyers for years. Edgar Paul, the police chief in Louisville, and his colleague in the nearby Tri-Cities distributed over a thousand copies of the flyer to local merchants. It did not distinguish between those who had been convicted of shoplifting and those merely detained by stores.

The “active shoplifters” on the flyer are all races, ages; there are slightly more women than men. On every page the logo “active shoplifters” brands them even though their “activeness” did not necessarily lead to a conviction.

When the flyer was circulated, Davis recalled, “my supervisor called me into my office and basically said, ‘You need to do something about this.’ ” Davis hired Daniel T. Taylor III, a lawyer whose specialty was—as an action against him brought before the Kentucky State Bar a few years earlier described it—“civil liberties, civil rights activists, the poor, the disadvantaged.”

By the time Eddie Davis appeared in his office, Taylor had defended a number of civil rights cases and sixty-eight capital ones. He had become a pariah to some of the local judges, who tried to disbar him, in part for his connection to radicals like the man he called “the great William Kunstler” and in part for his contrarian temperament. In 1969, one such judge, a conservative who wore a pistol in court, tried to force Taylor’s disbarment for
his
theatrical outbursts. (Taylor admitted that “it was possible” that he was “antagonistic,” reciting
Spoon River Anthology
in his closing remarks, or staging an associate’s entrance with a briefcase with the word “Antics” written on it. He denied, however calling the judge “a dirty son of a bitch.”)

In October 1971, a second conservative judge, hearing a case in which Taylor was defending a black man accused of murdering a white police officer, reprimanded the lawyer nine times for contempt. The judge eventually sentenced Taylor to four and a half years. As Taylor liked to joke, William Kunstler had only been sentenced to four years, three months for that offense. He sent Kunstler a telegram: “We try harder.”

One description of the trial described Taylor as “the star performer in the center ring of a three-ring circus.” The judge settled for calling the star performer flippant and saying that he badgered some witnesses, interrupted others, and was in general disrespectful. Taylor demanded the right to go to trial over the contempt charges, which he was denied. But when the case arrived in the U.S. Supreme Court in the spring of 1974, Taylor was vindicated 8–1. The majority ruled that he had been denied due process and that the Louisville judge, personally embroiled in Taylor’s fate, was biased.

Taylor and Davis never discussed whether the photographer had shoplifted or not. The attorney immediately moved the case from the local court, where it had languished, to the Western District Court of Kentucky. Since the flyer depicted alleged criminals and Davis had not been tried in a court of law, it constituted punishment without due process, was unconstitutional, and violated his civil rights, Taylor argued. By then, Davis had quit the paper. “The case made it difficult to get assignments,” he said.

The district court dismissed Davis’s case. “[T]he facts alleged in this case do not establish that plaintiff has been deprived of any right secured to him by the Constitution of the United States.” Taylor appealed. In 1974, the Court of Appeals for the Sixth Circuit ruled in Davis’s favor after Taylor attacked the flyer as an “indiscriminate lumping of the innocent and guilty alike.” The police chiefs appealed and the case was bumped up to the Supreme Court. Taylor sought to sustain the Sixth Circuit decision. When
Paul v. Davis
was heard at the Supreme Court on November 4, 1975, Eddie Davis was living on food stamps.

In Washington, Davis sat in the front row in the gallery with what Taylor called his “gang,” a group of people who worked on civil rights cases pro bono. Most had traveled from Kentucky and were staying with a Catholic priest in Silver Springs. Although he had been a defendant, Taylor had never argued a case at the Supreme Court.

Carson Porter, the attorney for the police chiefs began by explaining the lower courts’ dismissal of Davis’s case and by saying that it should never have made it to the Supreme Court. At most,
Paul v. Davis
should have constituted an allegation of defamation; he rejected the argument that the flyer violated “(a) deprivation of constitutional right of privacy or (b) a denial of due process.”

In the years prior to
Paul v. Davis
, the court had favored the individual over the state in some rulings on privacy cases. In 1973,
Roe v. Wade
had guaranteed privacy in the matter of abortion. Porter argued that shoplifting was hardly a fundamental right like abortion and that since Davis had not experienced “proof of any type of grievous injury,” his civil rights had not been violated. He quoted Albert C. Allen, Davis’s boss at the paper: “I have taken no action against this gentleman.”

Porter next argued against the precedent that influenced the Sixth Circuit Court of Appeals to rule in Davis’s favor. This was based on a 1970 case called
Wisconsin v. Constantineau
in which the police chief of Hartford, Wisconsin, had posted pictures of heavy drinkers in liquor stores and bars and allowed these establishments to decline to serve those pictured for one year. The Supreme Court ruled this DIY Al-Anon to be an abuse of due process.

Justice William Brennan, then the court’s most liberal member, objected that the flyer was circulated “without the slightest regard for due process.”

Porter replied that because the shoplifter flyer had limited circulation, the chiefs’ abuse of Davis’s civil rights was less egregious than that of
Constantineau
, which dragged in the whole community. Brennan snapped that accusing someone of shoplifting is more serious than not serving someone a drink. “These fellows have to go through the rest of their lives with what is the apparently untrue label of active shoplifter.”

Daniel Taylor, Davis’s attorney, spoke at the lectern. In his thick Kentucky accent, he re-presented the flyer and the testimony of Davis’s boss at the newspaper, Albert C. Allen, whom he quoted: “Our photographers must be accepted as reasonably honorable and truthful men . . . wherever they go. I felt that in view of this flyer’s circulation to members of the community I could not for example assign Mr. Davis in anything in a mercantile assignment.”

Taylor’s point was that although Allen did not fire Davis, he infringed on his civil rights. Taylor also sought to correct Porter’s assertion that the flyer was difficult to get hold of. And he noted that alcoholism was more socially acceptable than shoplifting: “As for
Constantineau
,” he drawled, “I couldn’t help reflect . . . I would rather be reprobated as a drunk than a thief.”

Taylor protested that Davis had never been convicted and yet the police chiefs “characterized him as active in his field.” The question of Davis’s guilt hung in the air. Porter pointed to Davis’s failure to challenge the dismissal of the case years earlier as proving his guilt.

The court overturned the Sixth Circuit’s ruling by a vote of 5–3. Justice William Rehnquist wrote the majority opinion, and Justices Warren Burger, Potter Stewart, Harry Blackmun, and Lewis Powell supported him. Brennan filed the dissenting opinion, supported by Justice Thurgood Marshall and Justice Byron White in part. (Justice John Paul Stevens did not participate.) The majority opinion ruled that the police’s choice to put Davis on the flyer violated neither his civil nor his constitutional rights. “While we have in a number of our prior cases pointed out the frequently drastic effect of the ‘stigma’ which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection of the due process clause.”

In the dissent, Brennan worried that “the potential of today’s decision is frightening for a free people. . . . The court today invites and condones such lawless action by those who wish to inflict punishment without compliance with the procedural safeguards constitutionally required of the criminal justice system.”

Legal scholars characterized the decision as defining the Burger court’s narrowing of the Fourteenth Amendment and broadening of states’ power. The
New York Times
scolded that it meant that “government officials may, in bad faith, defame the innocent.” No one paid attention to the question of whether Davis had shoplifted or not, or to how the crime’s very stigma influenced Rehnquist’s ruling. In his private notes, Blackmun called
Paul v. Davis
“our so-called shoplifting case” to submit that the crime was a trivial matter, not the real issue. One man’s reputation did not merit a Supreme Court case. The injury to Davis was not worth the court’s time.

Davis still lives in Louisville and still takes pictures. Some of them are archived at the University of Louisville, and others are reproduced in the free community monthly
FORsooth
. Davis photographed the 1985 mayoral campaign of Jerry Abramson; he participates in protests himself, and has over the years made two failed bids for alderman. He sees himself as carrying on the legacy of the great Harlem photographer James Van Der Zee—in showing how history collides with the present, as in the picture he took of Muhammad Ali’s daughter standing on Muhammad Ali Boulevard. He views photography as an extension of his activism, serving on the board of the Kentucky Alliance Against Racism and Political Repression, a not-for-profit group devoted to combating social injustice. Some of his work was included in Documenting Dissent, a group exhibit of Louisville street protests at the Speed Art Museum in 2006.

Since the 1970s, though, Davis has never worked as a photojournalist for a mainstream newspaper, instead supporting his art at a variety of jobs: car salesman and more lately audiovisual technician. According to a 2006 article in the
Louisville Courier-Journal
, the very paper he worked for years earlier before his court case, he was “struggling” financially.

On a 2007 local television show, he did not mention the shoplifting case. “I just wish things had turned out different,” he told me just before he hung up on me when I asked if he also saw shoplifting as political activism.

A new addition to retail theft laws made some progress in converting shoplifting into a civil act. Called civil restitution, these laws allowed stores to charge shoplifters fees—sometimes many times more than the shoplifted item was worth—and forgo criminal proceedings. In 1975, Washington State passed the first such law. Other states followed suit.

By that time, two out of three of the yippies who had written handbooks promoting shoplifting as a revolutionary act had recanted. After someone broke into his apartment, Rubin wrote, “In advocating stealing as a revolutionary act, I guess I didn’t make clear the difference between stealing from General Motors and stealing from me.” Powell become an Anglican and renounced
The Anarchist Cookbook
. As early as 1972, Abbie Hoffman had moved on to other obsessions. Shoplifting continued to flourish, albeit beneath the pop culture radar. But a few years ago, even before tough economic times returned, the American Robin Hood reemerged in a disguise that Hoffman might not have recognized.

Like his forefathers, Robin Hood 2.0 steals from the rich and gives to the poor, to which category he might belong. This Robin Hood still shoplifts to redress otherwise uncorrectable social wrongs. But he is known by different names, the hero of generations X or Y: by the oxymoronic label “ethical shoplifter” or the apparently ironic art school locution “tactical interventionist.” His influence is part Hoffman. His revived popularity is demonstrated by manifestos like
The Coming Insurrection
, written by the Invisible Committee in 2005 in France, published by Semiotext(e) in Cambridge, Massachusetts, and Los Angeles in 2009, and attacked by Glenn Beck as “evil” in 2010. There is a whiff in such polemics of the graduate school seminar as well as the streets: “‘Becoming autonomous’ could just as easily mean learning to fight in the street, to occupy empty houses, to cease working, to love each other madly, and to shoplift.” Playing the old game of euphemism, Robin Hood 2.0 sometimes substitutes the word “taking” for “shoplifting.”