I saw feet sticking out the end of a downtown alley and a guy flat on his back.
"Naw, I ain't okay at all," he said, but he had no money to get to a hospital, and when I offered him a little he couldn't sit up to accept it. When I got the police on the phone (a phone that refused to accept coins but fortunately let me dial the operator), they took details and said they'd send a cop. Returning to our supine friend, I found he had staggered up to work on the remaining eight ounces of a half-pint.
"I drink a little," he said.
"But when you finish that and lie down again you aren't going to be aware you're freezing," I observed, and told him the police would get him to a hospital, if that's what he needed, or at least indoors somewhere. He thought that was great.
"But how do I know what the temperature is?" he said.
"It's 8 o'clock and already freezing and it's going down to 6," I said.
"But I don't know what the temperature is," he said, with that reverence for irrelevant fact that so absorbs the American soul.
A guard from a deluxe hotel arrived -- 20 minutes had passed by this time -- and pointed out the drunk was on hotel property and would have to move on, sir.
Sir, in this case, was rather bent over, not able to stand up, but as everybody knows it's hard to drink a pint of vodka with your head flat on the pavement, unless you don't mind losing a good bit through general sloppage (and this man did mind, I sensed) so he had made a probably heroic effort to get at least halfway up.
It did seem to me the guard might have thought of something either more useful or more imaginative than reiterating that the guy in the alley was on private property (I now believe, having gone back in daylight to check it out, that this alley is in fact a service entrance of the hotel and not a public passage). He might, in fact, have noticed the man an hour earlier, for one thing, and made a phone call or two, for another, but then so few of us are perfect.
Which brings us to the law of New York authorizing police to cart off street people to shelter of some kind on freezing nights. The theory is that some of these people are off their rockers or drunk or otherwise unaware of their danger. If they resist, this theory goes, they should be taken forcibly to shelter. There is an argument by some City Council members that we should adopt a law like that of New York. Already we authorize police to take people to a hospital for examination, but the aim of that law is to help mentally ill people, and it might not cover picking people up to prevent freezing.
As my own behavior suggests (in calling the police) I acknowledge that when a guy is about to pass out again in the alley on a bitter night, he will certainly freeze if somebody doesn't do something, and it's particularly hazardous in a dark alley with just the tips of his shoes sticking out.
What if he were to resist being taken to shelter? In practical fact, I think one might infringe on his constitutional right not to be carted about by others, against his will. I call it tempering the wind to the shorn lamb and find good authority for it.
But I would feel easier about this forcible seizure business if we all agreed we were obscuring the protection of the Constitution simply because we couldn't stand the idea of some guy freezing to death in a nice stupor. (The rest of us, after all, are probably going to check out with tubes and drains and oxygen and the whole bit).
As I reckon it, when the police round up the strays on cold nights, they probably will not have a lawyer specializing in civil rights accompanying them. My experience is that cops are as good and as nongood as the rest of us, which is hardly surprising since they are drawn from society in general. The nature of their work, however, suggests they are not always nit-pickers for fine points of the Bill of Rights ("secure in their persons . . . against unreasonable searches and seizures . . . and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the . . . person . . . to be seized").
The Constitution says nothing that I can find to support, for example, my own notion that I had a right to ask the police to pick up this guy and get him indoors. It seemed to me I was doing the right thing, but not necessarily the legal thing. But what the hell, when the bum sues me for violating his constitutional rights, maybe the court will let me off easy.
Still, I will say this much for my modesty and sanity: Even in my most determined moments I did not think I had an unarguable right to run the bum's life for him since I am bright, humane, loyal, courteous, zub, zub, and he is just a bum. I thought (and still think) I was taking a good bit on myself, and probably would not have persisted if I had not been quite sure he was going to finish that bottle of vodka and pass out and die. If he had said, "I'm just fine, thank you, and how about minding your own business," I'd have felt rebuffed (the ungrateful bastard) but confessed his argument had much merit.
Once you have a law authorizing or even requiring the forcible pickup on cold nights of all those who have no "realistic" probability of taking care of themselves, the burden of argument seems to shift a little, and to shift dangerously.
With such a proposed law, the cops could arrest (or help, or pick up and lug off) virtually anybody on a cold night. If they complain and resist and are carted off anyway, the cop in court could always make the argument he thought they had no realistic hope of finding shelter, and Mrs. Reagan (if they happened to round her up) would have to argue she was just walking through Lafayette Square and turned her ankle and had sat down for a minute to collect herself, but could prove she had adequate housing not far distant.
And it might not be Mrs. Reagan they rounded up but somebody who just sort of looked as if he, uh, well, better just run him in.
"Your honor, it was a cold night and my partner and I thought he might be going to freeze, and when we stopped to assist him he assaulted Officer Montmorency here and we had to subdue him a little, but where he got the brain concussion we do not know."
You can foresee various scenarios, and not all of them should give comfort to nice guys like me who call cops to get a guy to shelter.
The law means well. All laws mean well. The authors of the Constitution, whatever else may be said of them, had a hearty distrust of guys like me, going about doing good.
The freedom not to be carted off by cops without a specific warrant, or the presence of a crime, is an important freedom. It should not be fiddled with simply because in some rare case it might be a good thing.
There is already enough informality, probably, in the way the Constitution is administered in daily life, without our going out of the way to invent more or less meaningless new laws that have within them the possibility of abuse.
Without the proposed law, probably no more people would freeze to death than will freeze to death with the law in force. In this sense the law would be almost certainly meaningless and unlikely to achieve anything worthwhile. But insofar as a new law can be used to chip away further at the constitutional protection against unreasonable seizure, it can be mischievous.
It would be a stupid law, designed chiefly to convey inexpensively the notion that in this city we care a great deal about homeless folk on cold nights. Most of the laws of South Africa, come to think of it, were designed to protect the poor native population who, I suppose, had no "realistic" hope of protecting themselves or managing their own affairs.