Sunday Morning Hot Tea - No. 37
An Encounter with St. Nick & Who Ya Gonna Call (Assuming You're Allowed To)
Welcome to Sunday Morning Hot Tea where I write about a little something up top then usually answer a legal question for you down below. This week, an encounter with a legend. Plus, did Ghostbusters lead me astray?
In this edition:
Topic of the Week - Keeping the Christmas Spirit
Legal Question – If there’s something strange and you get arrested, who ya gonna call? YOUR LAWYER
The Night I Met Santa
When we were little, my sister, Shannon, told me that she knew Santa was real. She had seen Rudolph in real life, so it stood to reason that if Rudolph was real then Santa was, too. I believed her, of course. I was only about five, which would make her about ten. That meant she was the authority on everything in life. Our parents could tell us one thing, but if Shannon contradicted it, I went with her version, no question.
She hadn’t seen Rudolph at our house. The chance encounter occurred at our Aunt Bari and Uncle John’s house, the relatives who hosted our extended family’s annual Christmas Eve celebration. She swore one year she saw the glowing red light of Rudolph’s nose down the hall. There was no way it was an electronic device or the reflection of Christmas lights in a mirror or anything. It was Rudolph, plain and simple. And if Rudolph was there, you know Santa was somewhere nearby.
Since it was Christmas Eve, it was believable that Santa would have made an appearance, though I never questioned why he showed up mid-celebration when everyone was awake and the chips and dip hadn’t yet been depleted.
Or maybe that’s exactly why he showed up. If you’re used to creeping in late at night after everyone is asleep and only ever getting dessert, maybe once in a while you’d like to join the festivities and show up in time for appetizers.
Based on this secondhand experience, I was sure Santa was real. That belief persisted up until I was around ten or eleven when I was forced to confront the logistics of traveling around the world and making all those stops all in one night and at so many houses, especially ones like ours that didn't even have a chimney. Still, our mom warned us if we didn’t believe in Santa, he would stop coming. This was a fun way to bribe us into keeping up the Christmas spirit, and I loved it.
Now, grown and nearing the years where I’ll play Santa to kids of my own some day, I have been forced to accept that Santa isn’t real. Or at least, I use to accept that. Then I met him. In real life. The real Santa. This week. At a mall.
It shouldn’t surprise you to learn I met Santa at a mall. That is where he is most often spotted, probably even more often than on rooftops. It happened at an outdoor mall in Garland, Texas called Firewheel. I had plans to meet my sister for dinner at 6:30, but I arrived fifteen minutes early, like I do for most every event in my life.
I browsed a jewelry store before spotting a sparsely decorated storefront with its doors open across the way. A sign sat on the sidewalk out front, beckoning me: COME MEET SANTA.
Inside, there were two sets of stanchions, one for the incoming line leading you to meet Santa and the other meant to herd you back toward the register and out the door. On this Wednesday evening in early December, there was no need for line management or crowd control. There were no lines. There was no crowd.
Behind the counter at the front was a man in his late thirties. He had a close cropped red beard and wore a fitted Titleist baseball cap, topping off his sporty polo shirt. He looked like he would rather be playing a round or two of golf instead of guarding the King of Elves, but here he was.
“Can I meet Santa?” I asked. I skipped asking whether Santa was busy because I could see he was not. I maybe should have asked if he was conscious as he was slumped over on his jolly throne, not quite comatose, about fifteen feet behind the counter.
Santa’s Gatekeeper was on the defensive.
“We don’t do singles or cell phones,” he said. “Packages only.”
I had no idea the world of mall Santas was chock full of such jargon. Based on the various sizes of sample photos printed and mounted beside the register, I took this to mean I was about to be on the hook for some serious cash.
“That’s fine,” I said. “I’m happy to pay. I just want to meet Santa.”
The gatekeeper seemed irritated.
“It’s FORTY dollars,” he said then paused, waiting for me to slink away.
I was more resolute than before. It offended me that he thought a mere price gouge would keep me out.
“That’s fine.” I said. He turned on his heel and began walking toward Santa. I took my cue and followed him. Santa seemed to power on at the sight of us.
I received neither a HO HO HO nor a MERRY CHRISTMAS. Instead, I was greeted only with questions.
“Just you?” Santa asked. “No kids?”
In this moment, I had an opportunity. I could lie and tell Santa I did have kids. That I was taking this photo for them. That I had to leave them at home for some heart wrenching reason. Then Santa would be at ease thinking I had a rational reason for being there.
But then I looked at him, and I knew he would know if I lied. Plus, there was something delicious about freaking out Santa and his golf buddy.
“Nope. Just me,” I said, advancing on him.
Santa began shifting to one side of his green velvet throne.
“Beside me or on the knee?” he asked. I couldn’t help but think if I were a kid he may have kept up the pretenses a little more.
“I would say knee, but I don’t want to be any trouble.”
“No trouble at all,” Santa said as he repositioned himself back in the center of the seat and patted his knee.
The interaction had taken on a bizarre tone. To be fair, it started with a bizarre tone but here we were. Grown woman in jeans and business-casual top, wearing nice leather shoes, a deranged smile on her face. A grown man in a velvet suit that had been worn more than a few years in a row, sitting on a throne, surrounded by tinsel and candy canes, maintaining character.
What were we doing?
I sat on his knee and planted my feet, one on each side of his leg.
“No, no,” said Santa. “Swing them over. Put both legs on one side.”
I tried complying with his commands, but the position caused me to lose balance. No matter. Santa, unfazed, wrapped his white gloves around my waist.
I turned toward the camera and smiled. Santa’s helper snapped the photo.
“How does it look?” I asked.
The helper hesitated.
“You can come over here and look for yourself,” he said. I hopped off Santa’s knee.
“Looks awesome. I can’t wait to show my fiancé,” I said, still looking at the screen.
“Oh,” Santa said. “Am I supposed to be making your fiancé jealous?”
“No, I think he’ll laugh,” I said. Santa’s face fell.
The gatekeeper and I walked back over to the register, leaving Santa to slump back over in his chair. I heard the whir of the printer as it shot out my photos. The gatekeeper and I stood in silence.
Santa got up and started toward us. He had forgotten to ask whether I had been good or bad and what I wanted this year. Surely he was headed back to right this wrong.
Wrong.
Santa made a beeline, not toward me, but to an enormous styrofoam cup from Sonic, America’s Drive-In. He reached out his gloved hand and drew the straw up to his mouth.
I knew if I didn’t ask, I would regret it forever.
“Hey, Santa - what is your go-to Sonic drink?”
The jolly old elf didn’t hesitate. “Diet cherry limeade.”
“Me, too,” I said.
“Got hooked on these about fifteen years ago,” he continued as he walked past the counter toward the front door. “I don’t get them so much anymore.”
“Did you get tired of them?” I asked.
“No, there’s just no Sonic near my house.”
“I guess Sonic needs to add a North Pole location,” I said with a grin.
Santa grunted and walked out the open door.
The printer finally stopped. It had spit out the four photos I had committed purchasing to as part of my $40 package. But there was also a fifth photo. A much larger one. An 8x10.
“This is part of the upgrade package,” Santa’s helper said.
I knew this grift. We did it when I worked at the tourist boat company and when I worked at the theme restaurant. Printing the photos costs pennies, and if it’s already there, people are more likely to buy it. Maybe this worked on sucker parents and their snot-nosed kids, but not me. Throw my photo in the trash. I don’t care, I thought.
“I’m good,” I said. Rather than the trash, I noticed he slipped the photo under the countertop, down where the paperwork was stacked up.
Hey, that's not the trash.
I paid for my photos and headed out the door where Santa stood motionless, staring into the night sky.
“Bye, Santa,” I said. “Thank you.”
Santa broke his gaze, coming back to the present.
“Yes, yes. Merry Christmas,” he said.
Walking toward the restaurant, I caught up with my sister who was heading over from her car.
“Guess who I just met,” I said.
“Who?” she asked, looking at the envelope in my hand. I told her I had just met Santa.
“Was it the good Santa?” she asked. Having never met any other Santas up there, I had no frame of reference. Still, I knew the answer.
“No.”
I pulled out the photo.
“Oh,” she said, recognizing the face. “That’s the one we call Sloppy Santa.”
“The word ‘bedraggled’ came to mind, but ‘sloppy’ has more of a pop to it.”
Once we were both so sure she had seen the real thing. Now we were faced with the reality that there are many Santas, and they come in varying qualities.
We walked in the restaurant and enjoyed dinner, but the whole night, there was one thought I couldn’t shake.
What if - and stick with me on this - but what if this so-called Sloppy Santa was actually the real deal?
You have to admit the clues all add up.
EXHIBIT A: Wouldn’t the real Santa be sick of North Pole jokes (no matter how clever they were)?
EXHIBIT B: Far away from Mrs. Claus left back at home, wouldn’t the real Santa be thrilled at the opportunity to make a fiancé jealous?
EXHIBIT C: After centuries on the job, working 24 hours a day during his busiest season, wouldn’t he look a little “sloppy” especially if he was just sitting around in a mall in Garland, Texas?
When I got home from dinner that night, I showed Paris the photos. He was not at all jealous and did indeed laugh.
“I think it was the real Santa,” I told him.
“I’m sure it was, babe,” he said.
That’s all it takes. Just a little bit of faith.
***
Scroll down to see the photo.
—-
QUESTION FROM ME
This week’s question was sparked by watching the new movie Ghostbusters: Afterlife. No spoilers, but in the movie, a character is arrested and demands to make their one phone call. As I was thoroughly enjoying that movie (seriously - go see it! I laughed. I cried. I cried talking about it later. I loved it!), I wondered to myself:
Do you have a constitutionally protected right to a phone call after you have been arrested?
It’s one of our most propagated tropes in movies and TV shows: perps are always yelling, “I want my phone call!” But do they get one?
The answer is, as always, it depends. In this case, it depends on what jurisdiction you’ve been arrested in. In the new Ghostbusters flick, they’re in Oklahoma. This differs from Texas and varies widely across other states.
NO CONSTITUTIONAL RIGHT TO A PHONE CALL?
A couple of constitutional rights are implicated when considering whether an arrestee is entitled to a phone call. You have the right to due process under the Fifth Amendment and the right to counsel under the Sixth. However, the interpretation of those rights is not well-settled.
There’s a case out of the Fifth Circuit regarding two guys arrested at the onset of Hurricane Katrina in New Orleans. They were booked into jail, and because the phone lines were overwhelmed in anticipation of the hurricane, the men were not able to make phone calls. They argued, among other things, that the sheriff should have made their confiscated cell phones available to them since the phone lines were down.
The Fifth Circuit disagreed, saying, “There is no particularized, clearly established law which would have instructed [the Sheriff] that, under the Sixth Amendment, he had to allow pre-trial detainees to use their cell phones when land lines were disrupted.” Waganfeald v. Gusman, 674 F.3d 475, 485 (5th Cir. 2012).
Yikes.
The men were then left in the jail as it filled with water once the levees broke. The food became spoiled, and the toilets overflowed. They were later transferred to Angola aka "The Alcatraz of the South" all because they had allegedly been drunk in the French Quarter (who hasn’t!?) They had been arrested for public intoxication after one fell off a curb (again, WHO HASN’T?!). He said it was due to a bad knee (hard relate), and the other defendant said he was just trying to help his friend stand back up (true bro move right there).
A likely story, sure, but in any case, they shouldn't have ended up in a maximum security prison farm and likely wouldn’t have if they had just been able to call someone to bail them out.
STATE STATUTES
In the absence of a constitutional right, each state is able to pass its own laws that determine access to a phone call within a certain amount of time following arrest. In July 2021, the Chicago Appleseed Center for Fair Courts released a 50-state analysis on the various post-arrest phone call rights across the country. The analysis “found that about 46% of states provide ‘moderate protections’ for their residents, 22% of states have ‘no clear protections,’ and only 32% — 16 states — provide ‘strong protections’ for people’s right to communicate.”
Illinois just passed the SAFE-T Act which updates the criminal code to require at least THREE phone calls “upon being taken into police custody, but no later than one-hour after arrival at the first place of custody and before any questioning by law enforcement occurs.”
This is particularly important in Illinois as a rash of arrests and detentions at a shadowy “black site” in Chicago’s Homan Square saw arrestees facing secret arrests, beatings that resulted in head wounds, and multi-hour to multi-day detentions without counsel, including of arrestees as young as 15 years old.
SO DO I GET MY PHONE CALL?
Depends on where you are. In Texas, you don't.
pretends to be shocked in Texas
In one case from 2011, the U.S. District Court for the Northern District of Texas found that a defendant did not have “a protected liberty in placing a phone call upon booking as there is no state statute affording this right to pre-trial detainees in the state of Texas.” Basically, no law on the books = you're out of luck.
Chicago Appleseed reported that two bills (SB 303 and HB 2580) had been proposed in the Texas legislature that would allow arrestees to make a local phone call but...
Are you ready for this??
Neither bill passed. Because of course they didn’t.
I can't even pretend to be shocked about this.
As for Oklahoma, our Ghostbusters character would have a little more protection than Texas. The ACLU advises that arrestees in Oklahoma are entitled to a phone call. The case law backing that up states that a defendant gets "a reasonable time to send for counsel." So our character was well within their rights to demand a phone call.
[I am intentionally not gendering the character because I do not want to spoil the movie. It is so good. Go see it before someone spoils it for you!]
SO WHAT DO I DO IF I GET ARRESTED?!
You can check your state's laws using this informative table from Chicago Appleseed. I personally think everyone arrested should be entitled to a phone call, no matter what state they're arrested in. We should all be afforded a meaningful opportunity to converse with counsel, and at the very least let our family or friends know we have been taken in so we don’t end up beaten in a secret interrogation site or shipped all over a state during a deadly hurricane and subjected to inhumane conditions all because we tripped and fell in the French Quarter.
If your state's law on the subject sucks or is just plain missing, let your state representative or senator know you'd like to see that change.
Just remember, if you do get arrested and you do get your phone call, the privacy of that call depends on who is on the receiving end. If you call your lawyer, the cops can't eavesdrop and can't record you. But if you call a family member or a Ghostbuster, they can (and likely WILL) listen and use what you say against you. Keep that in mind when you’re deciding who ya gonna call.
Thanks to Ghostbusters: Afterlife for sparking this question and for existing!
Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don't send those. Love you, but I don’t do that.
Until next week, that’s the tea, and if you get arrested, don't call me (I ain't that type of lawyer!)
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