Guns, the Supreme Court and the Dissolution of America

Most think guns should be banned because various psychopaths shot children in schools, fired into concert crowds or attacked religious services. Horrible enough to justify banning guns. The NRA’s solution, of course, is more guns. They claim that putting more guns in more hands will stop or dissuade vicious killers.

But more guns in more hands means the gangs, death squads, terrorists and private armies of Haiti, Central American, Africa and Eastern European states. It means everyone can take the law into their own hands – and will – indeed they will feel like they have to. It is an argument only an insurrectionist could like because it supports plans to start a revolution.

Plenty of evidence establishes that proliferation of weapons is the surest predictor of insurrection and the breakdown of law and order.[1] I want to stress the connection between the availability of guns and the likelihood of insurrection and violence because I don’t think the public gets it. Gun violence across the world isn’t confined to individual events. Guns become tools of revolution and systemic chaos. Kids become targets for gangs, women for rape, and their world is dominated by threats and extortion. One girl we know was sent here because her parents feared she would be forced into a terrorist organization in their country. In her case we knew and communicated with her parents when they were making that decision. In fact, many people arriving at our southern border struggled to get there because they’ve been threatened, and fear their children will be abused by or forced into the gangs. More, those groups seek to dominate their countries. We’re negotiating with gangs in Haiti because there is no choice – they have the weapons and weapons put them in control. Across the globe, guns rule and make life hell. We have to throttle the prevalence of guns or turn our country over to force, intimidation and revolution.

This Supreme Court won’t reconsider the nonsense perversely called “gun rights,” in opposition to the rights of people, citizens, men, women and children. That’s why I’d pack the Court with decent Justices and change its rulings before it tears the country apart as surely as Dred Scott contributed to the Civil War.

For our country to survive, we have to stop shooting our way out of every disagreement, stop producing guns for the private market so that more and more can shoot their way out of more disagreements even against heavily armed police, militia and military forces, and stop sending guns to resellers in more and more lawless countries. This has got to stop for the sake of our country. And it has nothing to do with immigration – immigrants are actually less likely to kill or commit other crimes than native born Americans – hostility to immigrants has been about blaming others for our own sins.

People who care about our country need to get themselves to the polls, vote and skip the third parties who will tip elections to the supporters of gun-toting insurrectionists. Today, I should add, is primary day in New York.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on April 2, 2024.

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[1] Stephen E. Gottlieb, Unfit for Democracy: The Roberts Court and the Breakdown Of American Politics 11, 175 (NYU Press 2016).

We Don’t Need a Police Force Out of Control

Many people treat commentary about the behavior of police officers as part of a for-them-or-against them conversation. That’s nonsense and naïve. Police are like the rest of us. Whether folk are in blue jackets, white coats, overalls or suits, some are great and some are terrible. If we protect the group willy-nilly despite misbehavior, we are authorizing armed men to become tyrants. Police need to be scrutinized, held in check and prevented from misbehavior, particularly because we let them carry guns. Treating them as beyond control is a large part of the problem.

We don’t need a police force that kills a man on his wedding day.

We don’t need a police force that bursts into the wrong apartment, of the wrong woman, a Black medical worker, in a wee hours no-knock raid based on a fraudulently acquired warrant and kills her in a flurry of gunshots.

We don’t need a police force that presses a knee on a man’s neck until he dies.

We don’t need a police force that escalates a mere traffic stop and beats a man to death after he is already in restraints.

We don’t need a police force that people are afraid to call because it will make things worse, and do more harm than good.

We don’t need a police force that believes and tells kids that getting “cocky” justifies throwing the book  at them, as I witnessed here in Albany, although my advice to them, for that very reason, was not to do or say anything the police would regard as “cocky.”

We don’t need a police force out of control.

People are afraid of the language that says defund the police, but we do need to replace the police with people who are trying to protect citizens, visitors and other inhabitants, and not use people for martial arts or target practice.

We don’t need police who see their job as a continuation of what some call “The Lost Cause,” the Confederate rebellion, or an opportunity to prove how manly they are by extinguishing other people’s lives.

We don’t need police who see the job as an opportunity to extinguish people they don’t like, to extinguish people of races, religions or origins that they despise – the police, if they are to keep the peace and protect us, have to protect all of us.

We don’t need police who see their jobs as displacing the constitutionally mandated jobs of prosecutors, defense counsel, judges and juries – that’s what lynch mobs were about and we don’t need members of lynch mobs or rebel organizations on the force.

The color blue and a silver badge do not make people good. They have to earn that power not by murder but by taking care of the rest of us.

We don’t need a police force that think it doesn’t matter when people attack women or schoolchildren and they can just stand by and ignore violence against them.

We don’t need to just keep hiring more people, and making it worse by lowering standards to do it. We can do better by hiring people who can cool things down without carrying weapons. A democratic police force is a force under control, a force that follows and respects the law.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on February 21, 2023.

The Logic of Policing

Whenever there’s a serious crime, police, DAs, etc., call for more police. But take a serious look at the logic of what they’re asking for. Police get to crime scenes after crimes have been committed. Theirs is largely a mopping up operation. Other agencies and organizations get there before there’s a problem. Social workers, youth programs, parks departments, religious institutions, swimming programs, after-school activities, community colleges, training programs, are all in the prevention business, and thank heavens people are going back to work at last.

Police force size can affect crime rates. But data show that crime goes up and down, regardless of whether the police forces have gotten larger or smaller. Many other factors have much more impact on the crime rate and are far beyond the ability of police departments to handle.

In the years when it was a woman’s right, the availability of abortion and contraception reduced the number of unwanted babies so far fewer grew up where they weren’t wanted, where they became more susceptible to criminal paths.

The recent pandemic disrupted every aspect of life, put many out of work, increased frustration, even desperation for some, and left many with nothing to do. The pandemic caught government between terrified teachers and desperate parents, between essential workers who couldn’t stay home to care for their families and schools which couldn’t be staffed. The results stressed everybody and left many young children without the adult direction children need. The stress, lack of supervision and daily structure all contributed to increased violence.

And the effort to blame bail reform is equally misguided blame shifting – it was much more significant that the pandemic slowed or closed courts making justice unavailable. And remember, it’s bail that’s catch and release – as the Governor has been explaining, many provisions allow judges to keep dangerous people behind bars, without giving judges vague and unbounded discretion that allow their prejudices to determine whether to ruin people’s chances at productive and decent lives by locking them up at the cost of their jobs, their families, their kids and their futures.

It’s important to support agencies that show up before there are crimes to investigate. We once paid much more attention to getting young people off the streets and into group activities. And there were lots fewer guns on the street. The police are just one agency among many whose jobs are much more directly related to prevention.

Some people are much more committed to retribution than prevention. We used to call prisons penitentiaries where people can become penitent. We often call them the clink, cooler, or house of detention where people are stored away from everyone else. And then we started calling them reformatories and houses of correction which are supposed to change and prepare inmates for return to society – though our prisons are still our best schools for criminal and gang behavior. Recidivism is high. But we “save money” by ending programs that actually decrease future crimes like education in prisons. Too often we stress retribution over prevention and get punishment without prevention.

Loading conflicting demands on police departments that they’re not well designed to fulfill doesn’t do justice to them or to us. The logic of public safety is that the police are the people who show up after the damage is done, while other agencies show up before things go wrong and provide the assistance and direction people need. We need to support the agencies that work with people before the crimes are committed.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on August 9, 2022.

Psychopaths on the Bench

The Supreme Court says we can’t keep guns off our streets and we have to defer to the gun nuts. Well, the Supreme Court has made it’s decision – now let them enforce it. I’d fight back with everything at our disposal.

Refunding Policing

I attended a zoom meeting on the various attempts to reformulate policing in New York. The effort to reform policing was no more productive than I expected, with the panelists largely describing the failure and explaining why it didn’t have better results. At one point I wrote in the chat that we should consider eliminating the 911 calling system. I think the moderator took it as a joke. Actually I was trying to point out how police are asked to do many things they shouldn’t be asked to do. Breaking 911 down into separate components could sidestep some of that – provided that there are other services available to call. That of course is the rub – everything depends on funding: other services have been beggared to pay for too much policing.

Years ago I phoned a former fellow student at law school. He’d devoted himself to the lives of those less fortunate. When I called, he’d joined the faculty at one of the country’s best law schools. Naturally, I asked what he was teaching. Tax! I barely held on to my chair. But his point was clear – everything depends on funding, whether through the budget or so-called tax expenditures. By getting into tax law, he was getting into all of society’s choices. We can say whatever we want about what the police should do and how they should do it, but we’ve funded them to handle virtually all citizen needs – with weapons.

Research on decision-making describes so-called garbage-can decision-making. Use whatever you pull out of the can as a tool. Doctors wear stethoscopes, carry tongue depressors, and tools for checking your heart and blood. Our primary care doctors spend a lot of their time referring us to people who know more about our specific problems than they do. But they care about us and try to get us the right services, most of which should make us healthier. Police don’t carry stethoscopes or refer us to experts, and what they carry isn’t benign but that’s what they’ve got.

The culture of policing, passed down from senior to junior officers, doesn’t help. Think about the reasons people go into policing. There isn’t just one but given the constant carrying of weapons and permission to subdue or overpower people, one reason, repeat one reason, that some people will join the force is to act tough. It’s no answer that there are good cops – bad ones spoil the barrel and teach the rest.

Then there’s us. Our calls for police protection are often laced with prejudices about “them.” Remember the term paddy wagons for police vans? Ethnic slurs are buried in our daily language. Many police forces were organized as corporate union-busting security forces – armed with guns and clubs. And in parts of the country, police were successors to patrols that kept former slaves in their place – white men riding out to catch Blacks seeking freedom, both before and after the Civil War when they were nominally free. The Klan became deeply enmeshed in many police forces. Schwerner, Chaney and Goodman were killed by cooperation between Klan and police. In other words the historic origin of many police forces in this country had nothing to do with obeying the law and everything to do with violating it. Culture and traditions die hard.

If chiefs of police stay long enough and work hard enough they can counteract it, but they have to be very strategic, not about compromising with their officers or appeasing them, but getting their support. That’s possible. I just haven’t been seeing it done. So I’d focus on the funding to get the services we need.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on June 1, 2021.

Misconduct in Mislabeled Criminal Justice

Lawyers can get cynical, especially in fields they see up close. A judge called me over in the halls of a courthouse to tell me he believed what one of my clients said. And when I asked him why he didn’t acquit him, the judge said, “I couldn’t do that to the police.” My client went to jail so the police wouldn’t be embarrassed. Other judges told me they believed the police only half the time – but they didn’t know which half. Their decisions suggested it never mattered. A federal Marshall told me he wouldn’t tell the truth about theft by cops even if I subpoenaed him. Police in a course designed for them told me they arrested Black people carrying hunting rifles in a completely legal and unthreatening manner, realizing they themselves were violating the law they were sworn to protect. You can get pretty cynical.

And then the cases attacking widespread stop and frisk of people whose only crime was walking while Black. The Albany police chief told the Times Union years ago that there were as many drug crimes in white suburbs but magically it was only Blacks who were arrested. And we all know or should know by now that people in prison are overwhelming Black, after being railroaded at every step of the system of injustice, and the economic, family and electoral consequence of discriminatory policing – the fact that prosecuting attorneys can ramp up the charges so that defendants don’t dare plead innocent and go to trial in a court system from which they expect no favors.

So I am disgusted by the lack of bite in the Albany so-called plan on fair policing. I am disgusted by prosecuting attorneys who plead that they are in terror that we might require fairness and honesty from them like we require of everyone else. The court we call Supreme defends prosecutors who commit fraud and fail to turn over the information that long established law required them to turn over, or who, instead of dropping charges, hid evidence that they were going after the wrong person and then put those people in prison for crimes they didn’t commit. And then they resist our passing law that would require their honesty. I sat in the U.S. Supreme Court in front of one of the lawyers defending one of those prosecutors. He and other prosecutors were discussing the tools available to help prosecuting attorneys sharpen their skills, in the course of which he told his fellow attorneys that the plaintiffs had a very strong case against the prosecutor he was defending. But the Court wouldn’t allow any litigation against a prosecutor for misbehavior no matter how blatant. Yes, you can get pretty cynical.

No I won’t be satisfied until I see real bite and action on rules that reign in everyone involved in so-called “criminal justice.” And I won’t feel safe until they do because the cynicism and explosions of anger from that misbehavior hurt everyone. I won’t feel safe while prisons function as education for crime for which Blacks need not apply. I won’t feel safe for my Black friends who have to walk, drive and work while Black. American hearts have no trouble bleeding for Jews in the Holocaust, Uighers in China, Yasidis in Iraq and Syria, Rohingya and other Muslims in Myanmnar, Christians and Muslims in much of the world. But we have our own persecution going on in front of our noses against Blacks, People of Color, Indigenous Americans and others. It’s time to stop it and start living up to what we call American ideals.

— This commentary was scheduled for broadcast on the WAMC Northeast Report, on April 6, 2021.

Global Lessons in Police Reform

A very interesting, and chilling, comparison of American failure to reform police with much better results elsewhere, which makes garbage of the frequent claim that “we’re no. 1,” is called To Protect and to Serve: Global Lessons in Police Reform. I highly recommend it.

Blame and Public Safety

The Governor charged communities to re-examine their police departments, and several pieces in the local paper described the disproportionate treatment of African-Americans, ending up with the question whether police are racist. I like and respect the authors and there’s a lot of wisdom in those pieces but, to make progress, I question focusing on blame. Segregation was “inherently unequal” regardless of what the officials thought they were doing. Blame is about fault. I want improvement, not some Grand Inquisitor looking for purity. That makes everything harder.

The Supreme Court under Chief Justice Burger started out with a just-the-facts approach in 1971, saying even unintentional discrimination violated the law without a good reason for a rule that blocked African-Americans from advancing to better jobs. Unequal effects on different racial groups required strong, legitimate justification, regardless of what was in management’s heads or hearts. Congress backed that up in statutes requiring business necessity to justify practices creating a disparate impact among people based on race, color, religion, sex, or national origin. No one needs to be described as racist. They made an unjustified decision, and African-Americans deserved to be treated fairly.

But, starting in 1976, the Court defined denial of equal protection as intentional discrimination. Since then the Rehnquist and Roberts Courts found it easy to use supposedly good motives as a fig leaf covering egregious discrimination.

There’s no good reason to make the same mistake. Arguments about racism start with an accusation, and lead people, whose cooperation is needed, to circle their wagons and bring up their heavy guns, from police unions, to politicians’ simplistic descriptions in heated public debates. No one will break ranks and justice loses.

The answer must be objectives and metrics. What’s a policeman’s job? One piece is simple: “Dead or alive” is movie talk. Arrests are to bring people in alive so we can charge them appropriately, and determine guilt, innocence, and proper punishment, rather than content ourselves with a coroner’s report. People arrested are entitled to due process and a chance to defend themselves. It’s important to encourage police to take the role of peace officers. Whatever other claims we can argue about, the demand of Black Lives Matter that we bring people in alive, not dead, is clearly right. Dead people represent failure. It’s a tough job, but the job is to bring people in alive.

If an inordinate percentage of African-Americans are stopped and arrested, it’s legitimate to ask the cops themselves what they can do to change it. If an inordinate percentage of 911 calls by African -Americans are ignored, it’s legitimate to ask police what they can do to change it. We need action, not blame. And we need peace officers to work with us. The issues are big but we have to cut through the hostility and get to cooperation.

We should hear them out about how they can help solve the problems, how they can help stop needless killing. The defensive answer that everything is fine and we should admire and trust police because they are brave isn’t a defense; it’s an indictment. Bravery has nothing to do with shooting people in the back or killing people already subdued. We can have a realistic discussion of what can be done to make things better only if they are willing to face the problem and agree to help solve it. Once people are doing the right thing, it will eventually seem normal and right.

Meanwhile, we have a right to see action.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on November 17, 2020.

What about those demonstrations?

The Black Lives Matter movement is being waylaid by provocateurs and others who want to use the opportunity to loot stores or, as one hoodlum did, shoot people on camera and then, apparently craving notoriety, tried to give himself up to police who ignored him because he’s white and they were convinced all bad things are black.[1]

That’s part of the reason Martin Luther King was so determined that his people be completely nonviolent. People like John Lewis had their heads cracked. Four little Black girls were blown up in their church. Emmet Til and lots of others were murdered, including white people working in solidarity with the African-American population struggling for freedom. How many murders, how many lynchings does it take to convince people that the African-Americans were innocent victims, not perpetrators.

Thousands of people were killed and lynched. Do we have to go through that again. We’re taught the police are brave. How brave do you have to be to shoot people in the back? How brave do you have to be to shoot a woman asleep in her bed, or a man putting his key in his door, or keep a knee on a man’s throat as he dies? None of them were armed. But seven shots paralyzed Jacob Blake. 41 shots killed Amadou Diallo – who never had a chance or a weapon. Abner Louima was attacked and sexually brutalized by police. When will it be enough? When will it ever stop?

We’re told there are good cops, that most cops are good cops. I’d be delighted if they’d act the part, if they’d stop the bad ones from committing murder, if they’d participate in drumming people like that out of the force. One former policeman in our area came here to live because he had exposed massive corruption in the New York City Police Department and, regardless of those supposedly good cops, cops drove him out of town, initially by attempted murder. Where are those good cops when we need them?

Where people aren’t allowed to protest in peace, they may have to find a different way to protect themselves while making their point. Perhaps they’d do better putting Black Lives Matter t-shirts on everyone and circulating on busy streets without congregating or waving signs. Perhaps they’d do better using the time working on the election. Do Trump, and other bigots, with and without guns, have to be driven out of power, before it’s possible to deal with the real violence? There’s what’s called a ground game to be fought to win this election – letters, calls, information, rides – lots of organizations are working on it and lots of people are trying to help out. People of color need friends in high places to get what they deserve. Martin Luther King was in league with President Johnson – King was the greater man but Johnson had the power. Perhaps the demonstrators would do better to skip the streets and take the White House. Perhaps that would deny Trump and the hoodlums who support him anything to scare people with. Perhaps going for votes would outfox them and put the truly violent elements in our society in their cages.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on September 1, 2020.

[1] CBSN, Chicago, reported: “As for Rittenhouse showing up with his hands in the air, appearing to turn himself in, the sheriff said officers did not realize what he was trying to do.”

Our Umpteenth Effort to End Racial Murder and Abuse

I wanted to deliver this last week but Trump’s use of the military against domestic protestors had me fear for the future of our republic and I put this off.

But I want to talk about these horrible scenes of murder of African-Americans by police. People killed who posed no threat, where the police had everything well under control, and it wasn’t even clear if the victim had done anything meriting police attention, let alone murder. Breonna Taylor, an EMT, was killed in her bed in Louisville.

This reminds me of the Civil Rights Movement I grew up with. People in prayer outside boards of election that wouldn’t let them register. 14-year- old Emmet Til killed on a visit to Mississippi relatives, accused of whistling at a white woman. Viola Liuzzo, a civil rights worker shot in her car. Michael Schwerner, James Chaney and Andrew Goodman, an integrated trio of civil rights workers, released by police in front of thugs who followed, murdered and buried them where they were not expected to be found.

The murders and lynchings stayed in front of our eyes until we hurt, just as we are hurting for George Floyd, choked to death in Minneapolis; Walter Scott, over a brake light in Charleston, SC; Ahmaud Aubrey, killed for jogging while Black in Georgia; Tamir Rice, a twelve-year old, in Cleveland; Stephon Clark, killed for holding a cell phone in his grandmother’s Sacramento backyard;  Michael Brown in Ferguson, Mo.; Eric Garner, in Staten Island; Tony McDade in Tallahassee; and Trayvon Martin, a teenager, killed by a neighborhood vigilante who thought he didn’t belong, compounded by the jury’s acquittal. Their stories, and so many more, are unacceptable. The police are supposed to protect us. But they kill too. African-Americans have learned not to call the police in order to protect their own families. I can’t forget the acquittal of four officers here in Albany for killing Amadou Diallo, a Guinean immigrant, in a barrage of forty-one shots for trying to put a key in his door.

The U.S. Supreme Court enabled a century of lynching in 1876 by holding that a U.S. Attorney had no authority to prosecute the perpetrators of the Colfax Massacre.[i] After that, police and the Klan, which also infiltrated the FBI, acted with impunity in much of the country. The Court now does its best to restore the worst abuses of that century of intimidation and impunity.[ii] I recently worked on a brief in support of the family of a Mexican boy, in a cross-border shooting by American officers for playing too near the border. The Supreme Court protected his killer. As Pete Seeger asked, “When will it ever end”?

And yet we can’t get tired, we can’t stop, we can’t let all the abuses this country has tried to stop elsewhere define life for a third of our citizens at home. No one is free when anyone is in chains. I don’t want to have the deaths of thousands of decent people on my conscience. I don’t want my darker skinned friends, colleagues, clients, neighbors, essential workers, athletes, entertainers or any other good people and their families having to worry day and night about eluding people who want to kill them or think they aren’t worth living?

When Yugoslavia started to come apart, we had an exchange student living with us who was from Belgrade. She cried about what was happening to her country – the whole country, Yugoslavia. There was intermarriage, friendship, strong neighborhoods, business partnerships, and none of that protected people. When things start to fall apart, there is no safety. We need to stand up for decent people of all backgrounds. And remember that none of us and none of those dear to us are safe when shooters are empowered, with or without a badge.

— This commentary was scheduled for broadcast on the WAMC Northeast Report, on June 30, 2020.

[i] LeeAnna Keith, The Colfax Massacre: The Untold Story of Black Power, White Terror, and the Death of Reconstruction (Oxford Univ. Press 2008); Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (Henry Holt & Company 2008); and United States v. Cruikshank, 92 U.S. 542 (1876), the case that turned a massacre into a century of intimidation and impunity.

[ii] Stephen Gottlieb, Unfit for Democracy: The Roberts Court and the Breakdown of American Politics 189-208 (2016).