Guns make bullies of us all

April 8, 2019

We often use the tool at hand for whatever we’re trying to do. Got aspirin or alcohol? Drink it down ‘cause everything feels like a pain. Got a wrench? Everything looks like a pipe. Got a hammer and everything looks like a nail. Pete Seeger sang If I Had a Hammer he’d have used it to hammer out justice. It’s a wonderful song but it seems like the wrong tool.

Some of you may remember the late Congressman Steve Solarz. We went to high school together and I always remember a conversation we had about brotherhood – in student government I headed the brotherhood commission. Steve understood my passion and commented we can’t hammer brotherhood into people. Indeed, we can’t. Instead I had the privilege of inviting Jesse Owens to our school and introducing him to the assembly. Owens, an African-American, had won four medals at the 1936 Olympics in front of the Nazis in Berlin, Germany. We gave him our brotherhood award and then had the privilege of hearing him deliver an impressive and very powerful talk about brotherhood – a great alternative to using a hammer.

In the afternoon before I drafted this commentary, I read about a recent incident of abusive policing in Albany. In the evening, my email was filled with a discussion among law professors about an example in Louisville. Look at Washington and see international sabre-rattling. I looked over some draft commentary and read one about Israel’s reliance on force. And I realized there is a theme. Everybody has the same hammer with a barrel and a trigger. Much too often, from Albany to Louisville to Israel, the Philippines and many other places, the people with the guns don’t bother using their heads or their manners. They don’t have to. Them guns ‘ll make people shut up.

I don’t want to be simplistic about it. Policy changes often lead to overreaction. Focusing on domestic law enforcement, the public somehow has to support the police while also controlling it.

Nevertheless, mappingpoliceviolence.org/ tells us “There are proven solutions. Police Departments that have adopted these use of force policies kill significantly fewer people. But few departments have adopted them.”

Of course, if we could hang them up or put them away except when necessary, we could eliminate a lot of mistaken killing of innocent and unarmed people. There’s lots that police do that don’t call for guns.

Guns also don’t belong in cities. It’s one thing to use a gun for hunting but it’s another for people like George Zimmerman to think they are protecting the community by carrying a gun and killing an unarmed 17-year-old African-American who was heading away from, not toward, Zimmerman.

Guns do not belong in the hands of people who are convicted of domestic violence or any other kind of violence – only the manufacturers could truly like selling guns to people likely to use them on their families. Guns enable people to act out their worst instincts.

I support the Second Amendment right to carry a muzzle-loading-single-shot-18th-century device deep in the woods. That’s the strict construction that conservative judges have been trying to teach us to use. Claims about the breadth of the Second Amendment come from people’s prejudices, not the Constitution. Guns should need an excuse and a warrant before they are pulled out in public because guns make bullies of us all.

— Addendum – four excellent podcasts and web sites:

Shots Fired Part 1: https://www.wnycstudios.org/story/shots-fired-part-1

Shots Fired Part 2: https://www.wnycstudios.org/story/shots-fired-part-2

https://mappingpoliceviolence.org/

http://useofforceproject.org/#project

— This commentary is scheduled for broadcast on WAMC Northeast Report, April 9, 2019.

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Another Black man shot in the back by police

January 15, 2019

Albany’s DA recently decided against prosecuting anyone in connection with police shooting of a Black man and paralyzing him. He may have had a hunting knife. But police first charged that he was  charging them. So the apparent justification was that the police were scared. Then reports of a video showed that he was running away and was shot in the back.

I have no inside knowledge of this case but, unfortunately, it’s part of a pattern. Police claim that a Black man was charging them when a video shows that the guy was running away with his back turned. Or the police acknowledge that he was running away but claim to be scared because he was carrying something, maybe a knife or the keys to his apartment. One Black man after another has been shot in the back by police who claim to be scared that he would turn around, too scared of Black men to hold their fire when they have no reasonable fear of his behavior.

Actually it’s systematic partly because police are trained that they have no time. So they shoot first and ask questions later. Shooting is a first, not a last, resort. As a result of that training, even some Black officers have bought into it.

Think about it. If you were charged with shooting a man in the back and you told a jury that you were scared because the man was carrying something, you’d be convicted of manslaughter at the least. You and I have no right to shoot on the basis of speculation of what could be. You can’t mow people down because one of them might turn around revealing an unseen weapon, perhaps a gun in his briefcase. That’s not reasonable behavior; it’s not a rule we can live with. A rule of fear would put us all under ground. The law properly requires more before you can kill. But put on a badge and strap on a holster and suddenly there are no rules.

If this were the Philippines or Indonesia we’d call it “impunity.” When big shots over there act with impunity it means they are not accountable for their behavior. It’s here too when police treat Black men as if their lives do not matter.

The public seems to think that brave people must be honest and decent. But what do you do with the bravery of athletes who abuse women? I don’t know the percentages, but what do you do with the regular revelations of police who commit crimes, frame people for crimes they didn’t commit, and abuse women and Blacks? In addition to repeated revelation of Black men shot in the back by police, we’ve had revelations in New York about police ordering women to strip on the highway and revelations about frame-ups on the southern tier. We know that prejudice compounds the message of training that drives police to shoot African-Americans in the back. Should we assume that badges and guns will produce honorable behavior, make police feel empowered to take advantage of others, or both?

I would make it illegal to shoot anyone in the back unless they are in fact armed and dangerous. Or I’d require a warrant before police get to strap on weapons. A free country cannot have armed men acting with impunity, with or without badges. It is totally unacceptable. You can’t correct death.

— This commentary was broadcast on WAMC Northeast Report, January 15, 2019.


Kavanaugh on Investigating the President

October 9, 2018

Brett Kavanaugh is now supposed to be called “Justice Kavanaugh.” The Constitution refers to members of the Supreme Court as judges. Whether the term “justice” will be appropriate depends entirely on his behavior. Of that I am doubtful. I think there was no justice for Dr. Christine Blasely Ford.

There is strong evidence that Kavanaugh will solidify a majority for repealing a half century of progress on voting rights, women’s rights, gay rights, anti-discrimination law and protections against our becoming a police state.  Kavanaugh invariably parried questions about his views with recitations of prior law, showing only that Kavanaugh could explain the cases, but never denying his likely impact.

Nevertheless, Trump and his Senate sycophants would have nominated and confirmed someone equally damaging to American law. More ominous are Kavanaugh’s views about whether it is OK to investigate a sitting president.

Kavanaugh joined the investigation of President Clinton on matters stemming from his relations with Paula Jones. That suit was dismissed because it didn’t claim Clinton violated the law. It was brought, however, for purposes unrelated to the suit, namely to enable fishing expeditions on Clinton’s behavior. That’s called abuse of process.  Those questioning Clinton eventually found Monica Lewinsky. By contrast to Trump’s behavior, she was a willing participant. In those days Republicans were puritans.  Kavanaugh pursued Clinton with gusto.

Then, with Bush in the White House before the election of President Obama, he told an audience at Minnesota Law School, that he had changed his mind. He wrote that defending against the Paula Jones litigation took Clinton’s attention off the growing threat from al Qaeda and similarly weighty matters. So Kavanaugh concluded that there were good reasons not to sue sitting presidents. He added that impeachment was always available. Left unsaid, however, was that to be more than a partisan political tool, impeachment must rest on investigating to determine what happened.

Unlike the Clinton investigation, the investigation of the Trump campaign is about the violation of multiple laws, both constitutional and statutory – whether Trump’s campaign worked with a foreign country to tamper with an American election and support that country’s interests in exchange for putting Mr. Trump in the White House. The Mueller investigation provides an independent, nonpartisan basis for considering impeachment. Without Mueller, we have only partisanship – a partisan whitewash or a partisan indictment.

So, Trump’s selection of a judge who doubts the legitimacy of investigating a sitting president strengthens his attacks on the ongoing investigation. That’s not news, given Trump’s tweets about pardons and remarks about firing Mueller. But we don’t allow people to be judge in their own cause. What we already know about the Trump campaign justifies a deeper look. And Trump’s effort to control the investigation can amount to impeachable behavior. For Democrats to take back the Court, the law and the cause of justice, they will have to defeat Kavanaugh’s senatorial supporters and elect a Congress prepared to prevent presidential abuse. In other words, the battle isn’t over and the stakes just got larger.

— This commentary was broadcast on WAMC Northeast Report, October 9, 2018. This is a revised and updated version of commentary originally prepared for broadcast on September 18, 2018, pulled because of the Kavanaugh hearings, rescheduled for September 25 but pulled again at the last minute because of new developments in the Middle East. The earlier version was posted here.

 


Generosity and the Las Vegas Massacre

October 17, 2017

Two weeks ago, I’d prepared commentary about the value of generosity in foreign affairs but awoke to the horrible reports from Las Vegas. I went ahead with it while I caught my breath and planned commentary about guns. But generosity is very relevant and I want to return to it. Gun rights definitions which don’t account for the thousands of people killed with guns every year are simply selfish. The it’s-my-gun-so-you-have-no-right-to-regulate-it attitude is selfishness, not liberty.

Stephen Paddock shouldn’t have been able to climb to the 32nd floor of the Mandalay Bay Resort with automatic weapons just because he claimed the right. Automatic weapons don’t prevent government tyranny as gun advocates sometimes claim; they’re weapons of war and provoke tyranny. We all have a right to safety and security but nuts with powerful weapons deprive us of that birthright. In a battle between self-defined freedom seekers and the military, everyone loses, permanently.

Generosity and its absence are underlie most of our political struggles and the gridlock in our national affairs. Selfish definitions of liberty which refuse to take account of the damage to others are out of keeping with our national history and traditions. Like misbegotten gun claims, arguments for an unregulated market, which ignore the hundreds of thousands of people injured by selfish business and corporate practices, are hypocritical cover for outrageous behavior. Selfishness is not a definition of freedom.

Generosity is relevant in yet another way. Our polarized politics and lack of respect for each other reflect declining generosity, when me, me, me is all that matters but opponents don’t. When people throw bricks through windows, and shoot bullets through skulls over politics, there’s no safety except in hiding. How many congressmen and women will have to be shot before Congress comes to its senses? Unwillingness to work with a president of the other party, lest he accomplish anything, is about disrespect, where only one’s own purposes count. If it was appropriate to prevent a vote on President Obama’s nominee, though a majority of the Senate would have supported Garland, is there any reason to respect any decision for which Gorsuch is essential? If it was all about them, then it’s equally appropriate that it’s all about us. That’s not democracy. That’s war.

President Trump says we all come together after a tragedies like these. We know that has been nonsense, that pleas for help after Sandy were scorned by representatives of other parts of the country, and Trump treats the efforts of Puerto Ricans as less worthy than those elsewhere. People in the continental US would have been equally helpless except that relief agencies and the Red Cross were able to organize supplies where they could be delivered, and the destructiveness of the hurricane in Puerto Rico went far beyond what happened elsewhere. But no, this was an opportunity to disparage people who aren’t part of the Trump coalition. Shame.

Even the right not to be shot in the back by officials with badges has somehow become a political issue, as if there are two sides to that question. By comparison, I’m all for the immigrants and their generous patriotism. I’ve had it with selfish imposters like Trump, Cruz, and McConnell. This country may be great again but only when we are rid of the people whose political ideal is to tear us apart.

— This commentary was broadcast on WAMC Northeast Report, October 3, 2017.


Shots Fired – The Tragedy of Police Shootings

August 15, 2017

Last night I heard an episode of Radio Lab, which they call “Shots Fired,” that is far and away the best presentation I have heard about the persistent tragedy of police shootings.

They were very blunt about the part that racial prejudice plays in leading cops to make all the wrong assumptions with tragic results, as well as the disasters brought about by those cops who use positions in the police force to act out their aggressions, who are, in a word, bullies. It was also realistic in analyzing steps that a few departments have taken to break or attenuate the chains of events that lead to tragedy.

I’ve known, written and spoken about police shootings for decades and am well acquainted with the outlines of what has been going on. This program was a very well-rounded, well-done piece. It had me in tears for a full hour, but it was by no means all “touchy-feelie;” the program explored stories, facts, statistics, a support group, conversation with police administrators and some real understanding and sleuthing by some very dedicated, thorough and persistent reporters.

This is a podcast everyone should see and hear, including the police – the reporting is done in a way which can even reach police administrators who are looking for why these events happen and how they can deal with it.

Radiolab did us a service; now we need to get the story out.

For the podcast, click here.

You will see mention of a very different follow up which was not aired and is for podcast only. It examines the miscommunications which led to the killing of a white woman. The point they try to make in this second podcast is that there are multiple opportunities for miscommunications which can and did have tragic results. In this case the woman, thinking the police were intruders, came out holding a shotgun, the last trigger to the barrage of shots which killed her.

 

 


Sotomayor’s dissent in Utah v. Strieff, Part I

August 31, 2016

I want to read you a portion of a recent dissent by Justice Sonia Sotomayor in which she explains what I think many do not understand about what happens when police stop people on the street.[1] I will skip her citations but you can read them on the website. She wrote the last part of her dissent for herself alone. I think it is well worth your hearing that portion of her dissent in Justice Sotomayor’s own words:

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact.[2] That justification must provide specific reasons why the officer suspected you were breaking the law,[3] but it may factor in your ethnicity,[4] where you live,[5] what you were wearing,[6] and how you behaved.[7] The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous.[8]

The indignity of the stop is not limited to an officer telling you that you look like a criminal.[9] The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline.[10] Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.”[11] If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’”[12]

The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.”[13] At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.”[14] Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check.[15] And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.[16]

More next time.

— This commentary was broadcast on WAMC Northeast Report, August 30, 2016.

[1] Utah v. Strieff, 136 S. Ct. 2056, 2069-71 (2016) (Sotomayor, J., dissenting).

[2] Whren v. United States, 517 U. S. 806, 813 (1996).

[3] Terry v. Ohio, 392 U. S. 1, at 21 (1968).

[4] United States v. Brignoni-Ponce, 422 U. S. 873, 886-887 (1975).

[5] Adams v. Williams, 407 U. S. 143, 147 (1972).

[6] United States v. Sokolow, 490 U. S. 1, 4-5 (1989).

[7] Illinois v. Wardlow, 528 U. S. 119, 124-125 (2000).

[8] Devenpeck v. Alford,  [2070]  543 U. S. 146, 154-155 (2004); Heien v. North Carolina, 574 U.S. ___,  (2014).

[9] See C. Epp et al., Pulled Over, at 5 (2014).

[10] See Florida v. Bostick, 501 U. S. 429, 438 (1991).

[11] Terry, 392 U. S., at 17.

[12] Id., at 17, n. 13.

[13] Atwater v. Lago Vista, 532 U. S. 318, 323-324 (2001).

[14] Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___,  182 L. Ed. 2d 566, 573 (2012); Maryland v. King, 569 U. S. ___, 186 L. Ed. 2d 1, 30 (2013).

[15] Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33-51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341-1357 (2016).

[16] A. Goffman, On the Run 196 (2014).


Silencing: Pensions, Kurds and Black Lives Matter

August 16, 2016

We watched a Black Lives Matter march pass in front of our house recently. It reminded me of something that happened in 1972, when NBC aired a documentary called “Pensions: The Broken Promise.” It described many instances in which loopholes in pension plans left people without the pensions they thought they had. The narrator called the “situation” “deplorable.” The documentary won many awards and played a part in developing public support for pension legislation which now goes under the acronym ERISA.

But a group called Accuracy in Media sued pursuant to the now defunct “fairness doctrine,” claiming that the documentary presented a “distorted picture of the private pension system” because almost nothing was presented on the positive side.[1] They wanted to censor NBC for not airing another program about all the good pensions. The U.S. Court of Appeals for the D.C. Circuit ruled in favor of NBC. The instances detailed in the documentary really happened; they were undisputed. The complaint asked NBC to air a documentary on a different issue – the overall soundness of pensions in America. The Court understood that requiring NBC to discuss the overall issue would dilute its attack on the abuses that had been allowed and had left many workers without pensions. It also might mean that broadcasters in the future would pull their punches, and avoid controversial exposes, no matter how valuable. Those consequences would neuter, rather than contribute, to public discussion of controversial issues of public importance.[2]

Let me turn to another place where the same tactic is being used. Turkey has not allowed Kurdish grievances to be raised. The government says that there are no Kurds, or no loyal Kurds; there are only Turks. So they can talk about grievances so long as they have nothing to do with Kurds. Having silenced Kurds, they then continue to fight a shooting war against the Kurds.

There have been calls for the same method of silencing in an American context today. Various groups attack Black Lives Matter because they say, accurately, that all lives matter. But the meaning of their attack is to neuter the Black Lives Matter campaign. Of course all lives matter, but African-Americans have had distinctive problems. To require Black Lives Matter to discuss the whole issue of abusive treatment of everyone would dilute their campaign, their point, and make it harder to focus on the difference in the way people are treated, the reason why Black parents have to have “the conversation” with their children about what to do if the police stop them, a conversation white parents don’t need to have. Objections to the slogan, that Black Lives Matter, is an effort to keep the veil over a serious injustice in our society.

Of course all lives matter. But most of us understand the phrase “Black Lives Matter” as meaning that Black lives matter too. That’s standard English, both because meaning in our language comes from context and because a positive statement does not imply the nonexistence of everything else. There is no negative implication that other lives don’t matter; there is only emphasis – Black lives, the lives of Black people, are important, they matter, they have been ignored, and that has to stop. Yes, Black lives do matter.

— This commentary was broadcast on WAMC Northeast Report, August 16, 2016.

[1] In Re Complaint by Accuracy In Media, Inc. Concerning Fairness Doctrine Re NBC, 40 F.C.C.2d 958 (F.C.C. 1973).

[2] NBC v. FCC, 516 F.2d 1101 (1974). Note that the 1974 decision has been vacated on other grounds and is no longer available on common online sources but is available in the hard-copy reporters.


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