21 October 2015

Rules of Engagement for Police – The Need to Know

Chicago Mayor Rahm Emanuel recently said that crime is increasing in Chicago because “We have allowed our police department to get feral ... They have pulled from the ability to interdict ... They don’t want to be the news story themselves.”  (Washington Post) 

While the Mayor expressed himself in unfortunate terms (“feral”), he has a point. The Ferguson-Baltimore effect has changed the way we evaluate police actions.   Over the years, the prevailing view has gone from police actions being nearly conclusively OK to being a little - or a lot - inherently suspicious.  Maybe the change is a good idea; maybe it’s a bad idea; but it’s still the truth.

So far, the attention of both the pro- and anti-police critics have been formed only after-the-fact.  What should an officer have done in such-and-such a situation, and so did the officer do the right thing? 

This is a negative feedback cycle. People do learn when they screw-up and others they hear about screw-up. But the (alleged?) screw-ups have still happened, and somebody got hurt.  So the officer is called to answer for something that has already happened and that can’t be undone. 

Sometimes that is fair.  There is a video going around showing an officer shooting an obviously unarmed guy in the back from 30 feet away.  That’s almost impossible to justify. The officer has been criminally charged.  But sometimes, doing an after-the-fact analysis is distinctly unfair because we are applying some standards we just came up with.

It’s relatively easy to be a civilian.  The rule about confrontations is simple: Avoid them.  Unless you have a real, REAL  good reason not to.  That is fortunate because the most people continue to have a warped perception about personal violence. Life does not have a reset like a video game. You cannot do violence and make it go away.   When a movie-style fight erupts in a bar, and cue-sticks, tables and chairs are used as weapons, injured people do not get back up, dust themselves off, and have another drink. They are hauled away in an ambulance or coroner’s wagon. Some of them will be checking into a nursing home to deal with injuries for the rest of their lives. I had a client a couple of years ago who got into a brief bar fight. From his perspective at the time, it seemed like a minor thing. He didn’t want to hurt anybody badly or permanently.  But owing to very bad luck all around, he killed a guy with one punch. He served jail time because he broke the rule about a citizen’s duty to avoid a confrontation.  

With police, the Mayor said it all:  “They have pulled back from the ability to interdict.”  The police are supposed to go toward trouble. For my money, that’s the primary difference between citizens and public service people. Who in their right mind wants to get in a gun fight, run into a burning building or deal with gruesome injuries?

An image often used by police is the sheepdog. There are lots of sheep – people who lead normal, ordinary and even boring lives. There are a lot of wolves, who depend on violence or the threat of violence to get things from the sheep. And then there are the sheepdogs.  They take care of the sheep.  The role of the sheepdog is not a directly productive one. The sheepdog does not furnish wool. If there were no wolves, we would not need sheepdogs.  But there are wolves. So we need sheepdogs.

For a sheepdog to function effectively,  s/he has to know what the rules are. In the military, these are called “Rules of Engagement.”  In other words, they should know in advance what is an acceptable response is to a given situation.  And the Rules of Engagement need to be specific.  A rule that says “Don’t Screw Up” helps no one.  

Let’s make some factual assumptions. These are not universally true, but pretty accurate as a general rule:

1 - Most police officers want a quiet shift without undue conflict.

2 - Everyone wants to go home in one piece after the shift.

3 - Everyone wants the other guy to go home in one piece, too.

4 - Everyone wants to use enough force to reach whatever their goal is - to stop someone from hurting people or to stop a major crime - but no more than necessary.  (The invention of pepper gas and the Taser have helped that one along.)

5. No one can fire a firearm safely.   It’s not designed to be safe when it’s fired.  It’s designed to hurt and kill people. 

6 - No officer specifically wants to kill people.  But officers know that they may be called upon to shoot someone and that if they do, a death is likely to happen.  Shooting the gun out of someone’s hand is pure movie fiction.

7 - Some wolves will continue to do things which requires deadly force to stop them.

I think those rules are fair. 

We need to make an another assumption which is unpleasant, but true.  Race and other ethnic stuff matters. This is America. It’s not supposed to matter. But it does. Different people interpret ethnic stuff differently, but few people say that it won’t be considered.  Yesterday, a guy was shot in killed by a police officer in Miami. A news report included “[The guy who was shot] was black. [The officer’s] race was not immediately known.”  So at least to the reporter who wrote that, race matters.

So if we want to decrease inappropriate violence, isn’t it a good idea that we decide in advance what the Rules of Engagement for police are?

There have been several incidents where police have shot a kid carrying a toy gun by mistake.  (What a moronic idea toy guns are.  Along with all the kill-them-all video games.  What are parents thinking?)  

So let’s set the stage.  It’s a hypothetical, but it will happen.  It’s 10 PM.  Most kids are off the street, but not all of them.  An officer sees someone the size of a 14 year old boy carrying a realistic looking (but unbeknowst to the officer, a toy) gun.  The kid is 30 feet from the officer.  The light is bad.  What do we as a society want the officer to do?

This is the part where I’m supposed to give you my answer. But my answer is just that - Mine.  I’m not in charge of society.  It will be the collective answer which the officer will be judged by.  So, tell me what the officer should do.   Warn the kid, such as “Drop the gun!”  Ok, if the officer does that, how long does s/he wait?  How often does s/he repeat the warning?  Wait until s/he sees a muzzle flash and knows that the gun is real?  Duck?  Withdraw?  What if the gun is pointed at the officer?  Come on, people, if we are going to judge the officer - and we will - let's have the decency to tell the police what the rules are.  

And that’s just one scenario.  In the summer, should an officer approach someone with a long coat to see if s/he is hiding a gun?  How should an officer deal with people who are legally carrying a weapon openly?  (Yeah, yeah, it doesn't happen in Chicago, but it happens in lots of places.)  How about if they are doing so in a strange place?  Should an officer question someone who just “doesn’t belong”?  Or when someone is acting furtive or are apparently nervous? Should the officer ever consider their race or distinctive clothing?  Maybe, maybe not.  But our public servants need to know what we expect.

We owe it to everyone to have this conversation.


Mizpah.







12 September 2015

The Rights of Mankind; A Stream-of-Consciousness Discussion

Is America at the forefront and on the cutting edge of liberty, freedom and the Rights of Mankind? Is this powerful political Republic, for all of its little faults, truly the Home of the Brave and the Land of the Free?

And are the flag-burning, KuKluxers, Reds, Greens, neo-Nazis, God-let's-me-be-a-terrorist's, flat-earther’s, Elvis-lives folks  just wrong? Oh, of course, we should tolerate all those people, because we do have such freedom.

I wonder.

This started out as a moderate post about whether we really can preserve the Second Amendment.  My original thought was that if we do have the natural right of self defense, but that if Americans don’t have the discipline to use firearms right, maybe we no longer deserve the right.  I don’t believe it, but only an idiot will refuse to THINK about the basis of your rights.  This has been bugging me all week.

I found that there is a more basic question lurking here: Where does the concept of “rights” come from?

The Magna Carta is cited as the basis of English rights, which in turn expanded to include much of the Earth. Magna Carta came in 1215. Actually, it does not stand alone. There were at least two versions of Magna Carta, one “radical” (for the time) and one a trifle watered down. Other “charters” of various sorts – the Charter of the Forests comes to mind – followed at irregular intervals. I’m the only lawyer I know who has argued the Charter of the Forests in a Supreme Court argument. It was a wide-ranging discussion between Justice McGraw and me in State ex rel. Princeton v. Buckner, 377 S.E.2d 139.  At the time, I certainly bought into the notion that our natural rights had always been there, even though we often misinterpreted them. This is shade of St. Thomas Aquinas, that the will of God is the same, but sometime we mere humans get the wrong interpretation.   Perhaps, someday, we’ll get the absolutely right idea.

If there are natural, God-given rights, God has been singularly ignored as He tried to press them on humankind.  The established “Biblical time” roughly corresponds to the sociological establishment of human societies.  So as such, let’s say that the question of the “rights of mankind” has been significant for around 6,000 years.  The first explication of “rights” was in 1215.  What happened to the other 5200 years?

The scriptures of most religions talk about a few rights, but seem to focus mainly on duty, responsible actions, kindness, etc.  Which is fine - we’ve never  been successful at putting the “Rules to Live By” in one place.

What is the human experience with the supposed Rights of Mankind?  A dismal one, I think.

How many people have ever been free?

Egypt?  Nah.  Hey, we need volunteers to help us build the pyramids. OK, you, you and you have just volunteered.  

Athens?  It got closer, after all it had Demosthanes & Co.  Oh, but don’t get so serious about “rights” that we need to give you a brimming cup of hemlock.

Sparta?  No, not even close.

Rome?  Huh-uh.

China?  Oh, no, too many emperors and warlords.  

Japan?  Nope, the emperors and also the whole Bushido-thing.

Britain?  Too many head Druids.

Later Britain.  Think kings and Roundheads.

Actually, the American Indians got a bit closer with a sort-of meritocracy.  That didn’t do Reed-That-Bends a whole lot of good. (See Fenimore Cooper, The Last of the Mohicans.)

It really could have been Thomas Paine who was the “Father” of the Rights of Mankind.  Nobody really liked him, and he was a dour sort, but smart. Ultimately, what Thomas Paine talked about were stuck into the Bill of Rights.  The Bill of Rights is an odd thing, like something that was the product of a committee and a lot of compromises - which it was.  The glorious notions of free speech and free exercise of religion are mixed in with keeping troops from being quartered in homes in peacetime.  The freedom to escape intrusive search is mixed with property rights.  Yet, it is such an integral part of American society that you can simply say that you “take the Fifth” or “stand on your Second Amendment rights,” and people understand what you are talking about.

Where do rights come from?  What society has ever practiced respecting rights?  Who has ever had free religion?  Well, only for 250 years in a few nations, and at that it’s only been imperfectly practiced.  If for most of human history, you didn’t worship Odin, the ineffable name of God, Zeus, Jupiter, God, Allah and maybe The Force, how do you suppose that worked out for you?

If you dissed the king, the pope, the doge, the emperor, the Prophet (PBUM), the Sanhedrin, Montezuma, the Earth, the merchant class, the nobility, the priests, the brahmins, did you really think that your future was secure?

The “Rights of Mankind” are not an American thing.  The rise of the USA as a nation was the best known and least-complicated event of the Age of Enlightenment.  We had fewer nay-sayers, and they were quieter.  This “Rights” notion is assigned to America because there were a whole lot more people in the now-USA who stood to gain from it.  Great Britain did us an enormous favor by separating royalists on a different continent.

Are there “Rights of Mankind”?

Beats me.

If there is such a thing, I doubt if they are automatic, immutable, and inalienable.  Jefferson was laying claim to these “inalienable” rights, not saying that he just discovering that they already existed.  In that respect, the Declaration of Independence is a radical and beautiful departure from the past.  It’s not just an explanatory scholarly document.  The Rights of Mankind are not automatic.  If the powers of society say that they are gone, poof, they are gone.  If you don't believe that, try to carry a shotgun in England.

Self-defense?  The state/king/brigands/church sure as hell have been able to push people around without some spooky “bad thing” happening to those in power.  

Free speech?  Pull the other one.  In most places, free speech will get you an ass-whipping.

If we do have rights, they are vanishing.  We’re losing them.  They don’t have long to last.  They are vanishing back into what has existed in the 6,000 year human history - what we now call totalitarian socialism, but which has always been called “I-got-mine-and-you-don’t-so-screw-you.”  

If we keep on bleating that we are entitled to the rights of mankind, but expect someone else to assure them, we lose.

If we are unwilling to actually do something to keep them, we deserve to lose.




25 August 2015

Sweepings from my hard drive: The HAL 9000 giveth

Place of Pain:

I was in the elevator at the Marion County Courthouse last week. 

On the 3rd Floor, three ladies got in.  They were markedly upset.  The only thing on the 3rd Floor is Div. II of the Circuit Court and the Family Court.  Family Court hadn’t started. 

I have no idea what upset them.  From their perspective, it must have been something pretty bad.

A lesson: Court is a place of pain.  In theory, lawyers know that.  But we often pretend that it’s not, and that it’s just another day at the office. 

Perhaps a secret to practicing law is to function at your best, but to remember that it is a place of pain.

I wish more lawyers would learn this.

[Note to Bro. Burt: I was thinking of you as I wrote this.  You understand the practice of law better than anybody I know.]


The Courthouse Box:

Sometimes, I have good ideas.  Other times, well, I’m prone to have real dumb ideas.

One of the good ones was in the 80's as we were changing the Local Rules of Court. 

Every day, the volume of mail that originates from the Clerk of the Circuit Court is tremendous.  It includes lots of important stuff - Court orders, subpoenas, pre-sentence reports, etc.  But the Clerk also is afflicted with loads of unimportant, mundane crap - discovery packets in criminal cases, notices of scheduling orders, etc.

In the 80's, the first class rate was around 15¢ for a one-ounce letter.  Now, it’s 50¢.  So, we put a big mailbox in the front of the Circuit Clerk’s office for the stuff than can wait.  Every time I got past the Office, I check the box.  Today, there was easily $100 worth of mail that didn’t have to be actually mailed. 

Minimize all your your therbligs and concentrate on the ball.


Coal:

The new EPA regulations fundamentally change America’s energy production.  Congress has nothing to do with it unless it acts to block or modify it. 

If the rules go into effect, West Virginia will have to idle 3,800 megawatts of coal generating capacity.  Whether that’s a good idea, a mediocre idea or a bad idea is beside the point for now.  In the meantime, the Chinese bring 1,000 megawatts of new coal generating capacity online each week.  India brings 350 megawatts of new coal generating capacity online each week.  Work the math.  And they don't have EPA regulations, so the stuff that is left after burning goes right into the atmosphere.

Senator Boxer of California says that the biggest job growth in California is in “clean” power such as solar, wind and geothermal.  She invites West Virginia to “Get with it.”  Sadly, West Virginia doesn’t have a desert and has no geothermal sources.  We have wind.  Two out of three ain’t bad.  But one of three?  Well, it’s kinda bad.

It’s partly our fault:

In 1890, horse breeders saw unlimited growth in the personal transportation market for the next hundred years.


She Met God:

A random memory - A long time ago, in a galaxy far, far away, we picked up a lady in the ambulance who was in cardiac arrest.  Oh, she got better.  When she arrived at the hospital, she mentioned that she had met God face-to-face.  She described him a a kinda big guy, with a moustache.

24 August 2015

The Fellowship in China: Tianjin

The Chinese government is not very popular in America.  

But the Chinese people basically are just like us.  Some are decent.  Some are jerks.  Some are our brothers & sisters.  Some are about as welcome as the black sheep pimp at the family reunion.  

Among the brothers & sisters are the people who do the truly garbage jobs in society, the first responders.

By the way, “first responder” is a misnomer.  Usually, the “first responder” is the only responder you get.  If s/he can’t handle the problem, you are screwed.  If they are not willing to "spend themselves," lots of innocents are injured and die.

In the northeast China port of Tianjin - a HUGE port - a fire broke out in warehouses that stored chemicals.  There were explosions, and about 100 firefighters are still missing.

A whole lot of mistakes were made.  

For instance, there were flammable chemicals that you use water on if there is a fire.  But nearby, there were chemicals that, when exposed to water, give off an explosive gas.  That is one explanation for the explosions. 

But you can bet that the brothers & sisters killed were NOT the ones who made the mistakes.  They were the ones running TOWARD the danger when everybody else was (wisely) running AWAY.  The owners & managers of the warehouses weren’t there.   The government-types who dropped the ball or who looked the other way weren’t there.  The people who were supposed to guard THEIR people weren’t there.

I fear this is not much of a post.  And there is no sort of answer here.  Stupid people make mistakes by omission and commission that get other’s killed.  All the world over.  

God bless the Fellowship.

19 July 2015

The Donald Trump Plot

A question for simple political minds is, “How can Donald Trump say such stupid things?”  

He hates Mexican immigrants.  After all, they (whoever “they” is) send up thieves, rapists and folks who - if they ever become citizens - will not vote for Donald Trump.  He’s clarified that statement to explain that he loves Mexicans and that they love him.

Trump hates “losers.”  (An occasional business bankruptcy of a Trump organization doesn’t count.)  Trump supported Sen. McCain against Pres. Obama in 2008.  McCain lost.  Donald Trump doesn’t like “losers,” so he now doesn’t like McCain.  Trump also dislikes people who are captured, so he has another reason not to like McCain.   McCain was captured.  Q.E.D.   Then, Trump explained that the loves all people who served in the military, including all the heroes who were captured.  

He’s confrontational and yet polite.  “While Bette Midler is an extremely unattractive woman, I refuse to say that because I always insist on being politically correct.”

Oh, and he’s humble:  "Let me tell you, I'm a really smart guy. I was a really good student at the best school in the country.”

Emerson said “A foolish consistency is the hobgoblin of little minds.”  Look on Trump’s wrist.  The Emerson quote is tattooed there.

So, “How can Donald Trump say such stupid things?”  

Aha!  A better question is “WHY does Donald Trump say such stupid things.”  And the truth is far from a joke.

Hillary Clinton has a budget of $2.5 Billion for her presidential campaign. Trump could double that and not have to ask for contributions.  But he doesn’t have to.  

The reason?  He has lots of big money supporting him.  The surprise is where the money comes from.  It comes from supporters of Hillary Clinton, supporters of Ted Cruz; supporters of Jeb Bush; and even supporters of our favorite Trotsky-ite, Bernie Sanders. And that’s just a partial list.

Donald Trump is a stalking horse.  He’s everybody’s stalking horse.

Trump gives every other candidate a powerful, truthful claim: “Hey, at least I’m not Donald Trump!”

It’s the old, old story.  If you want to appear sober, hang out with hopeless drunks.  If you want to appear generous, hang out with misers. And if you want to appear presidential, no problem: Hang out with Donald Trump.

And the saddest thing is, even if we know about the plot, it still works.   It’s works for Clinton.  Bush.  Cruz.  Christie. Biden.  It even works for Sanders.

“Hey, at least I’m not Donald Trump.”

Works for me.

26 June 2015

A Brief Curmudgeonly Approach to the Supreme Court and a Gutless Congress

The Supreme Court issued two important decisions this week.  They did so because other organs of government haven't the guts to have an honest discussion.  

The gay marriage issue got to the Supreme Court because Congress did not have the moral integrity to have an honest discussion.  The state legislatures did not have the moral integrity to have an honest discussion.  A honest discussion requires that people set aside their prejudices and thoughtfully analyze the merits of the possible decisions.   Sure, everybody is prejudiced.  That's OK.  It takes a special skill to set aside all of those prejudices and have an honest discussion.  An honest discussion requires that we apply American values to the question.  It requires that we permit liberty of conscience and limit government restriction.  I’m not going to marry a gay person.  That’s my personal decision.  Does somebody else’s decision have any effect on me?  Nope.  

Obamacare is a continuing nightmare.  It was poorly drafted.  Very few of the people who voted on it read it.  Perhaps reading it would have found the apparent ambiguity.  Many who voted on it - for or against - held their nose as they did so.  Let's assume Obamacare is terribly screwed up.   It is such a great idea just to scrap it and have nothing?  Only if your slogan is "the people be damned."  Again, Congress has zero moral integrity.  Damn near everybody was married to the thought that the insurance industry had to get their piece of the action.  Obamacare is corporate welfare in action.  Either way, the insurance industry wins.

We have seen lots of demonstrations in the past two days.  Jumping up and down in celebration or indignation.  Those are absolutely protected public speech.  They are also pointless.  Decisions are made.  They are made.  Now, we need to SHUT THE FUCK UP about it and perhaps, just perhaps, turn our attention to stuff that actually counts.  If you don’t have a list of stuff that truly counts, America is in as sad a shape as I think it is.  

It’s going to get worse before it gets better.

Land of the free.  Pull the other one.  It’s got bells on it.

17 June 2015

I’m Shocked, Outraged, and Stunned; or, Why I Gotta Quit Watching the News

I'm so upset.  

I talk back to the newspaper.  I talk back to the radio, the computer and the TV. I know that nobody can hear me, but I do it just the same.  The news really angers me.

I have to be shocked.  My outrage has to show.  I’need that kind of indignation that starts in your guts and blows out your ears. 

I learned today that a kid graduating high school was almost denied  publication of his “year book quote.”  I’m not sure what that is, but it must be pretty important.  (His quote was “Of course I dress well.  I didn’t spend all that time being in the closet for nothing.”  And it was by someone "Unknown.")

Along with 17 million Chileans, I was stunned by some random soccer star crashing his Ferrari.  (He escaped injury.)

I was outraged by a Florida Sheriff who spoke in church in uniform.

I learned that a taxi had caught fire in New York City.  How atrocious.  (It would have been worse if anybody had been hurt.  But I bet FDNY has never seen a taxi catch fire.)

I gnashed my teeth and tore my garments when I found that some brewery was selling “Sweet Baby Jesus Beer” in Ohio.  (I considered issuing a fatwa against the brewery, but then I remember that Christians don’t do that.  Darn it.)

Oh, and when the French ecology minister said that folks shouldn’t eat Nutella, I was disgusted.  (Nutella is some sort of sweet spread used in Europe.  It's made from palm oil, peanut butter, sugar, chocolate, and who-knows-what-else. Maybe Red Dye #3?  It looks like baby shit, but I’ve heard that it tastes good.)

I was so upset over who Pat Boone wants to be president in 2016, whether KFC served somebody a deep fried rat, and whether Ashton Somebody-I’ve-Never-Heard-Of does - or does not - have a butt.

But the most insulting, the most offensive thing I heard today was that a North Carolina teacher read a fable out of a book in class -- about gay people getting married. 

All of the news sources assured me that I should feel abused.  I should feel violated. 

Well, by golly, I do!

The North Carolina teacher resigned.  Along with an assistant principal. I am deeply thankful that nobody had the huevos to to brush it aside, like maybe, “Well, that didn’t seem to work out.  Maybe you ought to think about that.”  Resign or be fired, I say.

There are some wise-guys who suggest that we are led by the nose to get outraged about all this stuff, so we don’t have to worry about what they consider important things.  Hmph.  They are Ivy League weenies, if you ask me.  One wag proposed that the average guy, like this Poor Scribe, is diverted by these issues.

I just don’t have time to worry about which candidate will buy a presidential election.  The entry price is a billion or so. Chicken feed.

I don’t have the attention to give to America’s $17 trillion debt.

I refuse to dwell on the fact that we owe half of that debt to China, Japan and the Arabs.  When we have a book to ban in North Carolina, we need to tend to it.

25 million people go to bed hungry every night in America. Sorry, no time.

8000 dead American military people in Afghanistan and Iraq.  Uh-uh, not going to get my valuable attention.

Everybody seems to have their own little hobby horse of a crisis.  Uh-uh, I have gay-ness and Nutella catastrophes.

Eye on the ball, people, eye on the ball!