October 21, 2017 § 1 Comment
A young Marine, La David Johnson, from Florida, was recently killed in a fire fight in Niger. His body was returned home for burial.
Congresswoman Frederica Wilson, who had known Johnson and his family for years, accompanied his mother as she was driven to the airport to attend the arrival of her son’s body. During that journey, Ms. Johnson received a tlephone call from President Trump. He expressed his sympathy but included in his remarks that the young Marine ” . . .knew what he signed up for . . . .”, which was interpreted by La David’s mother and by Congresswoman Wilson as an insensitive suggestion that Ms. Johnson should not feel the government should express regret or sympathy for her loss because her son knew what he volunteered for.
Congresswoman Wilson later issued a public statement critical of President Trump’s remark. Trump, true to his well founded reputation for mendacity, first denied having said what he said, but others in the car who heard it because the phone was “on spoeaker” when he spoke to Ms. Johnson, confirmed the accuracy of Congresswoman Wilson’s account.
After this dispute was widely publicized, John Kelly, Chief of Staff for the Trump administration and a retired Marine general, called a press conference and made a lengthy statement which began with an appropriate explanation about the usual practice of making condolence calls to the survivors of men and women killed in a military action.
Then, however, General Kelly launched into a vicious attack directed at Congresswoman Wilson. He did not call her by name but, instead referred to he as “an empty barrel”. He went on to recount his recollection of her remarks at the dedication of a government building in Florida named for two FBI agents killed in the line of duty. He claimed she used the occasion to praise herself for securing the financing of the building. This was not true. The Congresswoman did not become a member of Congress until years after the building was built.
He referred to the Congresswoman’s reference to Trump’s phone call to Ms. Johnson as if it had been a surreptitious effort to listen to a private conversation. He knew full well that the phone call had been heard by all those in the car with Ms. Johnson.
He laced his remarks with his own respect for women and plainly implied that Congresswoman Wilson did not qualify for it. Lest I be accused of misstating General Kelly’s scurrilous language, here is a link to a transcript. https://www.nytimes.com/2017/10/19/us/politics/statement-kelly-gold-star.html?_r=0
I realize I am spreading this vile statement by citing it but I trust that any intelligent reader with any vestige of a conscience or sense of decency will share my disgust at this rant from a Marine General and member of the President’s cabinet.
I was ten years old when WWII began. During the next five years, like most young Americans, I was fascinated with the exploits of American armed forces. I especially admired Marines because they were all volunteers. They were the first to respond to enemy threats and their bravery was well known and well earned. I learned all the words to the Marines Hymn and was thrilled when I heard it sung. These four lines express my belief in the meaning of being a Marine:”
“First to fight for right and freedom
And to keep our honor clean;
We are proud to claim the title
Of United States Marine.”
I am now 86 years old and, during that lifetime I have forsaken many illusions about the true quality and integrity of my fellow citizens and, in retrospect, I have accepted my own failings. I have not, however, become a cynic nor have I ignored the ability of people to change and to make amends for their mistakes. Through all these changes I have retained my respect for Marines. I know we now have new heroes: Navy Seals, Army Rangers and other groups of specially trained warriors but I still respect and admire Marines as honorable patriotic Americans.
So, it is especially sad for me when a man with the long career of service as a United States Marine, a warrior as well as a scholar, who has educated himself in our finest universities and numerous military training schools, allows himself to become enthralled and defensive by and on behalf of an empty suit enclosing a narcissistic blundering fool like Donald Trump. There can be no honor there. There is no patriotic splendor there. There is no intellectual depth there. Trump has the attention span of a gnat and the moral integrity of an alley cat.
General Kelly should publicly apologize to Congresswoman Wilson for his false and insulting attack on her.. I don’t want or expect him to change his opinion of her. This country, however, is a constitutional republic. The Constitution was deliberately designed to subordinate military force to the authority of Congress. When General Kelly decided to pursue a military career, he swore allegiance to that Constitution.
He is entitled to his personal opinion of Congresswoman Wilson but he is not free to disrespect the office she holds or to publicly attack her. If he wants to do that, he should resign his commission, his cabinet post and run for office. His press conference rant was a plain violation of these well known rules of propriety and for that violation, he should make a public apology. There is no dishonor in making a mistake but it is dishonorable to refuse to acknowledge a mistake.
Having included a citation to General Kelly’s diatribe against a member of Congress, I will use this post to preserve a citation to a speech by former GOP President George W. Bush. https://www.washingtonpost.com/news/the-fix/wp/2017/10/19/george-w-bushs-anti-trump-manifesto-annotated/?utm_term=.13adebba0c60
I have not been an admirer of President Bush and I agree with Aristotle that “One swallow does not a summer make.” He has, never the less, well expressed ideas that have too long been absent from our public discourse. This, however, does not change my opinion that his presidency did not well serve our country.
August 6, 2017 § 2 Comments
Recently the media has noted a declining percentage of our neighbors who cling to their faith in the rectitude and promise of President Trump. The number is estimated to be 35%. I derive no comfort from these revelations for two reasons: First, an even lower percntage of our neighbors express faith in the government of our country, the only institution with the power to limit the authority of the President to continue his discredited policies. Second, in a population estimated to be 326,000,000, that means that 141,100,000 of our neighbors cling to their enthusiasm for President Trump.
These facts, to me, describe a country adrift, without effective guidance, in a perilous world. Multinational corporations and the United States military complex seem to be the only sources of effective power, a circumstance I regard with anxiety. It describes Germany in the 1930’s. It describes Egypt and Turkey, both of which are sinking into the hands of military-backed totalitarian governments.
Even our Supreme Court, the institution charged with the preservation of our Constitutional republic, appears to be in the hands of a majority who seek the ressurection of legal principles which opposed Franklin Roosevelt’s New Deal. Justices like McReynolds and Field, in the 1920’s and ’30’s, sought to superimpose on the Constitution the limitations of what they referred to as “Natural Law” which, in practice always coincided with and favored the interests of business corporations and thwarted the collective efforts of the people, acting through their government
The Nature of Mass Delusions
Dangerous nonsense thrives when one or more of the following is true:
First, there is widespread disparity of access to accurate and pertinent information. For the first few centuries of life in our country, this disparity prevailed between the majority of our citizens who lived in generally isolated small villages and settlements and a minority who lived and did business in cities. Our literature and folk lore is replete with stories of the “rube” from the country who is the victim of manipulation by a “city sliker”. This phenomenon prevailed until the 1920’s when the automobile and the radio significantly erased this isolation.
Second, there is general access to many sources of information but no filter to insure its reliability. Britebart and numerous similar sources offer carefully crafted misleading and false information equally accessible with CNN, CBS, NBC and BBC. The Internet and the ubiquity of smart phones leave individuals no way to distinguish lies and baloney from truthful information.
Third, significant disparity of knowledge between the originator of information and its consumer and target. “Insider trading” and commercial advertising are examples of this kind of trolling for suckers.
Fourth, the educational background and store of knowledge of the consumer of information determines his or her ability to evaluate and choose sources of information.
To summarize: Our technology, a potential asset for the dissemination of knowledge, has, instead become a treacherous vehicle for demagogues to peddle their messages of hate, division and chaos and to undermine the fail-safe protections of our Constitution.
The Intellectual Ancestors of Trump
The self-absorbed buffoon, supremely oblivious of his own stupidity and groossly unsuited for the task he has chosen, is a character famously protrayed by talented writers and playrights.
The first great novel, Don Quixote de La Mancha, Cervantes’ two volume masterpiece, featured a hero who, after reading tales of dashing knights, fair maidens and thrilling exploits, failing to understand they were fictional, embarked on his own quest for fame and fortune. His efforts were, like our similarly self deluded President, fraught with a series of pratfalls and misadventures.
A few decades earlier, Shakespeare enlivened four of his plays with the antics and absurd exagerations of John Falstaff, who, like Trump, shamelessly misrepresented his accomplishments, ignored his critics and never acknowledged his errors, regardless of how plainly they were perceived by others.
Our own Nobel Prize winning novelist, Sinclair Lewis, immortalized a religious huckster who, again like Trump, transfixed large crowds with emotional performances, promising salvation and happiness to his listeners while offering them protection from threatened harm from their enemies, the devil, in Gantry’s tents personified as Democrats in Trump’s.
For a few decades, beginning in the 1920’s, a couple of cartoonists, Gene Ahem and Bill Freyse, entertained readers of the funny papers with the puffery and exaggerated exploits of Major Hoople in a comic strip named Our Boarding House. The Major, who was a sargent in the Civil War, promoted himself with endless bragging about his bravery, just as Trump never tires of regaling listeners with accounts of his financial successes, artfully omitting mention of his bankruptcies and the legal settlements of suits brought by victims of his tortious misconduct and desperately refusing disclosure of his income tax returns.
Another example of an earlier model of the Trump was Huey Long, the rags to riches Louisiana politician who epitomized Edgar Lee Masters’ warning through one of his characters in Spoon River Anthology: “Beware of the man who rises to power on one suspender.” Long was a demogogue who, like Trump, built an empire with extravagant construction projects. Less fortunate than Trump, Huey’s governorship was cut short by assassination. Also, unlike Huey, Trump had a handsome inheritence, not one suspender, to assist his rise to power. A novel about a character like Huey Long, also the basis for a movie, is All The Kings Men by Robert Penn Warren. Despite the similarities, Warren has stoutly denied his novel was a roman à clef .
Extraordinary Popular Illisions and the Madness of Crowds
Just as the Trump character has several fictional and real identifiable ancetors, his ability to mesmerize large numbers of people with his outsized promises of prosperity has similar historical examples. Several of these have been described in a fascinating book by Charles Mackay, Extraordinary Popular Illusions and the Madness of Crowds. The book can be read online as a PDF file at https://vantagepointtrading.com/wp-content/uploads/2010/05/Charles_Mackay-Extraordinary_Popular_Delusions_and_the_Madness_of_Crowds.pdf
[Incidentally, according to Wikipedia, Bernard Baruch said that what he learned from reading this book,, prompted him to sell all his stock before the crash of 1929.]
The book invites skipping around among chapters listed in the table of contents. Unfortunately I was unable to find any way to skip directly to a particular chapter, so scrolling is required.
This book was published in 1841. I contains a well written account of about a dozen instances when greed motivated crowds of otherwise sane and sensible people to hand over their money to promoters of schemes so bizarre as to challenge the imagination. The events occurred in the 17th and 18th centuries when education levels varied significantly according to class and communication technology was primitive by our standards, thus leaving ordinary people without any means of checking the accuracy of tales of foreign lands or in places inaccessible to the public, like laboratories, mines and business offices.
The circumstances were, as a result, ripe for promoting promises of wealth based on incomplete and sometimes deliberately false information.
Here are a couple of examples: Tulipmania: descibes the obsession of British citizens with tulip bulbs from Holland and the amazing marketing of different colors of tulips, leading speculators buy and sell popular species at inflated prices until the market collapsed, leaving a wreakage of lost fortunes.
The South Sea Bubble is a more famous example. Tales of gold located in Peru and Mexico served as a basis for a partnership between the British government and some private investors in ventures promising great profits from access to those mines. Shares were marketed in the project and crowds of English men and women risked fortunes competing for those shares, whose value inflated significantly until the scheme collapsed, leaving prominent members of Parliament and countles private citizens victimized and impoverished. This occurred before limited liability laws protected investors to the extent they do now. The consequences were, therefore, more catstrophic than they would be today..
The South Sea Bubble, like public confidence in the financial prowess of Trump, is an amazing exemple of publc gullibility because: (a) At the time of the Bubble, Peru and Mexico were part of the empire of Spain and, hence, not available for exploitation by the British. and (b) Trump’s claims of financial prowess depend entirely on the claims by him and his family, all made while vigorously opposing efforts to enable public access to his income tax returns.
This morning I watched Fareed Zakaria’s program on CNN. He is, for me, close to Paul Krugman as a source of intelligent information about what is happening. During his opening remarks he spoke of a new book by Mark Lilla, The Once and Future Liberal: After Identity Politics. I have ordered a copy.
Lilla’s message is, according to Zakaria: The Democratic Party needs to broaden its appeal beyond the issues of race, ethnicity and abortion. He does not argue that these issues should be abandoned, but those who disagree, for example, with abortion rights should not be excluded from the appeal of the Party. Lilla is a Catholic and is not a supporter of abortion rights but he regards himself as a liberal .
I am not making any judgment, obviously, because I haven’t read the book. I have, however, expressed before my frustration about the Democratic Party’s indifference to the rights of unions.
In that way, I feel like Lilla: I find no comfortable place in political efforts which, in my opinion, fail because they treat the working class as in need of education, deserving rebuke for their lack of enthusiasm for racial justice, and as a group having limited relevance in this age of technological sophistication. I attribute the loss of the recent election to these policies and to the fact that neither the Clinton nor the Obama administration paid any attention to the rights of working people.
Welfare programs and training school scholarship programs do not empower the beneficiaries. We are suffering because the only empowered force is corporate wealth. Hiring more experts in money raising and TV ad design is not going to solve our problem.Empowering the working class is the only weapon that will change the political dialogue. That will take years and it’s way past time for the Democratic Party to awaken and begin the process.
In the meantime, I have enjoyed a few hours of placing our present embarrassment in the White House in some kind of historical and sociological context.
March 4, 2017 § Leave a comment
I attended a meeting this week where a close friend of mine introduced me as a believer in relativism as distinguished from truth as an immutable concept from which any aberration is, by definition, an error at best and a sin at worst. My friend’s intention was to provoke a discussion. He succeeded.
I had not been asked to defend myself on this ground for several decades. I once practiced law with a lawyer who was the product of a Jesuit education. He delighted in baiting me into arguments about this subject.
I have an advantage in these arguments because I don’t recognize any idea as permanent or immutable except those based on mathematics and physical science [2+2 is now, always has been and always will be 4, if those symbols are expressed in the decimal system]. So far as concerns physical science, the truth concept is more complicated. Scientific principles are always stated with a caveat warning label reading, “until proven otherwise”. This caveat came in handy when Einstein proved that light does not always travel in a straight line, related velocities depend on a relationship with the speed of light and space is curved, not rectangular or circular.
Despite these complications, scientific discipline insures a kind of objective reliability because its principles must be reproducible, regardless of the instutional context in which they are accessed. The laws of physics are the same in a Catholic cathedral as in an opium den. The same is true for Chemistry’s Periodic Tables.
Relativism, for me, is not frightening. In fact, as a trial lawyer I had no trouble with the duty of opposing lawyers to argue with equal vigor and enthusiasm that each of two opposing propositions is true. I did not see that as evidence that lawyers are liars for hire. Their skill is to frame facts favorably for their clients’ interests. There are many examples of this phenomenon. The Civil War settled the most significant conflict of this kind: The South contended that natural law protected their property right to own slaves. The North contended natural law protected black people from being deprived of their liberty without due process. Before the war overruled him, Mr. Justice Taney, in his Dred Scott decision, argued that natural law favored the South’s position.
The Concepts Which Frame My Judgements and Perceptions of Reality
In college the ideas of Thorstein Veblen made sense to me. He was a rebellious dissenter from most of the underlying principles offered to justify capitalism. He spent his academic life teaching and writing about the logical faults and hypocrasies offered to defend capitalistic methods of distributing wealth.
I learned about Veblen in two semesters of a class taught by Clarence Ayres, a follower of Veblen. He taught me to view social and economic activity as composed of two different but related forces: technology and institutions. Technology is the dynamic force that results from human curiosity and creativity. It drives and shapes the way humans engage in work, play and form relationships. Institutions change in in response to technology, but they lag behind technological changes. Thomas S. Kuhn’s long essay, The Structure of Scientific Revolutions, describes elegantly the way these two forces interact. Here is a link: http://projektintegracija.pravo.hr/_download/repository/Kuhn_Structure_of_Scientific_Revolutions.pdf
As I read and thought about these ideas, it became apparent, at least to me, there was no place in that analysis for truths unaffected by these forces. The most powerful institution in our western culture has been and is religion in all its thousands of forms. The Roman Catholic Church, relying on its historical roots in Greek philosophy as interpreted by Thomas Aquinas as well as Jewish/Christian religious teachings and writings, is a major defender of absolute truth and a system of morality based on that concept.
The Church’s conflict with Galileo is a good and, I think, a fair example of the Church reacting to the relativistic ideas I discussed above. Galileo’s study and telescopic exploration enabled him to see that the Earth revolved around the Sun, an idea in conflict with the Church, which believed the Earth to be the center of the solar system. When Galileo tried to explain the basis for his research, he was threatened with the horrors of the Inquisition. He recanted but was imprisoned for the rest of his life in his home, where he continued to study and write.
I mention this well known episode because it illustrates the way truth is impacted by technology. Galileo did not learn how the solar system worked because of divine revelation. He did so because Hans Lippershey, a Dutch scientist , invented a serviceable telescope. Technology illuminates the darkness protecting institutional “truth”. The process never ends because curiosity is hardwired in our brains.
Stephen Crane has captured this idea in a short verse:
I saw a man pursuing the horizon;
Round and round they sped.
I was disturbed at this;
I accosted the man.
“It is futile,” I said,
“You can never — ”
“You lie,” he cried,
And ran on.
Our Brain is a Universe
Because we are human beings our universe is perceived with, and is subject to the limitations of. our brains. We are not capable of experiencing “reality” as it is perceived by other species of life. For example, we can guess, based on the structure of their hives, the bees do not perceive reality as 90 degree angles. A bee-probably functions efficiently in a “reality” that is structured as a hexagon. The eyesights of an eagle as well as a fly are fundamentally different from ours. It seems likely to me that those creatures see a reality different from the one we perceive. If this is true, then their “truth”, based on their reality is likely different from ours.
In the same way, when, through our technology, we change the way we can perceive reality, it seems obvious to me that our conceptions of morality and reality also change. For example, when the wagon and buggy were replaced by the automobile and the railroad, we changed the way we regarded the sexual relationships that affect the process by which we choose mates. The size of the available choices increased because the distance from our birthplaces increased. The rituals of courtship changed because they included interactions with a much larger and more varied set of people. The days of people on farms living their lives within a hundred miles of their birthplaces were over.
This steadily increasing mobility has resulted in a culture that bears practically no resemblance to the one in which our grandparents and great grandparents lived. And, it seems to me that when culture changes, cultural norms also change. Our literature is filled with stories about these changes. Joseph Conrad’s Heart of Darkness is only one example that illustrates this fact. People “going native” are common themes of fiction as well as accounts of characters changing their attitudes after becoming involved with and aware of cultures different from their own.
In our own lifetimes, we have seen a dramatic change in the cultural attitudes toward black people, homosexuals and women. I think these cultural changes are accompanied by changes, not only in our moral judgments, but also in the way we perceive the world. Of course, I acknowledge these changes do not occur at the same rate for all of us. But I don’t think the cultural norms claimed to be “natural” and immutable were universally accepted. That is the reason those “norms” had to be so vigorously defended and imposed with the force of law and threats of eternal damnation.
The Structure of Brain Change
The process and mechanics of how our brains make changes in these fundamental principles is a matter of endless fascination to me. I don’t pretend to know or understand this subject but my amateur exploration has convinced me it involves brain science, psychology and religiosity.
My impression of brain science is that the extent of acquired and taught behavior and attitudes is steadily decreasing and the extent and importance of genetically hard wired influences, the result of evolutionary endowment, is correspondingly increasing.. I no longer think of my “mind”, my “soul”, my “body” and my “brain” as being separate parts or places somewhere inside my skin. I believe my entire self is the result of a constant total interaction of my brain connected by neural networks to my entire body. Consequently, what I think and feel and how I react to my environment is a function of this totality, as all parts of it constantly interact. I also believe that we know only a very small part of the way our brain, as it interacts with the rest of us, works or is capable of working. I think, with respect to thenature of our brain’s capacity, we are like Columbus when he stepped ashore on to an insignificant island in the Caribbean. little did he know that he had stumbled on to a vast continent with potential of which he could not have conceived. If we survive long enough I think we will discover ways our brains work that will fundamentally change the way we interact with each other and with the universe.
The Lakoff Effect
My opinion about this was affected when, thanks to my daughter, I read a book by George Lakoff, The Political Mind. This linguist has written many books about the way our mind works, To vastly oversimplify his basic thesis: When we confront an occasion requiring a choice, we make it instantly, based on previous wiring in our brain. Then, a nanosecond later, we rationalize the justification for our reaction. These reactions as well as the rationalizations have been acquired by repetative exposure to similar confrontations in the past. That means we can change our way of thinking the same way we learn to type: By practicing making the connection between a letter and the movement of our finger.
The result of this analysis is: In order to change reactions, e.g. a political judgment, it is necessary to expose a person, over and over and over, to a particular judgment and its rationalization. According to Lakoff, and he has convinced me, the Tea Party succeeded because it selected a particular way of perceiving political activity and created thousands of groups all over America where these ideas were expressed, without any deviation or distraction, for over ten years. That is the way the Tea Party swallowed the Republican Party and changed it from conservatism within the boundaries of traditional American politics to its present form as an uncompromising combination of religious fundamentalism and devotion to unregulated corporate domination.
Lakoff contends that Clinton style center left political “triangulation” will no longer work. He argues we must undertake the same kind of brain rewiring used by the Tea Party.
Carl Jung was a follower of Sigmund Freud. Freud developed the idea that we have a subconscious mind in addition to our conscious mind. He was a doctor and his focus was on methods of treating patients with particular mental problems.
Jung was also a doctor and he used Freud’s techniques but, in addition, he postulated an unconscious mind in addition to Freud’s bi cameral theory. Jung believed this unconscious mind was the repository of the collective consciousness of the billions of human beings who inhabited our planet after separating themselves from other species in the evolutionary process. He based this thesis on a painstaking and wide ranging study of myths and folktales which were part of primitive cultures. He found commonality among these myths and folktales in primitive cultures regardless of whether there had been any contact or interaction between them.
He therefore postulated a medium of communication between primitive cultures other than physical contact. He theorized the existence of a collective unconscious. According to Jung, this collective unconscious was populated with what he called archetypes. He identified personas like “The Wise Old Man”; “The Sage” , “The Wizard” et al.. There is a book called The Red Bookˆ that lists and describes many of these archetypes. Jung believed our brains contain this collective history in our unconscious and that its presence affects the framework of our perceptions of reality.
Marshall McLuhan was a Canadian writer who wrote a series of books in the 1960’s and 70″s about the way the form of communication affects the thinking patterns of its viewer or user. One of his books, The Gutenburg Galaxy, analyzed the way the printing press changed the way people thought . His insight was that receiving information in a totally controlled medium, like a book, by reading, line by line, from one side of the page to the other, was a fundamentally different experience from receiving information visually, like a picture or spoken or sung words or songs. His books were written as television was beginning to dominate public forms of information.
As I read and thought about McLuhan’s ideas, I concluded that, by switching from print to TV and, later, to digital pictures on iPhones, iPads and other forms of computers, we were returning to the culture and mores of civilization that existed for millions of years before the advent of the printing press. During that time, and later for much of the world’s inhabitants who did not have access to TV or computers, the campfire, the cave, the tavern , the church or the meeting house, tent or tepee served as the TV and the internet consisted of myths and stories recounted and repeated, from generation to generation in social gatherings.
As McLuhan explained, this reversion from print to picture changed the reception of information from an individual, rational experience to a mass emotionally experienced reaction to broadcast and telecast performances. He predicted, and subsequent evens have affirmed, this change has enabled demagogues and skilled manipulators to evoke fear and emotions that threaten the Constitutional democracy we enjoy. The truth, to return to the theme of this essay, is no longer a matter of rational thought and reason. The truth has become the consensus of brain sponges. trained through repetitive exposure to visual and oral stimuli, to react emotionally; not individually after rational contemplation.
We are back to ancient Rome when tyrants ruled with bread and circuses. Our bread is the false promise of prosperity and our circus is our television set. Orwell’s 1984 has creeped into our lives, quietly, wrapped in the veneer of entertainment, and bastardized our language, captured our politics and disempowered our ability to resist.
To summarize this effort: Our beliefs, attitudes, conceptions of morality – the qualities that fashion who we are – do not result from our acceptance or rejection of some specific rules and perceptions of the truth. It seems to me that what is true at any given time depends on the context of technological and institutional forces that affect the nature of our culture. As I contemplate the history of these forces and the significance of the changes in the way culture perceives truth, I am unable to discern or imagine any meaningful system of timeless truths unaffected by those changes.
Is there a timeless truth that murder is wrong? In our system, the answer is “Yes” unless it is done in self-defense; not self=defense in reality, but self-defense as perceived by the killer. And unless it is done by an armed peace officer; not only if the victim was doing anything illegal; but if the officer thought the victim was doing, or was about to, or was running or walking away from, having done something illegal, provided the illegal act was one classified as sufficiently serious to warrant deadly force, or if the officer thought it was that kind of illegal act; or was nor responding to the officers’s command to stop or was a threat to the safety of the officer.or was perceived by the officer to be a threat to his safety . . . . I have not exhausted this subject but I hope my reader can understand that, to me, it is nonsense to say that an immutable truth is that murder is wrong. This Byzantine thicket of nuance and exceptions is only true in our system of justice Every country has its own rules and, without being sure, I have every reason to believe the justice systems of other countries are at least as complex as ours.
I cannot see that searching for and identifying universal timeless truths is likely to benefit anyone except those like, Mr. Justice Taney, who are arrogant enough to believe that their beliefs are coincidentally and miraculously coterminous with Natural Law and absolute truth.
October 18, 2015 § 1 Comment
Unarmed Victims of Police Violence: The Constitution and Our Criminal Justice System
This week we learned of two new episodes relevant to the present national conversation about our criminal justice system and, especially, the nature of the relationship between citizens and police. Both episodes are evidence that fundamental changes are necessary, not only in our laws,but also in our cultural attitude toward this subject.
A Polceman Shoots A Child Armed With a Toy Gun
In Cleveland, Ohio, a police officer shot and killed a 12-year-old boy playing with a toy gun in a public park. The officer responded to a 911 call from a person who reported a person brandishing what appeared to be a gun. The caller stated that the “gunman” appeared to be a juvenile and that the gun might be a toy. This information was not conveyed to the police officer. The officer drove to the park, claimed he saw the child make a “move toward his waistband” and opened fire. As shown by the camera that recorded the incident, the shots came 2 seconds after the police car arrived at the scene, obviously not enough time for the officer to do more than aim his pistol at the kid.
The Cleveland police department launched an investigation into the event. The investigation, for reasons neither apparent nor disclosed, went on for eleven months. Yesterday, reports written by two men described by the District Attorney as “experts”, were released. Both concluded the officer was justified in shooting the child. Both “experts” had expressed their opinions earlier during interviews after the shooting. Both had defended the officer’s conduct and judgment. The District Attorney said both reports would be presented to the grand jury considering whether or not to indict the officer for wrongfully killing the child.
The District Attorney insisted that he would neither approve nor disapprove the conclusions reached in the reports. The parents of the child have asked that a special prosecutor be appointed to handle the grand jury presentation of the case.
Here is a link to an ABC News account of the shooting: http://abcnews.go.com/US/cleveland-cops-recklessly-shot-boy-12-toy-gun/story?id=27402837
Eaton County Michigan Deputy Sheriff Tasers and Shoots 7 Bullets Into Unarmed 17-year-old Boy After Stopping Him For Flashing Headlights At Oncoming Car
On June 17, 2015, Deputy Sheriff Jonathon Frost stopped Deven Guilford, a teenage boy, for flashing his car’s headlights at the Deputy’s oncoming car because the Deputy car’s headlights were unusually bright. This, according to one (disputed) interpretation of a local ordinance, was a traffic violation for which a ticket could be issued. The boy did not have his drivers’ license with him. Instead of admitting that he didn’t have his license with him, the boy argued with the officer and refused to comply with his instructions. After repeatedly ordering the boy to comply, the officer told him to get out of his car. The boy at first refused, but finally got out of the car. The officer ordered him to lie down on the ground and he did so, but tried to make a phone call on his mobil phone instead of putting his hands behind his back. The officer grabbed the phone and kicked it away. The boy objected and appears to have gotten to his feet, at which point, the deputy tasered him. [There seems to be some dispute about the tasering. One account is that the taser did not actually work.] A scuffle ensued and the officer was struck by the boy multiple times and sustained minor cuts and bruises to his face. The officer drew his pistol and shot the boy seven times, killing him.
The County Prosecutor declined to file any charges against the officer and returned him to active duty.
Here is a link to one account of the incident: http://www.copblock.org/129681/mi-cop-kills-unarmed-teen-during-traffic-stop-for-flashing-lights-no-charges/
Here is a link to several pictures of the officer’s bruised face: http://interactives.wlns.com/photomojo/gallery/20157/361569/officer-frost-injuries/officer-frost-injuries-march-1/
Criminal Justice In America: The Constitution, The Cops and Our Culture
The proper beginning point in this or any discussion about the boundary between individual liberty and government power is the Bill of Rights.
The Sixth Amendment of the U.S. Constitution states:
“Article the sixth… The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” [emphasis added]
The Civil War settled the boundary lines limiting the sovereignty of states to abuse or violate the right of citizens. It did so by adding amendments to to the Constitution, among them, the Fourteenth Amendment:
Passed by Congress June 13, 1866. Ratified July 9,
All born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [emphasis added]
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When Does a Law Enforcement Officer Have a Right to Kill?
In Tennessee v. Garner, a Supreme Court decision rendered in 1968, the Court stated the limits on a police officer’s right to kill a person. That case involved a fifteen-year-old child who had stollen $10 from a home. When the policeman arrived, the woman who lived there was outside complaining about the theft. The boy was on the porch and, disregarding the officer’s shout to stop, began running away. As he started to climb over a fence and escape, the officer shot and killed him. The officer acknowledged that he did not believe the boy was armed, but defended his decision to kill him as the only means of apprehending him.
The Supreme Court ruled that the interest in making an arrest when there was no apparent risk that the suspect posed a risk of killing either the officer or anyone else was not reasonable and, therefore, violated the 5th and 14th Amendments to the Constitution. Tennessee had a law that authorized the use of deadly force to effect an arrest when the suspect was thought to be guilty of a felony. The Court held that law to be unconstitutional.
Here is the essence of the Court’s reasoning:
“The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.”
The key thing to understand, based on this ruling is: The question is NOT what the officer THOUGHT or BELIEVED when he pulled the trigger. The issue is what a reasonably prudent adult policeman would have thought and how a reasonably prudent policeman would have behaved. In the Tennessee case, the officer thought, based on the Tennessee law, that he was entitled to kill the boy. The Court ruled that he was mistaken and that he had violated the Constitutional rights of the boy.
How These Ideas Should Shape the Analysis of the Two Killings of Unarmed Boys
The Twelve-Year-Old With a Toy Gun
It seems to me that a “reasonably prudent man” would have chosen more than a 2-second reflection before deciding that the scene in the Cleveland park required that he kill someone. If he wanted to be “prudent” perhaps he should have stopped the patrol car far enough away to observe, safely and carefully, what was happening there before parking close enough to be in danger. He was warned that a person in the park had a weapon. He heard no shots being fired and had no reason to believe anyone was in danger. Why didn’t he take some precaution against placing himself in a position where he might have to kill somebody? Finally, if he was close enough to see, as he claimed, during those crucial two seconds, that the boy was “reaching for his waistband” in a threatening way, how did it not escape his notice that the “gunman” was twelve years old? I don’t suggest that cops need to be adept at guessing the age of children but, unless this kid was a very unusual boy with some sort of glandular disorder, he surely had not reached the size and appearance of an adult.
Surely the officer knew that it was not unusual for young boys to play with toy guns. The problem is that the Cleveland officer took no time to discover anything about the boy or the relevant circumstances. He just pulled his car up, aimed and fired, with no more care or deliberation than he would have used to deal with a rabid dog. There was no indication that he regarded the event with the seriousness that taking the life of a child deserved.
I know the standard response to these complaints: “You weren’t there. You can’t know what was in the officer’s mind. He says he was scared and who are we to say otherwise?”
I think that idea is unacceptable for several reasons. First, it makes every police officer immune from prosecution for murder. All they have to say is, “I thought I was in danger of being killed.” “Bingo! You can go!” “If you say so, that’s good enough for me!”
Our law does not afford police officers that kind of blanket immunity. The test is NOT what Officer trigger-happy or Officer panic-button thought. It’s what a “reasonably prudent adult who chose to become a police officer and subject himself to dangerous situations and was properly trained to react to them with mature judgment and appropriate concern for the Bill of Rights would have thought under all the circumstances.” THAT’S THE TEST.
Second, it adds a death penalty offense to our criminal justice system. Scaring a police officer warrants a death penalty without any appeal and without the involvement of any judge or jury. That may not bother middle-aged white folks who lead uneventful lives. It is, however, an issue that threatens the stability and security of a large swath of citizens in our country.
The Death Penalty Headlight Violation
Finally we come to Deputy Johnathan Frost’s escalation of a traffic stop for a headlight ordinance violation to a violent confrontation with a teenage boy. After dragging the boy out of his car, wrestling him to the ground and kicking his cell phone out of his hand, Deputy Frost engaged in a fistfight which left him with some cuts and bruises. Despite those wounds, the Deputy won the fight by using a taser and a pistol to kill the boy with seven shots fired at close range.
The cuts and bruises proved to be a lucky break for the Deputy because they apparently convinced law enforcement agents of Eaton County Michigan that they fully justified his killing of the unarmed boy. No charges were filed; no grand jury action was considered and the Deputy wasn’t even temporarily suspended from performing his role as as a respected Michigan peace officer. Everybody expressed regret about the “tragedy” but nobody thought Deputy Frost bore any blame for it. In Eaton County, it’s not safe to say “No” to a Deputy Sheriff.
Except for its final 10 or 15 seconds, this episode is fully recorded on camera. The Deputy demands a drivers’ license from the boy. The boy refuses. The demand and the refusal are repeated seven times. Finally the boy admits that he does not have his drivers’ license with him. The Deputy then orders him out of the car to be arrested. The boy resists and continues to argue with the Deputy. The Deputy gets him out of the car and lying prone on the ground. Then the picture blurs, but we can see the boy’s cell phone skidding away from him on the pavement. We can hear him moaning and he rises from the ground. Then we hear a series of shots fired. The boy is dead.
In my opinion the Deputy caused and provoked this outcome with some very bad judgment calls. When the boy confessed that he did not have his license with him, the Deputy could have stopped to think: “I now have a right to handcuff this kid, take him to jail and, maybe get charged with resisting an officer, a felony. But, should I do it? After all, his offense is flashing his headlights at me, not exactly a serious matter. Why should I try to do something that might wreck his young life because he is arguing with me? I’m an adult. He obviously doesn’t have the maturity or judgment to understand the possible serious consequences of how he’s acting. Should I take advantage of his bad judgment or should I use my own good judgment? He is not a threat to me or to anyone. It was understandable for him to flash his headlights. I’ve already ticketed two other motorists for the same thing. The new headlights on this patrol car are unusually bright, even on low-beam.”
“After thinking it over, I’ll use the license plates on his car to identify his parents. I’ll call them, maybe go by and talk to his dad. Tell them to protect their son by giving him some stern advice about arguing with cops who carry firearms. That’s what I would hope a cop would do with a child of mine. So what if I forego a chance to make an arrest. That’s not what I’m hired to do. I’m hired to enforce the law with judgment and common sense, not to gratuitously injure kids who make mistakes.”
If Deputy Frost had reacted this way, the boy would be alive, Frost would not have gotten bruised and some grateful parents would have appreciated a law enforcement officer going out of his way to help them raise a son.
I think the above alternative behavior is what a reasonably prudent adult peace officer would have done. Even if this expects too much from Deputy Frost, the question still remains: Why was it necessary for him to kill an unarmed teenage boy? Did he really believe that the kid was going to beat him to death? Was he completely helpless to defend himself?
He claims he was afraid that the boy would get his pistol and kill him with it. How likely is that? Merely because it is theoretically possible does not mean that he was reasonable to expect it to happen. After all, Deputy Frost was not disabled. If he thought he could not handle the boy, he could have retreated instead of drawing his pistol and firing seven bullets into the boy. Is there some unwritten but cast iron rule that cops must never retreat? If so, maybe it should be revised. The notion that a peace officer must, at all times and regardless of the measures required, be in control of everyone in his purview, is a stupid and dangerous rule. It is unfair to law enforcement officers and dangerous to innocent citizens. It does not appear in the Constitution. Only in the movies are cops expected to be invulnerable and invincible.
Deputy Frost made the exact mistake that the officer in Tennessee v. Garner made: Acting as if he had unlimited authority to arrest Devin Guilford, even it required him to kill him. The Supreme Court ruled otherwise almost fifty years ago. Instead of pulling his pistol and pumping seven bullets into the boy, Deputy Frost should have backed off and let him go. The death penalty was not appropriate for a headlight violation.
I am not naive. After over 50 years of trial practice as a lawyer in Texas I have no illusions about the contempt with which my above-stated ideas would be met by law enforcement agencies and their supporters. I am convinced, nevertheless, that, unless police are trained and taught to be helpers peacemakers, and facilitators instead of armed and dangerous bullies, we will continue to have the needless killings and hostility toward police that are now like a plague in our country.
Here is the tough part: The initiative must come from the police. It will not come from their victims, mostly black and brown. The key is establishing trust. Trust is necessary before fear can be replaced with cooperation. When armed police now confront black and brown citizens, they do so with acute awareness of the hatred and distrust that results from 300 years of abuse, discrimination and brutality. That history is stitched into the fabric of our culture and it can be erased only by demonstrable changes in the behavior and ethos of our law enforcement community.
It expects too much to require the peacemaking and trust from the victims. The trust and acceptance must be earned by the creation of a new history of fairness and willingness to abandon the “cops are always right” mentality. Changes will not come without costs. Some innocent officers will pay a price for hesitating before resorting to lethal force. I mourn in advance those costs just as I am repelled by the senseless killings chronicled here. But the reward for building trust and confidence in our law enforcement agents will be a reduction in crime and a more peaceable community, priceless goals.
Finally, and here again, I know how politically un-correct this is: The only way to initiate the kind of cultural change I am writing about is to have a few, well publicized convictions of peace officers who behave like the Cleveland officer who gunned down a twelve-year-old and Officer Frost who escalated a confrontation that ended with the bullet-riddled body of a teenager. That, more than anything else, will motivate law enforcement agencies to change their attitudes and practices. Nothing changes when there are no consequences for leaving things as they are.
I dream of a nobel effort. It will require brave leadership and wisdom. It is possible if well intentioned intelligent and courageous men and women are determined and steadfast.