Monthly Archives: April 2021

And the Winner Is…

 

Ten days have passed since former Minneapolis police officer Derek Chauvin was found guilty on three counts of murder and manslaughter in the death of George Floyd.  The commentary since the verdict has focused on three things.  First, whether justice was served.  Second, whether this is a single moment in time or evidence Martin Luther King, Jr. was correct when he said, “The arc of the moral universe is long, but it bends toward justice.”  And third, whether testimony of senior leadership in the Minneapolis police department against Chauvin now gives the overwhelming majority of decent, dedicated law enforcement officers new license to speak out when one of their own acts outside the law, department policy or their training.

Let’s be honest.  Yes, the Floyd family called for peaceful protests and told those who looted and set fires they dishonored Floyd’s memory.  But the atmosphere surrounding mass assemblies of justifiably angry and frustrated individuals creates an environment in which violence and destruction, though not inevitable, becomes more likely.  Sometimes it is simply the result of those participating in peaceful dissent being caught up in the moment.  In any protest, the fuel is there.  And all it takes is one stupid act by one individual to produce the spark.

In other instances, the perpetrators are opportunists who see a Black Lives Matter protest as a façade to commit crimes with little or no interest in the underlying reason for a demonstration.  It is the street version of “any excuse for a party,” except the “celebration” ends in property destruction and injury instead of hangovers and random accumulations of vomit.

However, the lasting impact of the Chauvin verdict may have less to do with justice for George Floyd than it has on responses to subsequent instances where the use of excessive and deadly force is at issue.  One need look no further than the six fatal shootings by police within 24 hours of the Chauvin verdict, five of which involved persons of color.  Each involves very different situations and needs to be looked at separately.  Even in the case of Andrew Brown, Jr., where reluctance by Elizabeth City, North Carolina officials to share the unredacted body cam video with the public, much less with the Brown family, there have been protests without the attendant violence or destruction associated with previous marches.

All of which leads me to the conclusion the single most significant winner in the debate over police reform and criminal justice is…PATIENCE.  Remember,  George Floyd died on Memorial Day 2020.  It took almost 11 months before Derek Chauvin was lead out of the courtroom in handcuffs.  In the aftermath of Floyd’s murder, the looting and property destruction took place simultaneously with the first protest marches immediately after the release of Darnella Frazier’s video.

Consider the difference between May 2020 and today.  Last year, the debate on how to stem social unrest was reactive, centering on the appropriate level of deployment of more law enforcement and the national guard.  “Law and order” advocates on the right wanted us to believe protesters and rioters were one and the same.  These issues have not been necessary the past ten days despite the continued instances of fatal police shootings.

Why?  Maybe the root cause of the metamorphosis of protests into riots was never about the circumstances of any individual event but a lack of belief in a system of law enforcement and criminal justice.  The Black Lives Matter has sent a powerful message to members of Congress over the past week and a half.  If you really want to curb violent and destructive social unrest, the best way to do that is passage of the George Floyd Justice in Policing Act.  It will reinforce and institutionalize the level playing field that existed in the Hennepin County courtroom during the Chauvin trial.  A playing field on which we are willing to wait because we know the facts and the law can prevail.  The question, as always, “Will they listen?”

POSTSCRIPT

Open letter to House Minority Leader Kevin McCarthy:

Look at the following pictures and please explain why you think there is no difference between the Black Lives Matter movement and the insurrectionists who stormed the U.S. Capitol on January 6th.

Families of Black men slain by police are hopeful for reform | National  News | joplinglobe.comAttorney Ben Crump and families of victims of deadly police force came to the Capitol yesterday to encourage passage of the George Floyd Justice in Policing Act.

Shameful moment in history': Sisters react to insurrection at US Capitol |  Global Sisters ReportInsurrectionists storm the Capitol on January 6th to interrupt certification of the 2020 electoral vote.

It is time for an independent commission to investigate the attack on the Capitol and the underlying causes.  Do not delay its creation by making false equivalencies about the motivation and scope of these very different events.

I anxiously await your response as I lack the patience of the Floyd and Brown families.
Dr. ESP

WD-40 & Duct Tape

 

Long time readers know I am a member of the cult of synchronicity, constantly looking for those connections between two or more seemingly unrelated events.  Sometimes the chasm between the two are decades apart.  Sometimes the venues fall within vastly different arenas.  However, in today’s example, there is little space between time or venue.  Though the subject matter differs, the temporal and geographic circumstances are the same, the current session of the U.S. Supreme Court.

One of the topics which triggered this blog is tied to two cases involving a California law which requires charities to disclose their largest donors (Americans for Prosperty v. Bonta and Thomas More Law Center v. Bonta).  NOTE:  The defendant Rob Bonta is the California attorney general.  The original concern was the state’s failure to protect certain confidential information about donors, a legitimate issue which has since been resolved.

So why would two conservative entities continue to pursue the case and appeal the decision by the U.S. Court of Appeals for the 9th Circuit which upheld the California law.  Because there is an increasingly blurred line between charitable entities, 501(c)(3) under the tax code, and political organizations, 501(c)(4).  Take one of the plaintiffs, Americans for Prosperity, as an example.  This 501(c)(4) entity was created by the Koch brothers and has been a major player in supporting Republican candidates at all levels of government, influencing supreme court appointments and championing conservative causes. Under current federal law, it is not required to report its major donors.

During Monday’s hearing, questioning by conservative justices suggested they see the California law as a slippery slope which could violate a donor’s right to free speech and freedom of association if the California statute were applied to 501(3)(4) corporations.  Justice Clarence Thomas made this point during oral arguments.

In this era, there seems to be quite a bit of loose accusations about organizations, for example, an organization that had certain views might be accused of being a white supremacist organization or racist or homophobic, something like that, and, as a result, become quite controversial.

In his latest attempt at false equivalencies, Justice Thomas skips over the fact the last time the Court addressed this issue was its decision in NAACP v. Patterson (1958) when the state of Alabama issued a subpoena for the NAACP’s membership list.  The NAACP argued publication of such information could endanger the safety of those who supported the civil rights movement, including desegregation of public facilities, opposed by the governor, state legislature and the state supreme court.  Keep in mind the case was brought less than three years after Emmett Till was lynched in neighboring Mississippi.

NOTE:  Justice Amy Coney Barrett participated in the oral arguments on Monday despite a request by three Democratic members of Congress she recuse herself since Americans for Prosperity had spent over one million dollars on an ad campaign supporting her confirmation.  To date, she has not responded to their letter of request.

Which brings me to the second case Mahoney Area School District v. B. L., which will be argued this Wednesday.  The case centers on a then 14 year-old student who, upon being passed over for promotion to the varsity cheerleading squad, posted a series of F-bombs on Snapchat directed at her school, the softball program, cheerleading and everything in general.  The rant was posted after school hours while she was at a convenience store.

To make their case, the school district draws on the precedent established in Morse v. Frederick (2007) in which the Court ruled an Alaska high school could prohibit students from holding up a sign which read “Bong Hits 4 Jesus” even thought they were off-campus because it promoted drug use in violation of the school’s anti-drug policy.  (Not to mention, appropriating the Savior’s name to encourage doobie dipping probably struck the school administration  as sacrilegious.) But again, there is a false equivalency.  The occasion on which the students displayed the banner, although off-campus, was a sanctioned school event.  Students were permitted to leave campus during school hours to view the Olympic torch relay on its way to Salt Lake City.  And therefore, the school had the right to oversee whether student behavior under that grant of permission was consistent with on-campus policy.

What do these two cases have in common?  Both beg for common sense solutions, instead of convoluted legal parsing and unsubstantiated speculative impacts.  Remember, ever court decision often provides additional fodder for the next related case.  Of course, none of this will stop me from making convoluted arguments based on legal precedence to prove my point about the need for common sense.

Tinker v. Des Moines (@TinkVsDesMoines) | TwitterLet’s start with the latter case.  The standard by which many student freedom of expression cases have been decided was established in Tinker v. Des Moines Independent School District (1969) which allowed school authorities to regulate speech if it resulted in “substantial disruption.”  In the specifics of that case, the Court ruled punishment for wearing black arm bands protesting the war in Vietnam was unjustified.  No students were threatened and there was no interruption of scheduled classes.

Did the Mahoney School District really thing Brandi Levy (previously identified only as B.L as she was a minor at the time) was causing “substantial disruption” by telling the world how pissed off she was at having to spend another year on the junior varsity cheerleading squad?  Likewise, does Ms. Levi think making this into a federal case serves her well?  Any notoriety, which would have otherwise vanished from Snapchat in 24 hours, is now chronicled in every major newspaper and on-line legal search sites.

While I believe the Court should and will protect her right of expression, any potential employer also has the right to question whether they want to hire someone who reacts to disappointment in such manner.  And forgive me for thinking this story line is more appropriate for a “made for TV movie” than the nation’s highest court.

I also believe the 6-3 conservative court will decide in favor of Americans for Prosperity without making the connection with Citizens United v FEC (2010).  Justice Anthony Kennedy, writing the majority opinion in Citizens United, assumed, with the advent of digital technology, there would be full and instant disclosure of corporate contributions to political campaigns and causes.  He now admits he was wrong on this point.  Common sense tells us, if Americans for Prosperity is spending millions of dollars in support of a candidate or cause, we have a right to know who those “Americans” are.  Is it one or two people with deep pockets claiming to represent the people? Common sense also suggests we have a right to know who underwrote the rally on January 6th sponsored by “Women for America First.”  And who do they actually represent?  NOTE:  The number of newly established 501(c)(4) “social welfare” entities doubled in the year following the Citizens United decision.

In the remake of Gran Torino (2008), Clint Eastwood plays Chief Justice John Roberts who, invoking a Walt Kowalski quote, tells plaintiffs like Americans for Progress and Brandi Levy to quit wasting the court’s time and figure it out themselves.  “Take these three items, some WD-40, a vise grip, and a roll of duct tape.  Any man worth his salt can fix almost any problem with this stuff alone.”

For what it’s worth.
Dr. ESP

 

Me, The People

It was an exceptionally good week in Florida if…

…you do not believe in the First Amendment.
…you think autocracy is better than democracy.
…you believe in situational activism by state supreme court judges.
…and most importantly, if you believe in gross hypocrisy.

The week began with enactment of House Bill 1 which, as described in Thursday’s post “Vladimir DeSantis,” reclassifies certain peaceful protests as riots and increases the penalties for participation in such activities.  I know the First Amendment specifically says, “Congress shall make no law” when it comes to “the right of the people peaceably to assemble,” but as you will see in a moment, the state’s action in this case is just one more example of how the Republican governor, attorney general and state legislature selectively use the supremacy clause in the U.S. Constitution to justify their desired outcomes.

The latest abuse of its authority by the state’s Republican power structure was on full display Thursday when, as reported by Kirby Wilson of the Miami Herald, “A high-profile effort to legalize marijuana was all but killed by the Florida Supreme Court.”  After proponents had raised more than 556,000 of the required 891,589 signatures needed to put the proposed amendment to the state constitution on the November, 2022 ballot, a public referendum seemed within reach.  It would still require 60 percent approval by voters to take effect.

Florida attorney general joins Trump Pennsylvania ballot fight - South Florida Sun-SentinelHowever, a little known provision in state law requires the state attorney general to petition the Florida Supreme Court to advise whether the measure is, among other things, “facially valid under the United States Constitution.”  And that is what Florida Attorney General Ashley Moody did on December 19, 2019, shown here warning state legislators you could still make a doobie “this big” under the proposed 2.5 ounce possession and transport limit.  Though the petition generally met pro forma requirements, i.e. text of proposed amendment, name and address of sponsors, etc., it did contain one misleading statement.  Moody reports the sponsors had not obtained the required signatures as of December 19, 2019 date of her petition; however, she failed to mention that the deadline was actually February 1, 2020.  Recognizing the court’s consideration of the AG’s petition would likely exceed that deadline, the sponsors decided to postpone the vote until the 2022 mid-term election making the deadline for signatures February 1, 2022.

On April 22, 2021, by a 5-2 vote, the justices ordered the amendment initiative be stricken from the 2022 ballot for the following reasons.  First, “the proposed amendment unqualifiedly permits the use (and distribution) of recreational marijuana is affirmatively misleading.”  Second, it violates the Supremacy Clause as marijuana use is still illegal under federal law.

It is hard to accept the term “unqualifiedly permits” when the text includes the following:

The Department (of Health) shall issue reasonable regulations necessary for the implementation and enforcement of this section.

Furthermore, the new section of the Florida Constitution would be titled “Adult Use of Marijuana” defined as some 21 years of age or older.  Does that not count as a qualification? It also limits possession, purchase or transport to 2.5 ounces, prohibits targeted advertising to persons under the age of 21, and prohibits use in public places.  For those who do not understand that these clauses represent limits to recreational use, the section of the proposed amendment which contains these qualifications is titled “(c) Restrictions.”

Only if you ignore the contradiction between “unqualifiedly permits” and the actual text of the proposed amended can anyone come to the conclusion that the proposed summary which would appear on the 2022 ballot is “misleading.”  Decide for yourself.

Permits adults 21 years or older to possess, use, purchase, display, and transport up to 2.5 ounces of marijuana and marijuana accessories for personal use for any reason. Permits Medical Marijuana Treatment Centers to sell, distribute, or dispense marijuana and marijuana accessories if clearly labeled and in childproof packaging to adults. Prohibits advertising or marketing targeted to persons under 21. Prohibits marijuana use in defined public places. Maintains limitations on marijuana use in defined circumstances.

As to the court’s second objection, to understand the hypocrisy of invoking the Supremacy Clause look no further than the existing conflict between Florida’s medical marijuana law and current federal statutes.  The Florida Supreme Count had no problem allowing the 2014 initiative related to medical marijuana to go forward despite the fact the U.S. Supreme Court, in the case of Gonzalez v. Raich (2005), upheld the federal government’s authority to prohibit the use of cannibas for medical purposes consistent with the Controlled Substances Act.

In his dissenting opinion, Justice Charles Alan Lawson (a 2016 Rick Scott appointee) notes “the majority’s reasoning and conclusion are logically irreconcilable with this Court’s precedent.”  He too points to the 2014 advisory opinion related to medical use of marijuana in which the majority brushed aside any potential conflict with federal law, stating:

This Court has . . . never required that a ballot summary inform voters as to the current state of federal law [or] the impact of a proposed state constitutional amendment on federal statutory law . . . .

However, this narrow example of hypocrisy by the state supreme court is nothing compared to that of the governing philosophy of Governor Ron DeSantis and his administration.  That same Ron DeSantis who has built a national following on the premise citizens have a right to decide for themselves if they should or should not wear a mask in public or should be required to show evidence of COVID vaccination.  That same Ron DeSantis who signed legislation that now allows citizens to petition the government only in such manner as prescribed by the state under threat of imprisonment or being charged with a felony.  Which of course is something that actually violates the Supremacy Clause which prohibits state and local authorities to limit rights guaranteed under federal law.

When the process of deciding public policy can be controlled by such a limited number of individuals, maybe the next proposed amendment should focus on the preamble of the Florida constitution and change the phrase, “We, the people of the State of Florida” to “Me, the people…”  If you are going to borrow language from the U.S. Constitution, perhaps you should consider governing by the same principles.

EPILOGUE

None of the above legal analysis addresses the question, “What could possibly be the motivation for such twisted logic?”  Many political consultants and pundits, myself included, have wondered why the Democratic Party has not taken a page out of the GOP campaign playbook when it comes to using the initiative process to gin up the party base.  Analysis of several federal and state elections show Republican turnout was bolstered by ballot initiatives on issues of high importance to their voters such as anti-immigration and sanctity of marriage propositions.  I have long argued Democrats could boost turnout among younger voters, who heavily support Democratic and progressive candidates, by championing two issues: legalization of marijuana and net neutrality.

Based on the 2018 mid-term election, we know how important turnout can be in congressional and gubernatorial races.  In Florida, a half percent difference would have led to a different outcome.  Certainly, increased younger voter participation in 2022 can make up that deficit in Democratic support.  Therefore, is it any surprise a Republican dominated Florida Supreme Court with backing from a Republican attorney general, Republican members of the state legislature and the conservative Florida Chamber of Commerce chose this issue as the “red line” to invoke the supremacy clause of the U.S. Constitution?  Especially since 16 states have done exactly what the Florida amendment would allow, and none have been taken to court by the past three presidents or reprimanded by the U.S. Supreme Court.  Can you say implicit voter suppression?  I knew you could.

I at least take comfort in the availability of medical marijuana in Florida, as I am sorely in need of a doctor’s prescribed relief for my growing angst over the erosion of democracy in the Sunshine State.

For what it’s worth.
Dr. ESP

 

Vladimir DeSantis

 

Irony, thy name is Florida.

DeSantis signs 'anti-riot' bill into lawOn Monday, Florida governor Ron DeSantis signed H.B. 1, an act “relating to combating public disorder.”  The bill passed on strictly partisan votes by Republicans in both the House and Senate with the exception of one GOP senator who voted with Democrats opposing the measure.   It contains the following provisions which fly in the face of supposedly traditional GOP governing principles.

  • Defines riot “as an assembly of three or or more persons, acting with a common intent to assist each other in violent or disorderly conduct” (you can kiss the First Amendment goodbye).
  • Creates the second-degree felony of “aggravated rioting” if more than 25 participants cause bodily harm or $5,000 in property damage or use a deadly weapon (good thing for Oath Keepers and Proud Boys the U.S. Capitol is not in the Sunshine State).
  • Disorderly conduct includes “imminent” danger of injury or property damage (otherwise known as the “psychic full-employment clause”).
  • Limits the ability of local governments to reduce the operating budgets of municipal law enforcement agencies (so much for decentralized decision-making).
  • Prohibition of obstructing traffic by standing on a street, highway or road (of course it does not apply to obstructing traffic on waterways a la pro-Trump regattas).
  • Calls for imprisonment without bail until arraignment of anyone arrested for participating in a riot (unlike Kyle Rittenhouse who was allowed to go home after fatally shooting two people with an illegally obtained assault weapon).

These are just the highlights.  And how does DeSantis characterize these 61 pages of big government oversight?

If you look at the breadth of this particular piece of legislation, it is the strongest anti-rioting, pro-law enforcement piece of legislation in the country.  There’s just nothing even close.

Now those are words from a man of conviction.  Except of course when it does not fit his narrative of us versus them.  During a Monday appearance on Fox News’ Ingraham Angle, Florida’s tough-talking strongman suggested jurors in the Derek Chauvin trial convicted the ex-police officer because “you basically have justice meted out because the jury is scared of what a mob might do.”  Just so I understand this correctly, three people standing on Duval Street in front of the Florida Supreme Court with a sign that says “H.B. 1 is unconstitutional” is a riot, but four police officers killing an individual at the intersection of 38th Street and Chicago Avenue in Minneapolis is not.

You want more irony? On March 2, 2021, during his state of the state address, DeSantis took umbrage against those who he claimed were promoting the “cancel culture” and “political correctness.”

Florida has always been a state that strongly supports free speech, and we cannot allow the contours of acceptable speech to be adjudicated by the whims of oligarchs in Silicon Valley.

I cannot wait for the remake of Blazing Saddles, when DeSantis is cast in the role of Governor Lepetomane (Mel Brooks in the 1974 original) and declares, “We can’t allow oligarchs in Silicon Valley to control speech.  That’s our phony-baloney job.”

What could possibly go wrong?  Look no further than this morning’s headlines.  For example,  Reuters reports, “Russia arrests over 1,700 at rallies for hunger-striking Navalny.”  Or as DeSantis and his legislative “red guard” would describe it, “Russia jails over 1,700 without bail for riots that blocked traffic.”

The day before the Navalny protest, Russian President Vladimir Putin addressed the Federalist Council in a nationally televised speech which sounded a awful lot like DeSantis’ justification for Florida’s anti-riot law.  Putin dared anyone to challenge his handling of Alexei Navalny.

Organizers of any provocations that threaten our core security interests will regret what they have done like they’ve never regretted anything for a long time.

Putin might as well have ended by saying, “You know, like my comrade-in-arms and future president of the United States Ron DeSantis.  But in Russia, we don’t need no stinking H.B. 1.”

As he leaves the podium, Putin passes Konstantin Kilimnik, hands him a manila envelope, and says, “Konstantin, I have your next assignment, should you decide to accept it (like you have a choice, haha).  As always, should you or any of your SVR team be caught or killed, I will disavow all knowledge of your actions.”  (Mission Impossible theme plays as Kilimnik reads the contents of the envelope before it self-destructs.)

For what it’s worth.
Dr. ESP

 

A Brush with Greatness

 

Among the things I miss about David Letterman is the pre-guest segment when he would let audience members share what he called “brush with greatness,” an occasion on which they rubbed elbows with the famous and infamous.  I have been fortunate throughout my lifetime to have had many such opportunities with the famous and infamous ranging from actor John Astin to President Bill Clinton.  For long time readers, you may recall I often use a celebrity’s passing as a chance to take a trip down memory lane, as was the case with Cokie Roberts and Muhammad Ali.

However, my most consequential “brush with greatness” due to its timing was with Vice President Walter Mondale, who died this past Monday at the age of 93.  It was November 4, 1979.

I had  recently defended my doctoral dissertation after seven plus years as a graduate student (but that’s another story).  My parents, who wondered if I would ever complete the degree requirements, sent me a note of congratulations accompanied with a $100 check.  Use this to do something special to celebrate, they urged.

LIZA IN CONCERT (1979) - KANDER & EBBI scoured the leisure section of the Washington Post in search of a special event that fit the occasion when the choice became obvious.  I had been a long time fan of Liza Minelli dating back to her performances in The Sterile Cuckoo, Tell Me That You Love Me Junie Moon and of course Cabaret.  And now she was returning to the DC area where her nightclub career began 14 years earlier at the Shoreham Hotel.  The eight performances of her one-woman show were already a near sell-out when I called the box office.  The only remaining seats were on the box tier Kennedy Center opera house.  I do not remember the exact price of the tickets, but the $100 familial subsidy put it well within my budget.

When my date and I entered our box, we realized we were just two boxes to the right of the presidential box which immediately raised the expectation we would enjoy the evening with Jimmy and Roslyn Carter.  However, to our disappointment, our brush with greatness would be with Walter and Joan Mondale.  Yet,  the political junkie inside of me was determined to make the most of the opportunity.  How could we possibly be this close to the vice-president and not say hello?

At intermission, we watched as the Mondales exited their box.  We did the same, and there they were, standing alone, just the two of them.  Perfect. We would not be interrupting their conversation with friends or more prominent individuals.  We started to move toward the second couple, at which point we were immediately approached by two secret service agents.  Did they really think I brought a date to an assassination and would leave her behind as I jumped into the orchestra seats (the stage was out of reach) proclaiming, “Sic semper tyrannis?”

Fortunately, the confrontation ended quickly when I showed them our tickets, explained we were honored to be here the same night as the Mondales and only wanted to say hello.  The conversation lasted much longer than we expected and was quite congenial.   Fritz, now my new best friend, asked how we were enjoying the show and wished us well as we said goodbye.

Even though we only got the B-Team, the experience was right up there.  More so because the chances were probably higher the secret service would have been less accommodating if it had been the main man.  You take what life gives you.

It was not until the next day we realized the significance of the previous evening.  Just before the Sunday night performance, the White House learned the U.S. embassy in Tehran had been breached by Irani students and numerous Americans had been taken hostage.  Mondale’s attendance at the Kennedy Center was designed to suggest a sense of calm and normalcy within the administration.  And ever loyal to his president, Mondale did not disappoint.  From our close-up vantage point, there was no omen of the impending 444 day drama which would bring down the Carter presidency.

FOOTNOTE:  I only learned the final irony in this narrative on Tuesday when presidential historians recapped the Carter/Mondale years.  The event that triggered the attack on the U.S. embassy was the decision by the Carter White House to give sanctuary to the ailing Shah who had been deposed by the Islamic revolution.  Many in the administration opposed the idea.  The strongest voice in the room turned out to be that of Walter Mondale, who refused to subject a U.S. ally, the Shah, to the mercy of Ayatollah Khomeini and his revolutionary guard.

For what it’s worth.
Dr. ESP