Tag Archives: Legal

A Story – Chapter 6 – It’s Fucking Over

My mind was racing back in time.

I first flashed back on a time when Mike and I were in high school.  We were at a friend’s house.  Jim was showing us his father’s rifle collection.  His father must have had fifteen or so rifles of all different varieties.  All lined up symmetrically on a homemade rifle rack in his basement.

Mike picked up a .30-06, Springfield, bolt action rifle and leveled it directly on my face.  His finger was on the trigger as he laughingly said, “Right between the eyes.  Stearley, I could blow your head clean off.”

I angrily slapped the barrel away and said, “Don’t you ever fucking do that again!”

“Ah, Stearley, calm the fuck down, it’s not loaded.”

Jim chimed in, “Yeah, my dad never keeps his weapons loaded.”

My gaze was bearing down on Mike and he felt the weight of it.

“Here, I’ll show you.”  Mike pulled back the bolt and a cartridge flew out of the chamber.  “Holy shit!  I’m sorry man!”

***

My mind jumped ahead a few years to a time when I was visiting my parents over spring break from college.  My brother Ray was still living with my parents and he had his girlfriend Carly over.  Ray and Carly had gotten into some argument.  I have no idea what it was about, but the yelling from the living room had woken me from a nap.  I came out of the upstairs bedroom and hollered down at them to knock it off.  I was trying to get a little peace.

Carly suddenly stormed up the stairs, ran into my brother’s room opposite of the bedroom I was in, and grabbed Ray’s .44 Mag deer rifle.  She was chambering a round as she brought the gun up and pointed it squarely at the center of my chest.   She was only a half dozen feet away and she was yelling at me, calling me a “perverted asshole.”

Ray hit the top of the stairs in a bound and aggressively disarmed her.

I was simply stunned as this reaction came out of nowhere.  Later Ray would tell me she was insane, had been locked up in the mental ward before, and that he only saw her because he liked the sex.

Jesus.

***

Back in the present.

This was the third time a loaded weapon in someone else’s hands was pointing at me.  This time at my back.  And I didn’t much like it . . .

***

Continue reading A Story – Chapter 6 – It’s Fucking Over

Winter Solstice

It’s that time of year.  Gray skies.  Light-time fades.  Contracting days.  A barren landscape.

It’s the first day of winter.  The season of dying, or the twilight of life as people sometimes analogize.

For me, it’s an appropriate time to end a cycle.  The death of a lifetime within a lifetime.

Continue reading Winter Solstice

Framers, Federalists, and the Reality of the Administrative State

The Framers of the Constitution wanted to avoid the problems of the governments they were all running away from in Europe, so while they wanted a centralized government for certain functions, like taxation, printing a common currency and conducting wars, they also wanted less power in that centralized government to prevent abuses and more power vested in the individual states who theoretically would better be able to determine their specific jurisdictional policies and priorities.

They also wanted to form a Union, and concessions were required to get all of the states on board.

Of course, terminology in law is often stood on its head and “Federalism” has become one of those terms.  Federalism, generically speaks to the relationships between the federal and state governments and the original “Federalists” wanted some form of centralized government as opposed to those who did not.  But the term does not mean more “Federalization” of government, it means less.

The philosophy of the Federalist Society today advocates for a very limited federal government, for a strict constructionist view of the Constitution, and for strong adherence to the separation of powers doctrine.  That doesn’t sound so bad.

Except, “strict construction” and “strong adherence” are just as susceptible to legislative and executive manipulation and to judicial activism as is applying the “spirit” of the Constitution.  And laws and social policy are shaped and changed just the same by “textualists” as they are by “living documentalists.”

It is all a fight over words, definitions, and semantics, and it’s all highly partisan and politicized regardless of any faction claiming otherwise.

And, the reason I bring this up is because how this all intertwines with what has become the modern “Administrative State,” and the massive amount of power being wielded by federal and state agencies that weren’t created in the Constitution.  This seems not to have been contemplated by the Founders and certainly seems opposed to what modern-day Federalists all talk about.  So how did this come to be?

And again, standing language on its head we have the “Non-Delegation” doctrine flowing from Article I and the Separation of Powers doctrine.  So we have three branches of government that are supposed to stay put in their respective arenas, provide checks and balances, and not run around giving their authority away to the other branches or interfering with the authority of the other branches.

For example, Congress can’t pass a law that would allow the executive branch to pass legislation – they can’t delegate that authority away.  But the Non-Delegation doctrine has been stood on its head and has become a means of defining the opposite.  It is used to define just what authority Congress can delegate away and who gets to control that authority.

And while Congress largely gives away authority to the executive branch, it will at times, muck around with the authority of the courts by tinkering with structure and jurisdiction, and by dangling the power of the purse over the heads of the judiciary when they get upset over an unconstitutional law being struck down.

Turns out, the Constitution, over time, probably to the chagrin of the Federalists, has been interpreted to allow Congress to create executive branch level agencies.  They create agencies with what we refer to as “Organic” or “Enabling” statutes and while the agencies’ powers are limited by these statutes, Congress gave agencies a little boost by allowing them to promulgate “rules.”  And, gee whiz, rules, if properly promulgated, have the same force and effect as statutes.  Lawmaking.

When you think about it, Congress expanded the executive branch big time.  They created much more of it than the Constitution originally did and much more of it than people probably like.  And, then they delegated away some of their legislative power to the executive branch (rule-making), but we call this quasi-legislative authority.  And what the Legislature (Big “L”) giveth, it can taketh away.  Although changes may be slow.

This is true at both the Federal and State level and we have Administrative Procedures Acts at both levels to give agencies some guidance and fill in the gaps in the agency-specific Organic statutes.  And these procedures allow agencies to intrude into the Judicial branch too!  They give agencies quasi-judicial powers to hear and decide contested cases, subject to judicial review of course.

And guess what, since the executive branch enforces the law and agencies are by nature regulatory bodies, we naturally have executive prosecutorial functions as well.  So agencies can make the law, prosecute under that law, and convict you (so to speak) under that law, all under one roof.

Agencies do a little more than licensing and maintaining files of annual reports.

Of course, the legislature generally did not delegate any authority to agencies to run around imprisoning people as punishment for any types of violations, so once the agency “convicts” you, the only penalties agencies can implement have to be found in the statutes themselves or you have to go to court for yet another judicial proceeding.  The Sixth Amendment is still alive, for the moment.

Federal and State legislatures can’t be experts in everything and there is so, so much to regulate that we have evolved into a “Administrative State” that has multiple layers of regulation that come from authority delegated out to the Executive Branch by Congress or by State Legislatures.  And the executive agencies’ regulations and decisions are given considerable deference by the Courts because the agencies are the “experts” in their respective fields.

So while many people focus on the acts of the legislature, which is a good thing to do, they should also pay close attention to what’s happening at the state and federal agencies, because there is much more law and social policy setting going on there that has a much more immediate impact on the populous.  You can look at current environmental policies for example.

There, I just kind of laid out the framework for how agencies evolved.  I’m not trying to address how different administrations have used the agencies to implement particular agendas or the merits of specific agendas.  At least not today 🙂

***

Photo:  My pocket Constitution.  These things are good little tools to have and it might be wise to read the Document once and a while.  The Constitution is actually pretty short.  And pretty amazingly well done.  The development of the Administrative State has shifted major powers to the executive branch, and that is partly why administrations do receive so much attention – because of the dramatic effect they can have on people’s day-to-day lives.

BTW: On a personal note.  Federal and state agencies have administrative law judges to preside over the quasi-judicial functions and trials at the agencies.  For part of my legal career I was a state Regulatory Law Judge.

About a year and a half ago, I applied to make the registry of qualified applicants for Federal Administrative Law Judges.  My understanding is they get 12,000 applicants when they open the registry, which is only opened about once every five years.  And they whittle that number down to 200 with an objective examination process.

They have been doing this since 1920 to ensure they get qualified applicants and to minimize the politicization of the process.

The competitive application process consisted of a series of examinations conducted by the Office of Personnel Management (OPM).  I made the list, scoring in that top 1.67% of the applicants 🙂 !! This didn’t guarantee me a position, but I could have been selected when there was a vacancy, subject to another interview process.

I recently received an email from the OPM informing me that our president, by executive order, terminated the competitive application process and eliminated the list of qualified applicants, thus doing what no other president has done since the registry’s creation and injecting politics into the selection process.  Selection by one, with no standard for qualifications.

Kind of sad, because the checks and balances set up by the Framers, and even those originally put in place by the independent branches, have been slowly getting whittled away, bit by bit . . .

 

 

All Lives Matter

Does anyone see anything wrong with this title?  I mean sure, we can add other value judgments and say maybe that criminals’ lives don’t matter, as much.  Or perhaps terrorists?  Surely their lives don’t matter, as much – compared to those doing good in the world.  But those are relative comparisons and still don’t affect the overall message.

If you believe in the sanctity of life or truly practice any form of religion, then it is hard to get away from this statement.  And I would expand it beyond the limitation of only human lives and say this applies to all life – humans, animals, plants, etc.

A strange thing happened, which is why I brought this up today.  This phrase was used as an accusation that I was diluting a conversation because I put forth the implied notion that all lives matter when that person believed the subject had to be restricted to only women in certain situations, specifically health care treatment.

So how did we get from point A to point Z?  Good question.

You see, it’s like this.  An article was posted on a social media platform that can be summed up in its opening sentence: “Every year, thousands of women suffer life-altering injuries or die during childbirth because hospitals and medical workers skip safety practices known to head off disaster . . .”  I’ve no doubt this is true, and bad medical practice has not only been a topic of many articles I’ve gotten published, but it is a pet peeve of mine as an RN who was dedicated to providing safe and quality nursing care.

So, I responded with posting links to two other articles.  The first was a general article about the annual number of deaths in America attributed to preventable medical negligence.  We’re talking 200,000 to 400,000 preventable deaths caused by medical negligence each and every year in this country – shocking!

The second was an article about how a medical device company actually pays doctors to get them to use an implantable birth control device that has injured women.  This article was more specifically related to the topic of women receiving bad health care in relation to reproductive care.

So far so good.

Then a woman posted a comment about women receiving inferior medical care and claimed that men would automatically receive better care.  I pointed out that in my 24 years of experience in the medical arena I did not always find this to be true.  I observed, more generally, that people with better insurance receive better care, and I’ve witnessed plenty of men receiving inferior care as well.

The response was that plenty of research studies (none were cited) demonstrated women receive worse care than men and that person did not appreciate me “derailing” the conversation with my “all lives matter” comments.  Humm, let that sink in a little.  I will also note that the original person starting the discussion did not seem to have issues with the topic being broadened a bit.

I responded that I didn’t think I was derailing anything.  Remember, I agree with the posting.  Many women do receive sub-standard health care.  I just added that I was a first-hand witness to people of all sexes, races and ethnicities being treated badly in health care, and in general, health care can be a pretty iffy gamble for everyone.

What’s the deal here?  Was the objection related to trying to label the biggest victim?  Hey look at me, my group is treated worse than yours!  Is this some type of a bragging point?  I don’t know.

What I do know is I switched careers and became an attorney to specifically fight for anyone victimized by bad medical practice.  I advocated for my patients, women and men, when I was a nurse.  And I did the same as an attorney.  In fact, most of the medical malpractice law suits I handled involved women and children clients.  I support and have actually fought for women’s issues.

I’m not interested in labeling and segregating and trying to make claims about who might be the biggest victim of something.  I realize that all people are not treated fairly.  I realize there is real bigotry in this country and it can play out in all sorts of fashions.

I don’t believe, to be politically correct, that anyone should be expected to acknowledge only certain forms of discrimination over others.  I believe all people should be treated equally, and as an RN and compassionate human being, yes, all lives matter.  Sorry, I don’t see that as a deficiency.

***

Photo: I found this photo on the Internet in the public domain.  I traced it back to an online publication called Missouri Blogspot.  I had my own picture of an elk in Missouri, but it was an old photograph from the 70s and was very blurred out in my attempts to upload it to the computer.  The reason I wanted that Elk was it was actually in a fenced wildlife enclosure run by the state.  The week after I took its picture some idiot used the same observation platform I used to photograph it in order to shoot it with a bow and arrow to kill it.  The moron just wanted to kill something apparently and left the body of the defenseless caged animal there.  All lives matter and play their role in the ecosystem.

BTW: I posted this under the topic of health, but I suppose it could go under the topics of society or even politics.  It’s one of those issues that bleeds over into many subject classifications, but since the original discussion came out of a dialog on health care I placed it there 🙂

Your Castle, Your Bubble, and What You Can’t Do to Protect Them

This is not an article about gun control, it’s about controlling yourself with guns.  For as a Louisiana man just found out the hard way, you may think you have the right to fire a weapon at a someone, especially a criminal, but it all depends on the situation . . .

Disclaimer: The information in this article does not, in any way, constitute legal advice.  Everyone should consult their own states’ laws and/or an attorney of their choosing if they wish to obtain an expert legal opinion of the laws in their jurisdiction and how they apply to them.

When I was clerking for a State Supreme Court Justice, in addition to drafting legal memorandum and court opinions, I gave tours of the courthouse along with historical lectures.  Invariably, people on the tours would ask questions about the laws and how they worked, especially the most controversial ones.  Like how judges get elected or appointed, abortion, or guns laws.

As I learned quickly in law school, the law generally does not work the way it is commonly perceived or displayed on TV.  I’m sorry, but you can’t get a legal education by watching Judge Judy.

So, explaining the law is sometimes tricky.  A case in point.  On one of my tours, a man asked a question, or rather he made a statement, that I tried to assist him with.  Basically, he said that since the state was going to allow its citizens to carry concealed weapons that this would immunize anyone with a legal weapon from any form of liability.  And, of course, he was wrong.

But despite my explanation of what the law stated and what it didn’t state, he refused to accept the facts that even if you are justified with using a firearm, that does not give you a license to shoot innocent bystanders if you are negligent or even shoot at criminals if the tables have been turned and you have become the aggressor and not the defender.  There are good reasons for this, because if you own one of these tools you have to use it responsibly.

I will try to summarize these legal precepts based upon my state’s laws as they are written.

Self Defense

With a few exceptions, you are allowed to use physical force against another to the extent reasonably necessary to defend yourself or others from an aggressor if you reasonably believe the aggressor is using, or will imminently use, unlawful force against yourself or those others.  But you can’t use deadly force unless, you believe it is necessary to protect yourself or others from death, serious injury or a forcible felony.

Castle Doctrine

You can use deadly force if it is used against a person who unlawfully enters, or remains after unlawfully entering, or attempts to unlawfully enter a dwelling or residence that you lawfully occupy; provided that it is necessary for self defense as stated above.  “A [person’s] home is their castle.”

Extension of the Castle Doctrine

The Castle Doctrine was extended to vehicles you lawfully occupy.  And extended further to where you can use deadly force in the same circumstances above if you occupy private property where you’ve been given authority to occupy that property.

Stand Your Ground

There used to be a duty to retreat from a situation if you could without engaging in a confrontation, even to protect yourself.  But that duty was eliminated in the following circumstances.  There is no longer a duty to retreat from a dwelling or residence or vehicle or private property or any location where you have a lawful right to be.

Keep in mind, if you are standing your ground, to engage in self-defense using deadly force you must still face an imminent threat of death, serious injury, or be the victim of a forcible felony.

To sum it up, there is a bubble around you and you have the right to protect yourself within that lawfully-occupied bubble without running away, but only if you face an imminent threat.

So back to Louisiana and what you can’t do.  A home invader entered the residence with a gun, stole cell phones and fired the gun at the feet of one of the occupants.  The occupants gained the upper hand, took the gun, and one occupant pistol-whipped the intruder.  The invader broke away and ran to his vehicle.  Note, he is no longer the aggressor and no longer unlawfully inside the home.  One of the occupants then opened fire on the fleeing vehicle striking the would-be robber twice.

That’s where things went awry.  The occupant of the home was not under any imminent threat of physical force being used against him at the time he opened fire.  There was no one else that needed protecting.  The invader had fled and was no longer remaining in the residence after having unlawfully entered it.  There was no longer a forcible felony occurring.

The lawful occupant that wanted to play cowboy ended up being convicted of attempted manslaughter.  Understand, that doesn’t let the invader off the hook.  He will still be tried for his crimes.  But no one is given the license to become a criminal because of another person’s criminal acts.  None of these legal doctrines offer protection from criminal or civil liability unless your situation matches the specific instances where you are legally allowed to use force or deadly force.

If the occupant firing the weapon at the fleeing criminal had negligently hit an innocent bystander, then he would also be subject to a personal injury lawsuit by that bystander.  That would be a civil matter separate and distinct from the criminal matter for which he was tried and convicted.

Yes, we have a right to own firearms and, yes, we have a right to defend ourselves when we are within our lawful bubbles, but those rights are not unlimited and we are not allowed to play cop or vigilante.

I know a lot of people who own guns.  Sometimes that ownership becomes incorporated in their ego.  They imagine themselves to be bigger than they are, stronger, more in control, and powerful.  God-like in their ability to take a life.  And therein lies the problem, it’s not that they have more control over the circumstances surrounding them, they have a greater responsibility to control themselves.

***

Post Script:  I will be writing a piece on the 2nd Amendment before too long.  I had hoped to wait until the frenzy surrounding mass shootings and gun control had subsided, but it appears that, with the continual onslaught of gun violence, waiting for emotions to die down may not be possible.

Post Script # 2: After my post went up yesterday, a friend mentioned to be me she didn’t believe ego was always an issue with gun ownership.  And I agree.  Sometimes people find themselves in situations where they may be caught up in the moment or acting out of passion and not rationally thinking.  Other times a person may be confronted with a would-be perpetrator and that person has to hope they are making the best judgment call in the way they defend themselves because, while they have no desire to hurt another, they do not wish to become a victim either.  Who would?  The possible scenarios are limitless.  This all points to the need for good training and practice.  And the need to learn and understand the lawful uses of such weapons.

Photo: This photo was found on the Internet in the public domain.  A link to it traces back to the Virgin Island Free Press.

Link: Louisiana man convicted of attempted manslaughter for shooting at fleeing home invader.

Note: All links are subject to link rot.

Confirmation Bias – A New Personality Disorder?

Intro:  Yesterday, I read an excellent post by Robert on his blog Seven Spheres, which was on the topic of confirmation bias.  You should check out his blog because there are some really great posts on a whole range of topics about what makes this world tick.  His post reminded me of an article I posted on LinkedIn last year, and I thought I would include it on my blog.  Confirmation bias is something we should all think about, because it affects our judgments and decisions daily and we probably don’t even realize it.  Please read on . . .

***

I recently read an article titled: “Legal Ethics and Confirmation Bias.” The article begins its trek with a brief overview of how the practice of law is governed by its professional rules of conduct, provides a very good definition of “confirmation bias,” and then diverts down the road less traveled attempting to correlate racial discrimination and advancement within the legal profession. I’m not saying that the author didn’t have a legitimate point, she did. I would just like to address the elephant in the room she skillfully avoided and diverge down a different trail.

The definition of “confirmation bias,” as provided by the author, is “a phenomenon wherein decision makers have been shown to actively seek out and assign more weight to evidence that confirms their hypothesis, and ignore or under-weigh evidence that could disconfirm their hypothesis.” But applying this to a lawyer’s representation of a client, as the author first does (representation that is supposed to be zealous and one-sided in nature), and applying it to the determination of who gets a promotion in a law firm, as the author does next, seems to me to severely limit the application of the two most important words in the definition – “decision makers.” I will be happy to expand that application.

In the context of a discussion of legal ethics, you would think the author would discuss the elephant, or zebra or gorilla if you prefer, namely judges. I can’t think of any more important context than the individuals who “decide” the outcomes of legal disputes. If judges actively seek out information to confirm their biases, even if that behavior is so inherently ingrained they don’t realize what they are doing, as opposed to evaluating evidence openly and objectively, then certainly there will be no “justice” when a decision is rendered. This has, in fact, been one of the chief criticisms of the U.S. Supreme Court. Since that court exercises complete discretion over the cases it hears, it has been said that they only take cases that they have already decided. If true, I find that frightening in two respects.

First, the high court is not required to clear up discrepancies with the interpretation and application of federal law among the circuits of the federal courts of appeal. Thus, the federal law can be differently applied in different parts of the country – no uniform federal law for the land – and who cares, right, if that is politically expedient. Second, if the highest court only hears cases it desires and has prejudged them, and if confirmation bias permeates all of the judicial system, then there is ample ammunition for the criticism that the courts are purely political entities, with judges being mere puppets doing the bidding of their appointers or electors and not objectively applying the law as it is written. Deciding court cases is not playing pinball; these decisions have dramatic impacts on people’s lives.

Ok, I addressed the elephant, and now for my own divergence.

We first must recognize the obvious – that every individual is a “decision maker.” We all make countless decisions each day, as mundane as how often we brush our teeth or as magnanimous as whether to have children.  Next, there appears to be an overwhelming desire for people to categorize things as being black or white – not in the racial context – but an oversimplification of issues or subject matter. Where in reality there may be thirteen different alternatives, or various shades of gray in between them all, people like to think there is always either an A or B or right or wrong answer. There usually isn’t. Things aren’t that simple and sometimes the answer is all of the above.

In the age of social media this faulty logic has become epidemic, or to use the parlance – “gone viral.” It is, in reality, thinking backwards. People begin with a conclusion and seek out supporting “evidence” to validate themselves. The evidence is often questionable, and the positions fermented are polarizing; based more in inebriated blind faith than in reality.  This leads more to one-sided screaming and incivility than to any type of productive discourse. People have decided they are right, they have their evidence, and they will no longer consider any other contrary evidence. They have integrated their position, on whatever the subject matter may be, so strongly as part of very their own identity that being “right” is necessary to protect that identity – the position has become secondary. Being “wrong” would simply shake them at their core, spin their minds into a state of oblivion. They may even label the countervailing information, even if it is overwhelming, as “fake news” or “lies” or even claim it is “biased,” all the while discounting their own biases or the biases of the sources they consulted – if they had any to begin with. They are so intoxicated with the notion that their ideas are gospel and irrefutable they see no need to even hear any words but their own.

Overconfidence and an inflated view of one’s own self-importance is magnified in cyberspace where people can create their own forums and post with relative anonymity. There are no social repercussions for being rude and inconsiderate or, more to the point, being an asshole online. There is no peer group in the room to subtlety apply pressure to be civil or call out bad behavior – at least, not in a meaningful way. When “conversations” deteriorate to episodes of cyber-rage and the leveling of death threats, which I have experienced all too frequently online, I think we can safely say this is aberrant behavior – worthy of a diagnostic code in the Diagnostic and Statistical Manual of Mental Disorders.

My advice is simple – wake up from your own delusions, think critically, speak civilly or hold your tongue and listen for a change, and be prepared to admit when you’re wrong – be thrilled to expand your point of view!

 ***

Photo:  I found this picture on the Internet in the public domain.  I could find no other attribution for it.

LinkedIn:  If anyone wants to connect on LinkedIn, you can find me at https://www.linkedin.com/in/haroldstearley/

Update: April 25, 2018 – The ABA Journal just published an article about research demonstrating judicial bias with traditional gender roles, and I discovered an older article about implicit bias.

http://www.abajournal.com/news/article/judges_expertise_may_correlate_with_more_gender_bias_in_some_cases_study_sa/?utm_source=maestro&utm_medium=email&utm_campaign=daily_email

http://www.abajournal.com/news/article/implicit_bias_is_a_challenge_even_for_judges

 

Changing the Mission

Disclaimer: I am trying not to be too political on my blog, but there are a few issues I do find important, and since I love to write, and recognize the amazing power of words, the use, or misuse, of words is one of those issues.  Bearing that in mind, please continue . . .

“Three things cannot be long hidden: the sun, the moon, and the truth.”  Buddha.

Semantics or Brainwashing?

I recently read that the Housing and Urban Development Department, under the current administration, is contemplating changing its mission statement. Apparently, those is charge wish to remove the words “free from discrimination,” among others, from that proclamation and, apparently, this is decision being made without consultation with the career staff at the agency.  I mean, let’s not consider the views of those working hard to fulfill the department’s goals when making such a fundamental change.

Do words, or the eraser of words, matter?

Consider first that a “mission statement” is the summary of the aims and values of an organization.  Next consider that this agency was established in 1965 as a cabinet level department for the express purpose of combating discrimination in the availability of livable and affordable housing.

So why change the words, which does change the mission?  And this is where the analysis should really begin – ask why?

This may seem like an insignificant change, but words are extremely powerful and what this change boils down to is an attempt at revisionist history.  Future readers of the mission statement may view the agency as existing to help ensure the availability of housing.  But the historical root, that the agency was established to help fight racial and economic discrimination by landlords, has been eliminated.

So why?  One can only speculate as to motivations, but looking at the totality of current policy objectives, it would appear that the ruling class wants to brainwash current and future generations into believing this is a society where segregation and poverty and exploitation in the housing market didn’t or doesn’t exist.  So, there was no need to create an agency to address a non-existent problem.  And why white-wash the agency’s purpose? Pun intended.

A more poignant example is with the U.S. Citizenship and Immigration Services, with a history extending back to the 1890s.  Yes, the administration changed the mission statement for this agency as well.  It erased the bedrock phrase “America’s promise as a nation of immigrants” from its mission.  How ironic.  Like it or not, this country was born out of a history of slavery and genocide, and the first European settlers here were “occupiers” – “invaders.”   That’s just historical fact and you can’t change that.

The only true “Americans” are the aboriginals.  And there is nothing wrong with having a heritage of immigration.  I’ve descended primarily from German and Irish ancestors, although there is a tad bit of genetics coming from the Caucasus region.  I’m not a Native American and never will be. That’s ok.

The erasure of this phrase appears to indicate a desire to foster the image of “pure-bred Americans” versus anyone else trying to come to this country from anywhere else in the world.  Us versus them.  We are no longer a nation of immigrants ensuring the country is open to immigration because the current administration is fighting to severely restrict immigration.  Promoting division.  And why is that?  Please read my post in the politics section – It’s Really About Outnumbering.  I wrote this one a while back, but I think it is still applicable.

***

Actually, the change in mission statements for both agencies is a much more severe re-writing:

The Housing and Urban Development Department:

Historical: “HUD’s mission is to create strong, sustainable, inclusive communities and quality affordable homes for all. HUD is working to strengthen the housing market to bolster the economy and protect consumers; meet the need for quality affordable rental homes; utilize housing as a platform for improving quality of life; build inclusive and sustainable communities free from discrimination, and transform the way HUD does business.”

Revised: “HUD’s mission is to ensure Americans have access to fair, affordable housing and opportunities to achieve self-sufficiency, thereby strengthening our communities and nation.”

The U.S. Citizenship and Immigration Services:

Historical: “USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.”

Revised: “U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.”

***

Photo:  This beautiful shot was take in a sculpture garden in Michigan.

 

It’s Really About Outnumbering

Disclaimer: This piece is not intended as an attack on any religion.  What it tries to point out is how groups try to control and manipulate power.  I’m all for anyone who seeks spiritual awareness in any context.

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There has been a lot of controversy swirling about the new administration’s policies on immigration. And while the words “terrorism” and “extremism” have been thrown about as justifications for issuing unconstitutional, blanket bans on specific target groups, I do not believe this is the real reason behind such actions. And guess what, there has been no dramatic influx of radical terrorists without the unconstitutional ban.

It’s really all about “outnumbering.” Backtracking to an earlier time in this country, we can look at the history of abortion laws. How is this related? Well, it’s like this. Over a hundred years ago abortion was legal in this country and you didn’t need a doctor to perform it. Salons sprouted up offering these services. Two opposition groups developed. One was doctors, they were upset that they were not getting a piece of the pie. The protestants, the second group, were upset because white, middle and upper class, protestant woman were now getting frequent abortions. The original outlawing of abortion had to do with doctors wanting money, under the guise of controlling anything they would deem to be medical, and the fear the protestants had about being outnumbered by the Catholics. The Catholics weren’t as worried, abortion was strongly against their religious tenants and the obedient posed no threat, they were out there being fruitful and multiplying, even where the children could not be fed.

You see, religious leaders longed for the days when religion dominated government. In Republics, like ours, this was eliminated, but the easy solution was to outnumber other religions – control the populous. That way, the majority of elected officials would share your belief system and the laws would be shaped to reflect and enforce that singular religious set of values and morals over any other set. Americans, and their elected officials have, for a few centuries now, been dominated by white, European Christians. This has now changed because of immigration. And in another 30 to 50 years, for the first time in this country, white, European Christians will be in the minority. Not surprisingly, we see an increase in white, nationalist Christians wanting to solidify their powerbase, and the only way to maintain control for the long-term is to limit immigration. And what better way to package and sell this idea than FEAR. After-all, those in power don’t want to admit they are really opposed to other religious beliefs.

I don’t think the real fear is rooted in Islamic Extremism. I think the fear is that Muslims are growing in number world-wide, and growing in populous in the US. And those in control don’t approve of Muslim values and teachings – they are still fighting the battle of proving their God is the best and superior God – instead of actually acquiring any spiritual awareness. Terrorism provides a convenient excuse for other agendas, like “othering” an entire group of people on the basis of race, ethnicity, or religion to purposely discriminate and eliminate if possible. For example, terrorism has been an excuse used by the Russians to invade in the Ukraine and involve itself in Syria. And “fake news,” just like the label of “terrorism,” will now be used to discredit any source in opposition to any agenda being propagated by those in control. Almost all of the terrorism that has occurred in this country has been from home-grown terrorists – good white Christians. They all had their justifications.

People can choose not to act from the basis of fear and make intelligent and lawful choices, but will they? People are easily led by fear-mongering.  A couple of quotes come to mind:

“Our government has kept us in a perpetual state of fear–kept us in a continuous stampede of patriotic fervor-with the cry of grave national emergency. Always there has been some terrible evil at home or some monstrous foreign power that was going to gobble us up if we did not blindly rally behind it …” — General Douglas MacArthur.

“Of course, the people don’t want war…that is understood. But voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country.” — Hermann Goering.

Next year, will there be too many Germans, Italians, or Chinese in this country? That’s why our forefathers designed the Constitution the way they did – to prevent all forms of discrimination and one of the primary means for preserving this country’s freedom has been to keep religion separated from politics.

Good luck playing the discrimination game, two generations from now this country will look a lot different than it does now. In another 500 years we may only have one race – what will the racists and bigots discriminate against then – oh yeah, there is still religion : – )

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Photo:  This photo was found on the Internet in the public domain.  I’ve been unable to find any other attribution for its source.

Hello Politics . . .

Well, eventually this topic was going to come up.  It’s hard to avoid, especially with today’s newsfeed continually ticking off the latest Congressional blunders.

The diverse topics that fit into this category can be so emotionally charged that I waited a little while before adding any commentary.  But I think some of the current political issues are worthy of discussion.  I’d just like to keep it civil.  Right now, I don’t see much civility on any side of these issues.

So, let’s start off with a note about the U.S. Constitution.  This amazing, and actually short, document ensures a lot of protections for the citizens.  What some don’t understand is that these protections only apply to the federal or state governments, not to the private sector.  The Constitution is like a contact between the government, and its actors, and the people.   The government cannot unreasonably infringe upon the rights guaranteed in the document.

This is why so many other federal laws exist.  Laws such as the Civil Rights Act, the Voting Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Pregnancy Discrimination Act, the Consolidated Omnibus Reconciliation Act, the Immigration Reform and Control Act, the Equal Pay Act, the Equal Credit Opportunity Act, the Fair Housing Act, the Employee Retirement Income Security Act, the Family Medical Leave Act, the Fair Labor Standards Act, and the Genetic Information Nondiscrimination Act.  These anti-discrimination laws extend to both the public and private sectors.

None of these laws would have been enacted, but for, the private sector having exploited people.  And now some of these laws are turned on their heads and have led to other forms of exploitation.  We can have a little fun talking about that later.

So just this week, the House voted to essentially gut the main provisions of the Americans with Disabilities Act.  I don’t recall that being on any politician’s campaign platform during the election year.  I don’t recall the public demanding such action.  So why are politicians stripping away protections for the citizens to benefit big business?  And why aren’t people paying attention?  Read on to my first post in the politics section of my blog: “The Politics of Division.”

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The Politics of Division

I don’t think anyone would deny that the country is very divided on a number of political issues.  The odd thing is this, I can talk to my liberal friends and my conservative friends, and this “gap” in general viewpoints is really pretty small on most matters.  So, what’s the deal?

For the past several election cycles, both major parties have hit hard on dividing people, usually on ideological social policy issues.   Using the vast power of all forms of media, they have convinced the public that these are huge issues, that the people should be divided over them, and that the point of view held on the issues defines what party you should vote for.  They have even convinced most voters that this handful of issues are more important than going to war or ballooning the deficit to give select portions of the populous, the 1%ers, a huge tax break.

Why?  By polarizing the country on such issues, and by screaming about them, they beat the drums to get their voters, their “believers,” out to the poles to vote for them.  They drive the heard.  And then once elected, if you have noticed, neither party tries to eliminate these issues or solve them politically.  Why?  Because they need them for the next election cycle.

Abortion, gay or transgender rights, and immigration are three primary examples.  Of course, guns are in the mix too.  Looking at abortion for an illustration, under the second Bush administration, there was a four to five-year block (2003-2007) where the Republicans had control of all three branches of government.  Both houses of Congress, the White House, and the U.S. Supreme Court.  Yet, they didn’t outlaw abortion, or even try to, although they claim that as one of their party’s major platforms.  They had the power to do that, but they would not have been able to use this issue in the next election cycle if they made it go away.  The Democrats, equally, play the same game.  Amazing how there is no “solution” for immigration, or was there ever really a problem to begin with?

They manipulate these issues, and the people, to get votes on issues they do not intend to fix.  Once in power, they follow their own agenda, which is usually doing things to help out their biggest campaign contributors and, of course, themselves.

The problem for the politicians that I don’t believe they saw coming, is they were too successful.  They have truly divided the country in ways that now threaten the existence of democracy.

Fear-mongering with false information is a primary tactic used to divide.  Beating the drum of White, European, Christian Nationalism is perhaps the scariest tactic I’ve seen of late.  Things are getting really ugly.  The flaming I see on the Internet is shocking.  We’ve had violence in the streets.  We have threats on the free press.

The government is militarizing the police, not just because criminals are using more advanced weapons, but because they are preparing for civil unrest.  If this purposely generated division spills into too much street violence, beware of Martial Law.

In the background of this purposely orchestrated hatred, the wealthy just received a huge tax cut at the cost of ballooning the deficit by 1.4 trillion dollars – even though 78% of the public opposed it.  Congress also just gutted the Americans With Disabilities Act.  Again, to benefit business interests over people.  It’s rolling back environmental regulations, allowing short-term corporate profits to take precedence over poisoning the planet and the people.  Wow!  You see, the dial hasn’t moved either way on abortion, immigration or guns – the issues people think they are voting on.  Once in office, the politicians ignore the public’s wishes completely and give themselves and corporate America huge payouts.

I could list out more issues in detail and offer data now, but I’ll save that for some individualized posts.  I realize people can have strong views on many issues, but I’d ask people to really stop and analyze situations and contexts, not just issues in isolation.  Examine how those in power might be manipulating.  I never expect complete agreement on such controversies, but I do appreciate civility and intelligent thought and discussion.  I like to have my thinking challenged.  It is even good for all of us to be proven wrong on occasion – just to get our minds to open.

Enlightenment comes in many forms.  Hating or vilifying others because they believe differently is not one of them.  We must learn to think, analyze, converse and compromise.  We can’t let sound bites, buzzwords and incendiary catch phrases divide and conquer.  The nation is stronger united.

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The Objective Reasonable Person

Justice Antonin Scalia, noted for his scathing dissents, once opined, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

While I did not often agree with Scalia, and didn’t in that particular opinion, the “fortune cookie” analogy is not always far off the mark considering the wishy-washy standards applied by judicial decision makers. Yes, “The fortune you seek is in another cookie.”

In the law, one will invariably encounter standards that judges or juries are required to apply in order to reach “just” decisions. There are basic standards for applying the law to the facts of the case in the trial courts and then standards of review applied in the appellate courts when examining what happened in those trial courts. But there are so, so, many gray areas in the law that don’t conform themselves to a nice A + B = C result that require a judgment call. An educated guess, perhaps. Or sometimes little more than a blind stab in the dark in hopes of hitting some target, but a fair and proper target, right? (That’s a rhetorical “right?’)

Then again, there is also that phenomenon known as outcome bias, where decisionmakers decide and then conform the evidence to fit their decision – sounds a tad bit unfair or “unreasonable.” And yet, the concept of “reasonableness” is said to be the mainstay of our law and many of these legal standards incorporate that very word yielding such terms as the “reasonable person,” “reasonable-speaker,” reasonable-listener,” “reasonable aid,” “reasonable effort,” “reasonable anticipation,” “reasonable care,” and “reasonable doubt.” And conduct is deemed “reasonable” if it is “consistent with that of the prudent person in like circumstances.” But with that standard, we not only have to debate what is “reasonable,” we now have to debate what is “prudent,” or what would be “reasonably prudent?”

Such standards are supposed to accommodate all circumstances and uniformly fix any legal ailment, whether it is determining if someone reasonably thought their life was threatened to have exercised self-defense, or what constitutes extraordinary and unusual stress to a “reasonable highway worker” to be compensable under workers’ compensation. All similar puzzles should be solved the same way. What is equitable for one is equitable for all similarly situated. The law should be the same for everyone.

Standards supposedly allow stability and predictability for potential litigants so they can evaluate whether any potential legal controversy is a worthwhile endeavor. Will it result in the desired outcome or be a frivolous, and expensive, chase through the scared halls of justice? Or in criminal law, uniform application of the standards resulting in uniform penalties not only serve to treat everyone that is prosecuted equally, but the predictability of the outcome supposedly serves as a deterrent to criminal behavior. Nice to have a good idea of the result of your conduct ahead of time. You would hope that your attorney could accurately advise you of such, instead of finding yourself engaged in a giant crapshoot. And since we’re into definitions, “crapshoot” = “a risky and uncertain venture.”

Yet ask anyone, yes absolutely anyone, except perhaps a judge, and I think they will tell you that the law is not equal for everyone. It favors the rich over the poor, the majority over the minority, non-sentient corporations over living, breathing individuals, and people over all other life forms. And criminal legal procedure favors the prosecution over the defendant. You have to be a pretty lousy prosecutor to lose a case, especially since you get to pick which cases you’ll prosecute to begin with.

And these multitudinous standards are magically said to be “objective.” But how is that really possible, and just what do these terms really mean? Could the so-called reasonableness standards be just archaic, mythical devices entrenched by thousands of legal precedents? “Legal fictions,” if you will, to achieve and support virtually any decision a jury, a judge or panel of judges makes, “reasonable” or not? Reasonable in whose eyes? Your eyes? Mine? Reasonable is such a weasel-word.

A “legal fiction,” by-the-way, is defined as: “Believing or assuming something not true is true. Used in judicial reasoning for avoiding issues where a new situation comes up against the law, changing how the law is applied, but not changing the text of the law.” The “reasonable person” has been said to be a “hypothetical,” as opposed to a “fiction,” but then who gets to define the hypothetical reasonable person? It seems more to me to be a phantom assumed to actually exist.

Quoting court decisions and Black’s Law Dictionary, reasonable is said to be: “Just; proper. Ordinary or usual. Fit and appropriate to the end in view. Having the faculty of reason; rational; governed by reason; under the influence of reason; agreeable to reason. Thinking, speaking, or acting according to the dictates of reason; not immoderate or excessive, being synonymous with rational; honest; equitable; fair; suitable; moderate; tolerable.”

Wow, seems to be a wide berth between “equitable” and “tolerable,” and “appropriate to the end in view” sounds like a forced contrivance, whose view? But hey, that’s just me talking. And it is duly noted that the architects of these standards ordain that a “reasonable person” “is one who gives due regard to the presumption that judges act with honesty and integrity and will not undertake to preside in a trial in which they cannot be impartial.” Humm, so those writing the rules get to declare they are objective and impartial and demand we agree, otherwise we are unreasonable.

In addition to rambling through the gray pastures of the dictionary, stringing chains of circular non-speak together, i.e., “reasonable means governed by reason,” which means nothing at all, courts tack on that great adjective, “objective.” Reasonableness standards are supposedly objective. And my favorite definition of “objective,” and the one I believe to be the most accurate is “having reality independent of the mind.” This, of course, means not subject to personal biases or as Merriam-Webster states: “expressing or dealing with facts or conditions as perceived without distortion by personal feelings, prejudices, or interpretations.” But MW added that subjective word “perceived” spinning us down another corridor of deception, because even our minds can lie to us about what we are perceiving, or form it into the shape we desire.

Black’s Law Dictionary would say that an objective standard is a “legal standard that is based on conduct and perceptions external to a particular person,” as opposed to a subjective standard “that is peculiar to a particular person and based on the person’s individual views and experiences.” Really? Our programming starts the day of our birth, and we are constantly told how the world is, what it is we are perceiving, what to like and what to hate, what is legitimate and what is unauthentic, how one should feel or not feel, when to have empathy and when to ignore the needs or suffering of others. Our minds are filled with innumerable prejudices that become so inherently ingrained that we no longer see them as being biases.

Yet, the legal system would have us believe that all of this social programming has absolutely no effect on how a case will be judged, how a verdict or judgment might be reached, or what the assessment of remedies or penalties will be, by people magically commanded to be objective and set aside all of their life experiences when deciding the outcome of your legal entanglement. Yes, the legal system, created by humans and all of their prejudices, supposedly being the bastion of objectivity with those sitting in judgment possessing that detached, dispassionate, external “God’s eye view” or “view from nowhere,” transcending any subjective interference as Plato might pontificate, will dole out justice equally on the basis of reasonability. And basically, that’s Bullshit, with a capital B. If it wasn’t Bullshit, there would no market for attorneys that are taught how to strategize and manipulate, how to argue, how to spin, and how to select venues, judges, and jurors based upon their very subjective prejudices. Wordsmithing is a skill taught to attorneys so they may shape outcomes, not based upon what’s “reasonable,” but based upon what favors their client’s preferred outcome, the client’s subjective view of justice.

The existentialists would certainly have a great laugh over this concept of objectivity. For there really is no way for a human to exist other than through their subjective and continuing contact and experience with the world. Thoughts do not exist independently of circumstances and context. But you don’t have to be an existentialist to see how the legal system essentially pits the subjective, particular views of those sitting in judgment against the subjective, particular views of those being adjudicated – hypothetical reasonableness notwithstanding.

I would be remiss if I did not mention another favorite legal standard, the abuse of discretion standard. This standard is employed by an appellate court examining if the trial court abused its considerable discretion with a ruling on a particular controversy like the admission or exclusion of evidence. An abuse of discretion by the trial court “occurs when a trial court’s ruling is clearly against the logic of the circumstances and is sufficiently arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” That’s a mouthful. And, “If reasonable minds can differ about the propriety of the trial court’s ruling, there was no abuse of discretion.” “Reasonable minds?”

So how does this play out if several judges in an appellate court panel decide there was an abuse of discretion, and the remainder decide there was not. Well, if the judges all agree, the standard works. If the majority of the panel, the most judges, decide there was no abuse of discretion, then the standard works. But if the majority of the judges decide there was an abuse of discretion, and a minority decide there was not, the standard fails because “reasonable minds,” and surely the judges have “reasonable minds,” have, in fact, differed and there can be no abuse of discretion. Yet the appellate court decision that there was an abuse of discretion stands, so “reasonable minds differing” creates an absurd result that ignores the court’s own standard. That might seem unreasonable.

Irregardless of my pontifications, for all of these reasonableness standards, how many court decisions, in your own view, just seem to defy “reason” and exhibit great bias? Good luck if you find yourself in that objective reasonable crapshoot called a court of law, for “Person who eats fortune cookie gets lousy dessert.”

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Photo: I found the scales on the Internet n the public domain and could find no other attribution.  I added the text – a favorite quote I came across in a case while studying property law in law school.