Thursday, November 1, 2018

The Constitution Says What?! UPDATED

"The illegal we do immediately. The unconstitutional takes a little longer."

Henry Kissinger
The Constitution has had a busy week. Irony was in the air, thick as mosquitoes on a warm Syracuse evening. People who thought they'd packed the Court, finally to get the "conservative majority" they craved, the outcomes they'd worked so hard to anticipate... Let's start from the easiest part.

The headline was inferential. President Trump had "signaled" he might use an executive order to rescind so-called "birthright citizenship." First - how, exactly, does the Twitterrer-in-Chief signal? Usually, he comes right out and says what is on his mind. Unfiltered. For whatever it's worth. President Trump is learned the art of notion floating an idea? I'll be damned.

Of course, there was an immediate hue and cry. Dude, know...Constitution!

Well, you know, the 14th Amendment. It says, rather clearly:

Section 1. All persons 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.

If I've read it once in cases, I've read it a hundred and forty-seven times. "In matters of constitutional interpretation, we begin with the text itself." Begin?

It is a mistake to think that the Supreme Court... Hang on, let's do something quick, before the actual substance stuff. The Supremes - sometimes referred to awkwardly as SCOTUS, which doesn't take any less time to type, really - deal in "cases and controversies." Some States (and this is their option) allow advisory opinions on laws that haven't really become a thing, yet. "Hey, [State's Highest Court], what do you think of the law we might pass?"

The US Constitution requires that an actual lawsuit actually be in play. Sometimes, as in Plessy (separate but equal) and Griswold (contraception), court cases are ginned up to cause a case to be brought. The "Scopes Monkey Trial" started when a teacher was arrested in a prearranged agreement between him and the local government so that a case could go forward - a real case and controversy existed.

So, the Supreme Court can do no more than chuckle over their muffins during morning get togethers about President Trump's hint. That is, until the mild-looking guy from Hawaii, or the bearded imbecile from... Washington or Oregon - one of those states where they let weird dudes in black hoodies direct traffic - when one of them issues an injunction, there is much high dudgeon on both sides and the President ultimately gets his way. Okay, maybe it was California.

What does "subject to the jurisdiction thereof" mean? Not a clue. I've read a few essays by people who think they know, but... Let's think about this.

Emma and Noah, a young couple from Thistletown, Ontario, pop across the border to see their beloved Maple Leafs play Buffalo's Sabres. She is eight months pregnant, but due in thirty days. Both are Canadian citizens. Of course, if they commit a crime, or make a wrong turn in violation of New York traffic laws they'll see how quickly they become "subject to the jurisdiction thereof" by some Buffalo cop looking for something to do.

Toronto Goalie Nikita Zaitsev gives up a late, soft goal. The crowd goes nuts. Emma detects an unquenchable flow of... You get the idea. Several hours later Carly Yvonne is born at Buffalo General, a happy and healthy six pound... American?

I've been a lawyer. Isn't there something that tells me whether the world has welcomed a new American, or a Canadian who will soon be back in Ontario learning how to say "eh?" after every third sentence?


We're soon going to find out. And, maybe it's time we did.

UPDATED: Andrew McCarthy has a very interesting take on "Subject to the jurisdiction" and an originalist view of the 14th Amendment. He ends it with an entirely reasonable policy statement. 

Wednesday, October 31, 2018

In Defense of a Thing

Josh Limon (Bradley Whitford): "He spends his days yelling at the squirrels for eating the bird seed."
Leo McGarry (John Spencer): "You know, they make a thing now..."
The West Wing, "Noel," (2000).

With everything going on... Maybe, a little snippet into the kinds of informative interactions that occur at our house.

We were getting ready to go to - work for her, the dentist for me for a cleaning. Today I found out one of my fillings has broken, and needs to be replaced. Needles, mouth pried open for half an hour and that heavy feeling. Plus, worrying about chewing a hole in my numb cheek. The office manager erroneously made the follow-up appointment in a few weeks for my wife, not me. 

What better way to avoid the dentist? I thought I'd just keep it to myself until the phone call. "Patricia, I'm calling to confirm your appointment tomorrow to have the filling replaced."


I digress. I asked on my way out what is an operative and essential question, one that gets asked most mornings - "Can I take (leftover) for lunch?"

We are busy people. We love to cook. We subscribe to Sun Basket, who send us three meals a week. Some of the ingredients (not all) are pre-sliced and diced, all are pre-measured. It usually takes between 20 minutes and an hour to make. They are generally fabulous, generally straightforward and there are almost always leftovers.

So - busy people, microwaveable... Edible at the desk while typing out missives to colleagues, reading emails from "The Boss" and watching BigJet TV.

Me: "Can I take the curry stew for lunch today?"
Her: "Yeah, go ahead. I have a thing at noon."

I have a writing instructor who doesn't like the insertion of thing into any kind of writing. Lazy, she says. Lacks description, or details. It doesn't really say anything?

Oh, yeah? Oh, yeah?!

Actually, it is especially descriptive. When Leo says "They make a thing," has anyone who spends $20 a week on bird seed only to have it eaten in its entirely by squirrels... There is a saying, that there is no more motivated a problem solver than a hungry squirrel.

Everyone who has tried to outwit a hungry squirrel knows what I'm talking about. Most of us have tried several "things," always with the same result. The squirrel defeats it, somehow and sits there, munching.

But, in our mind's eye we can see the gizmos.

That's the essence of good writing. No less an authority on story telling than singer/songwriter John Prine said it best - tell the listener enough to stir their imagination. Let them fill in the rest.

A long-time and dear friend always referred to any sort of malady, virus or ill ease as "The Otch." In fact, it is derived from the Italian/American word agita, which is an upset stomach, heartburn or indigestion.

Leo: "Donna's going to take you to the hospital to have your hand looked at."
Josh (hand wrapped in a bandage): "It's fine."
Leo: "It could be infected, you could have a thing..."

You know?

Sunday, October 21, 2018

The Key Ingredient

Please welcome my friend Andrew to Bikecopblog. He is a friend, a gifted and talented man and until this week the proud owner of a Toyota SUV. He wrote this as a comment to my post about the Malibu I sold a few years ago. It is way too good to keep there. Whether writing in defense of freedom, or about the departure of a trusted companion, Andrew's thoughts are always worth entertaining.

My beloved 2000 4RUNNER joined a new family on Thursday. Suffice to say, the 20-yr-old buyer is a wonderful young man who considered himself blessed to have found my pal. When he realized it's a standard, he was ecstatic. That made it easier - not easy - to bid my truck adieu.

Later that day I needed to drive my wife's 2014 car on an errand. Apparently there's a rule somewhere that techy keys need to get bigger every year. My 2000 key was simple, black, flat; never needed a battery replaced; never needed to be replaced by a $500 duplicate.

So whenever I drove my wife's big-key car, I would pull out my keychain that would make a custodian envious, find my familiar 4RUNNER key, and then my fingers would just automatically find the *other* key, by default.

That afternoon, I stood in the garage for around 10 seconds fumbling with my keychain, trying to find my wife's key. It was right there, in plain view all the time, but my mind's eye didn't see it, because my fingers were still trying to find the 4RUNNER key that had departed with the its new owner.

I chuckled to myself when I realized what I was doing, it being the first time I realized that that's always been how I would find the *other* key on my keychain. And my heart ached a little bit with that realization, that my 4RUNNER had become, a long time ago and in no small way, a part of me.

My kids were 11 and 9 when I got it. They're 29 and 27 now. It was a part of me, it was a part of them. It was a part of us. Hockey, soccer, baseball, basketball, skiing, skating, camping, and more...perhaps most importantly, driving them to school every morning until they could drive themselves. She served us well. Here's hoping she continues her good work.

Down At O'Rourke's

"Life is all memory, except for the one present moment that goes by you so quickly you hardly catch it going." Tennessee Williams.

I had a few moments on hand the other day and surfed the net for the latest news. Among the big headlines was a story about a race for a senate seat in Texas, how money is pouring in from everywhere, like Walmart shoppers on Black Friday. The incumbent is a faithful party member, the upstart challenger - O'Rourke - has something of an acceptably checkered past and a curious nickname.

It was a place from many years ago, accessible only in my mind's eye. Even the omniscient Internet cannot recall O'Rourke's Mexican Cantina, in the Denver suburb Glendale. That makes me wonder if I recall it correctly.

I don't remember how I discovered it, or who discovered it for me. It was a modest joint, dining room of ten or fifteen tables and booths on one side and a bar on the other.

Growing up in Western New York, good Mexican food... I pause here to give notice to those grammar Nazis who have read this far. It seems awkward, almost an ism of some kind, to refer to cuisine by a one word label. In my arcane literary world one does not go out for "Chinese" or "Tibetan." One orders Chinese food - usually an Americanized version of it, anyway. There was this editor with whom I worked who insisted, and because he had my publisher's ear I relented. But, when I called up my buddy Harvey I said "Let's go to O'Rourke's for Mexican food" and he was never confused. I digress.

 The food was excellent, the margaritas flowed freely. Having a Western NY palate for Mexican food, that is having eaten a time or two at Taco Bell, the vivid spices and searing sauces took some getting used to.

One of my fondest memories of the place was when friend Howie and my brother Dave ventured out to my apartment for a ski trip. They had, as only those two larger-than-life personalities could, gotten upgraded to first class on the flight out to Denver. They emerged from the jetway in high humor, mildly soused, which was a mere preview of things to come. Among other events, my brother somehow hit a trash can on the slopes at Winter Park. All of that is for another day.

We went to O'Rourke's for Mexican food. Dave devoured his smothered burrito, all the while sweating profusely from his own "Back East" reaction to the hot, peppery sauces. He drank his water in one gulp. His margarita in the next. Then my water, my marg...

Harvey and I stopped in one night, only to have our dinner interrupted by a strolling brass quartet playing something very loudly. "Finnegan's Wake," it was explained over the raucous celebration - patrons singing and clapping to the music. There was even a casket containing a mannequin dressed for the occasion.

That's how I remember it all, anyway. For all I know it was actually called O"Flynn's, or Saint Patty's. It closed only a few years after I used to haunt the place. A shame.

The memories are still alive, though they - like me - have faded.

Monday, October 15, 2018

Back In The Day

"I had twenty years in this outfit, when your idea of a good time was sittin' in front of the TV tube, watchin' Bugs Bunny and gnawing on your fudgsicle." LAPD Capt. Jack Braddock (Warren Oates), Blue Thunder (1983).

It was one of those articles. They appear routinely in professional journals and periodicals, often authored by a "lieutenant or above." Generally, the point of the essay is to announce a heretofore undiscovered wisdom, one that will turn law enforcement on its proverbial ear. The pearl is usually lukewarm, meant either to add a line...or one's resume. Or, to confer bragging rights at the latest command staff meeting. "Hey, did you read my article in True Blue magazine?"

Today's missive involved the evolution of law officers (especially involving their training) from mere warriors to men and women adept at interacting with their community. Officers must now be both, the author opined, or they weren't much good to his organization. "This isn't the 80s," he offered.

Well, pardon me all to hell.

Generally speaking, this is where the blog usually devolves put it blandly...a profane rant. But, I'm a mature adult now.

"What the F-word. F-word in gerund form. F-word, again, is wrong with you?' Tim Grimes (Nick Mohammed), The Martian (2015).

Eighties cops were what, Sparky?

We did the job just like it's done now. The best we could, served the community with pride and buried our brothers and sisters in frightening numbers. Only, at that time America was still reeling from 60s civil rights protests, riots, anti-war marches and scandals in many of the big cities. More than a few of our citizens didn't really know what to make of us, didn't know how far they could trust us. We tried hard - incredibly hard - to build bridges, mend fences and deserve the respect we tried to mirror to the people with whom we interacted. We demanded a lot of our profession, and each other. It worked.

Law enforcement in 2018 is the most professional it has ever been. In many ways it has the 1980s to thank for that. So, have a little respect for your elders, sonny.

We got you here. 

Friday, October 12, 2018

Prescribing Extroversion

"I have never liked working. To me a job is an invasion of privacy." Danny McGoorty

Choosing the opening quotation - sometimes funny, sometimes serious - is often fairly easy. A pithy quote (or great movie line) is what has started many a post. This time it is the idea of turning in my badge... But, not my guns. Let's not get too crazy.

We are two-thirds of the way through our first retirement planning class at the University of Denver. The assigned reading and exercises are designed for people who are "Third Age." That's us - Fiftyish to Seventy-ish. We are right in the middle. Ish.

Me, I'm in the final stages of my police career. By final stages I mean after thirty-nine years (minus five years off for bad school and a law practice) of police service the end is in sight. A clean break presents itself next year, one I willingly accept.

A floodgate of clichés presents. I will not accept the invitation.

So, I've embarked on a learning journey. I'm a scholar. I have a doctoral degree. I've been a college professor. It's in the brochure somewhere that I'm supposed to look into shit. So, there.

The aforementioned class is one part of my "journey." Other formal classes may follow. But, I began with a visit to a shrink. Before anyone takes offense, she self-describes as one. "I'm a shrink," with which she often prefaces an illuminating and amusing observation. Her husband is a retired cop. I thought it would be a useful place to start.

One of the-- Hang on a sec. Okay, here's where my lawyer side comes out. Telling the following story in no way waives any HIPPA provision. There. I said it.

Among the discussions we had was how to keep from becoming socially isolated. She said that cops generally use work as their social arena. We've spent the better part of our lives relying on the people around us and we just gravitate to them at work. Etc. So, maintain your circle of friends.

Me - I'm an introvert. I only have about five friends.

Her - Well, make it a point to call them once in a while, meet for some activity.
Me - Like, call them out of the blue?
Her - Sure.
Me - That's a...thing?! I mean... People do that?

Apparently. So, this is fair warning.

If I call you without apparent provocation, don't be startled. I haven't really become an extrovert. I'm just doing what the doctor ordered.

Friday, October 5, 2018

Not My Call

Ken Mattingly (Gary Sinise): Let me go talk to Deke. I'm sure we can work something out.
Jim Lovell (Tom Hanks): This was my call.
Mattingly: (after a long pause) Must have been a tough one.
Apollo 13 (1995)

I don't remember having a harder time writing.

I intended this post to be about the search for neutral principles in the law. Stilted prose has led me to delete hundreds of words that were as painful to read as they were to type.

What is happening in Washington is disgusting. It doesn't matter what side one is on.

Set aside, for this blog anyway, the inherent frailties of our system. "Go for a business any idiot can run," investment guru Peter Lynch said. "Eventually, an idiot will be running it." Our government was created and administered by human beings, with all of their flaws. Nothing is perfect.

I've spent the better part of my life - certainly almost all of my adult life - in the business of judging the answers to "What happened?" I've been trained in the art of benign skepticism - listen respectfully, question automatically. Thousands of people have told me their stories. Here's what I've learned:

I don't know someone is credible just by looking at them as they talk. Some of the most incredible lies I've heard were told by an entirely straight face. Whatever other people think they see - it's a mystery to me.

Movie lines are the closest thing to wisdom in our modern age. Try this one out - "Archeology is the search for fact, not truth." Dr. Henry Jones, Jr. (Harrison Ford). In any investigation, the truth is elusive when the facts are contradictory, or scarce.

Reaching a conclusion and then searching for evidence in support is a very human thing to do and is almost always disastrous. The late, great Supreme Court Justice Antonin Scalia called it "Looking over the heads of the crowd in search of a friend." It is no better than a guess.

The Rockies are in the post-season, so I'll root for them. Once they are eliminated (odds are sooner rather than later) I'll pick someone else. Just 'cause. Having an emotional stake in an outcome makes the game richer. I recently pulled for the Trinbago (Trinidad and Tobago) Knight Riders in the Caribbean Premier League T20 cricket championship because... I don't remember. But, I was delighted when they won by eight wickets, whatever that means.

I don't know who is telling the truth - Dr. Ford or Judge Kavanaugh. It isn't up to me to decide. Both are impressive, accomplished adults worthy of respect. Any combination of true/false/mistaken is plausible when one is discussing recollections drawn from teenage years, even traumatic ones. The experiences of other individuals is not instructive, let alone dispositive.

I don't decide things I don't have to decide. The Constitution gives the President the power of appointment, with the advice and consent of the Senate. It doesn't say anything about also getting the approval of a sixty-something police sergeant sipping a margarita on his back porch.

I checked.

So, I can say - I've happily arrested perpetrators of sexual violence. I've taken, initially anyway, every allegation of sexual violence at face value. I've treated every person making the claim with respect. When it came time to decide on a course of action, I did so in good faith.

When it wasn't my call... I didn't make one.