Incomprehensible

 “I don’t know. I can’t figure it out anymore. I don’t even try.”

Avalanche coach Jared Bednar, asked about the NHL's silence on an injury to Av forward Andrew Cogliano

In Friday night's Avalanche game versus Seattle, Avs forward Andrew Cogliano stood several feet from the boards, looking down at his skates. The puck was somewhere close and he was trying to play it. From behind, a Seattle player purposefully collided with Cogliano, forcing him awkwardly head first into the boards. Cogliano went down, and did not regain his skates for many minutes.

Aghast - it was clearly a dirty play, I consulted the rules because that's what I do. To wit:

 Rule 603 Boarding

(Note) Boarding is the action where a player pushes, trips or body checks an opponent causing them to go dangerously into the boards. This includes: Accelerating through the check to a player who is in a vulnerable or defenseless position and driving an opponent excessively into the boards with no focus on or intent to play the puck, or any check delivered for the purpose of punishment or intimidation that causes the opponent to go unnecessarily and excessively into the boards.
     The onus is on the player delivering the check to avoid placing a vulnerable or defenseless opponent in danger.

(a) A minor plus a misconduct or major plus game misconduct penalty shall be assessed for boarding an opponent.
     “Rolling” an opponent along the boards where he is attempting to go through too small an opening is not considered boarding.

(b) A major plus game misconduct penalty shall be assessed to any player who recklessly endangers an opponent as a result of boarding.

(c) A match penalty for reckless endangerment may also be assessed for boarding.

Subsection (b), highlighted for your convenience, seems most appropriate. The Seattle player's intent may not have been to injure Cogliano - his actions in the immediate aftermath argue to his favor - but his act was clearly reckless. Except...

Officials penalized the Seattle player for two minutes (a "minor") and as of this afternoon league officials have not suspended the Seattle player.

Oh... Of no real import on Friday night (Cogliano played regular shifts in the third period) tests showed that Cogliano's neck had been broken.

In game 4 of the series a similar thing happened involving Av Cale Makar and a Seattle player.The Seattle player was injured and did not return to the game. Makar received a minor interference penalty, and was then suspended for a game by the NHL. Go figure.

It isn't absolute consistency that is necessary. Just maybe something less than insanity would do.
 

Trade Offs

 “You seem to consider the [Supreme Court] judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

Thomas Jefferson

Have you ever given in to temptation and - just this once - posted a comment on social media about a subject other than how cute your Havanese puppy is, or the tasty aspects of the latest rib experiment? Never? Then, your work is done here. If, however, you are shaking your head recalling the last time...vowing never again, I am here to offer an observation as a kindred soul.

I ran into an internet creature called the "Faux Attorney." Credentials being what they are, it's easy to lie in a medium where nobody has to prove that what they say is actual and factual. I'm not talking about the keyboard warrior who claims a Juris Doctor when, in fact, they received a certificate from the Luau Layaway School of Legal Studies. I'm also not talking about the sort of person who engages in bald-faced lies about their credentials.

There is that person who may actually have the legal credentials they say they have, but uses them for evil, rather than good. If you are with me so far, you know the type. In the midst of a perfectly reasonable conversation involving differing but respectful positions, they trot out something akin to the following:

Oh, yeah? Well check out Rocky v. Boris and Natasha, et al. The Supreme Court says you are wrong!!!!! (Emphasis in the original)

For the average person not still paying off their law school loans, they take this at face value...humbled again. Superior education has won the day and they take their lumps and go back to watching cover band videos on YouTube. But, wait.

One finds out, on closer examination, that Rocky is about standing to sue ("Can the Russian KGB sue a flying squirrel for defamation in an American federal court?") whereas, in fact, your conversation is a UCC dispute about a faulty anvil shipment (Coyote, W. v. Acme being more on point). Since one has little to do with the other - other than all are cartoons - merely tossing out a case name and appending exclamation points in the manner of your dog resting their nose on that key does not win the argument. It makes that person a bully.

That's never the end of it. Someone who has watched LA Law on  TV will challenge - what is your authority for saying Rocky doesn't apply? It is pointless to observe that a first year law student (the industry term is 1L) learned how to reason on their own, how to "distinguish" between cases that count, and ones that don't. In short, how to do their own thinking before yelling out case names. But, as a practitioner I offer the best retort, which is useful generally. I heard this uttered by a law professor in one of my daughter's classes I had the privilege to attend. To wit:

Sometimes, citation to authority only means you've found someone who agrees with you, but is also wrong.

Or, stick with the YouTube videos.

Yinning and Yanging

 Things I miss in retirement: Daily interactions with good people dedicated to a cause bigger than any of us.

Things I don't miss:

It is "Top Gun" day of the range program, April 24, 2018. It does not take a meteorologist to know that the weather is miserable. Snow is in the air, mud is on the ground and it is just cold enough that even the multiple layers, the expensive Gore-Tex jackets and lined boots don't keep out the damp and dreary forever.

 

 

 

Yet:

 

I was humbled to have met so many men and women who stepped up and said "Pick me, I'll go" and signed on to be law enforcement officers.

Whose Peers?

It's both a triumphant, and a terrifying video to watch. New Mexico State Police Trooper Sharron Duran stops a white pick-up truck for tailgating. She is a K9 officer, and a member of a Federal Task Force. Seeing the initial video, the idea that the vehicle is technically tailgating but it:

*Has Arizona plates (approaching Albuquerque), and

*The vehicle it is following is a pickup truck with a fifth wheel, also Arizona plates and

*They are eastbound toward I-25...

My guess is that the officer was wondering if she was following someone involved in other suspicious activity, such as human trafficking. But, since the Supreme Court has allowed any traffic stop based on a violation, no matter the underlying motivation of the officer, and it being September 2020 before many legislatures "discovered" a right to be free from even reasonable seizures, Trooper Duran is well within the law to stop this guy.

Instead of reading what I write, watch her (and others) in action, in the video above. Yes, that is her being shot multiple times, with a vest save thrown in for good measure. Yes, that is her with both hands injured returning effective fire. That is also her behind the wheel of her patrol car, bleeding, chasing the suspect. That is her muttering "Fuck," cop shorthand for "That didn't go well." That is her pulling the asshole over. Yes, that is officers treating the suspect with professional respect even as the coworker he (allegedly) shot sits bleeding, and overcome by the emotions of the affair, in the weeds nearby.

But, that is not why this blog is important. It is important because of what happens next.

Defense attorneys, failing to have their client declared incompetent, decide that the officer is to blame. She observed the caravan (the suspect's parents were in the vehicle pulling the camper) before she executed the traffic stop. She went behind her vehicle and approached on the passenger side of the pickup. Very suspicious! Their client is paranoid, especially about police officers. She...patted her weapon!

Watch the video. See if you buy all of that. Because, one of the jurors at the suspect's trial a year and a half later did. 

“We can’t come to a unanimous vote,” the jury told the judge. “One juror needs more time to decide and some have medical conditions and need rest. Can we come back tomorrow?”

They left for the night and reconvened Friday morning but were still unable to come to a unanimous vote.

“One of us is refusing to listen to any deliberations,” the foreperson wrote. “It is clearly stated that nothing will change his/her opinion. What is the next step?”

In other words, in spite of video of the incident from the officer's dash camera, and her body camera... In spite of the admission that the suspect shot her multiple times, one person on the jury refused to be persuaded that he was guilty of attempted murder.

Trooper Duran (now Sergeant Duran) acted in the very best tradition of American law enforcement officers. She acted lawfully, courageously and in spite of her injuries got the suspect stopped without further injury to herself, the suspect or the public. She deserves every accolade available.

The juror? Puh-leeze. Whoever they are, they are not Sergeant Duran's peer.

Oh... The dude obviously decided he couldn't count on someone else like that on a future jury and he plead guilty to attempted murder. Sentencing to follow.

A Writer's Lament

 “I visualize a time when we will be to robots what dogs are to humans, and I’m rooting for the machines.”

Claude Shannon

Greer math...

My father was an engineer, a math guy. Working in the era of slide rules and mechanical adding machines, he and his friends at RCA made weather satellites in the early Sixties. Granted, he once remarked that those objects did indeed take pictures of clouds and stuff (often in Eastern Europe) but then I digress. He was a math guy, a technical thinker who was involved in America's space program.

My mom was the youngest daughter of a banker. She was a woman who kept a school lunch program in the black (even bringing me home chocolate chip cookie dough occasionally). She also kept the books at home, raising three rambunctious hockey players while knowing where every penny went. Clearly, there was math involved.

I don't know from math. When I need math to matter in one of my novels, I ask my spouse or her brother, a math teacher, for a quote. Then, I hope I don't mess it up (The Writer's Prayer). I get particularly confused when math and computing intersect. So when I tuned in - a wonderful anachronism - to watch an interview of Elon Musk about the subject of artificial intelligence (AI), it was from the perspective of a person who uses, but does not necessarily understand, the technical aspects of our digital age.

It was all interesting enough, the few parts I understood. Apparently, AI can do a lot of things well, far faster than we humans can. There are any number of areas where it is beneficial. It may even be, in some ways experts are trying to understand, smarter than us by some not entirely universal definition of smart. And then, they started to talk about writing.

I know a little something about writing. A very little. Mostly, I know it is hard to write well, harder still to write clearly and - I mean no disrespect - very hard to induce people to give you their money to read your writing. So when Elon started to point out that AI is a really good writer, he had my attention.

I've seen some of the AI writing ads on Facebook, about which I knew little. There was one post that kept appearing on LinkedIn which promised a writing program that was faster and better than actually learning how to write. And Lex Fridman, an MIT researcher, had a guy on his podcast who said he'd seen an AI program re-write "Twinkle, Twinkle Little Star," the result of which he pronounced remarkable. There is also an AI component in my next novel (probably Fall, thanks for asking) and so I've been a bit more attentive than usual. That wasn't what generated the "No shit?" moment.

That occurred when Mr. Musk posed an interesting question, couched in the truism that everything that can be used for humankind's good is eventually (or, not so eventually) hijacked by evil, for evil purposes. He made the point that democracy (the kind where human beings interact personally with each other, as opposed to the mega, and fanciful, partisan term Our Democracy™) is based on the principle that citizens of differing opinions try to persuade one another in good faith to come to their way of thinking. If this sounds archaic and naive... Maybe it is.

It seems obvious to me that democracy suffers from an over-reliance on meta-persuasion. That is, a point of view is deemed pervasive (and therefore persuasive) based on the number of tweets generated in support, especially if they are authored by someone about whom we have heard - an influencer, as it were. Mr. Musk suggests (by inference) - What if those aren't real people commenting, but the work of a small clique creating computer-concocted "Bots" posting an infinite array of beautifully written, deftly-crafted AI written materials? Aren't human being more likely to follow the herd, if they think the herd is going someplace cool (rather than the slaughterhouse)? I know, right?

It isn't that I don't want the competition. I have a limited number of books left in me, and write for a small group of followers that are loyal enough to pay for my latest fascination (at the moment Old Fashioneds). It isn't that I'm worried about all of the millions I might otherwise miss out on.

It's that, at least in the past, good writing was hard, and in a way intimate, and it represented the connection between two people's souls. My writing is an attempt to distill my journey through a life at the cutting edge, and pointy end, of law enforcement, to create characters with whom the reader can bond (or hate) and to bring the reader into a world we lucky few have inhabited. That a computer could do it easier, better and faster...

I love my dogs. I care about my dogs. Over the years my dogs have been my faithful writing partners. I just don't want the dog telling me what to write.

To Keep Our Honor Clean

 Ensure that no Marine who honorably wore the eagle, globe and anchor is lost to the Marine Corps family.

James L. Jones, 32nd Commandant of the United States Marine Corps

 

It was a small moment, not meant to carry any weight beyond what it purported to be - a man in his 70s asking a question of a uniformed grocery store security guard. It struck me as much more.

The customer was gray-haired and stooped, wearing a nondescript tan jacket and jeans. On his head the ubiquitous ball cap of his era, writing on it indistinguishable to me because all I could see was his back.

The young man, tall and slim, appeared to be in his early twenties. He wore his uniform crisply, his boots polished. Short, dark hair trimmed and neat. He stood watching the exit of a store that has seen more than its shared of police response.

"Are you the security guard?" the older man asked.

"I am, sir," the officer responded. His eyes scanned the man's hat. "Semper Fi, sir."

Semper Fi. Among veterans and current members of the Marine Corps, it is a greeting that is more than "Thank you for your service." It is even more than an exchange between people who have had common experiences. It is an acknowledgement that the people involved had signed a very special blank check.

Many years ago, my brother accompanied my mom and dad to DC. There, they visited the Marine Corps Memorial, an outsized sculpture (the cast figures are each over thirty feet tall) depicting the second (and iconically famous) flag raising on Iwo Jima. My father had been on the other end of the island the February day Joe Rosenthal took the photo that inspired the sculpture, but to him the meaning was special, and personal. It meant that fellow Marines had fought their way to the top of Mount Suribachi - many being killed or wounded in the process - and what was essentially a giant honey-combed artillery firing position had been overrun, and was being silenced. Guns from that mountain had rained destruction down around my dad and the other "kids" accompanying him for four days and nights.

Uniformed Marines were present on the day my father visited. He was readily identifiable as a veteran of the Corps by his ball cap, and the modern day warriors flocked around him. "He was there," those Marines said in hushed tones, my brother standing nearby as witness. Men of a different generation expressing their awe and admiration for one of those who had gone before them.

Semper Fi is not always a compliment, or expressed as a positive. But, in that little moment at an out-of-the-way grocery store on a weekday morning, it was an exchange between two men who had been there, wherever their there had once been. They had raised their right hand, signed the blank check, undergone the hardships necessary to earn the right to wear the eagle, globe and anchor. Served with honor in the many places their country had needed them.

I was an outsider, an observer. A writer recording and reporting a special moment masquerading as a chance encounter. Blessed to have been there. Blessed to be the son, and son-in-law, of Marines.

 

Naming Names (Part One)

 

Go sell your crazy somewhere else...we are all stocked up here.

– Louisiana Sen. John Kennedy

A school shooting, political posturing and... There ought to be a law. Some reflections.

Mass shootings always result in someone, somewhere demanding action. Most of the time (as seen in many places in the US in recent weeks) those demands are directed at the legislative branches of government, that more laws be enacted that will make it illegal to...

This is generally where confusion reigns.

As we have discussed in the past, there are already a multitude of laws extant that prohibit:

Murder

Possession of firearms within school buildings

Purchase or possession of firearms by juveniles

Purchase or possession of firearms by previous offenders

"Assault weapons bans" are once again a hot topic. Fair enough. 

We have explained here that modern combat arms are designed to give the shooter as many advantages as possible when used in situations where the defense of life matters. Some of those advantages are available to the average citizen, some are reserved for members of law enforcement organizations and the military. Absolutists on either wing of the 2nd Amendment can think what they want. These are facts, at least for the moment.

It is also a fact that rhetorical flourishes about the kinds of firearms a person "needs" imposed on the owner by others is a not-especially-deft and constitutionally infirmed attempt to shift the burden of going forward onto the citizen. Nowhere in our constitution is there any suggestion that a citizen must advance a justification for exercising their rights as explained under the 2nd Amendment. Recent Supreme Court jurisprudence has established this, and continues to reaffirm it.

The Supreme Court in Heller and every 2nd Amendment case thereafter recognizes a citizen's right to "keep and bear arms" as an individual right. That is, the preliminary language about well ordered militias and such is meant to explain and not to restrict what comes next. The amendment as ratified made no distinctions between military and hunting rifles. Consequently, the right of individuals to own combat arms is protected.

It's not absolute. The Court in Heller stated (this was dicta, which is an industry term meaning that the justices were thinking out loud) that the 2nd Amendment is subject to reasonable restrictions, to wit:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

In other words, it is constitutional to incorporate some restrictions into law. Indeed, the Court addressed the "M-16 rifle and the like" and, somewhat obtusely, considered that some military small arms are "dangerous and unusual weapons." (For those who think you've just hit on verbiage permitting an "assault weapons ban" note the presence of the word and.) Let's stay on solid ground, here, and allow as how the 2nd Amendment isn't absolute. If that spurs you on to ask what part of "[S]hall not be infringed" I don't understand, maybe this essay isn't for you.

The Constitution's due process clauses require a certain level of specificity when it comes to prohibitions. That is, if something is illegal to possess, the law making it so must define, clearly, what it is. Which leads us back to Senator Kennedy.

In a Senate hearing, Senator Kennedy prefaced his questions of the Secretary of Homeland Security by eliciting an admission that the Secretary had called for a ban on "assault rifles." He then asked the operative question.

"Mr. Secretary, what is your definition of an assault rifle?"

The Secretary's answer can best be described as evasive. He would leave it up to the experts to define, he was not one of those experts... Etcetera and so forth.

We'll leave for another day the politics of this exchange, and stick with the law. How would you define an assault rifle? Is it a certain color? Does it have a detachable magazine or is it loaded internally with a clip? Full auto, semi auto? Plastic and metal, or metal and wood? Does it matter the caliber of bullet? If you say "Ergonomically designed to maximize target acquisition" you've described just about every firearm, even something as antique as:

My dad and I were in Bargain City USA outside of Philadelphia, circa 1960. In an old wooden barrel, set in the aisle among other recreational gear (fishing poles, canvas tents, baseball bats) were a dozen or so rifles, packed in cosmoline - a preservative gel. They were war-surplus M-1 carbines, with a purchase price of perhaps $50. It is a semi-automatic thirty caliber gas-operated shoulder weapon issued during WWII to foot soldiers, paratroopers, tankers and others, as a lightweight alternative to the heavier, but more lethal M-1 Garand. It had a detachable magazine, a bayonet lug, and some models had a pistol grip and folding stock. I have a picture of my Marine father carrying an M-1 Carbine on Saipan, during the battle with the Japanese Army in 1944.

The Secretary eventually said he'd adhere to the 1994 ban definition, to wit:

Semi-automatic rifles able to accept detachable magazines and has two or more of the following:

• Folding or telescoping stock
• Pistol grip
• Bayonet mount
• Flash hider or threaded barrel designed to accommodate one
• Grenade launcher

Does that sound familiar? Of course, under the 1994 law 650 weapons were specifically exempted (including the M-1 carbine) which makes it seem less like an "assault weapons ban" and more like something done to say something was done. In addition, there is some question whether it would survive a Heller test.

Remember, that definition may, someday, be applied to deprive a fellow citizen of their liberty or property. In the law, the prosecution must prove each and every material element with proof beyond a reasonable doubt. If you are missing one element, it is no longer an "assault rifle" but is a JAR - Just Another Rifle.

This is not a time to sell crazy. It's a time to look at the laws we already have, the procedures already in place and ask - do we really mean to be serious, or are we just passing laws to "Do something?"    

Goaltenders of the World, Unite

 You have nothing to lose but your chains.

Karl Marx...sort of.

This is the city, Los Angeles, California. Beaches, movie stars. Home of the LA Kings National Hockey League team. They work there. They carry sticks.

Into town come the visiting first place Colorado Avalanche, at the tail end of a grueling but successful West Coast road trip. Once again depleted by injuries to key players, they were primed for a stinker. And that's just what they laid down last night. It looked like Our Avs had removed the metal blades from their skates, "maneuvering" on the plastic blade frames.

Our boys were badly outshot in the first period, to the tune of something like 20-3. One would expect them to enter the first intermission down a couple of goals, with a tongue lashing from the coach to accompany their recovery drinks. A few F-bombs, several "up your game" moments, perhaps a Herb Brooks-esque "Candyass!" comment under his breath.

No, they went into the dressing room tied at Zero. For those new to hockey, that means zero. Badly outshot, playing back on their heels, Avalanche goalie Alexandar Georgiev - born in Bulgaria but a dual citizen also of Russia - positively stoned the Kings. He played "big," was routinely in perfect position and when the Kings players swarmed he was an acrobat. Known for his quick feet, LA players several times fired the puck at what appeared to be an open net, only to have one or the other of Georgie's leg pads appear as if materializing from another dimension.

The next period ended 2-2, the onslaught continuing. In the end, a wild final period in the books, the score stood Avalanche 4 - LA Kings 3. Shots on goal 23 for Colorado, 41 for LA. Obviously, this kid from Bulgaria played an indispensable role in securing two more valuable points in Colorado's run up to the play-offs. That's first star of the game material. But, wait!

The stars of the game are picked by local hockey "authorities." Since this game was played in LA, that's where these "experts" were found. Consequently - having obviously watched a different hockey game than me, they chose two Kings as first and second stars, and Avs forward Denis Malgin as third star.

This is not something about which reasonable people can differ. I call for the Denver DA to seat a Grand Jury and investigate. There is something sinister afoot, and justice must be served. 

Seriously. Doesn't Stormy Daniels work in LA? Where was she last night?