Headlines, Not Solutions

There's certainly a lot to digest - is OC the functional, or moral, equivalent of tear gas; is Antifa a terrorist organization or, as Dan Bongino claims, a bunch of guys living in Mommy's basement eating Hot Pockets; when you mention retired Navy SEAL Jocko Willink do you hear people ooh and ah...but they've never actually read his book Extreme Ownership and know that the message is to own challenges and defeats, as well as triumphs?

The death of George Floyd at the hands of a Minneapolis police officer has raised - in some ways re-raised - an unavoidable conclusion. The best of the finest are always owning introspection and improvement, when they aren't ducking bottles and bricks, or trying to decide which of the protesters has a gun. There are always reforms to embrace, always challenges to be met and overcome. Solutions often start with "What am I doing that contributes to the problem, and how can I change that?" But then...Congress.

A friend - an exceptional and honorable police officer - alerted me to a bill that is being considered in the US Senate, abolishing something called "Qualified Immunity." Before I go on:

Law Porn Alert.

There, I said it. Let's get to the business at hand.

How, you might ask, can I possibly cite Jocko (oohh...ahhh) and then even imply that cops should be immune from... Anything. Be accountable, take the punishment. Etc. Fair enough. Let's begin with what qualified immunity is - something even lawyers misunderstand.

First, it is not immunity from being prosecuted for criminal acts. Qualified immunity is a creature of Federal Civil law arising out of 42 US Code Section 1983 - a cop can be sued for depriving someone of a recognized right (among other things, a constitutional right) under color of law (using their authority as a cop). That seems like a straightforward concept, eh?

Being a police officer in 2020 is far more complex than it was even when I started which, come to think of it, was a while ago. A succession of Supreme Court decisions have created bright lines in some cases, made muddy waters capable of being plowed in others. I'm a lawyer, and there were times when I wasn't sure what the law required, or restricted, especially at three in the morning when the shit is most definitely getting real.

The law makes provisions for that. In case after case, officers have been granted immunity from suit because they were - stay with me - being sued for something no one knew was a violation of the Constitution.

This is what Dr. Atul Gawande (The Checklist Manifesto) calls a "Pause Point." I know you are thinking: We've owned this thing since 1789. How in the hell can something about the Constitution be UNKNOWN? 

I know, right? Let me introduce you to Arizona v. Gant (2008), which isn't a qualified immunity case, but you'll see why it is important.

Prior to Gant the law about searching cars had been fairly settled. Some of it was a little complicated, but it had been the same complicated for decades. For our purposes - If an officer stopped a car and arrested "a recent occupant" for anything, they could search the whole car. Yeah, the whole car. Like it or not, that was what the Supremes had held in 1981, and we were all pretty sure we knew what was constitutional.

Then, 5-4, the court changed everything. Gant was a dude charged in Tucson after dope was found in his car. He'd been arrested for - wait for it - driving with a suspended license. Justice Stevens, writing for the majority (which included Scalia and Thomas...crazy, huh?) said that the search was unreasonable and a violation of Gant's constitutional rights. In doing so they severely restricted an officer's searching authority, requiring a sort of particularized probable cause (don't worry about it. Just go with me on this). They didn't pull this out of their...caboose. The case is actually pretty interesting. But...

Go back to Section 1983 - the evidence was suppressed because Gant's constitutional rights were violated. Can't he sue?

Sure, but he can't win because of - Qualified Immunity! How could a reasonable officer (an objective standard) in 1999 know that Johnny Roberts and the Supremes would change their interpretation of the 4th Amendment in 2008? Being held accountable for a constitutional violation in 2008 for something the Court said was okay when you did it in 1999... That would suck.

Court clarifications about the law happen all of the time. In 2008, two officers of the San Francisco Police Department went to a disturbance involving a person for whom the Americans with Disabilities Act protections applied. That person had a knife and tried to stab the officers - yelling the whole time she was going to kill them. Both officers, being intelligent and mature women who weren't especially keen on dying, shot the woman. Miraculously, the Sheehan involved in San Francisco v. Sheehan survived. Of course, she sued, under the novel idea that the officers did not accommodate her disability under the ADA while they were violating her 4th Amendment rights.

Well, how the hell were the officers supposed to know the answer to that? Qualified immunity is denied only if the rights being violated are "clearly established" at the time of the incident. No one had ever raised this issue before. The Court found in 2015 - unanimously (sort of) - that the officers deserved qualified immunity.

Whew! Seriously, how would you like to be my poor wife, who has to listen to this kind of stuff? No wonder she rides her horse three times a week - she needs the peace.

So why would Senators want to hold police officers accountable for things no one knew were violations of the Constitution?

They are jerks. Any questions?

Speakable

I hated every minute of training, but I said, 'Don't quit. Suffer now and live the rest of your life as a champion.' Muhammad Ali

The video of George Floyd's death in Minneapolis is shocking. We are watching a murder. If the officer with his knee on this man's neck has not been arrested...why not?

If it is possible, the video betrays deeper issues for a police department about to experience it's second murder trial of an officer in as many years. Three other officers stand there - one obviously uncomfortable with what he is seeing - and do nothing.

What have these people been trained to do when one of their own is committing a crime? The answer, apparently, is nothing.

Oh, I guarantee they get yearly ethics "training." A good friend, a gifted cop and police trainer, scoffs at what passes for training in even progressive departments. "You've been informed," he says, laughing derisively. "You aren't trained until you've demonstrated that it changes the way you perform." I'd even bet the yearly in-service classes are done as cattle calls, most of the officers spending most of the time staring at their phones. 

"Oh, yeah," says their chief to the Mayor. "We do hours of ethics training every year. We have the sign-in sheets to prove it. Use of force? You bet."

Big fucking deal. You've trained your officers to stand there and watch while one of their own slowly murders a guy begging for his life. How do you explain that?

And hey! MPD. When the doors close behind you, and it's just you, what do you talk about? How the citizens are assholes, the command staff doesn't support you - not just "It's us against them" but "It's us or them?" Get your heads out of your asses. This is on you. Self-talk begets behavior. 

Minneapolis PD is in trouble. They will have shit thrown at them, and so will thousands of other officers whose only association is that they are cops. Maybe that will get someone's attention. The question is - who has the cajones to actually get in there and fix it before their officers kill anyone else?

One For The Books

Memorial Day, 2020.

If you are like us, you have spent a bit more (or a lot more) time on social media since early March. You've sampled, and maybe contributed to, the discourse and sometimes the discord. People are (insert your invective here), government is (insert totalitarian slur of choice here) and things will never be the same because we are (be the futurist here). Fair enough. We've had our share of pity parties, too.


We've also had our share of triumphs. As spring has taken hold, we've set up chairs on the front lawn along our property line, poured ourselves a little restorative and, maintaining the appropriate social distance visited with our great neighbors next door. The sessions go on so long we've begun ordering appetizers. Others from our little burb walk by, enjoying the fresh air. We've met people who've lived half a block away for years, simply by being on the front lawn, not the enclosed back porch.

We've read great books, taken the dogs for walks. We've determined that, in fact, we actually have married our best friend. We've cooked some great recipes, thrown together some imaginative "Q-rats" and ordered out using a door-delivery bulls eye (it's as effective AF) designed by our daughter, who owns a crafting business. We've engaged in the great debate of the year, maybe of the 21st Century - was all of this necessary, or proper? And, we're watching Americans demonstrating the usual tenacity, imagination and grit. Amid the great cacophony of competing voices and interests, we're reemerging as the nation we've always been - three hundred million opinionated, clamorous, divergent, freedom-loving people trying to make all of this work.

It was bought and paid for by American men and women who are buried in cemeteries all over the world. They are in lavish, tenderly cared-for fields. In unmarked, hastily-dug graves. They were wrapped in canvas, tendered to the depths thousands of miles out to sea. They departed in boats, ships, airplanes - and were never seen again. They fought, and they died knowing they had been deprived of their own future, so that we could have ours.

My father didn't talk much about his experience as a Marine. Oh, he was proud as hell of his service. He told wonderful stories of peripheral times - the laughter, the camaraderie. It's just that, at the end, he would remember that the guys with whom he'd shared drinks, brawls and bawdy times had been killed on this remote Pacific island, or that...

I was a Lieutenant (jg) in the US Naval Reserve when talk turned to Iwo Jima. The assault waves were bottled up on the beaches, men lying in heaps in the black, volcanic sands, trying to find cover from machine gun fire raking the landing areas. "You'd hear this boom from the direction of Suribachi," my dad said, referring to the extinct volcanic peak that was a fortress of artillery pieces. "There'd be an explosion and a bunch of kids would get killed." I asked how long that went on. "All day." He was eighteen years old on that day in February, 1945.

Those kids, and hundreds of thousands like them, are why we are free to determine how we emerge in 2020. It certainly isn't pretty, and we all have different opinions about what we're doing, and why we're doing it. We don't all agree, and may never agree. We've seen loss, and death, and misery.

We've also seen heroism in the most unlikely of places, from the most unlikely of people. Our president says optimistically that what we had built - what we saw devastated in an effort to save lives - we can build again. This is the United States.

We are a free people. Because of the "kids" who fought and died all over the world. Remember them on Memorial Day.         

The Tail Still Wags

In the ongoing COVID-19 battle, one thing has surfaced. Everyone has an opinion, most opinion-writers have no idea what "Stay in your lane" means and I'm damn glad to be sitting on my back porch, drinking coffee and trying to keep my dog from barking at the terriers behind us. 

While I'm thinking about it... The dog is no longer in the fight, but the tail still wags. One of the many opinion pieces cast upon the shoal waters of the internet was one by a (possibly soon to be ex) cop presuming to tell other cops how do their jobs. It's been taken down, put back up, taken down... 

In the world of ideas as it presents, the best way to get noticed is to be taken down by YouTube, or get grayed out by Facebook. Since there is little chance of this regarding Bikecopblog, I write to a more select audience. For you, not what you should do, but what you might think about: 

Had I not retired (It's fabulous, by the way. Thanks for asking.) what would I be telling other cops about the realities of COVID-19 and how we should comport ourselves.

1. Be safe. Goes without saying. I said it, anyway.

2. The people you trusted in January 2020 are the people to trust now. If there is one thing a veteran cop knows, that some of the newer folks are learning, it is the value of an opinion one can trust. The sergeant you could always talk to, the lieutenant who still remembered what it was like to work the street. The old salt who doesn't talk a lot, but was worth listening to whenever he/she had something to say. If you are worried about doing the right thing, keep the lines of communication open. Ask, listen, think. The resources you accessed pre-'rona are still valid.

3. Whoa, Turbo. Not every minor violation of a law, regulation or sign is a call to arms. Slow down and ask yourself - "What is my exit strategy?" Citizens didn't much care to be lectured when I was working patrol. I'll bet it's even worse, now. How far are you willing to go to enforce a health department pronouncement against two people standing five feet from each other? It wouldn't be a bad idea to know that before you get out of the car, rather than after the yelling has commenced and someone has given you "The Deuce."

4. Are you sure? Several Brighton cops had to apologize after they misunderstood a sign. Do you know what you're talking about?

5. Empathy. This long-term shelter-in-place is a new experience for everyone. I was in high school the last time this many people died of "the flu" or anything like it. This is the first time a wholesale shutdown (as opposed to the targeted quarantines my folks talked about) has been attempted in our collective memories. People are reacting emotionally  - they are angry, afraid, puzzled, confused. Just like you.

6. Finally, social media is like gin. It's fun for a while, but the hangover sucks. All except Bikecopblog.

You're in our prayers. When this is over, I owe you a marg on my back porch.

Principle? Who You Lookin' At?

I am a man of fixed and unbending principles, the first of which is to be flexible at all times. US Senator Everitt Dirksen

It's amazing, what a pandemic will spawn. The student of law and government in me has been stunned at how flexible so many people's principles have become in this time of dread. Aside from the surprising cascade of epidemiologists, virologists and public health experts lurking among the celebrity memes, pictures of pets and beach vistas on the internet, there are any number of legal scholars who are sure - SURE - that the state and local edicts resulting in, inter alia: handcuffed moms on playgrounds, paddleboarders arrested on maritime law violations and the "Essential AF" syndrome, are unconstitutional. Clearly, so much so that some cop sitting in his patrol car wearing tactical body armor, hat turned backward, assures his fellow cops that following the directives of their chain of command doesn't matter - what they are doing is illegal. I was having a spirited conversation on Facebook with a couple of friends - a discussion of some of these very issues requiring, on my part, a restorative to grease the wheels - when someone I do not know posted:

"Okay, folks, let's break out the law degrees." He named his school (a mostly on-line operation specializing in scholarship short of juris doctor) and proceeded to provide a seminar on his version of US law. I offered a condensed version of my CV (on telling the story to my wife she uttered "That's a hell of a place to be coming from"). He deleted his comment shortly thereafter.

So, let's talk.

When we talk about state police powers, we're not talking about someone wearing a Smokey Bear (or, Smokey the Bear... We operate an inclusive publication here) hat, aviator sunglasses and showing you how fast you were going on their radar. When the Constitution was ratified, the powers given to the Federal government were limited, the States reserving the rest. One of the reserved powers is called the "Police Power" - the ability to write laws within a state regulating the activities of the citizens of that state.

So far, so good?

It's why the FBI doesn't come to your house when some asshole breaks into your Camry and steals the bottle of rum you were hiding from your wife. But - and this is where shit gets real - The States (and their political subdivisions, usually described as "City Hall" or "That Idiot Mayor") also reserved the right to boss you around almost any time they want. This is especially true when something truly scary, like tornadoes, floods, snowstorms and pandemics occur. When the governor of some state, standing in three feet of The Gulf running down what was once Main Street, is breathlessly declaring an emergency, it isn't because he/she is summoning FEMA like Moses at the Red Sea. It's because then, he/she can tell you to take you dumb ass the hell off the streets. If you don't, the nice officer will help you. Or, the National Guard will run you over with a Humvee.

There is a court case out there where Chief Justice Melvin Fuller and the Supremes (circa 1905) talk about all of this as it relates to diseases. Lest you think that's so...1905, HA! A court as recently as April cited it as controlling and talked about the Jacobson "Framework" which, we all know, means that this is the settled rule, since there is a cute and official-sounding name for it. Plus, they also said it is a settled rule. And then, the 5th Circuit wrote:

That settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.

Now, at least someone out there is saying "That's bullshit!" And, in normal times, you might be right and the tacked-up cop with his hat on backwards certainly is on your side. There is one very technical problem here.

When there is a Supreme Court case that says stuff like that... I axe ya. If some dude with his hat turned backward tells you to ignore your chain of command because you swore an oath to the Constitution, isn't it probably better to know what the Constitution actually says about it? 

We certainly can argue at the margins that States, localities or districts are exceeding the limits of reasonableness that one would apply to even the Jacobson Framework. In fact, I've done a bit of that myself. One can also discuss police discretion, how non-emergent things have to get before it's not an emergency any more, and not doing stupid shit just because someone calls you a Nazi. Also, plaintiff's attorneys are going to be paying cash for trips to The Maldives on the fees they get suing states for forgetting that the reserved police powers aren't a blank check to be a dick. 

I mean, someone ought to write a book.

 

Morally Adrift

"Every word she writes is a lie, including 'and' and 'the.'" Mary McCarthy

After the improbable election of Donald Trump to the presidency, Lieutenant General Michael Flynn was named National Security Advisor. He was eminently qualified, having served as Director of the Defense Intelligence Agency under President Obama.

In January 2017, prior to President-elect Trump being sworn in, Gen. Flynn received a phone call, while on vacation, from the Russian ambassador concerning an action taken by the Obama Administration. That phone call was intercepted by US intelligence assets, and a recording made.

After the Inauguration, FBI Director James Comey authorized two agents to go to the White House to interview NSA Flynn about the phone call. In public comments made later, Comey boasted that he wanted to catch the new administration unaware, before it had a chance to "organize." During the interview an FBI agent took notes, and later prepared an FBI form called a "302." The agents reported that they believed NSA Flynn was being truthful with them.

The FBI later accused NSA Flynn of making material misstatements to them during the interview. Flynn was fired from his position as NSA and subsequently charged with multiple felonies. He plead guilty to one felony, and was awaiting sentencing when - having hired a new and more aggressive attorney - shit got real.

In the last week, based on an internal probe by the Justice Department, the following has been disclosed:

The entire investigation, indictment and prosecution of NSA Flynn was based on lies perpetrated by senior members of the FBI.

These lies included falsification of documents (the original 302 hidden, and a fraudulent one released in its place), withholding potentially exculpatory evidence from Flynn's defense team (including the transcript of the original phone conversation), hiding documents that outline the plot to frame NSA Flynn (hand-written notes by participants and their supervisors). You don't have to believe me - copies of the documents are available on line. Read them for yourself. The FBI concocted a case, and the DOJ exacted a guilty plea and recommended prison for, an innocent man.

Why did he plead guilty? In exchange for a DOJ promise not to also prosecute his son, a promise that the DOJ did not report to the court, despite legal requirements to do so.

The May 7th motion to dismiss this case made by the DOJ should make me extremely happy. Nothing - I do mean nothing - angers me more than a government official knowingly prosecuting an innocent person. It offends every notion of honor in a profession in which I gave thirty five years of service. 

I am extremely happy for General Flynn and his family. It remains to be seen what efforts the government makes to atone for the shameful actions of a few. As someone who has advocated for this outcome from almost the beginning, I should be celebrating that, for once, I was right.

I am not celebrating. I'm ashamed, and I'm worried.

Over the years I had the honor of working with FBI agents in a variety of investigations. Early in my detective career an FBI agent taught me how to construct a blue collar investigation. A close friend's son is an agent. One of my daughter's closest friends is an FBI analyst. A man who I worked with as a police officer retired from the FBI, having served on the security detail of three Attorneys General. These are good people.

The FBI works every day to protect our country from harm wished upon it by evil people. They investigate armed robbers, cartel members, murderers, human traffickers. They were able to identify the perpetrators of the Oklahoma City Bombing quickly enough to charge it's main participant while he was in custody of local law enforcement for a weapons charge.

The FBI has significant worldwide reach fighting international crime and terrorism. Thousands of plots against US citizens have been uncovered and prevented since the 9/11 attacks (which two agents had discovered - too late to intervene). Anything that weakens the FBI, that makes it harder for the agents, analysts and staff members to function in their law enforcement endangers Americans.

By all means, there needs to be a reckoning. The FBI has never been perfect, and has made many high-profile mistakes. This is one of them.

The release from legal jeopardy of an innocent man is cause for celebration. Every American should applaud the outcome and wish General Flynn and his family well. It is my hope he can return to public life and contribute in the areas in which his talents have been obvious for his entire career.

Celebrating the demise of an honorable institution upon which we rely so heavily for our safety and security? No. In fact, it is time to support the rank and file, many of whom put their lives on the line every day and tell them that rebuilding the trust in their organization isn't only a they thing.

It's an us thing. 

Too-Social Media

Governments have a tendency not to solve problems, only to rearrange them. 

Ronald Reagan

My wife and I have spent the better part of our adult lives engaged in service of local government. She, in particular, dealt closely with municipal officials of one stripe or another for several decades. Both of us worked on local election campaigns. While there is much we don't know, there are some things we know all too well.

Mug of coffee in hand, most of the morning news digested, I set about to see if there was anything on social media worth exploring. My wife signed me up for the "Album Cover" challenge (today - Tapestry), I think I'm caught up on pictures of the grandkids and the Global Cycling Network workout wouldn't start until ten thirty. So far, so good.

I happened across a live feed of a virtual Ft. Myers Beach city council meeting. Why I enabled the speaker to listen in, I'll never know. One of the talking heads - I'm going to assume the City Clerk - was reading an email from a constituent, a restaurant owner. The writer was explaining that they derive little enough from their establishment as it is, but what with the shutdown and all...

The email's author went on to wonder out loud what the benefit was for the shelter-in-place, close the beaches and breathe through a bandana orders? He wondered why he/she was being pushed to (over?) the brink of bankruptcy when things didn't appear as dire as they'd once been represented. He/she went on... Well, they did go on. Finally, in what had all of the appearances of a remake of Hollywood Squares, a guy in the lower left square, bearing a remarkable resemblance to Charley Weaver, signaled for a time out - literally forming his hands into a T. Or, he was calling a technical - I suppose that is open to interpretation.

At that moment, a well dress, impeccably groomed older gent with a pure white goatee evidenced assent and called a halt to the reading. I assume this is the mayor. They'd all gotten this email, and read it themselves, right? They all got the gist of it, right? Moving along...

Some hours later, this august and important deliberative body issued their latest missive on battling the 'Rona. People could return to the beach between 7AM and 10AM. They must be residents of Ft. Myers Beach, and carry proof thereof. They must enter and exit the beach area via the public ingress/egress points. No beach parking was available. No tarrying, no congregating, tread no higher than the high water mark. Etc.

It is axiomatic, to the point of near unanimity among scholars, that Americans voluntarily follow the law because that makes sense to the stunning majority of them. This can be further broken up into a subset of notions, all of which are subject to some discussion and dissent. For example, someone who believes a law idiotic and arbitrary may nevertheless obey it because the penalty for obedience is small. Others - there's a video of a man testifying before a city council who says "I'm a law-abiding citizen" with an authority that caused most of America to take notice.

Here, we come to a conundrum. If the beach is safe for individuals residing within the city limits of Ft. Myers Beach, why is it not safe for others? Have the residents on Estero Island acquired some form of immunity? Are they uniquely qualified to judge social distance? What is magic about the permitted timeframe - is COVID-19 asleep? Can the locals view the beach, instantly assess the numbers present per square meter and resign themselves to heading home? Do they buy their grits from the same guy who sold Jack his beanstalk beans?

Sorry.

Most - one would hope all - of the Q-rules that brought a stunning number of businesses to their knees and threatened otherwise solid citizens with arrest are based on known threats and unknown, but potentially substantial outcomes. Clogged ERs, overflowing ICUs, bodies stacked like cordwood; all reasonably foreseeable outcomes based on what was known seven weeks ago. Flattening the curve seemed prudent, even imperative. Most people recognized the need for drastic action.

That was then. The balance of information has shifted, the curve well and truly flattened and now... The legal justification - a dire emergency requiring sweeping governmental powers - has passed, to be replaced with vigilance involving enhanced PPE, a greater role of cleanliness and continued social distancing strategies. 

That's not the present justification used by government, who have shifted their focus to present (and less deadly) vulnerabilities. Now we hear about target rates. Contact-mapping. Herd mentalities...er, immunity. Insufficient bureaucratic structure. These governmental agencies have supplanted the urgency of life and death exigencies with an array of arbitrary rules and restrictions carrying the weight of law totally unteathered to objective data or solid medical evidence. Because five elected officials in a city raised their hands, their citizens (only) may tread the sands of their community three hours a day, in a manner prescribed by law, without bothering to justify the laws they enacted as objectively necessary, or even suggest they are authorized by the statutes and caselaw pertaining to emergencies.

The interesting thing, from a governmental standpoint, is that there is no one, even their own citizens, who can tell them no.