Retrospective and Commentary

 

Retrospective and Commentary

 

        So here we are, many of us inoculated, some refusing to accept vaccination. The reasoning of those who refuse the vaccine is so far beyond me that I can’t speculate beyond the obvious political division on the subject spawned and exacerbated by the former president. It strikes me as tragic and incredibly disappointing that the cult of Trump, which has spawned such insane buffoons as Marjorie Taylor Green, Josh Hawley and others, continues to influence Americans who cannot comprehend or accept the truth. That truth is simply that being vaccinated is by far the most sane and reasonable precaution one can take in this era of the plague.

        Make no mistake, the mindset among the vast majority of these folks (non vaxxers) is the product of 11 months of calculated misinformation piggybacked on four years of divisive political doctrine aimed at dividing the nation based on race, xenophobia and general disparagement by certain media of anything less than Far Right conservative.  Tragically, this was amplified by the opinions of talking heads who know nothing and are happy to share.  

        What follows is a brief timeline of this epic failure of leadership:

·       “We have it totally under control. It’s one person coming in from China, and we have it under control. It’s going to be just fine.” Trump, interview CNBC, 1/22/20

·       “We pretty much shut it down coming in from China.” — Trump, interview with Sean Hannity, when asked how concerned he was about the coronavirus, 2/2/20

·       “Now the Democrats are politicizing the coronavirus. … One of my people came up to me and said, ‘Mr. President, they tried to beat you in Russia, Russia, Russia.’ That didn’t work out too well. conversation. They tried anything, they tried it over and over. … And this is their new hoax.” — Trump, campaign rally Charleston, S.C. 2/28/20

·       “This was unexpected. … And it hit the world. And we’re prepared, and we’re doing a great job with it. And it will go away. Just stay calm. It will go away.” — Trump, to reporters at the U.S. Capitol, 3/10/20 (28 deaths)          (the above was in addition to the complaints by Mitch McConnel, also false, that “this was unexpected” since the Obama staffers had run a pandemic scenario with 60 page playbook for the incoming Trump administration, one of whom was McConnell’s wife, incoming Transportation Secretary Elaine Chao)

·        “Nobody would ever believe a thing like that’s possible. Nobody could have ever seen something like this coming, but now we know, and we know it can happen and happen again.”  Trump at a task force briefing, claiming falsely that “No one saw a pandemic like the coronavirus coming.” 3/25/20   1,352 deaths to date (see parenthetical comments above)

        Here’s as good a place as any to assess the huge lie being told here by Trump: Speaking in Bethesda Md on December 2, 2014, President Barack Obama said: “There may and likely will come a time in which we have both an airborne disease that is deadly, and in order for us to deal with that effectively we have to put in place an infrastructure, not just here at home but globally, that allows us to see it quickly, isolate it quickly, respond to it quickly, so that if and when a new strain of flu like the Spanish flu crops up five years from now or a decade from now, we’ve made the investment and we’re further along to be able to catch it.” 

        Nearly a month earlier, on November 5, 2014, the Obama administration had asked lawmakers for $6.18 billion in emergency funds to enhance the government’s ability to respond to an outbreak of Ebola, which was an urgent situation at the time. The proposed legislation included $4.64 billion for immediate response and $1.54 billion as a contingency fund to ensure that there are resources available to meet the evolving nature of the epidemic. Predictably, facing a McConnell led ultra-conservative Congress with little appetite for big spending measures, this forward-looking proposal was pretty much dead on arrival. 

        Obama’s push for a national framework with installations and personnel ready to swoop in and confront/curtail an outbreak like the coronavirus met predictably fierce resistance, and funding for pandemics was forced to stay at the levels approved in 2010 through the end of Obama’s final term in office. Then: “We inherited a broken system,” Trump said in one his often repeated snide /derogatory references to the Obama administration, “But they also gave us empty cupboards. The cupboard was bare. You’ve heard the expression, ‘the cupboard was bare.’ So, we took over a stockpile with a cupboard that was bare,” Trump said this on April 6, 2020, less than a month after proudly announcing that: “We’re prepared, and we’re doing a great job with it.” What he omitted, was that the “stockpile” would have benefited from $321 million more in Obama's term than it ended up getting, because Republicans in Congress stuffed the legislation. 

·       “It’s going to be, really, a voluntary thing. You can do it. You don’t have to do it. I’m choosing not to do it, but some people may want to do it, and that’s OK. It may be good. Probably will. They’re making a recommendation. It’s only a recommendation.” — Trump, in a task force briefing where he announced the face mask recommendation, 4/3/20, 9,316 deaths to date. (by minimizing the efficacy of masks and personally refusing to wear one, this may have been the most criminally negligent action he had taken thus far)

·       "It looks like the coronavirus is being weaponized as yet another element to bring down Donald Trump," Rush Limbaugh said on his radio show. "Now, I want to tell you the truth about the coronavirus … I’m dead right on this. The coronavirus is the common cold, folks." 2/24/20 (the only truth here (now) are the words “I’m dead”)

·       HANNITY, March 9: "This scaring the living hell out of people -- I see it, again, as like, let's bludgeon Trump with this new hoax."

·       HANNITY, March 18: "By the way, this program has always taken the coronavirus seriously. We've never called the virus a hoax. (see above!)

So, where are we today? (5/19/2021) US cases: 32.9 million, deaths: 587,000 (more than the population of Wyoming). Did it have to be this bad? Almost assuredly not, but the continued barrages of falsehoods and minimizations of the true dangers from public figures from Evangelical pastors to Fox News talking heads to the POTUS helped make it so. 

      Today as we see new cases in the US steadily decreasing as our vaccination rate increases, the Covid pandemic continues wreaking havoc in such places as India where the medical establishment is simply overwhelmed.

      Here in the states, we now are being treated to Republicans nattering that some folks are loathe to return to their former jobs, even though hiring efforts are being made. What’s to blame? If you ask a Far Rightist, it’s “that damned Socialism.”

      Yep, they’re blaming the stimulus checks (but, apparently mostly those after the Trump disbursements) for giving those temporarily out if work a chance to reflect on where they are and where they’d like to be. Some of those who were working “no healthcare or benefits” jobs aren’t rushing back to those jobs. 

      Some have had the uh-oh moment of no healthcare coverage during a plague. Others have realized how much costly childcare spending so they could work a minimum wage job was further impoverishing them. Whatever the reason, the support (rightly) provided by Congress, however unwilling, in the form of stimulus payments, plus appropriate extension of unemployment benefits, has enabled many to step back, take a breath and evaluate the future of their working lives.

       Understand: the percentage of our fellow citizens who simply don’t want work hasn’t changed, and we will always have what in the Elizabethan age was called “the undeserving poor.” How we deal with them is and has been a continuing social issue, but for those sidelined involuntarily by Covid, judging them harshly for not eagerly flocking back to entry level jobs and seeking the possibility of a better life is …well, it’s so Republican, isn’t it?       

American (linguistic) Exceptionalism

 

American “Exceptionalism”

 

        While I find some things “American” not only unexceptional (racism, cultural bigotry, classism, “weaponized” religion) but, in too many cases deplorable, there are some things which are uniquely American. Many of these are in the area of language. I don’t mean just English, here, but more the idiomatic meanings we attach that make it difficult for a non-native speaker to figure out exactly what the hell the speaker means. Jeff Foxworthy has done this to, a great extent (and for  many yucks) for bastardized and mutilated redneck speech, so I won’t go there. However much remain to be discussed.

        “Critters,” as most of us know, refers to sentient non-human life forms. Most are unaware that the word stems from the word “Creature.” It’s just bad diction multiplied by years of abuse. Unlike “critters” which has standard English roots, America has spawned idioms which make no sense anywhere else. A Brit, getting into a car and hearing a passenger yell “Shotgun,” would probably duck and cover. The word stems from the American west and the guard riding beside the driver of a stagecoach with a shotgun for protection. How it evolved to modern automobiles is anyone’s guess. The same is true for “shotgun wedding” - a usage strictly American.

        Some more of these would include “lipstick on a pig,” (tart up something plain to create the illusion of relevance or value) and “break a bill” (ask for change).  “Fanny pack” takes more explanation. “Fanny” in real English refers to the forward most lady bits. Somehow, over time, the term in US “English” came to mean the after part. Asking the wrong Londoner for a “fanny pack” might cause trouble.

        Then there’s “Jump the Shark,” as in “I think American Idol Jumped the Shark when Adam Lambert lost!”  Plenty of Americans also don't totally “get” why we use this phrase to describe when a TV show or some other work goes on longer than it should. The phrase originated with an event in a 1977 episode of the sitcom Happy Days in which Fonzie jumps over a shark while on water-skis. Since the “stunt” was considered gratuitous and sensational it gradually became used to describe any episode of a television comedy with a gimmick or unlikely occurrence desperately attempting to keep viewers' interest in the series' run. It has since become a kind of derisive shorthand for when something ceases to be culturally relevant—or any good, but only in America!

     “First base/ second base,” as most US teenagers know, are euphemisms for stages of attempts (usually adolescent) at seduction of the fairer sex. Elsewhere they are the cause of blank stares, although the “base” part is becoming more widely understood in Australia and Britain (but not in the same context) as American baseball is becoming more popular both places. 

        As far as I am able to determine, if any group of people from various cultures were forced to consume feces (stay with me here) only Americans (if any) would “grin.”  A possible but anecdotal source for this one is that the expression “shit-eating grin” may refer to the expression that appears on a dog’s face when it’s caught gobbling up a pile of fecal material deposited by another animal. We’ve all seen how a dog can curl up its lips in a semblance of a grin. And we’ve also seen dogs whose buffet could be found in a cat’s litter box. Either way, it’s a sheepish grin caused by being caught in the act. (Or maybe the lip motion helps clean the stuff off their teeth.)

        Also, in most cultures where English is spoken, it is considered unnecessary to stipulate “Horseback riding” since there really is no other place to sit while participating.

        Other examples include “piece of cake,” which probably derives from a line in "The Primrose Path," a 1935 poetry collection by American humorist Ogden Nash: "Her picture's in the papers now, and life's a piece of cake." Brits don’t get it. Even more lost on the rest of the English-speaking world are some sport specifics such as “Monday morning quarterbacking” for second guessing a decision already made and acted on, and “ballpark figure” used for “guesstimation”.

        It might surprise many that “break a leg,” in widespread use in the theater, is uniquely American and first appeared in print in a 1948 newspaper article. There is speculation that it devolved from a Hebrew blessing, "hatzlakha u-brakha" ("success and blessing”) and likely entered the current lexicon via Yiddish, widely spoken by Jewish immigrants in the American theatrical community.

        I’ll close with a scatological reference. We often say that a thing, idea or whatever which we devalue, don’t like, or disrespect is “for the birds.”  It has no similar meaning anywhere else. It is generally attributed to US Army personnel who, seeing birds enthusiastically pecking at horse droppings, decided that anything analogous to horseshit was, well, you get the picture.

        If I was going to autograph this poor screed, I might say I would affix “my John Hancock” which has no meaning to any other culture than American, since Hancock was the American statesman whose lavish and large signature is seen on the 1776 U.S. Declaration of Independence document. Not a high point with Brits.

Qualified Immunity; What It Is and What It Isn't.

 

Qualified Immunity: What It Is and What It Isn’t

        I was rather surprised, the other day to read the headline of an OP-ED in our local paper. It wasn’t actually the headline content but rather the author, one Star Parker. Ms., Parker is one of several young, bright, Black Conservatives who have made their names by being just that - the unlikely Trump supporting minority he disdains, (and said so prior to running for office!)

        In brief, Ms. Parker wrote on the subject of Qualified Immunity (QI for brevity) and the ills within that policy. Sadly, she tried to forge a direct link between that doctrine and the “murder by cop” of George Floyd, linking the doctrine to the homicide as if they were cause and effect. It’s just not that simple.

        Without a doubt, the killing of George Floyd and in large measure, the nationwide media coverage of protests in its wake, have put a spotlight on the legal doctrine of qualified immunity. Left unsaid in most circles is that QI wasn’t really at issue in the prosecution of former Minneapolis police officer Derek Chauvin and the three other former officers who face criminal charges stemming from Floyd’s death. That said, however, it is one of many structural factors that can make it difficult to hold police officers accountable for wrongdoing. This was not at question in the Floyd case, either. The Floyd murder, on the other hand was so egregious and controversial that the City Council of Minneapolis agreed to pay $27 million to settle a civil lawsuit from George Floyd’s family over his death in police custody, even as jury selection continued in Derek Chauvin’s murder trial!  

        Ok, what, then is the doctrine of Qualified Immunity? QI is a judicially created doctrine that shields (all) government officials (not just cops) from being held personally liable for constitutional violations—for monetary damages under federal law so long as the officials did not violate “clearly established” statutory or constitutional rights of which a reasonable person would have known.”

        The decision in the landmark case of Harlow v. Fitzgerald (1982) framed the articulation of QI which prevails today. Previous interpretations had revolved around the “subjective good faith” of the officer who committed the alleged violation, but in Harlow, the court adopted a new test framed in “objective terms.” In Harlow, the court established that a plaintiff could overcome QI only by showing that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” (remember this)

        While being obvious that the new “definition” was intended to be more protective of government officials than the “subjective good faith” test, the court also stated that the standard “provide[d] no license to lawless conduct.”  Since Harlow, however, application and interpretation of that doctrine the courts have applied the doctrine in three distinct ways that have made it more favorable to government defendants, and much more difficult for plaintiffs seeking redress. Remember, all this applies to freedom from civil litigation, not criminal prosecution, as many seem to think. So, the three roadblocks?

        First, in order to show that the law was “clearly established,” the court has generally required plaintiffs to point to an already existing judicial decision (precedent) with substantially similar facts. This essentially means that the first person to litigate a specific harm is out of luck since the specific right violated wouldn’t be “clearly established.” For example: The U.S. Court of Appeals for the Ninth Circuit heard the following case: A SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. And while the three-judge panel assumed that the SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted QI to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.” (“We never had a tear gas/SWAT case before…tough shit, plaintiffs.”)

        Second, in Pearson v. Callahan (2009), the Supreme Court altered the way in which courts apply the doctrine in a manner that created another significant obstacle for civil rights plaintiffs. Previously, the Supremes, in Saucier v. Katz (2001), had ruled that  when assessing a qualified immunity defense, courts must first determine whether there was a violation of a constitutional right and then move on to analyze whether the law was clearly established. But in Pearson, the justices reversed course, allowing courts to grant QI based only on the clearly established and specific action by police (or other government actor-ATF anyone?) without ever determining if there was a constitutional violation, creating a “Catch-22” for civil rights plaintiffs. In the words of a dissenting judge: “No precedent = no clearly established law = no liability.” And according to a recent study conducted by Reuters: “Plaintiffs in excessive force cases against police have had a harder time getting past QI since.”

(An example of what this can mean:  When a police officer shot a 10-year-old child accidentally while trying to shoot a nonthreatening family dog, the Eleventh Circuit U.S. Court of Appeals held that the officer was entitled to QI because no earlier case held it was unconstitutional for a police officer to recklessly fire his gun into a group of children without justification.)

        Third, the Supreme Court’s definition of a “reasonable officer” has morphed since Harlow (1982 to grant government officials even greater deference and latitude. In a 1986 decision, the Supremes wrote that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Since then, the Supreme Court has stated that a defendant’s conduct is to be judged on the basis of “any reasonable officer” or “every reasonable official”—“thus implying,” as one critic wrote, “that in order for a plaintiff to overcome QI, the right violated must be so clear that its violation in the plaintiff’s case would have been obvious not just to the average ‘reasonable officer’ but to the least informed, least reasonable ‘reasonable officer.’”  Could this have been a civil defense for the three who watched Derek Chauvin kill George Floyd?

        Unsurprisingly, both Justice Sotomayor and the late, great RBG, with (surprisingly) unlikely ally Justice Thomas, have been critical of the wide scope of QI. Justice Sotomayor wrote: (Qualified Immunity is) “A one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers”— in an opinion, which Justice Ginsburg joined. As Sotomayor put it, qualified immunity “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

Summary: So what? It’s (QI) just about civil damages anyway, huh? While that is true, reflect on this: would Derek Chauvin have been convicted (or even charged without video and numerous eyewitness testimonies? What if the same sequence of events had happened on a largely empty street at night?

        QI does apply only in civil lawsuits and not criminal prosecutions. But: such civil suits are the only means by which individuals or their families can get compensation for the violation of their constitutional or civil rights. And, in practice, civil lawsuits are often the only means to seek justice at all because prosecutors—themselves government workers—are typically reluctant to bring criminal charges against their government colleagues, especially police officers who are crucial to the work prosecutors do on a daily basis.

Assuming that QI assures there won’t be a civil suit with the possibility of a verdict of negligence or even wrongdoing by police, therefore no huge payout by the legislative authority, makes it (safer/easier/more convenient) to not charge police for criminal actions. Only the broad daylight and documented negligent actions of three bad cops in allowing the murderous activities of one truly heinous cop made Minneapolis decide to not even wait for a QI decision in the civil suit which was sure to come and sure to be decided in the Floyd family’s favor. The city’s acknowledgement of liability made it SOOO much easier for prosecutors to decide “Screw the “Blue Wall,” indict this murdering scumbag.”

        In discussing Qualified Immunity and, in her defense, alleging that it needs to go or at least be redefined, Ms. Parker chose the wrong case to make the right statement. So why eliminate QI? 

        First, it would return the Constitution to its proper place as a limit on government actions by making it possible for individuals to enforce the Constitution against government workers. (QI, or even the concept, is absent from the Constitution.)

         Additionally, its absence would encourage governments at all levels to take more responsibility for the actions of their employees. Since the government’s insurance company almost always pays the bill if/when an officer is found personally liable for violating someone’s rights, if qualified immunity is removed, governments would be forced to pay higher premiums, unless they took an active role in reducing civil and constitutional rights violations. It seems shameful that financial liability might have more effect in this area than conscience and the idea of equal protection, but there you are. For police, this might include providing de-escalation training and instituting robust use-of-force policies. In other words, a world without qualified immunity could mean a world where the government has a stake in making sure its employees follow the Constitution.

        Finally, although ending qualified immunity wouldn’t solve all problems of police abuse¹, it would unquestionably be an improvement. And unlike other proposals for police reform, eliminating qualified immunity would immediately apply to all government workers and could be accomplished either by the U.S. Supreme Court or Congress.

 

1. I have written at length in my blog about police violence and the mindset leading to it in many instances. When bullied kids become cops, they are still bullies. When someone who has been bullied becomes a cop, it can be even worse. The psychological eval to be a law enforcement officer should be the toughest obstacle, not just a minor annoyance.  I defer in this matter to Congresswoman Val Demings, former Orlando Police Chief. In a May 29, 2020 OPED in the Washington Post, she said this, in part: The eye-catching title was:

“My fellow brothers and sisters in blue, what the hell are you doing?”

        “When an officer engages in stupid, heartless and reckless behavior, their actions can either take a life or change a life forever. Bad decisions can bring irrevocable harm to the profession and tear down the relationships and trust between the police and the communities they serve. Remember, law enforcement needs that trust just as the public does. Think before you act! Remember, your most powerful weapon is the brain the good Lord gave you. Use it!

        Law enforcement officers are granted remarkable power and authority. They are placed in complicated and dangerous situations. They respond to calls from people with their own biases and motives. In New York, we’ve recently seen past pains of the Central Park Five dredged up in a new attempt to misuse law enforcement against an African American man. When you see people differently, you treat them differently. And when power is in the mix, tragedy can result.

        As law enforcement officers, we took an oath to protect and serve. And those who forgot — or who never understood that oath in the first place — must go. That includes those who would stand by as they witness misconduct by a fellow officer.

 As a nation, we must conduct a serious review of hiring standards and practices, diversity, training, use-of-force policies, pay and benefits (remember, you get what you pay for), early warning programs, and recruit training programs. Remember, officers who train police recruits are setting the standard for what is acceptable and unacceptable on the street.”

                                 Amen