Ugh. . .A Post About Police and Violence

Ever since this summer and the events in Ferguson, I've been thinking about the police and the violent world we find ourselves. In fact, if you are an American, you've had to think about these issues because they've dominated our news feeds for the past six months or so.  But with the birth of my daughter coming soon, I've been left wondering about the world she's being born into, and where I want the world to be when she's an adult.

And then on Saturday, a deranged gunman with a history of violence and mental illness* shot and killed two New York City Police Officers. He did so claiming that he was avenging the deaths of Michael Brown and Eric Garner - two African American men killed by White police officers. The two police officers he killed, by the way, were not White, one was Latino, the other was Asian. In response, Rudy Giuliani and others blamed Progressives like me for this lunatic's actions. In response to them, I'd like to say a few things:

The Killing of Officers Wenjian Liu and Rafael Ramos is Absolutely Tragic and Awful: Before anything really can be said, the deaths of these two men, who only sought to serve and protect the people of New York City, is absolutely terrible. Honestly, there aren't words for how bad this is. Officer Ramos just got married a few months ago. Neither of these two men deserved to die like this, and their deaths were pointless and horrific. Because the shooter (who I won't name because fuck that guy) took his own life, the families of the fallen will not get justice. Fuck, fuck, fuck, fuck. Unfortunately, I'm getting used to this feeling - its the same feeling I had after Newtown, the Gifford's shooting, and half a dozen other mass shootings.  

Police Officers Can Be, and Usually Are, a Force for Good: I hate getting ticketed as much as the next guy, but police officers are there to keep everyone safe, and they generally do a fantastic job of it. Crime rates in this country are down to pretty much the lowest point ever (except for the South Side of Chicago, for some reason). What's more, police officers are often the first level of government interaction with people. I've had police officers refer cases to me when I worked for the Fair Housing Council of San Diego, and sat on the San Diego Hate Crimes Taskforce with several members of law enforcement. 99% of the police officers I've known throughout my life have been good people.

But, with that said:

Police Officers Have Way Too Much Latitude In the Use of Violence: Over the past summer, we've seen the police shoot and kill several unarmed African American men and boys, and the circumstances for each killing is awful and tragic. But its not the deaths of these men and boys that's the problem - these deaths represent a tiny fraction of the confrontations Police Officers have with the general public every single day - but how those deaths are handled by the justice system that's bad.

Let's take the example of the Michael Brown shooting in Ferguson. Michael Brown and Officer Darren Wilson have a confrontation where Michael Brown is shot and killed by Darren Wilson. This death is a tragedy - Michael Brown was 19 years old and set to go to college in the fall.  Without knowing the circumstances Michael Brown's death, what I do know is that in response to his death, the Ferguson Police Department left Michael Brown's body out to rot for several hours, that they immediately had Darren Wilson go into hiding, and the first public statement by the Ferguson Police Department attacked Michael Brown (for stealing some cheap cigars). Then, the District Attorney, rather than investigating the incident and determining whether or not to indict Darren Wilson, submitted evidence to a Grand Jury, including evidence the District Attorney knew was false (and thus, suborning perjury), and gave the Grand Jury the wrong legal standard for the indictment. In other words, he bent over backwards to make sure Darren Wilson would not be indicted.

My point is, I don't know whether or not Darren Wilson was justified in shooting Michael Brown and killing him. But its pretty clear from the actions of his fellow officers and the District Attorney that it didn't matter one way or another. He was never going to be charged with a crime. And this is just one of many examples of police officers using violence in questionable circumstances and prosecutors letting them do so. There are no effective checks on the power of police officers to kill or maim citizens.  And that's scary since we give police officers the right to kill and/or maim, and provide them with the instrumentalities to do so.

Look, police officers will, on occasion, have to kill people. That's why police officers are provided handguns, bullet proof vests, shotguns, and firearms. That's why we pay taxes to not just provide these instrumentalities of killing, but also provide police officers with training on when and how to kill people. It is an awful, but necessary, part of the job.  The key is what is done after the shooting - who investigates the shooting, who determines whether to prosecute, how the officer is treated - and that is still unsettled.

Going back to our Michael Brown example, had the Ferguson Police Department immediately stated that (1) the death of Michael Brown was a horrible tragedy; (2) that Officer Darren Wilson was involved in the shooting and has been put on administrative leave (with pay) pending the outcome of the investigation; and (3) that the investigation will be lead by a Special Prosecutor to avoid the appearance of a conflict (as the St. Louis DA's father, a police officer, was shot and killed in the line of duty) - had the system appeared to be working impartially - there would have been few, if any, protests. That wasn't Michael Brown's fault, that wasn't Darren Wilson's fault, that was the fault of the Ferguson Police Department and the St. Louis DA.

And that's my point - we have to give police officers latitude to perform their duties and to protect their lives, but doing so can't mean giving police the right to kill or maim at will.

Progressives Like Bill de Blasio, Al Sharpton, and Jesse Jackson Had Nothing to Do With the Murders of Officers Ramos and Liu: Now here, I do have to admit that I'm being a bit hypocritical here - in the aftermath of the shooting of Gabby Giffords, I blamed conservatives for the act of a deranged man. But that said, at no time did de Blasio, Sharpton, Jackson, President Obama, or anyone else use violent rhetoric against police officers. They didn't put the faces of Officers Liu and Ramos on a website and put targets over their pictures, nor did they suggest that protesters find a "2nd Amendment solution" to police violence. Instead, they asked questions raised by the protesters were already raising.

No, the deaths of Officers Ramos and Liu came as a result of a deranged man who instead of committing suicide, killed his girlfriend and then went hunting for the police. Was he drawn to do this by the rhetoric of the protesters? Maybe. Maybe he wanted to commit suicide by cop. But ultimately, he chose to commit these crimes himself, despite constant calls for nonviolence and restraint from people like de Blasio and Obama. He chose to kill Officers Ramos and Liu.

Anyway, this is a horrible subject and I hope to write about more joyful topics (and write more often) next year.

*By the way, the fact that the shooter had a mental illness doesn't mean he naturally violent. There are lots of people who suffer from mental illness who aren't violent.

On Ray Rice. . .

Over the summer, an interesting video appeared, showing Baltimore Raven running back Ray Rice dragging his now wife from an elevator in Atlantic City, New Jersey.  The reason he was dragging her from the elevator is because she was completely unconscious. Because, it was believed, he knocked her out.

In the intervening weeks after the incident, Ray Rice married the woman he knocked unconscious, and she apologized for her role in the incident, stating that she "provoked" the violent attack.  After what was alleged to be a thorough investigation, the NFL suspended Ray Rice for two games (out of the sixteen that are normally played).  In the meantime, several NFL players were suspended for an entire season (all sixteen games) for using marijuana.  The whole thing left a bad taste in everyone's mouth, and as sports fans, we tried to move on.

Then TMZ released the following video, shot from INSIDE THE ELEVATOR.

Whereas before we could only see the aftermath, we now can see the incident in its entirety.  There are a couple of things that gets me about the video:

1) It appears what started as an argument escalated to violence when Ray Rice stands too close to his wife in the elevator, and she pushes him away with her elbow. If Ray Rice steps away from his wife, who's clearly agitated at this point, the incident is over. Instead, he slaps her, she attacks in retaliation, and he punches her.

2) Rice's reaction to knocking his wife completely unconscious (for several minutes, mind you) is chilling. Let's say you are having a fight with your significant other, and during said fight, you accidentally or purposefully (or instinctively) caused your significant other to be knocked out. How would you react? Most likely, you'd be concerned for your significant other, and call 911 to seek medical attention. This is especially true if, as here, your significant other hit her head on the elevator handrail.

Ray Rice's reaction not to immediately seek medical attention, but rather, was to calmly DRAG HIS WIFE FROM THE ELEVATOR. Seriously.

3) Up until the release of this video, everyone was pretty much on board with the idea that Ray Rice was "defending himself" from his wife. And in fact, the Ravens got Mrs. Rice to "apologize" for her part in the altercation. 

I'm going to let that sink in for a moment. . .waiting. . .waiting. . .Yes, that's right, she felt the need to APOLOGIZE FOR BEING KNOCKED OUT AND DRAGGED FROM AN ELEVATOR.  Of course, the poor woman was so concussed that she probably wouldn't remember the details of that night.

4) Both the NFL and the Atlantic City DA should be ashamed of themselves. Either they saw this video and agreed to let Ray Rice walk with a slap on the wrist, or they didn't see the video (IT HAPPENED IN A CASINO, OF COURSE THERE WAS VIDEO), and decided they didn't need to see it. Ugh.

With the DA, I guess I could make some excuses - juries are fickle, the complaining witness was going to be uncooperative (and probably had no memory of the incident), etc. For the NFL, this is nothing short of a PR disaster. Let's compare - Ray Rice was suspended for two games for violently attacking his fiancee (now wife), then dragging her unconscious body across the floor. Josh Gordon, of the Cleveland Browns, was suspended an entire season for smoking weed. Gotta love the drug war. Oh, and Von Miller, a player for the Denver Broncos, was suspended four games (twice Rice's punishment) for smoking weed even though SMOKING WEED IS LEGAL IN COLORADO.  Gotta love the war on drugs.

Anyway, I'm glad that to see that Rice was cut by the Ravens and then suspended indefinitely by the NFL. It should have happened a lot sooner.

Beyond WTF. . .

For the past several weeks, I've been trying to think of a blog post that fully captures all the events of the past few weeks, but honestly, I can't except to say that a fair number of these stories have felt like stomach punches. The war in Gaza, the invasion of Ukraine (you're not fooling anyone Putin) by Russia, ISIS and the genocide in central Iraq, the Michael Brown shooting in Ferguson, MO.  Oh, and now Rick Perry has been indicted for abuse of power (actually, that news is actually happy in a schadenfreude way).

So, all in all, its not just been a what the fuck kind of a month, we've gone well past that. So, let me take a few of these issues and flesh them out for my own sanity.

Death of Robin Williams

As I go down the list, this is the easiest one to categorize - its just sad.  I can't say I was the biggest fan of Robin Williams' movies, but he was easily one of the funniest men ever. From all the accounts I've heard, he was one of the nicest people ever.  And that makes sense because, in my experience, people who go through depression tend to be the nicest and most compassionate people around.  So, his death wasn't a WTF kind of a moment, but a "Ah, fuck" kind of a moment. Like I said, a stomach punch.

Ukraine and ISIS

There's nothing surprising about either the invasion of Ukraine or ISIS' attempts to recreate the Caliphate. Its really just sad.

Gaza and Ferguson

I lump these two stories together because, ultimately, they are about the same thing - right idea, wrong way of doing it. Israel wants to protect itself from Hamas, a terrorist organization.  Good and commendable idea. 1000% on board. To do that, Israel bombs the shit out Gaza, cutting off power, water, kills over a thousand civilians (Hamas killed two civilians), bombs UN buildings, hospitals, and generally makes life deadly for the people of Gaza, who are ALREADY REFUGEES and are prevented by blockades from Israel and Egypt from leaving. Err. . .what? Oh, and the deputy prime minister started to openly call for genocide in Gaza.

Aside from preventing Hamas from killing Israeli civilians, which it seems pretty bad at, what does the destruction of broad swaths of Gaza do for Israel? It doesn't make Gazans less likely to support Hamas (who can cast themselves as "freedom fighters"). It doesn't end the cycle of violence. It doesn't garner Israel greater international support, which is Israel's achilles heel. No, all it has done is piss off the world and the Obama Administration, which is problematic because Israel's economy depends of American foreign aid.

Luckily, there is a ceasefire in effect, and hopefully, that will lead to peace. In the meantime, the Israeli government did itself no favors, and might have even done permanent damage to Israel. That's because Israel, despite its tremendous military, is a small country with limited natural resources. It always has been. So to survive and thrive, Israel has to depend on foreign trade and goodwill. In other words, the biggest threat to Israel isn't Hamas, it's the EU, the US, and the greater international community.

And that's why Hamas has been doing what its been doing - it wants Israel to bomb the shit out of Gaza. It wants thousands of "telegenic dead" (to paraphrase Mr. Netanyahu). Not only does the bombing create a useful recruiting tool, it also isolates Israel from the international community.  At this point, the only country that is regularly backing Israel is the United States, and they're none too happy with Israel right now.

Oh, and by the way, for those anti-Semites out there who now think its cool to unveil your anti-Semitism because some of us have criticisms of the Israeli response to Hamas, FUCK YOU. I want Israel to not just survive but to thrive. I just think Netanyahu's government is a disaster.

The death of Michael Brown in Ferguson, Missouri, also strikes me as one of those, right idea, wrong way of doing it things. Here's what we know: Michael Brown and his friend were a couple of teenagers walking down the middle of a residential street. A police officer with the Ferguson PD spots them and decides to instruct them to use a sidewalk.  Okay, this is a good idea - these kids put themselves at risk and were disrupting traffic.  But in the ensuing altercation, the officer ends up wrestling with Brown, Brown flees from the officer, who then shoots him from 35 feet away. Wait, what?

Now, it has been alleged that Brown had just robbed some cheap cigars from a mini-mart kind of a store.  But, as the Ferguson Police Chief made clear in his statement today, the Police Officer didn't know that. So how does a conversation about jaywalking lead to the death of an unarmed man who was apparently fleeing (or, as the witnesses described, surrendering)?

Naturally, this sort of thing leads to community anger, and some protests. Which leads to the second right idea, wrong execution moment. The Ferguson PD sent out officers to keep and maintain order during the protests.  This is a good idea because protests can turn into riots (which they did on Sunday night). Also, police need to make sure the protesters are safe.

However, the Ferguson PD, along with other departments, did things in the most ass-backwards way possible - they called out the SWAT teams.  This leads to an interesting question - why the fuck does Ferguson, Missouri, a town of 28,000 people, which didn't have a SINGLE HOMICIDE IN 2014 UNTIL MICHAEL BROWN DIED, have a SWAT team? Are there dozens of unreported hostage situations occurring in town? This egged on the protesters, and some began looting.  By Wednesday night, the police - in jungle camouflage (apparently there are jungles in this part of Missouri) - were the ones initiating violence by firing tear gas and rubber bullets into the crowds. Oh, the police managed to arrest a reporter from the Washington Post for "trespassing" at a McDonald's where the manager was happy to have him there.

So let's go over the fuck-ups, shall we?  Not only did the Ferguson PD not prevent violence and looting, but actually caused violence in the town, and arrested members of the media who write for newspapers that are printed and distributed in the District of Colombia, which is only the place where THE PRESIDENT OF THE UNITED STATES AND MOST OF THE MAINSTREAM MEDIA RESIDE. No, I'm sure no one outside of people on Twitter noticed.  It was so bad that the Governor of Missouri had to remove the Ferguson PD from the situation and put the Missouri Highway Patrol in charge.

And here's where we see the entirety of the fuck-up.  In contrast to the aggressive and violent Ferguson PD, the Missouri Highway Patrol calmly intermingled with the locals. They let the locals protest for as long as they wanted, so long as the protests were conducted peacefully.  No one was teargassed, and there were no reports of violence.  The right idea - maintaining order - coupled with the right execution - not being total assholes - lead to good results. Imagine that.

By the way, the Ferguson PD appears to be far from done being assholes - today, for no good reason, they released information that Michael Brown had stolen cheap cigars through what is called a strong-arm robbery (no weapons involved, but physical intimidation used). Whether that is the case or not, it admits that the officer didn't know Brown was involved in any crime at the time of the shooting.  Is the information of the robbery pertinent and/or relevant? Not at this time. Does an attempt at character assassination piss off everyone in Ferguson? Yes.

Look, I get wanting to protect Darren Wilson, the officer who shot Michael Brown, but any time a jaywalking incident turns into a one-sided gunfight, and an unarmed teenager is shot to death, it's not just bad, it's unforgivable. At minimum, he has be fired.

F*'ing Bullshit

So I go away for a weekend in Connecticut and while traveling across the country, all hell seems to break loose - the Supreme Court comes down with its decision in Hobby Lobby.  And suddenly, I'm getting emails from people saying, "Phat Jim, where's your opinion on the Hobby Lobby case?" Well, here goes. . .

According to Wikipedia, corporations have existed since Roman times (500 AD or so), and in the one thousand and five hundred years of corporate existence, it wasn't until yesterday that a court in any jurisdiction held that a corporation can have sincerely held religious beliefs. Indeed, Henry Ford was sued by his shareholders for giving corporate money for charity.  So to clarify, a hundred years ago, a corporation giving to charity was controversial.  So, to say that this decision was judicial activism is understating things a great deal.

But there is something even worse about allowing a corporation to have religious beliefs - its allowing corporations to VIOLATE FEDERAL LAW BECAUSE IT CONFLICTS WITH THOSE BELIEFS. Now, keep in mind that if an individual does this - say, a Native American takes peyote as part of a religious ceremony, and fails a drug test as a result - its still deemed a violation of federal law, and the feds can come after the people.  By the way, that's not an outrageous example, but a case that the Supreme Court decided in an opinion written by Scalia.  Did Scalia dissent on the basis that this opinion overturns the reasoning of his earlier opinion? Of course not, because fuck people.

Or rather, fuck women. You see, not only does this opinion COMPLETELY change over a 1000 years of Anglo-American jurisprudence, not only does it give corporations rights individuals do not have (to ignore federal laws it opposes), but the Supreme Court tries to limit the opinion to birth control pills, which are used by virtually every woman in America at some point in their lives. If Hobby Lobby had objected to paying for vaccines, or blood transfusions, or insulin (which is produced by pigs), Hobby Lobby would have lost. Why? Because unlike birth control, the Supreme Court agrees with the science of those medicines.  Birth control, meanwhile, is kinda-sort of-not really believed by Hobby Lobby (more about that later), to cause abortions.  This is not the case - birth control prevents conception.  Regardless, Hobby Lobby can ignore federal law and science because it thinks birth control pills are abortion pills.  And because vaginas are icky, I guess.

By the way, Hobby Lobby's claim that it has a deeply held religious belief is complete and total BULLSHIT.  Until 2010 (before Obamacare required employees to pay for health insurance), it not only provided health insurance, but purchased health insurance that covered birth control.  That's right kids, Hobby Lobby voluntarily purchased health insurance that covered birth control pills.  Which makes sense, given that Hobby Lobby regularly invests in birth control pill manufacturers.

And this isn't some random point. The next step in this case is almost certainly the trial stage (the Supreme Court determined whether the First Amendment is a defense, and now they try it), and so, its not unlikely that upon remand, Hobby Lobby gets its ass kicked.  In other words, crisis this creates is completely avoidable.

So, how do I feel about this decision? Its the kind of awfulness I have come to expect from this Supreme Court.  Get out and vote people. IN ALL ELECTIONS.

Early Thoughts on 2016 - Looking at Hillary Rodham Clinton

Okay, okay, I know its early, but unless something major happens, the general outline of the 2016 Presidential campaign are basically set.  If she decides the run, Hillary Clinton could be the Democratic nominee for 2016. . . .yeah, I can't really pretend that she won't run, or that she won't be the nominee. Clinton had most of her bonafides set in 2008 - and that was BEFORE SHE WAS SECRETARY OF STATE. There isn't a crop of candidates out there from the last Presidential go around to contend with, unlike 2008, and if there is a potential Obama out there (there isn't), Clinton will be smart enough to deal with that person early on.

That said, here are a couple of points that concern me about Clinton's candidacy:

Campaigning: One of the things I heard a lot about Romney was that in person, he was a likable, personable guy who loved his family and all that.  Then we saw the 47% video, and we all learned that Romney is actually a dick.  With Clinton, I hear a lot of the same.  People who meet Clinton like her personally. At this point, she's kind of a tough grandma who'll do shots with you (or send texts while looking totally badass). In fact, I remember when Clinton teared up during a campaign stop in 2008 and talked about wanting what's best for America. Going into that moment, Clinton was pretty well going to lose, and in large part based on that moment, she made it close.

However, once you get Clinton on stage, she's meh. Now, I know its tough to compare Clinton to her husband (who oozes charisma in the way no one else possibly can), but Clinton actually gets worse as a campaigner as time goes on because she's so afraid to make a mistake.  It comes off as fake. Throw in the totally insane amount of misogyny and conservative hate that will be thrown her way, and it's concerning.  She is going to have to go completely against her instincts and get out of her comfort zone. If she can let herself be herself, Clinton will roll over everyone - she's fucking Godzilla. If not. . .

BenghaziWhitewaterMonicaBullshitGate: Here's a fun fact, Maureen Down HATES Hillary Clinton. And a fair number of other media types feel the same way. After Monica, the mainstream media went crazy looking for the woman who would bring down Bill Clinton. It seemed like every week or so the media would pull out some sort of bullshit to hit the Clintons with. And now we have Benghazi. An affair where most of the questions have been asked, and answered, and asked, and answered, and asked, and answered, and asked again. Two years from now, there will still be people who insist that there are still questions about Benghazi (though, what they mean is they don't like the answers). But, I do like Clinton's testimony on the matter:



Flanking: Clinton, like her husband, started her career on the conservative side of the Democratic Party. Like her husband, she supported DOMA, and other anti-gay legislation, as part of the triangulation strategy favored in 1996. Now, while she could and should argue that a lot of the anti-gay legislation was designed short-circuit even worse legislation (DOMA was used to kill an anti-gay marriage amendment), she still has some bonafides with the LGBTQ community to work on.

What's more, Clinton is much more of a hawk than Obama on foreign policy.  She voted to go into Iraq, she supports Israeli settlements, etc.  And that could be a problem depending on who the Republican nominee is.  If Rand Paul is the nominee, I could see him running to Clinton's right on social and economic issues, and then running to her left on foreign policy and maybe drug policy.  He certainly seems to be positioning himself that way. Clinton has to shore up her support on the left. That said, I don't see any other Republican outflanking Clinton.

So, all in all, Clinton is going to face virulent opposition, quite a bit of it will be completely unfair. If she can move past the bullshit, and be herself, Clinton will roll.  If not, she's not going to have a good time.

Rest In Peace Mr. Gwynn

This morning came word that Tony Gwynn, who played for the San Diego Padres for 20 years, passed away.  Right now, the internet is full of accolades of Mr. Gwynn, who was not just one of the best hitters ever, but the face of San Diego sports for two decades. As a Padres fan, I had to give my two cents.

The thing about San Diego is that for an older city (founded 1776), it is a relatively young city.  The Native Americans in our fair city were far too hostile for much more than token Spanish presence (they burned Mission San Diego de Alcala, and the Spanish never really rebuilt it; also, good for the Native Americans), the land was too arid for agriculture, and the hills of Julian never held that much gold. Until the 70's, the biggest industry in town was tuna fishing. Then it was the defense industry.  As a result, San Diego really didn't grow into a city until the 1970's and 1980's.  Even then, most of the people living here had come from someplace else.

So, to break through sports-wise in a town where virtually every adult grew up rooting for a non-San Diego team is tough.  Heck, San Diego teams still have problems with that.  But Tony Gwynn did not. He was the face of San Diego sports for two decades. Growing up in the 1980's, virtually every kid had their holy trinity of sports - Tony Gwynn, Dan Fouts, and Magic Johnson. As time went on, some of the trinity members changed - Dan Fouts' popularity got eclipsed by Junior Seau, and Kobe Bryant took over Magic Johnson's spot - but Tony Gwynn remained beloved. 

In my opinion, there are only two Padres that ever came close to taking Tony's place in the trinity - Ken Caminetti and Trevor Hoffman.  Of course, Caminetti's rise was fueled by steroids, something which could never be attributed to Gwynn.  Hoffman came close, but never could eclipse what Tony meant to the Padres. Of the players on the current Padres' roster, sadly, none come close.  

So what does it mean to be in the Trinity? Those were three players who's brilliance was unquestioned. For two solid decades, every kid wanted to be like Tony Gwynn. When Jack Clark badmouthed Tony Gwynn, we all wanted to run him out of town on a rail (and that's why he was traded away). If you wanted to start a fight in San Diego, the best way would be to say "Tony Gwynn sucks!"  Heck, I want to punch myself in the face for even writing that.  Add to his playing greatness that Mr. Gwynn was one of the most humble, honest, and decent human beings in baseball, and well, you can see how he was loved even after his retirement.  He was one of the few people who earned the right to use the f-word as a middle name - as in, "Do you know who I am, I'm Tony Fucking Gwynn!!!" and sound completely justified.* 

All in all, Mr. Gwynn's passing has hit me harder than Jerry Coleman's.  Jerry was an old guy even when I was a young, but Tony. . .he went too soon.  To his family, my condolences.  

*Greg Maddux, one of the best pitchers in his generation, who got everyone out but Tony Gwynn (who owned him completely), referred to Mr. Gwynn as "that fucking Tony Gwynn."  As in, "I did x, and it works on every batter in the game. . .except for the fucking Tony Gwynn."  Don't know where that fits in this post, but its an awesome story.

Random Thoughts: Sports Blogging Edition

Its been a some time since I blogged about anything - sort of a combination of laziness and having other things to do.  Per usual, whenever there are a few stories I want to discuss, throw them together in a longer post. This time, I'm going to stick to sports - more from the law/policy angle than the sports fan angle.  Although, to get that out of the way - Raiders suck!  Anyway, here are my thoughts on a few sports stories:

Donald Sterling Is Selling the Clippers?

The recent reports - and I mean the reports as of this morning - indicate that Sterling has agreed to sell the Clippers, and that is wife is the one who be in charge of the sale. And yes, Sterling is married despite having several public relationships with other, younger, women.  Per Bill Simmons' twitter feed, the estimates for sale price is somewhere around $2 BILLION.  Given that Sterling bought the Clippers for $13 million, that's a hefty chunk of change for someone to get for any investment. 

Now here's where I'm somewhat surprised. Sterling is over 80 years old, not strapped for cash (already is a multibillionaire), and loves owning the Clippers. Like a lot of owners of sports teams, this is his toy. He gets to be one of 30 guys in the WORLD who own an NBA team. Indeed, the whole reason Sterling might $2 billion for the Clippers is precisely because an NBA ownership is so rare.  And its for that reason that to Sterling owning the Clippers was priceless. So, I thought that financial considerations would mean nothing to him. At the same time, the utility of owning the Clippers has probably been damaged by Sterling's pariah status. Still, I assumed that Sterling would believe that he could simply ride out the damage while suing the NBA.  I'm glad I was wrong.

College Athletics

Last night I had the opportunity to attend a fantastic panel discussion on the NCAA and college athletics, sponsored by the Enright Inn of Court - a lawyer's group here in San Diego.  On the panel was Ramogi Huma, President of the College Athletes Player Association (the guys who were behind the unionization at Northwestern), DJ Gay (point guard for some of SDSU's best basketball teams), Jason Carter - former player at Texas A&M and former NFLer, now head coach of La Jolla High, Jim Sterk - current Athletics Director of San Diego State University, and John Brockington - who played for Ohio State in the NFL for the Packers.  The question was, does the NCAA exploit collegiate athletes.

While I expected Mr. Huma to attack the NCAA (he did), and I expected Mr. Sterk to advocate for the NCAA (he also did), what surprised me was the depth of the disenchantment that DJ Gay and Jason Carter (both of whom were more recent athletes in college) had with the current system.  As Mr. Huma laid into the NCAA time and time again, Mr. Carter and Mr. Gay mostly agreed with him.  Meanwhile, Jim Sterk looked increasingly uncomfortable on the panel.  

It was also interesting to see that the experiences of John Brockington were completely different from the experiences of Mr. Huma, Mr. Carter, and Mr. Gay.  In his era, practices were limited, and guys would work over summers to earn pocket money for the upcoming year (like everyone else does).  But recently, of course, college athletes aren't allowed to have side jobs, and spend more and more time working out or practicing.  As a result, they can't take the majors they may want, and they can't be part of the campus life that makes college so special.

Of more interest was the demands of Mr. Huma - not direct cash payments, per se, but basic guarantees like injury coverage (post-collegiate career), that scholarships continue after the playing days are over (so athletes can finish their degrees after their eligibility is over), and allow players to reap benefits with their schools over the sale of their likenesses (right now, the NCAA maintains that it owns the rights to athletes' likenesses in perpetuity). 

Now again, Huma is supposed to be an advocate and push for reforms - that's his job - but what surprised me was again, how much guys like Gay and Carter agreed with what Huma said. If I had to guess, the resentment towards the NCAA runs deep.  

And, let's face it, the NCAA has done a lot to ensure resentment exists. NCAA athletes are paid in scholarships, but have schedules that limit their ability to get an education. Their room and board is taxed by the government, and doesn't cover all their food costs. All the while, collegiate athletics is a multiBILLION DOLLAR industry. If they get hurt, there's no guarantee that the school will honor the scholarship.  Even if it does, insurance only covers the athlete so long as he/she is in school.

The more I think on it, the more I think that there was no way Sterk had a chance yesterday.  The system is utterly broken.

Examining the First Amendment

Recently, there has been quite a bit of consternation about the First Amendment and the consequences of espousing unpopular views.  Simply put, a lot of what is said is nonsense, and the webcomic XKCD put it best in the following cartoon:

In other words, while the First Amendment preserves your right to be an asshole as far as the government is concerned, it does not prevent other people from putting up with your shit.  If you decide to openly flaunt a loaded firearm around some kids in Little League to show how much of a big man you are, you are an asshole.  If you tell your assistant (allegedly mistress) that she can't bring black men with her to you basketball games, you are an asshole.  If you insist on grazing your cattle on federal lands without ever paying (at great expense to taxpayers), or insist, at threat of gunpoint, that you can ride your ATV over sensitive Native American burial sites, you are an asshole.  And, if you espouse anti-gay remarks, don't be surprised if you are suddenly shunned because, after all, you are an asshole.

You might think, "hey, what about my free speech rights?" Well, let's look at the text of the First Amendment, m'kay?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Notably, the First Amendment prohibits Congressional action, which, by extension, prohibits action by the Executive Branch and the Judicial Branch (the other branches of government). Notice it doesn't affect State or Local governments - that's covered by the 14th Amendment.  Also notice that freedom of speech is listed after the freedom of religion.  Why is that?  Because we, as Americans, have the freedom of association.  We can choose to associate with whomever we want.  That right applies to people and corporations like HGTV and the NBA.

And by the way, a quick aside on Donald Sterling - a lot of people seem to be upset about the fact the Sterling was bounced out of the NBA for a private conversation where Mr. Sterling espoused racist views. While I can somewhat appreciate that concern, we need to remember the following: 1) Donald Sterling has acted on his racist views in his real estate business; and 2) the players were going to boycott the playoffs until Sterling was banned for life.  And guess what, NBA players have the right to do so because just as the Government can't attack Mr. Sterling for espousing racist views, it also can't force the NBA players to associate with him.  But don't cry for Sterling too much - he will litigate this forced sale of his franchise to the bitter end, and even if he loses, he is currently estimated to make over a BILLION dollars from the sale.

Thus, while every American has a God-given right to be an asshole without criminal repercussions, it is also the God-given right of every American to choose not to associate with assholes.  So, to those of you who would like to avoid becoming a pariah, I would offer the following advice: STOP BEING AN ASSHOLE.  

Donald Sterling and Racism

So many stories to comment on, so little time.  Normally, this would be time for a random thoughts blogging post, but one story stuck out at me - the recent comments by Clippers owner Donald Sterling. Apparently, Mr. Sterling has no qualms about employing African Americans, but does not want African Americans to be seen with his mistress at Clippers games.

This sort of view is hardly surprising for Mr. Sterling who, for a number of years, was notoriously cheap with his players and their training equipment, and who was sued by the United States Department of Justice for housing discrimination.  Oh, and this wasn't the DOJ under Obama, it was the DOJ under George W. Bush.  And it was hardly his only discrimination lawsuit.   In each lawsuit, it was alleged that Sterling systematically discriminated against African Americans as tenants.

Ultimately, this aspect of discrimination caught my eye and lead me to comment. For a good portion of my law school career, my after law school plan was to be employed by the Fair Housing Council of San Diego - a nonprofit which fought housing discrimination in the San Diego area.  And for a while, until financial realities caught up with me, I did work for the Fair Housing Council as an enforcement specialist and a staff attorney.

That experience lead me to say this - of all the areas where discrimination may occur, housing discrimination is often the worst because we are often shaped by where we live.  This is especially true of children, who go to schools as determined by their neighborhood. But it is also true of adults, who are affected by the stress of long commutes, by fear of neighborhood crime, and by lack of appreciation of their homes. Housing discrimination affects people over the long term.

Yet Donald Sterling, an alleged serial discriminator in housing, is allowed to continue to own an NBA franchise. These actions are far worse than anything Mr. Sterling has said, but given the context, it's not at all surprising that Mr. Sterling would finally espouse the beliefs he lived by for over twenty years.

So, what is the NBA to do? Well, they finally have to do something.  And I would guess that the NBA "investigation" is not about whether Donald Sterling is a racist, but what the NBA can do.  If I were Adam Silver (the NBA commissioner), I would expel the Clippers from the National Basketball Association, render all of the player contracts null and void, and remove all the privileges of being in the NBA to the Clippers.  Heck, David Stern should have done that YEARS AGO.

Will it happen? I don't know, but something significant must happen.

About the Hobby Lobby Case: A Lawyer's Rant

While I don't hide the fact that I am a lawyer in this blog, I tend to shy away from making legal arguments here because this blog is for fun, and work is. . .well. . .work.  That said, the recent Hobby Lobby case in front of the Supreme Court is the perfect mix of politics, law and hypocrisy to piss me off.  It is also a classic example of why the study of Constitutional law is completely and utterly ludicrous (something any law student can tell you within the first 2 weeks of taking Con Law).

For those of you who don't know, the Hobby Lobby case is this - Hobby Lobby is a closely held corporation owned by deeply "religious" people.  As part of their "deeply held religious beliefs" the owners of Hobby Lobby believe that oral contraceptives (the birth control pill) abort fetuses. ***NOTE*** Birth control pills work by preventing ovulation, thus preventing fertilization. They do abort anything.***

Because of this "deeply held" but mistaken belief, Hobby Lobby does not want its health insurer to pay for birth control pills for its employees. This is a problem because under the Affordable Care Act, insurers are required to pay for birth control pills.  This policy isn't a "let's abort every baby" policy, but rather reflects the fact that VIRTUALLY EVERY WOMAN IN AMERICA (99%) TAKES BIRTH CONTROL PILLS DURING SOME POINT IN THEIR LIVES.  But Hobby Lobby has a "deeply held" belief, and argues that forcing it to pay for birth control pills for its employees violates its constitutional right of religious choice.  So the issue in front of the Supreme Court is whether or not a corporation has the freedom of religion.

Now, we could go into the obvious questions such as how a corporation, by definition a non-person, can have a conscience and make religious decisions.  We could also ask how a corporation can prove that it has such beliefs.  The priests and ministers I know don't have the power to baptize corporate documents.  But those are easy questions to ask.

Instead, let me put forth a hypothesis based on the facts of this case - let's say there was a corporation that was closely held, like Hobby Lobby, but instead of "Christians," let's say the owners of this corporation were Rastafarians. Now, Rastafarianism believes that marijuana use is really important.  Healthy even.  So this company, founded on Rastafarian principles, decides to grow marijuana and sell marijuana to practitioners of Rastafarianism.  Does the fact that this company believes that marijuana is good for you prevent it from prosecution under federal law?

Ah. Hell. No. 

And do you know why? Because marijuana is deemed by Congress to be illegal and is scheduled as an dangerous drug. Now, say what you will about that decision (and I believe marijuana should be legalized), but the legal principle is key here - the Feds would wait about 10 seconds before crushing my hypothetical company.  Every judge, from the District Court, to the Circuit Courts, to the Supreme Court would laugh their asses off at the argument that Congress' laws about marijuana violate the company's freedom of religion because Congress made a factual determination that marijuana is bad for you and should be illegal. Case closed.

But in the Hobby Lobby case, there is a factual finding that birth control pills, which again, ARE TAKEN BY 99% OF ALL WOMEN IN THE UNITED STATES AT SOME POINT IN THEIR LIVES, are important to the health and welfare of women, and should be covered by their health insurance, which was also made by Congress, is being challenged. And whereas the ban on marijuana is based on questionable science, the decision to force health insurance companies to cover birth control is based, again, on the undeniable fact that BIRTH CONTROL PILLS ARE AN IMPORTANT TOOL IN WOMEN'S HEALTH. 

Naturally, the conservatives on the Supreme Court are almost certainly going to vote in favor of Hobby Lobby, despite the fact that Hobby Lobby is a) a corporation; b) its views on the effects of birth control pills on a woman's body are completely wrong; c) its views directly contravene Congressional and/or administrative findings of fact (which are supposed to get deference by the Court); and d) individuals who brought cases to the Supreme Court to kill civil rights legislation, drug testing policies, and other neutral laws all uniformly lost. 

And here is where my rant really begins. The whole "balls and strikes" analogy made by John Roberts in his nomination testimony was bullshit. Not kinda bullshit, not sort of bullshit, but total and complete bullshit. The whole study of Constitutional Law is total and complete bullshit.  And that's because if the study of the Constitutional Law goes any way other than "its whatever the Nine Justices decide," it makes no sense. A decision to uphold Hobby Lobby's "freedom of religion" contravenes Scalia's originalism, contravenes stare decisis (where the Court is supposed to follow its older rulings), is based upon A FALLACIOUS FINDING OF FACT and creates an entirely new right of supposedly nonreligious organizations to have religion. Why? Because they get to. As I said, total and complete bullshit.

Now, I could be wrong. I might be surprised by the Supreme Court Justices, and they might actually do the right thing here.  But I doubt it. And as someone who is supposed to be an officer of the Court, it pisses me off.  Case law is supposed to be more that whatever the hell the Supreme Court says it is. It's supposed to be logical, reasoned, and cautious.  It's supposed to fit together in some kind of homogenized mesh.  But even when it can't be, when the Court has to do something out of the ordinary, the Court is supposed to protect the rights of individuals.  Not individual corporations, but actual living and breathing people, like the women who are going to have to pay for birth control because Hobby Lobby opposes the idea of them. Oh, and because Hobby Lobby opposes birth control, can it now fire employees for using birth control? Or, how about firing all women of child-bearable age who are not currently pregnant because they might be taking birth control? Or can Augusta National now go back to discriminating against women and African Americans because of its "sincerely held beliefs?"

The whole thing is ridiculous, wrong-headed, and bullshit. Total bullshit.

Some Help With Analogies

This past weekend I finally saw "12 Years As a Slave," an incredible movie about America's original sin (as Obama likes to call it), and one of those movies that had to win Best Picture (which it did).  If anything, it rammed home the basic premise that slavery was really, really, horrifically, awful. Honestly, anything you could say about slavery wouldn't be enough to fully describe the horror of slavery in the American South. Yes, I'm sure that some slaves were relatively well-treated, but even then, they would be the exceptions to prove the rule.  So with that said, I would like to point out a problem of analogizing anything to either slavery or Nazism.  

First, let's remember what slavery was - it was the condemnation of all Africans (American born and otherwise) to a life of servitude. And all it took was one drop of African blood to become a slave. So, if a person whose parents, grandparents, great-grandparents, and fifteen of their great-great grandparents were all European, and the sixteenth great-great grandparent was African, that person would be a slave unless proven otherwise.  It was institutionalized discrimination.  Moreover, once someone was a slave, they had no legal recourse to protect themselves. Slaves were regularly subject to torture, rape, and even murder and they had no recourse. Remember Solomon Northrup was born a free man, was kidnapped, tortured so horribly he was afraid to say his name, put to work without pay, beaten and tortured on a regular basis. He received not a penny of compensation for 12 years of servitude, beatings, and torture. Zip, zilch, nada.  And he, as a free black man, had legal rights that slaves did not. Oh, and white men who knew he was a free black man were terrified of standing up for his rights because doing so would possibly subject them to extra-legal death and/or dismemberment.

As far as Nazism goes, let's remember that the Nazis were a basic totalitarian regime (i.e. North Korea), but much, much worse. For a blond-haired, blue eyed German who could trace his lineage back to Sigfried, life under the Nazi regime meant that he had to do everything through the Nazi Party. Speaking against the Party could (and generally did) mean arrest, torture, and maybe summary execution. For a Jew (or someone with a Jewish great, great grandparent), a Romani, or gay, life was significantly more difficult.  At best, these individuals would provide slave labor, and unlike slavery in America, the Nazis had no economic incentive to keep Jews, Romani, or gays alive. In fact, the Nazis held middle-management meetings to discuss the most efficient way to slaughter millions solely on the basis of their ethnicity.

So, to help with analogies, let's keep in mind the following:

If the governmental policy you are protesting does not result you getting tortured, dismembered, raped, murdered, or forced to perform manual labor for no compensation because of your ancestry, IT IS NOT LIKE SLAVERY.

If the governmental policy you are protesting does not turn you, or your loved ones into property, and does not allow for someone else to sell your children to the highest bidder, IT IS NOT LIKE SLAVERY.

If the governmental policy you are protesting does not result in the systematic and summary execution of millions of people by the most efficient means possible, IT IS NOT LIKE NAZI GERMANY.  

If the governmental policy you are protesting does not result in your total and complete loss of any and all due process rights in a Court of Law and/or Equity, IT IS NEITHER LIKE SLAVERY NOR LIKE NAZI GERMANY.

Yes, I understand that hyperbole is a common argumentative tactic, but we have to remember that the Holocaust and American Slavery were so awful, that they have psychologically damaged the psyche of the descendants of the victims for (in the case of slavery), over a hundred years.  Anyway, I realize that my words will have little effect on the scope of our political discourse, but I figured I'd try.

 

A Couple of Quick Points About Ukraine and American Policy

For the past couple of weeks, I've watched with great interest the events in Ukraine - part of the benefits of following groups like Anonymous on Twitter.  And as much as I've cheered on the protesters who appear to support democratic change in Ukraine, I'm also dismayed by the Russian response of grabbing Crimea.  With that said, I'm even more dismayed by the foreign policy "experts" who have been blathering on and on since the Russians took Crimea (though I'm not particularly surprised).  So, a couple of quick points here:

1) Putin Didn't Invade Crimea Because of Any Perceived Lack of Weakness by Obama:

The greatest inanity of the foreign policy discussion involving Russia is the conception that Obama's weakness caused by Benghazi and Syria gave Putin the wherewithal to invade Crimea (well, not really invade Crimea, he just had his military personnel leave their bases in Crimea).  Um, no.  Or, in the words of my people, "cool story, bro."

This current crisis has nothing to do with us.  I know, we're the world's policeman and all that, but Putin acted out of pure self-interest.  Crimea is absolutely vital to Russia's self-interest because it gives Russia access to the Black Sea and the Mediterranean Sea, which helps with its view of being a world power.  That's why Russia has a number of military installations in Crimea despite the fact that Russia and Ukraine haven't been one country over 20 years (yeesh. . .I feel old).  Having an unfriendly government in Ukraine (which it totally will be, especially now), would hurt Russia's interests.  Obama's perceived strength or weakness has nothing to do with that basic fact.

2) Going to War Against Russia is Problematic:

While Russia is not the superpower it once was during height of the Soviet Union, it still is a very big country with A LOT of weaponry, A LOT of soldiers, and more importantly: INTERCONTINENTAL BALLISTIC MISSILES.  The presence of ICBM's (nukes) makes any dealing with Russia, especially if Putin is reading too much of his own propaganda (and he apparently is).  Now, that doesn't mean the U.S. doesn't go to war, but if it does, it has to move very carefully or else fight a war that would dwarf the Iraq and Afghanistan wars combined.  You don't jump into that kind of a conflict (unless you are John McCain or Lindsey Graham).

Of course, that's assuming that war would be a straight U.S. v. Russia affair. It won't be. Already this crisis affects Turkey (Crimean Tatars are ethnically Turkish).  And since most of Russian pipelines to Europe go through Ukraine, well. . . Simply put, we don't know where China, Pakistan, or India would line up in this kind of a war, and we don't want to be surprised by that.

3) There May Be Other Options on the Table:

Putin may be a dictator(esque), but in contrast to the Soviet Union, he has to operate within the same global economy as everyone else. In fact, the market economy is probably America's greatest strength. Economic sanctions by the U.S. and the EU will hurt - especially if they target Russian Oligarchs, who keep their money in the West.  Ukraine, as noted above, sits on a number of oil pipelines to the west, and supplies almost all of Crimea's power and water.  In other words, there are pressure points that can be applied against Russia that don't involve military power.  And Obama, thanks to all of his experience in dealing with Iran, knows how to use sanctions effectively.

So, the long and short of this crisis is jumping into action, especially military action is a phenomenally dumb idea, and Obama is right to move deliberately.

The San Diego Mayor's Race Postmortem

Well, yesterday wrapped up the Special Election to replace former Mayor Bob Filner, who had to resign as a result of his felonious lechery.*  To my somewhat shock, Kevin Faulconer won by an 11 point margin.  That's quite an asskicking by a Republican in a Democratic city.  In fact, Faulconer is now the only Republican mayor of a large American city.

So, how did David Alvarez, the Democrat in the runoff, blow it? Well, there are a couple of factors at play here.  First, and as Obama proved in 2008 and 2012, the size and make-up of the electorate changes with every election.  So, the electorate who elected Bob Filner (then just known as a diehard liberal, not a lech), is decidedly different from the electorate who voted yesterday.  In fact, the electorate yesterday was about half the size.

More importantly, though, I think Labor got so used to winning that it thought it could do no wrong. As in the District 4 Special Election, which I wrote about extensively, Labor picked the candidate that it would be most friendly to its interests and backed that candidate to the hilt. Now, there's nothing new about that, and Labor, as an interest group, is acting almost in the same way as the Lincoln Club would act, and has acted in the past.

What is different, though, is the Republican Party, Lincoln Club included, met and decided who should run, and who all the Republicans would back, based upon who they thought had the best chance of winning.  And that guy was decidedly not Carl DeMaio, who ran in 2012.  Rather, it was the more outwardly moderate Faulconer.**

Rather than follow that model, Labor picked Alvarez, a 33 year old City Councilmember, over Nathan Fletcher.  And even that wouldn't be as big of a deal had Labor not spent millions trashing Fletcher. By the way, members of the American Federation of Teachers, how does that strategy look now? As a result, Fletcher voters didn't all flock to Alvarez, and a few most likely didn't vote.

In the run-off, Alvarez compounded the error by not reaching out the Fletcher voters early enough, and again, had his good friends at the American Federation of Teachers send out mailers trashing Faulconer, sometimes in nonsensical ways (such as attacking Faulconer for being a member of the San Diego Yacht Club).  Moreover, Alvarez was simply not impressive in the debates. While Faulconer was a swarmy, Alvarez never really seemed to have a grasp on the specifics that he actually had.

When finally Alvarez got the Democratic Party establishment to back him full-force, the damage was done, and so was Alvarez.

With that said, I think Alvarez did the right thing by running. The three big knocks on Alvarez - that he's too young, that he's too entrenched with Labor, and that he's unimpressive in debates - can all be fixed in the long term. In the short term, he can ride on his newfound name ID while continuing to serve on the City Council.  I don't think he was ready this time around, but next time Alvarez will come on even stronger.

No, the real loser here was Labor. Its not that they backed the wrong horse - my friends who know Alvarez have a deep emotional connection to him that rivals any elected official - but their tactics, particularly those of the AFT, were completely wrong for this race.  Had Labor backed Alvarez in the primary, but avoided negative campaigning against Fletcher, they could have either ended up with a candidate who the average person north of I-8 liked (Fletcher) who need them in the run-off, or given Alvarez a shot at attracting Fletcher supporters.

As I said, the whole affair reminded me of the District 4 Special Election when Labor decided to spend money on Myrtle Cole, who was then an unimpressive candidate, in a District that was pro-Demcrat and pro-union, and use that money to attack Dwayne Crenshaw, who up until that point was pro-union and a strong Democrat.  The end result being that Ms. Cole is now a Councilmember, but being sued by Mr. Crenshaw for slander (and rightfully so), and remains thoroughly unimpressive.  Oh, and in an act of spite, Dwayne backed Faulconer over Alvarez, giving Faulconer nonpartisan credentials (given that Larry Remer, the consultant who called Dwayne a crackhead backed Alvarez, this is no surprise).

So, sadly, San Diego goes back to the past with a relatively uninspiring moderate Republican for mayor.  Crap.

*Dibs on Felonious Lechery as a band name, album name, and biography title.

**Faulconer strikes me as being a lot more conservative than he appears.

Random Thoughts Blogging

I guess blogging has become somewhat passe', and where once everyone had a blog, now everyone just tweets or uses Instagram.  On one hand, I think that's a shame because the only way people get better at writing is to actually write.  On the other hand, writing is as much as skill as it is an obsession. My escape from writing legal papers is to write other stuff - and expecting other people to do the same is insane. 

Anyway, time for random thoughts blogging - my little foray into whatever has caught my attention over the past few weeks.  Here goes:

Woody Allen v. Dylan Farrow

First, let me admit that I'm not a big fan of Woody Allen. I've seen a few of his movies, but for the most part, his movies don't really interest me much. I should also mention that I am a fan of Roman Polanski, with "Chinatown" and "The Ninth Gate" being some of my favorite movies.  Heck, I read the book that the "Ninth Gate" was based on (and its not very good).  

I mention this because like Roman Polanski, Woody Allen has a history of sexual abuse allegations. Back in the 1990's, Allen broke up with Mia Farrow, his significant other, when she found Allen had naked pictures of one of Farrow's adopted daughters (who was either 17 or 19 at the time). Additionally, she alleged that Allen had molested another daughter, Dylan, who was seven at the time. Dylan Farrow (who apparently goes by a different name now for whatever its worth), wrote an open letter a couple of days ago slamming Woody Allen and directly accusing him of sexually abusing her when she was seven. Friends and family say that back then, Dylan would throw-up every time Allen came to visit, and the prosecutor decided not to prosecute because of the strain it would've put on Dylan.

I remember the allegations, but part of the problem with the whole affair was the intervention of Soon-Yi Previn, Dylan's adopted sister who was having an affair with Allen when she was an older teenager, which was discovered BEFORE Ms. Farrow alleged that Allen molested her.  So, at the time, it appeared that Mia Farrow convinced Dylan Farrow to make up allegations about Allen to get back at Allen for dumping Mia Farrow for Soon-Yi.  Nevermind that the relationship between Allen and Ms. Previn was RIDICULOUSLY inappropriate (he was, more or less, her adopted father), and that it might have begun before Ms. Previn hit 18. 

With Dylan Farrow repeating her allegations recently, it does appear that something happened between her and Allen.  Now, a complicating factor, possibly, is the fact that Mia Farrow's brother was convicted of molesting children around Dylan's age, although the children were both boys, and there's no indication that Mia Farrow's brother was ever around her children.

That said, most kids begin continuous memories around 7 years of age. So is it possible that Dylan Farrow could have been molested by her uncle and her allegations against Allen were transference?  I don't know, but she certainly doesn't think so.  And Allen had a history of dating underage girls (though more in the 16-17 age range).  So it is possible he is a child molester, but if you told me that there was evidence exonerating Allen, I wouldn't be surprised.  Then again, its not as if I actually watch any of his movies.

Polanski, in contrast, unquestionably raped a 13 year old girl. Actually, he drugged, raped, and sodomized a 13 year old girl.  He plead guilty to it and has been a fugitive from the law for thirty-something years.  Does that make me an asshole for loving his work (none of which, by the way, has anything to do with raping children)? I don't know.

The Candidacy of Sandra Fluke

Sandra Fluke, the young woman who was attacked by Rush Limbaugh for testifying about access to contraceptives in front of Congress (on behalf of other women, mind you), is looking to run for the Congressional seat opened up by the retirement of Henry Waxman.  While I wish her the best of luck, I would like to remind everyone that California is a Democratic state, that Waxman represents a heavily Democratic district (not even by gerrymandering), and that Congressional seats with no term limits come up for grabs almost never.  In other words, there will be A LOT of competition for that seat. If she can pull through, then good for her.

Anti-Abortion v. Anti-Choice

A recent study found that abortion rates are at the lowest rate since Roe v. Wade in large part because of expanded access to contraception.  This reminded me of a post I made awhile ago about the differences between being anti-abortion (abortion is bad because killing fetuses is bad) and being anti-choice (abortion is bad because it lets women be promiscuous without consequences).  I think this study illustrates my earlier point - there is a push right now to make contraception harder to come by.  If you are anti-abortion, this has to bother you because the key indicator of whether or not a woman has an abortion is whether or not she has an unwanted pregnancy.  Prevent the unwanted pregnancy, and you prevent the abortion - unless, of course, the pregnancy puts the woman's life in danger. 

If, on the other hand, you don't really care about the life of the fetus, but really believe that women should not be promiscuous, and that pregnancy is God's punishment (a la Rush Limbaugh), then you don't care about the abortion rate.  And that was my point earlier.  I know a fair number of pro-choicers such as Hillary Clinton, who believe that abortion should be safe, legal, and rare.  That would be my hope as well.

Guns, Guns, Guns

Since Sandy Hook, there has been an increased focus on guns and gun control.  Included in that have been stories of people hurting themselves or others with guns in stupid ways.  And let's be clear, guns kill people because that's what WE DESIGNED THEM TO DO. So, my lawyer brain starts thinking, if states are bound by the 2nd Amendment (which they are not as this moment), what can we do to prevent gun violence? My mind turns to the old common law which says that a property owner who owns a wild animal is strictly liable for whatever damage the wild animal causes to other people and property.  For whatever reason, this isn't the rule anywhere.

Here's how the rule would work - if you own an gun, and that gun causes damage to anyone or anything, regardless of whether you meant the harm to be caused or not, you are strictly liable (no defense) for the damage caused. The only defenses allowable under the law would be justification - as in you were using the gun to defend yourself - and mistake - as in you reasonably thought you were in danger and used the gun to defend yourself.  Oh, and if the gun is stolen (and reported stolen) that would be a defense as well.  I would also require all gun owners to have insurance, the same way we require car owners to have insurance, so that we could guarantee that victims of gun violence are compensated.

This rule, in turn, would create pressure on gun manufacturers to produce guns that don't accidentally go off, and that pressure wouldn't be from legislators, but from gun owners (or their insurers) who would want to avoid as much liability as possible. It would be a good first step.

"Shattered Glass" and the Present of Journalism

One of my favorite, absolute favorite cable movies (movies that you tune into while its on cable and you get totally sucked in, no matter what part of movie you tune into) is "Shattered Glass," the story about Stephen Glass and his serial lies in journalism.  If you haven't seen the movie, or know the story, read this article by Adam L. Penenberg, the guy who broke the story.  If you don't want to read the article (but you should totally do), here's the short, short version: Stephen Glass was a journalist wunderkind who, in his early 20's, wrote articles for the New Republic and other major newspapers (Rolling Stone, George, etc), and in the guise of journalism, wrote complete fiction. Almost all of his articles were completely fiction.  And it was Penenberg who discovered the whole thing while writing for Forbes.com. 

I bring up this sordid history because in the aftermath of his journalistic oblivion, Stephen Glass, who was going to law school while writing all these articles, finished law school, took the Bar exam in New York and California, passed it, and as of yesterday, was denied entry to the California Bar by the California Supreme Court due to journalism history.  

Whether or not the Court's decision was justified, the whole Glass affair was the beginning of some interesting trends in politics and journalism that are still in effect today.  Here was a respected inside-the-beltway journalist who wasn't outed as a fraud by the so-called paragons of journalism, but was taken apart, bit by bit, by writer on the internet.  Not only that, but as Penenberg's article (you have to read the article) indicates, he crowd-sourced his research into Stephen Glass, using colleagues and interns, all working together.

That's amazing to me because virtually every internet investigation is done essentially the same way - one person says, "we need to research this, and I need help" and people who have a few minutes of time on their hands, step in and research. TalkingPointsMemo.com, VoiceofSanDiego.org, and a fair number of websites that do investigative journalism all use the same model of research as Penenberg. In that model, someone like Glass didn't stand a chance.

This story is also amazing to me because it showed how rotten DC journalism had become.  When he collected all the information, Penenberg presented it to Charles Lane and the New Republic who, rather than crediting him for bring the information to the fore, tried to stab Penenberg in the back by leaking the story to Howard Kurtz (who has found his place as an awful journalist at Fox). Kurtz' article didn't even credit Forbes.com or Penenberg.  He was the outsider, after all.  

Moreover, it now appears that some 42 of Glass' articles were completely or partially fictional, and no one caught him at it until Penenberg because Glass' stories played off of cliches, stereotypes and prejudices.  The hacker in "Hack Heaven" (the article that sparked Penenberg's investigation) is a 16 year old kid who wants a Miata, Young Republicans in another one of his stories were nasty to women and minorities, etc.  

Similarly, Judy Miller at the New York Times wrote article after article claiming that Saddam Hussein had biological/chemical/nuclear weapons and was planning to use them on the U.S. - literally parroting what the Bush Administration told her, and no one called her out for it. Instead, it was liberal bloggers who took her stories apart piece by piece. The same could be said for Dan Rather and the Bush draft-dodging story.

So, after almost 20 years, I think the Glass saga remains as compelling as ever, and the movie is ridiculously good.

First Post of 2014 - Thoughts on the Bahamas, Legal Pot, Slander, and Numbers

For those of you class action attorneys out there, here is one thing you should never do - schedule a class certification motion in between your wedding and your honeymoon. Yes, even if they are a month apart.  Trust me on this.  Don't ask me why.  Anyway, the past couple of months have been hectic, but rewarding, and I think I really should blog more this year. Because so much happened, this is going to be one of those random thoughts blogs.  Sorry people.  So, without further ado. . .

The Bahamas: When my wife and I were trying to decide where to go for our honeymoon, we both realized that for a honeymoon, there really is only one proper activity - sitting on a beach, or in a pool, drinking.  Okay, there are two proper activities, but we aren't going there.  So, outside of marital activities, the only proper thing to do during a honeymoon is to sit on a beach, someplace warm and drink cold drinks.  That pretty much eliminated Europe, as we would be compelled to go and see things. We also eliminated Mexico because its literally 20 minutes south of my office, and we figured we would probably go there a bunch in the future.  So, we opted for the Bahamas.

Honestly, its a great place to go, sit on a beach, and drink rum. And drink more rum. And some more. Seriously, there is a hell of a lot of rum to be drunk, which I may or may not have consumed. The majority of the time it was absolutely glorious, and I'm glad I went.  Add to that the fact that the Bahamian government works ridiculously hard to accommodate tourists, and going was convenient, fun, and worth doing. If you do go, check out Junkanoo, the New Years' celebration.

That said, there are a couple of things that are bothersome. First, and I wasn't aware of this before I went, there is basically no agriculture to speak of in the Bahamas. This is because the islands of the Bahamas are all essentially limestone with sand on top. While there are a good number of plants that can grow, most don't produce really produce food. So around 95% of the food found in the Bahamas is imported - meaning it is expensive and verges on the crappy. Add to that the sugary rum drinks (which, by the way, are fantastic), and you can end up feeling pretty gross.

The second thing about the Bahamas that struck me was the racial aspect of being a tourist.  Here I am, a white guy, being served by Bahamians (almost all of whom are African in decent), sitting in a hotel which has a building meant to look like an old manor house - as in a manor house from the bad old days of slavery. Yeah, not good.  While the Bahamians couldn't be nicer, and on Grand Bahama they were very nice, I can well understand frustrations boiling over into violence, which it totally is in Nassau.  And I don't see how it gets better - the Bahamas are absolutely dependent upon tourism (70% of their GDP), and remember, because they live on crap soil, they can't grow their own food, and they don't have much industry outside of shipping to provide Bahamians with high paying jobs. It does concern me.

Pot is Legal in Colorado: Unlike the Bahamas, smoking pot is something I've never done. I'm not sure why exactly - I like stoners, I get their humor, and enjoy late night snacks as much as the next guy. I've been around people who used it, and was offered some on a variety of occasions, and I've never done it.  Maybe it was all the anti-drug messages I got as a kid. Certainly, I'm part of the generation that was scared off from ever using cocaine.  Anyway, with pot now legalized* in Colorado, pundits are making dumber and dumber remarks about pot and why it should not be legal.

But the one thing no one has really told me is whether or not pot is more dangerous, and less healthy than alcohol.  For me, the alcohol test should form the basis of American drug policy - is this drug more dangerous than alcohol.  After all, the U.S. prohibited alcohol and then ended the prohibition.  So, we as a society have clearly decided that we are willing to tolerate a certain amount of danger from the drugs we ingest recreationally.  Is marijuana more dangerous, in and of itself, than alcohol?

And honestly, I don't think marijuana is. Now, the experimentation with legalization* in Colorado and Washington will tell us more about the dangers as we go along.  But California and a fair number of other states have had legal* medicinal marijuana for years now, and there hasn't been a rash of deaths. And if we had a functioning legislative body at the federal level, marijuana activists could use this information to legalize pot at the federal level. But, sadly, we don't.

Dwayne Crenshaw Sues Myrtle Cole and Larry Remer for Slander/Defamation of Character: My old friend, and former boss Dwayne Crenshaw is suing his former opponent Myrtle Cole and her political consultant Larry Remer for slander and defamation of character. In case anyone was wondering, let me say this - good for Dwayne. As with any case, its all based on the facts, and here Cole and Remer used a disgusting attack (with strong racial implications, by the way), that had been debunked 10 years ago. Put another way, the Labor Council put out a lot of mail slamming Dwayne, accusing him of all kinds of bullshit things, but even they wouldn't touch this disgusting ad.

Now, procedurally, here's how it will play out: under California law, you can file a particular motion killing lawsuits before any investigation and discovery if you can prove that the lawsuit attacks a constitutionally protected right by the Defendant. This was put in place to protect protesters from getting harassed by lawsuits from big corporations, etc. Under the First Amendment, of course, speech, especially political speech, is protected so long as: (1) everything said was true; or (2) the speaker thought he was making a true statement, and had a reasonable belief that what was being said was true. Also, satire - making a statement that is so outrageous that its obviously fake - is also protected.  So, Cole and Remer will file their motion to kill the lawsuit.  At that point, Dwayne will have to prove that his allegations are true - that the ad they published was untruthful, that they knew it was untruthful, and that he suffered damage as a result - at the motion stage.  If Cole and Remer win, they can ask the Court for attorneys' fees, paying for the cost of bringing the motion.

If, however, Dwayne defeats the motion, he pretty much has clear sailing because in the Judge's eyes, he's proven his case. All that's left to do is gather some incriminating statements from the Defendants to make them look like assholes to the jury, and he's ready for trial.  So, if there is a pressure point where the case settles, its going to be around the time Cole's motion to kill the lawsuit (called a motion to strike) is about to be heard.

Numbers and Rabid Conservatism: One of the more amazing things about the 2012 elections was the whole unskew thing pushed by several high level conservatives.  The concept was that the opinion polls were skewed toward Obama supporters, and thus, Romney was going to win in a landslide.  This theory was accepted by a fair number of people, including Karl Rove and Mitt Romney.  Of course, they were wrong.  Now, it seems to be issues with the number of Obamacare enrollees that drive the baseline conservatives crazy.  Is it the wildness of social media that makes this look bigger than it is? I don't know. I hope so.

*Marijuana is not actually legal anywhere in the United States because its usage is outlawed by federal law, which preempts state law. To the extent that people in Colorado can use marijuana, its because the feds have decided to let them do so.