Pepperdine University School of Law 45 Years Ago

A bit of self-indulgence today … it was 45 years ago today that I graduated from Pepperdine University School of Law, after having completed Pepperdine’s 4 year night school program.

I started at Pepperdine when it was located in a converted strip mall in Garden Grove and attended classes there for 2 years, after which the law school moved to a converted warehouse in Anaheim (previously the Buzza-Cardoza card company’s warehouse).

As a result, I missed attending school at Pepperdine’s gorgeous campus in Malibu, to which the law school moved in 1978.

Now called the Pepperdine University Caruso School of Law, the school’s website history page has the following to say about the year before I started and the years I attended:

1970 – Pepperdine’s School of Law operates out of a free-standing two-story frame building in Santa Ana, California. The school earns the State Bar of California provisional accreditation and has its first full-time day class of 34 students. The first full-time faculty member is Professor Wadieh Shibley, and the first full-time dean is Ronald F. Phillips.

1971 – Professors Charles Nelson and James McGoldrick join the faculty.

1972 – Pepperdine earns its provisional ABA approval and establishes the Pepperdine Law Review. Barbara McDonald is the journal’s first editor-in-chief.

1973 – The law school relocates to a larger facility in Anaheim, California. Professor Frederick I. Moreau serves as the first Distinguished Visiting Professor. The school’s first moot court dinner — which became the annual Caruso School of Law dinner — is held at the Disneyland Hotel.

1974 – Student Gayle Posner serves as a special intern to United States Supreme Court Chief Justice Warren Burger.

1975 – Pepperdine receives full ABA approval and full State Bar accreditation.

My final interview for admission to Pepperdine was conducted by Dean Phillips himself and I had as teachers, at one time or another, each of the three professors mentioned in the history. In fact, as I recall, I had Jim McGoldrick for several of my classes, at least one each year.

My criminal law instructor during my first year of law school was Orange County’s District Attorney at the time, Cecil Hicks. After I graduated and passed the bar exam in 1975, I was one of three new Deputy DAs that Cecil hired to start working in January 1976. The nearly 10 years I spent working in his office was the best job I’ve ever had in my life.

I thoroughly enjoyed my law school years, despite having to work full-time during the day and attend classes from 6:30 to 9:30 in the evening, three or four nights a week. I was also heavily involved in school activities, serving as President of the Student Bar Association for academic year 1973-74 …

… and participating in the Pepperdine Moot Court program. I won the Vincent J. Dalsimer Award as the Top Advocate Award of the 1975 Moot Court competition. That award earned me a place as a member of Pepperdine’s team at the Roger J. Traynor California Moot Court Competition held at the University of Pacific McGeorge School of Law in April 1975.

Academically, I graduated cum laude, standing 3rd in my class …

… and was on the Dean’s Honor Roll each year.

I also earned five American Jurisprudence awards, standing first in my class in the individual subjects of torts, contracts, constitutional law, conflict of laws and labor law.

It has been a long time, but I still have fond memories of my law school years.

—–ooOoo—–

— FLA 83 —

Texit

The advisory vote in Great Britain, by which a majority of voters said yes to Brexiting from the European Union, had some catastrophic financial consequences in England, across Europe and even in the United States.

It has also motivated discussion of other potential “exit” plans … such as “Scexit” (Scotland departing from the United Kingdom) … “Unexit” (Sarah Palin’s looney suggestion that the U.S. leave the United Nations) … and “Texit” (an online petition proposing that Texas once again secede from the United States, which has garnered more than 100,000 signatures).

None of these proposed exits are going to happen, but the discussion reminded me of another alternative that Texans could actually implement.

The Joint Resolution for Annexing Texas to the United States, approved by Congress on March 1, 1845, and by which Texas became a state on December 29, 1945, included a provision allowing Texas to be sub-divided into up to four more states. Omitting the language related to slavery, the joint resolution provided:

“New States of convenient size not exceeding four in number, in addition to said State of Texas and having sufficient population, may, hereafter by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the Federal Constitution….”

Texans have never made a serious effort to take advantage of this provision, but there have been a number of proposals for dividing up Texas into additional states … and I was able to find maps which could conceivably be used to make as many as 8 Texas states.

Here are some of the possible 5 state alignments:

And some more 5 state alignments (the Houston Press plan by Jeff Balke appears to have been written tongue-in-cheek):

And here are some maps dividing Texas into 3, 4, 6, 7 or 8 states. Other than the 4 state proposal, no one has actually proposed any of these alignments … and I included the state-shaped 3 state Texas flag only because I happen to think it would look cool on a US map.

Texas is a huge state … here’s how big it is compared to central Europe:

And I can’t help wondering why there hasn’t been a serious effort to turn it into more than one state … after all, with five states, Texans would have 10 senators instead of 2 and comparably more influence in congress.

On the other hand, I also have to think it might be difficult to convince any of the prospective new states to give up the name Texas … which makes the Texas Department of Insurance Master Plan the most acceptable when it comes to the names of the new states: North Texas, West Texas, Central Texas, East Texas and South Texas.

Interestingly, this would also create for the first time in the nation’s history an “East” anything state … well, “Central”, too … to go with the North, South & West varieties that we already have.

Not suggesting that Texas should adopt any of these division plans, but all of them are better than the Texit plan that some Texans favor (especially since my youngest son and both of my grandchildren live in what might ultimately become North Texas!).

It is also worth mentioning that there have also been proposals to divide California into as many as six new states. Although the annexation of California to the U.S. contained no provision specifically authorizing it to split into more than one state, it is constitutionally permissible under Article IV, Section 3, Clause 1 of the United States Constitution, which provides:

“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”

The most recent proposal to divide California was the so-called “Six Californias” initiative, for which insufficient signatures were obtained to include it on the 2016 election ballot.

The names of the six proposed California states would be Central California, Jefferson, North California, Silicon Valley, South California and West California … which would, once again, give us a “West” state without a comparable “East”.

—–ooooo—–

— FLA 82 —

Breitbart InBuSh

This online Breitbart article by Joel B. Pollak …

http://www.breitbart.com/big-government/2016/05/27/hiroshima-censure-obama/

… is pure, unadulterated, right-wing InBuSh.*

*See:  https://jimsthreedot.wordpress.com/2015/12/19/inbush/

The introductory paragraph of the Breitbart article is an outright lie, intentionally misrepresenting what the president said in his Hiroshima speech.

Compare that opening paragraph …

“President Barack Obama told the world on Friday in Hiroshima that the American decision to drop nuclear bombs on Japan in 1945 arose from humanity’s worst instincts including ‘nationalist fervor or religious zeal’.”

… with what the president actually said:

“On every continent, the history of civilization is filled with war, whether driven by scarcity of grain or hunger for gold, compelled by nationalist fervor or religious zeal. Empires have risen and fallen. Peoples have been subjugated and liberated. And at each juncture, innocents have suffered, a countless toll, their names forgotten by time.”

It is clear that the president was commenting on the motivation of the people who have historically started wars, including World War II, NOT the American decision to end it by using atomic weapons.

Breitbart’s writer also misrepresented Obama’s speech when he said that the president “said nothing about the fact that Japan started the war”, despite the second paragraph of his own story, which correctly quotes part of the speech asserting that the war:

“… grew out of the same base instinct for domination or conquest that had caused conflicts among the simplest tribes, an old pattern amplified by new capabilities and without new constraints.”

Everyone except the most oblivious of people knows that the war was started by Germany and Japan, not the United States (which actually stayed out of it for more than two years before finally entering after Pearl Harbor).  The president’s reference to the cause of the war impliedly lays blame where it belongs … on Germany and Japan … and there was no need for him to overtly confront the Japanese with that moral culpability (for which Japan has, repeatedly over the years, apologized … and which has since motivated Japan to become one of our most steadfast allies).

Pollak also misrepresented the president’s speech when he said that, “Obama cast a moral equivalence between different civilizations, implying that Americans were just as bad as the Imperial Japanese, or anyone else.”

There is nothing in the president’s comments which can be fairly interpreted as implying a moral equivalency between Japanese aggression to start the war and America’s use of nuclear weapons to end the war.

Finally, Pollak committed yet another blatant misrepresentation of the president’s speech when he said that Obama “went further, casting doubt on the American effort in World War II itself”, quoting this passage from the speech:

“Nations arise telling a story that binds people together in sacrifice and cooperation, allowing for remarkable feats. But those same stories have so often been used to oppress and dehumanize those who are different.”

That comment, in context, was obviously a reference to humanity’s violent history, including the rise of xenophobic, militaristic regimes in Japan and Germany … and was NOT a reference to the American participation in World War II.

The full text of the president’s speech is here:

http://www.nytimes.com/2016/05/28/world/asia/text-of-president-obamas-speech-in-hiroshima-japan.html?_r=0

I am not a big fan of Barack Obama … I disagree with many of his policies, particularly those related to health care, climate change and the Second Amendment … and I think he has been a rather mediocre president (ranking right about the middle of all presidents of my lifetime), though the blame for some of his failings rightfully falls on the recalcitrant Republican congress with which he has been saddled.

Nevertheless, I think criticism of the man should be based on actual facts, not the kinds of blatant lies and/or intentional misrepresentations used by Mr. Pollak.

—–ooooo—–

FLA 81

Federal Jury Trial Acquittal

Looking back this weekend at one of the most memorable cases of my career, which ended a year ago today.

It was a federal mail fraud case in the Eastern District of California, Sacramento, court.  The US Attorney’s office in Sacramento had charged six defendants in the case, but by the time we started the trial on March 3, 2015, four of the six had pled guilty and agreed to testify against the other two.

The two remaining defendants were my client, Deborah Loudermilk, and a co-defendant named Buena Marshall, who was represented by Attorney Mark Reichel of the Sacramento law firm Reichel & Plesser.  Mark is a very experienced federal criminal defense attorney and former federal public defender who proved to be an excellent co-counsel in this difficult case.

The charges grew out of events that occurred in 2006 during the height of the home mortgage frenzy which ultimately led to the monumental mortgage meltdown of 2008.

The trial took 11 trial days over four weeks.  In the prosecution of the case, the government presented 26 witnesses and more than 300 exhibits.  It took more than 8 years to get the case to trial because the allegations were not even investigated until early 2010 and charges were not filed until October of 2011. During the more than three years that the case was pending, four of the original six defendants entered into “cooperative” plea agreements, by which they agreed to testify against the remaining defendants.

Among the prosecution witnesses were five convicted felons, including the four former co-defendants.  One of the highlights of the trial for the defense came during the testimony of one of these “cooperating witnesses”, who had to admit that my client was not the person he had thought the government investigators were referring to when they interviewed him and that he had never even met Miss Loudermilk. 

In my closing argument (which is reproduced below), I characterized the presentation of these witnesses as a “parade of the horribles”. In a discussion with the attorneys after the conclusion of the trial, a number of the jurors agreed, indicating that they had given little credence to the testimony of the convicted felons.

I also called the case the story of “Debbie and Goliath”, noting that it was investigated by the FBI and the IRS, and that the government was represented in court by three Assistant US Attorneys, a US Attorney’s paralegal and an IRS Special Agent.  Despite the government resources invested in the case, I characterized the investigation against my client as inadequate and a rush to judgment.  Among other things, I pointed out that the investigators failed to record interviews with the suspects and ignored exculpatory evidence provided by Loudermilk.

Unconvinced by the parade of witnesses and blizzard of exhibits (which included thousands of pages of documents), the jury took slightly more than one day to acquit my client of the two charges against her and Miss Marshall of the four charges against her.

During our post-trial discussion with the jurors, they said that they found the failure to record the interviews significant because my client testified that she did not make incriminating admissions described in the summary report prepared by the investigators and testified to in court by the IRS investigator. As a result, jurors indicated that they gave equal weight to the testimony of the investigator and Loudermilk, and therefore disregarded the purported admissions.

The jury foreman also indicated that the government had done a good job of proving the case against those who had already pled guilty, but that the investigation had “cast too wide a net” in ensnaring Loudermilk and Marshall, who were real estate agents in the six purchases at issue.

The case was charged as “mail fraud” because interstate mail services were used to send documents involved in the scheme, which was conceived and executed primarily by two of the co-defendants, Kadesta Harris and Temika Reed. The two received the bulk of the approximately $200,000 in “cash-back-to-buyers” payments that resulted from the six purchases.

Miss Loudermilk testified in her own defense, denying that she was aware that fraud was being committed or that she had any intent to defraud either the sellers or lenders involved in the two transactions in which she was served as an agent. Miss Marshall did not testify, but Mark Reichel in his argument contended that the evidence also failed to prove her participation in the scheme to defraud or that she had intended to defraud anyone.

In the end, the jurors agreed, concluding that the evidence did not show that either defendant had been a knowing participant in the scheme to defraud, that either had committed any act material to the fraud, or that either had exhibited any intent to defraud the lenders in these transactions.

The defeat was a rarity for the US Attorney’s Office, which routinely obtains convictions in nearly all of its cases. In 2014, the cases of 908 criminal defendants were concluded, with 902 of them being convicted, either through guilty pleas or jury verdicts. Only six were acquitted at trial.

It was also the first time in his 23 years on the federal bench that Judge Garland E. Burrell, Jr., had presided over a trial in which the defendants were acquitted.

The unusual acquittal was highlighted in some of the news coverage of the case, such as in the Sacramento Bee:

http://www.sacbee.com/news/local/crime/article16558673.html

After the trial, Summit Defense presented me with a plaque commemorating the win.

Harris and Reed were finally sentenced just this month, with Harris getting 17 months in federal prison and Reed 13 months.

_____________________________________________

Transcript of my closing argument in U.S. v. Loudermilk:

I Side With … Libertarians

I took the “I Side With” political quiz again tonight:

https://www.isidewith.com/political-quiz

The quiz now includes Libertarian Party candidates and, unsurprisingly, I agree most with them … in fact, my three most agreed with candidates were all Libertarians … though I have to admit that I was somewhat surprised that my highest level of agreement — 90% — was with John McAfee, who I did not even know was running.

After McAfee were Gary Johnson 88% (I voted for him in 2012), Austin Peterson 84% and — finally a major party candidate — Bernie Sanders 73%. I was also somewhat surprised that my lowest level of agreement was with John Kasich 51%, who I consider the most palatable of the Republican candidates.

Next to lowest was with Donald Trump 58%, though I’m not sure how “I Side With” determines that, since Trump never says anything substantive about how he would accomplish any of his purported political objectives.

As far as parties are concerned, I agree most with the Libertarian Party at 85%, followed by the Green Party 67%, the Constitution Party 66%, and the Socialists 62%.  My lowest levels of agreement were with the Democrats 60% and … at the very bottom … the Republicans 53%.

The test also describes my overall political philosophy as moderately libertarian (and slightly left of center) and that among “political themes”, my most significant preferences are for Decentralization over Centralization … Multilateralism over Unilateralism … Isolationism over Imperialism … Laissez-faire over Keynesian … Capitalism over Socialism … and Pacifism over Militarism.

The map showing “Support for My Political Beliefs” across the United States also shows quite clearly that I would not fit in very well in the Deep South … though that is not much of a surprise.

—–oooooOOOOOooooo—–
FLA 79

The False Equivalence Between Cars and Guns

A comment today about one of the suggestions being made by advocates of more stringent control of guns in the United States.

Simply put, the idea is that we should license gun owners the same way we license drivers of motor vehicles and that we should register guns the same way we register vehicles. The argument in favor of this suggestion is, essentially, that since it is acceptable that we register vehicles and license drivers for public safety, it should acceptable to register guns and license gun owners for public safety.

The comparison between cars and guns, however, exemplifies two forms of classic logical fallacy, false equivalence and false analogy.

The reason, of course, is that … despite the way the argument is put in the gun context … we do NOT register all cars … nor do we require all drivers to have licenses.

What? “Of course we do”, you say.

No, we don’t.

What we actually do is to require registration of all vehicles that are to be operated on public roads or in publically-owned off-road venues. And what we actually do is to require anyone who wants to drive on a public road or in a publically-owned off-road venue to have a driver’s license.

On the other hand, if a vehicle is not going to be operated on public roads or in a publically-owned off-road venue and is to be driven only on the owner’s private property, it does not have to be registered. In California, this is called “Planned Non-Operation” or “PNO”, which is described in this DMV online publication:

https://www.dmv.ca.gov/portal/dmv/detail/pubs/brochures/fast_facts/ffvr01/

It says:

PNO means that the vehicle will not be driven, towed, stored, or parked on public roads or highways for the entire registration year.

Similarly, any person who does not intend to operate a motor vehicle on a public highway or in publically-owned off-road venue is not required to have a drivers license. Individuals in California who do not have drivers licenses MAY (but are not required to) obtain a California ID card.

See this California DMV online publication for the ID card requirements:

https://www.dmv.ca.gov/portal/dmv/detail/idinfo/idcard

It describes the ID card as follows:

DMV issues ID cards to persons of any age. The ID card looks like a driver license, but is used for identification purposes only. A regular ID card is valid for six years, and a senior citizen ID card is valid for 10 years. To qualify for a senior citizen ID card, you must be age 62 or older.

In short, cars and guns are not equivalent; car owners and gun owners are not equivalent; and the analogy between cars and guns in this regard is false.

A true equivalence between cars and guns would be that the state should require anyone who wants to carry a gun in public to have a license … and that any gun which is going to be carried in public has to be registered.

On the other hand, if a person is going to own a gun, but will keep it only at home or otherwise only on his private property, there should be no requirement to either register the gun or have a license to own it.

THAT would be consistent with the way we treat motor vehicles and their drivers.

———-

For an interesting and entertaining alternative view of this issue, see the post “We Need to Regulate Cars the Way We Regulate Guns” on Mike Z. Williamson’s blog “The Sacred Cow Slaughterhouse”:

http://www.michaelzwilliamson.com/blog/index.php?itemid=227

This blog is interesting because it shows what we would have to do to buy cars if they were subject to all of the requirements already in place with respect to guns … and demonstrates quite clearly that the purchase and use of guns is already much more heavily-regulated than the purchase and operation of cars.

—–oooooOOOOOooooo—–

FLA 78

TomDispatch: Ann Jones on Social Democracy in Norway

I subscribe to TomDispatch …

… an email service that describes itself on the “About” page of  its website as follows:

Tom Engelhardt launched Tomdispatch in November 2001 as an e-mail publication offering commentary and collected articles from the world press. In December 2002, it gained its name, became a project of The Nation Institute, and went online as “a regular antidote to the mainstream media.” The site now features Tom Engelhardt’s regular commentaries and the original work of authors ranging from Rebecca Solnit, Bill McKibben, and Mike Davis to Chalmers Johnson, Michael Klare, Adam Hochschild, Robert Lipsyte, and Elizabeth de la Vega. Nick Turse, who also writes for the site, is associate editor and research director.

Tomdispatch is intended to introduce readers to voices and perspectives from elsewhere (even when the elsewhere is here). Its mission is to connect some of the global dots regularly left unconnected by the mainstream media and to offer a clearer sense of how this imperial globe of ours actually works.

The Tom Dispatch offerings (which arrive in the form of email “Tomgrams”) are quite interesting and generally thought-provoking.  The one I received today …

http://www.tomdispatch.com/post/176096/tomgram%3A_ann_jones%2C_social_democracy_for_dummies/#more

… motivated me to comment.

This is an interesting Tomgram discussion, primarily regarding the differences between how the U.S. and the Nordic countries (primarily focused on Norway) handle many aspects of modern life, most notably their national economic & social systems.

The author of the piece, Ann Jones, is an admirer of the largely socialist economic systems in place in the Scandinavian countries.  Many of the concepts she promotes are an anathema to my libertarian sensibilities — and I think she blithely ignores the fact that what works for small, largely homogeneous, countries like Norway (5.1 million people, roughly equal to North Carolina, in an area larger than Texas) would be orders of magnitude more difficult to implement in the U.S., which covers nearly four times the area of Scandinavia (Norway, Sweden, Finland, Denmark & Iceland) and 13 times the combined population of those five countries.

Besides being a libertarian in my political views, I am also essentially anti-social and an iconoclast — I would not do well in the Norway Jones describes. Consider these excerpts from the Jones discussion of how society developed there in the 1970s:

“There, feminists and sociologists pushed hard against the biggest obstacle still standing in the path of full democracy:  the nuclear family. … the Norwegian state began to deconstruct that undemocratic ideal by taking upon itself the traditional unpaid household duties of women. Caring for the children, the elderly, the sick, and the disabled became the basic responsibilities of the universal welfare state, freeing women in the workforce to enjoy both their jobs and their families.”

And:

“In Norway, mother and father in turn take paid parental leave from work to see a newborn through its first year or more. At age one, however, children start attending a neighborhood barnehage (kindergarten) for schooling spent largely outdoors.”

Both of those concepts (“deconstruction” of the nuclear family and starting school at the age of 1) are contrary to my personal views of how to best raise children. I don’t even like the current trend in the U.S. of sending kids to pre-kindergarten classes.

I also can’t help wondering how much of what the Scandinavian countries have accomplished with their social-economic systems has been possible only because they have been able to maintain a significantly insular existence thanks to their relatively isolated geographic location, the fortuity of the North Sea oil reserves (which are the primary reason Norway has a significantly positive export-import balance) and because, since the end of World War II, they have been able to essentially rely on other countries (primarily the U.S.) to insure their national security.

Have to admit that I also found the Tomgram tagline for the Jones article (“Social Democracy for Dummies”) condescending and offensive.

Despite my disagreements with the Ann Jones article, I highly recommend TomDispatch for anyone interested in current national and international affairs.  You can subscribe to the email service on the webpage linked above.

—–oooOOOooo—–

FLA 77

More Zero Intelligence on the School Front

Youngest son Sean pointed out to me tonight an incident from the Killeen Independent School District, in which an 8th grade student was suspended for leaving his classroom to help another student, who was having a severe asthma attack.

The incident is described in the article linked in the following email, which I wrote to the superintendent of the school district, Mr. John Craft. For anyone else who would care to write to him as well, his email address is:

John.Craft@killeenisd.org

I wrote to him as follows:

Dear Mr. Craft,

I learned this evening about the incident at the Gateway Middle School involving student Anthony Ruelas, who has apparently been suspended for two days for leaving his classroom to aid another student who was having an asthma attack. I learned of the incident from this Yahoo report:

https://www.yahoo.com/parenting/student-suspended-after-saving-classmates-life-182113379.html

This article includes a comment attributed to you: “The Killeen ISD maintains the safety of our students, staff and campuses as a priority and applauds the efforts of students who act in good faith to assist others in times of need.”

If that is actually what you said about the incident, I can’t help wondering exactly what the school and district think was inappropriate about what this boy did and why he isn’t being “applauded” for “acting in good faith to assist others in times of need”.

Rather than being suspended, he should be rewarded for his clear-thinking and prompt response to an emergency that his teacher was apparently incapable of handling in an appropriate manner.

I am a college and law school graduate and taught in law school. My wife was also a high school teacher and we raised four children, so I have a good idea of why an appropriate level of discipline is necessary to the successful education of students, particularly at the middle school level. On the other hand, I know a bad administrative decision when I see one … and I see one here.

Whoever made the decision to suspend this boy … and everyone in the school district administration who supports that decision … gets on “F” on this one.

James T. Reilly
Attorney at Law
Novato, CA

—–oooOOOooo—–

— FLA 76 —

New California Criminal Laws for 2016

The California state legislature enacted 807 new laws during the 2015 legislative session. Several of them addressed criminal law issues which might be of interest, particularly to attorneys who practice criminal law.

 

NEW CRIMINAL LAWS

Photographing and video recording cops in public

Video recording of police officers by private citizens has become somewhat of a contentious issue for some cops. Officers have been known to order citizens to stop … or to have seized the recording device … or even to arrest the recording individual for interfering with the performance of police duties.

This year, the California legislature brought clarity to this situation, making it clear that such recording in a public place is not, in and of itself, a violation of the law.

To accomplish this, the legislature amended two Penal Code sections, 69 and 148. The former makes it a crime to deter or prevent an officer from performing his duties and the latter makes it a crime willfully resist, delay, or obstruct a peace officer in the performance of his duties.

Section 69 was amended to add subdivision (b), which provides:

“The fact that a person takes a photograph or makes an audio or video recording of an executive officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a).”

Section 148 was amended to add subdivision (g), which provides:

“The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of subdivision (a), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person.”

Biking to the music with ear buds

California law previously prohibited wearing any headset that covered both ears while driving a vehicle or riding on a bicycle.  This year, the law — Vehicle Code section 27400 — was amended to, essentially, ban ear buds while driving or riding a bicycle.

With certain exceptions (such as persons operating authorized emergency vehicles and individuals wearing hearing aids), the law now provides:

 “A person operating a motor vehicle or bicycle may not wear a headset covering, earplugs in, or earphones covering, resting on, or inserted in, both ears.”

BB Guns in public

When I was a kid growing up on Long Island, I often carried my BB rifle or .22 caliber pellet gun around the neighborhood, plinking away with them. These days, of course, carrying around a realistic-looking BB gun can get you killed.

In any effort to reduce the likelihood of such a tragic event happening in California, several provisions of law relating to BB, pellet, paintball and airsoft guns were changed this year.

Penal Code section 20165 previously excluded all BB guns from the existing prohibition on “imitation firearms”. Under the new law, BB, pellet, paintball and airsoft guns are considered “imitation firearms” and therefore illegal unless they meet specified requirements, the full details of which are available here:

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB199

Among the exceptions are the color requirements designed to make these recreational guns readily identifiable as non-lethal. New Penal Code section 16700, subdivision (b)(5), provides that these guns are not considered “imitation firearms” when they consist of:

“A device where the entire exterior surface of the device is white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink, or bright purple, either singly or as the predominant color in combination with other colors in any pattern, or where the entire device is constructed of transparent or translucent materials which permits unmistakable observation of the device’s complete contents.”

Gun violence restraining orders

Numerous and substantial changes were made to the laws regarding gun violence restraining orders. The full details of the changes, which were enacted by Assembly Bill 1014, are here:

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1014

Major provisions of the bill authorize courts to:

Issue a temporary emergency gun violence restraining order if the court finds that there is reasonable cause to believe that the subject of the petition poses an immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another.

Issue an ex parte gun violence restraining order prohibiting the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition when it is shown that there is a substantial likelihood that the subject of the petition poses a significant danger of harm to himself, herself, or another in the near future by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another.

Issue a gun violence restraining order prohibiting the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition for a period of one year when there is clear and convincing evidence that the subject of the petition, or a person subject to an ex parte gun violence restraining order, as applicable, poses a significant danger of personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another.

The new law authorizes the renewal of the order for additional one-year periods and permits the restrained person to request one hearing to terminate the order during the effective period of the initial order or each renewal period.

The new law requires courts, upon issuance of gun violence restraining orders, to order the restrained person to surrender to the local law enforcement agency all firearms and ammunition in his or her custody or control, or which he or she possesses or owns and requires the local law enforcement agency to retain custody of the firearm or firearms and ammunition for the duration of a gun violence restraining order.

To help protect individuals against false claims in applications for gun violence restraining orders, the new law makes it a misdemeanor for anyone to file a petition for an ex parte gun violence restraining order or a gun violence restraining order issued after notice and a hearing, knowing the information in the petition to be false or with the intent to harass the person who is the subject of the requested order.

Finally, the new law also provides that a person who owns or possesses a firearm or ammunition with the knowledge that he or she is prohibited from doing so by a gun violence restraining order is guilty of a misdemeanor and shall be prohibited from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition for a 5-year period, commencing upon the expiration of the existing gun violence restraining order.

CCW on school grounds

The rules governing the carrying of licensed concealed weapons on or near school grounds (Penal Code sections 626.9 & 30310) were changed this year.

The changes allow the holder of a valid license to now carry a concealed firearm to carry a firearm in an area that is within 1,000 feet of, but not on the grounds of, a public or private school providing instruction in kindergarten or grades 1 to 12.

On the other hand, the changes deleted the exemptions that previously allowed a person holding a valid license to carry a concealed firearm to bring or possess a firearm on the campus of a university or college and that previously allowed a person to carry ammunition or reloaded ammunition onto school grounds if the person is licensed to carry a concealed firearm.

The new law did create an additional authorization for a person to carry ammunition or reloaded ammunition onto school grounds if it is in a motor vehicle at all times and is within a locked container or within the locked trunk of the vehicle.

Transporting dope

The definition of “transporting” controlled substances within the meaning of Health & Safety Code sections 11360, 11379.5 and 11391 was changed to mean “to transport for sale”.

The changes to these code sections, which relate to the transportation of marijuana, pcp and psychedelic mushrooms, mean that a person who is transporting those substances for personal use, rather than for sale, can be charged only with possession of, rather than the more serious charge of transporting, the proscribed substances.

Custodial battery (alternative felony-misdemeanor)

Section 243.15 was added to the California Penal Code, providing that:

“Every person confined in, sentenced to, or serving a sentence in, a city or county jail, industrial farm, or industrial road camp in this state, who commits a battery upon the person of any individual who is not himself or herself a person confined or sentenced therein, is guilty of a public offense and is subject to punishment by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail for not more than one year.”

Not that such a battery ever was a good idea, now the consequences of committing one are potentially even more severe.

Credit for time served against fines

The value of each day spent in jail and for which a defendant is entitled to credit against any imposed fine, was increased from $30 per day to $125 per day. (Penal Code section 1205)

Dismissal of traffic tickets

Want to get out of a traffic ticket? Well, the legislature added a new way this year. In the past, any citation or misdemeanor traffic offenses committed by a person sentenced to state prison could no longer be prosecuted.

Now, that restriction also applies to anyone sentenced to a county jail pursuant to Penal Code section 1170, subdivision (h), which provides for so-called “realignment” county jail sentences.

So, if you have a citation or misdemeanor traffic offense pending and you get sentenced to county jail under section 1170, subdivision (h), as an alternative to being sent to prison, will be relieved of prosecution for those traffic offenses.

Felony traffic offenses are not affected by the change in the law and can still be prosecuted, even for individuals sentenced to prison or county jail under the realignment statute.

 

NEW LAWS RELATING TO THE PROSECUTION

AND DEFENSE OF CRIMINAL CASES

Immigration consequences

Penal Code sections 1016.2 & 1016.3 were added this year, addressing how both prosecutors and defense counsel deal with the immigration consequences of guilty pleas in criminal cases.

 The new laws require that defense counsel provide to their clients accurate and affirmative advice about the immigration consequences of any proposed disposition of the client’s case and that prosecutors, “in the interests of justice … shall consider the avoidance of adverse immigration consequences in the plea negotiation process as one factor in an effort to reach a just resolution”.

Thus, the lawyers on both sides of criminal cases involving individuals who may be subject to immigration consequences as a result of their prosecution must take those potential consequences into consideration as part of the plea bargaining process.

Presumably, this will also mean that courts will be inquiring of defendants entering guilty pleas whether or not their lawyers have advised them of the potential immigration consequences. One more thing for defense counsel to keep in mind.

Prosecutorial misconduct (withholding evidence)

And one more thing for prosecutors to keep in mind (though the ethical ones always have and will not be effected in any way by this change):

Section 1424.5 was added to the Penal Code … because of the significance of this provision, here it is in full:

Penal Code section 1424.5

“(a) (1) Upon receiving information that a prosecuting attorney may have deliberately and intentionally withheld relevant or material exculpatory evidence or information in violation of law, a court may make a finding, supported by clear and convincing evidence, that a violation occurred. If the court finds such a violation, the court shall inform the State Bar of California of that violation if the prosecuting attorney acted in bad faith and the impact of the withholding contributed to a guilty verdict, guilty or nolo contendere plea, or, if identified before conclusion of trial, seriously limited the ability of a defendant to present a defense.

“(2) A court may hold a hearing to consider whether a violation occurred pursuant to paragraph (1).

“(b) (1) If a court finds, pursuant to subdivision (a), that a violation occurred in bad faith, the court may disqualify an individual prosecuting attorney from a case.

“(2) Upon a determination by a court to disqualify an individual prosecuting attorney pursuant to paragraph (1), the defendant or his or her counsel may file and serve a notice of a motion pursuant to Section 1424 to disqualify the prosecuting attorney’s office if there is sufficient evidence that other employees of the prosecuting attorney’s office knowingly and in bad faith participated in or sanctioned the intentional withholding of the relevant or material exculpatory evidence or information and that withholding is part of a pattern and practice of violations.

“(c) This section does not limit the authority or discretion of, or any requirement placed upon, the court or other individuals to make reports to the State Bar of California regarding the same conduct, or otherwise limit other available legal authority, requirements, remedies, or actions.”

In a related provision, subdivision (a)(5) was added to Business & Professions Code section 6068.7, providing:

“(5) A violation described in paragraph (1) of subdivision (a) of Section 1424.5 of the Penal Code by a prosecuting attorney, if the court finds that the prosecuting attorney acted in bad faith and the impact of the violation contributed to a guilty verdict, guilty or nolo contendere plea, or, if identified before conclusion of trial, seriously limited the ability of a defendant to present a defense.”

These provisions add serious consequences to the withholding by prosecutors of relevant or material exculpatory evidence or information in any criminal case.

—–oooOOOooo—–

FLA 75

Forty Years Before the Bench

It was 40 years ago today that I was sworn in as an attorney in the State of California.  After I spent nearly 10 years as a Deputy District Attorney in Orange County, we moved to Marin County in 1985 and I have been in private practice ever since.  I have served primarily as criminal defense counsel, while also working on some plaintiff’s personal injury litigation and for several business law clients.

Since 2008, I have been senior trial counsel for Summit Defense, a Bay Area criminal defense law firm.

During that time, I have represented clients in the state courts of 22 different California counties, from as far north as Butte and as far south as San Diego.

I have also represented clients in four different federal district courts, including the Southern District of New York in Manhattan (the case there was an insider trading prosecution in which the charges against my client were recently dismissed).

My Summit defense clients have included men & women from 21 different countries:  Afghanistan, Argentina, China, El Salvador, Fiji, Guatemala, India, Iran, Ireland, Laos (Hmong), Mexico, Morocco, Nicaragua, Pakistan, the Philippines, Romania, Russia, South Korea, Sri Lanka, Turkey and Vietnam.

In the past 7 years, I have completed 16 major felony trials, ranging from fraud to child molestation to murder. These trials took place in 9 different counties and one federal court (Eastern District of California, Sacramento).

The federal trial was a mortgage fraud case earlier this year before the court’s presiding judge, the Honorable Garland E. Burrell, Jr.  My client and the co-defendant were both found not guilty … the first time in Judge Burrell’s 23 years on the bench that there had been an acquittal in his court.  Summit gave me a plaque commemorating the win:

In one of my child molestation cases in Santa Clara county in 2011, my client was acquitted of several charges and the jury hung on the others. Ultimately, the DA dismissed the remaining counts and the client was released from custody. After the evidence and arguments were concluded and the jury sent out to deliberate, the judge made some very kind comments about my trial performance.

I previously blogged here about “Why You Should Never Talk to the Cops”:

https://freelegaladvice.wordpress.com/2013/03/21/why-you-should-never-talk-to-the-cops/

This blog included a link to a KRON-TV interview that I did on the subject, as well:

https://www.youtube.com/watch?v=KqY2smL1oJo

Also in 2011, I was featured in a special edition of Newsweek magazine:

The Summit Defense webpage is here:

http://www.summitdefense.com/choosing_a_criminal_defense_lawyer

And my Summit Defense Attorney profile is here:

http://www.summitdefense.com/james_reilly

—–ooo—–

FLA 74

“Isis Would be WasWas” … NotNot

Saw this conservative republican Ronald Reagan meme tonight …

… and because it is SO wrong, I just had to post this response. Just how wrong is it? Let us count the ways:

1 — April 18, 1983 — Bombing of U.S. Embassy in Beirut

A suicide truck bomber rammed into the U.S. Embassy in Beirut, Lebanon, killing 63 people, including 17 Americans. The American dead included eight employees of the Central Intelligence Agency, including chief Middle East analyst Robert C. Ames and station chief Kenneth Haas.

The attack was carried out by Hezbollah, an anti-American militant Lebanese Islamic group. President Reagan ordered no American military response to the embassy bombing.

—–

2 — October 23, 1983 — Bombing of U.S. Marine Barracks in Beirut

Another suicide truck bomber attacked the U.S. Marine barracks at the Beirut International Airport … 241 U.S. Marines were killed and more than 100 wounded. U.S. intelligence sources suspected Hezbollah of committing this attack, as well, though Hezbollah denied any involvement.

President Reagan’s security team devised a plan of military action, but Secretary of Defense Casper Weinberger aborted the plan. President Reagan ordered no American military response to this bombing and four months later, our Marines pulled out of Lebanon. The 9-11 attacks are the only terrorist attacks ever to have killed more Americans than this bombing.

—–

3 — December 12, 1983 — Bombing of U.S. Embassy in Kuwait

The bombing of the American embassy in Kuwait was one of several attacks, which also targeted the French embassy, the airport control tower, Kuwait’s main oil refinery, and a residential area for employees of the American corporation Raytheon. In the bombing of the American embassy, five people were killed and more than 80 injured.

This attack is believed to have been carried out by an Iranian-backed, anti-Saddam Hussein Shiite group.  President Reagan ordered no American military response to this embassy bombing.

—–

4 — March 16, 1984 — CIA Station Chief William Buckley kidnapped in Lebanon

Buckley was kidnapped by militant Islamic extremists in Lebanon and was one of 30 Westerners kidnapped between 1982 and 1992. In October 1985, Islamic Jihad claimed to have executed Buckley, though American officials later claimed that he died of a heart attack.

Because American officials believed that Hezbollah was behind most of these kidnappings, the Reagan administration devised a covert plan to secretly trade weapons to Iran in exchange for the release of hostages. Congress had banned the sale of American weapons to Iran, but the U.S. secretly sent 508 anti-tank weapons to Iran and three American hostages were released. The proceeds of these sales were secretly … and also illegally … funneled to American-backed Contra rebels fighting the Sandanista regime in Nicaragua. This program has come to be known as the “Iran-Contra Affair”.

However, President Reagan ordered no military response to the kidnapping and death of Mr. Buckley.

—–

5 — September 20, 1984 — Bombing of U.S. Embassy Annex Northeast of Beirut

Another suicide truck bomber attacked the U.S. Embassy annex in Aukar, northeast of Beirut, killing 24 people including 2 U.S. military personnel. Hezbollah is suspected to have been involved in the bombing.

Although some CIA covert operations were carried out in response to this incident, President Reagan ordered no American military response to this embassy bombing, and the covert operations were ultimately suspended.

—–

6 — December 3, 1984 — Hijacking of Kuwait Airways Flight 221

Kuwait Airways Flight 221 was hijacked by Hezbollah and diverted to Tehran. The hijackers demanded the release of the perpetrators of the bombing of the U.S. Embassy in Kuwait (known at the “Kuwait 17”). When Kuwait rejected this demand, the hijackers killed two American officials from the U.S. Agency for International Development.

President Reagan ordered no American military response to the murders of these Americans.

—–

7 — June 14, 1985 — Hijacking of TWA Flight 847

Athens to Rome TWA Flight 847 was hijacked and forced to land in Beirut. The hijackers held the plane for 17 days, also demanding the release of the “Kuwait 17”, as well as 700 other Shiite Muslim prisoners held in Israeli and southern Lebanon prisons. These demands weren’t met and hostage Robert Dean Stethem, a U.S. Navy diver, was shot and his body dumped on the airport tarmac. U.S. sources once again implicated Hezbollah.

Eventually, the hijackers released the hostages and Israel released some of the Shiite prisoners. However, President Reagan ordered no military response to the kidnapping and murder of Robert Dean Stethem.

—–

8 — October 7, 1985 — Hijacking of the Cruise Ship Achille Lauro

Four gunmen hijacked the Italian cruise ship Achille Lauro off the coast of Lebanon and demanded the release of Palestinian prisoners in Egypt, Italy, and elsewhere. These demands weren’t met and the kidnappers killed Leon Klinghoffer, a 69-year-old disabled American tourist. U.S. officials linked Libya to the Palestine Liberation Front and the hijacking.

The hijackers escaped the Achille Lauro and left Egypt by air. U.S. Navy fighters intercepted their plane and forced it down in Italy. The four hijackers were found guilty by an Italian court. The mastermind of the hijacking, Abu Abbas, was released by Italy despite an American request that he be held for trial.

President Reagan ordered no military response to the kidnapping and murder of Leon Klinghoffer.

—–

9 — December 27, 1985 — Bombing of Rome and Vienna Airports

U.S. officials linked Libya to the bombings of airports in Rome and Vienna, in which 20 people, including five Americans, were killed. In January 1986, the U.S. Navy and its warplanes were ordered to patrol the Gulf of Sidra — in territorial waters claimed by Libya. President Reagan warned Libyan dictator Muammar Qaddafi that Libyan forces which moved more than 12 miles from shore were subject to attack.

Ultimately, however, President Reagan ordered no military response to the killings of these five Americans.

—–

10 — April 5, 1986 — Bombing of La Belle Discotheque in West Berlin, Germany

In another bombing linked to Libya, a West Berlin discotheque popular with off-duty American servicemen, one American and a Turkish woman were killed and nearly 200 others wounded.

After U.S. intelligence intercepted Libyan government communications implicating Libya in this attack, President Reagan ordered retaliatory air strikes on Tripoli and Benghazi. Operation El Dorado Canyon, executed on April 15, 1986, involved 200 aircraft and over 60 tons of bombs. One of the residences of Qaddafi was hit in the attack, 37 people were killed and 93 injured. This was the only time during Ronald Reagan’s presidency that he ordered a military response to the terrorist murders of American citizens.

Two days after the U.S. attack, three American University of Beirut employees were found near Beirut, shot to death. The Arab Revolutionary Cells, a pro-Libyan group of Palestinians affiliated with terrorist Abu Nidal, claimed to have executed the three men in retaliation for Operation El Dorado Canyon.

President Reagan ordered no further military response to the killings of these three Americans.

—–

11 — December 21, 1988 — Bombing of Pan Am Flight 103

The bombing of Pan Am Flight 103, which was traveling from London to New York and exploded over the small town of Lockerbie, Scotland, resulted in the deaths of 259 people on board the plane and 11 others on the ground.

The U.S. government accused Libya of being behind the attack.  There were also reports that Syria and Iran also played significant roles, though U.S. officials were never able to tie the two countries to the bombing.

In 1999, Qaddafi turned over to UN officials two men suspected of involvement in the bombing and they were tried in the Netherlands. One was convicted and sentenced to life in prison and the other was acquitted and set free. In 2003, Qaddafi accepted responsibility for the attack and paid reparations to the victims, though he continued to deny that he ordered the attack.

Of the 270 people killed in this bombing, 189 were American citizens. It is the third deadliest terrorist attack (in terms of American deaths) ever … only 9-11 and the Beirut Marine barracks bombing resulted in more American deaths.

President Reagan ordered no American military response to this bombing.

—–

Hezbollah, of course, continues to operate to this day … President Reagan did little or nothing to “WasWas” Hezbollah.

Islamic Jihad also continues to operate to this day … and President Reagan did little or nothing to “WasWas” Islamic Jihad.

The Palestine Liberation Front (PLF) continues to operate to this day … and President Reagan did little or nothing to “WasWas” the PLF.

Muammar Qaddafi was killed in 2011, after being deposed as dictator of Libya. A convoy in which he was traveling was attacked by U.S. and NATO forces and he was forced to flee the attack and hide in a culvert. He was found there by Libyan National Transitional Council forces and killed shortly thereafter (there are varying reports of exactly how this occurred). In any event, of course, this came on President Barrack Obama’s watch and President Reagan did little or nothing to “WasWas” Qaddafi.

The Arab Revolutionary Cells, following the terrorist activities in the 1980’s, faded into obscurity and it is currently unknown if any part of that organization continues to operate. Abu Nidal was killed (or committed suicide, depending on who you believe) during a 2002 interrogation in Baghdad.  President Reagan did little or nothing to “WasWas” either the Arab Revolutionary Cells or Abu Nidal.

—–

The 468 Americans killed by terrorists during the Reagan administration is the highest total of such deaths during the term of any president other than George W. Bush:

President Ronald Reagan – 468
President George H.W. Bush – 0
President William Clinton – 37
President George W. Bush – 2982
President Barrack Obama – 28

—–

President Ronald Reagan certainly had ample motivation to utilize American military forces in response to terrorist attacks that resulted in the deaths of Americans. Only once did he do so (the 1986 attack on Libya). There is nothing about his presidency which suggests that he would have dealt with Isis in such a way as to render it WasWas.

—–

FLA 73

A Day in the Life of an Itinerant Criminal Defense Lawyer

In my current practice of law, working with the Bay Area criminal defense firm Summit Defense, I handle primarily serious felony cases that are likely to have to go to trial.

As a result, I have had Summit cases in 22 different counties (as far north as Butte County and as far south as San Diego) and in four different federal courts, including the Southern District of New York.

Yesterday was a classic example of what this sometimes means, as I had court appearances in San Jose and Auburn … and had to pick up juror questionnaires in Stockton.

I set off on my peripatetic adventures for the day by leaving home at 7:00 am for a 9:30 am appearance in the US District Court, Northern District of California, San Jose Division. I hit heavy traffic on 101 in Marin and stretches of 880 in Oakland and Hayward … as a result of which, the trip took 2:20 and I barely made it to court on time.  After waiting for some time for the case to be called, it took about 20 minutes to finish our appearance.

Once done there, I left at 10:30 for Stockton, where I am in trial in the San Joaquin County Superior Court, to pick up juror questionnaires for review prior to resuming trial next week. That trip took 1:40, which got me there after everything had shut down for the lunch hour. Fortunately, a friendly bailiff was willing to track down the clerk supervisor who had my forms and I was back on the road at 12:30.

This leg of the trip took me to a 1:30 pm appearance in the Placer County Superior Court branch in Auburn for a trial confirmation conference. The trip took 1:35, so I was late, arriving at 2:05. Fortunately (again), I have co-counsel on this case, who was able to appear at 1:30 to let the court know I’d be late … and the court was extremely busy and didn’t care anyway.

In fact, the case didn’t even get called until after the mid-afternoon recess at 3:00 pm and took less than 10 minutes once it was called.

After some post-appearance conversations with the client’s family and my co-counsel, it was back on the road to head home, a trip which took 2:15.

So, for the day, I drove roughly 360 miles and spent 7:50 on the road, all to pick up my questionnaires and make two court appearances which took a combined total of less than 30 minutes.

On the other hand, I did get to listen to more than half of my current audio book!

A Tale of Two Flags

The 4th of July always motivates an outpouring of patriotism … and an annual display of American flags unmatched at any other time of the year.

There is, however, no need for me to unfurl a special flag for Independence Day … because mine flies every day on a flag-pole at the corner of my home.

And on the hood of my truck … with a smaller version of the same flag decal on the tail gate.

And elsewhere inside my home, where I have displayed more than 100 American flag-themed items, ranging from wooden flag replicas in the family room …

… to a stained-glass flag atop my hallway “ego” wall …

… to flag stamps and first day cover items, refrigerator magnets, a golf towel …

… and a “Proud to be American” flag-themed banner in the window of my office.

I bow no one in my love of our country and my reverence for our flag. I stand at attention and, as a military veteran, salute during the playing of the National Anthem at Cal football games.

Besides those on display, I have many other American flag stamps and first day covers, challenge coins and casino chips in my collections of those items.

All of that said, I write today primarily not to discuss the American flag, but to follow up on my earlier posts on the flags of the Confederate States of America.

Some defenders of the display of the so-called “Confederate Flag” …

The Battle Flag of the Army of Northern Virginia

… really the Battle Flag of the Army of Northern Virginia, as I previously discussed here …

https://freelegaladvice.wordpress.com/2015/06/19/that-is-not-the-confederate-flag-flying-in-south-carolina/

… have tried to mythologize the Civil War, claiming that the war was not about slavery. It was, at least as far as the government leaders of the seceding states were concerned.

However, many, if not most, of the soldiers in the Confederate Army fought for the South not to preserve slavery, but for the same reason that many colonists fought in the Continental Army during the American Revolution. That is, they acted out of loyalty to their local communities and states at a time when our national identity was not as well-developed and pervasive as it is today. Despite being poorly fed and equipped … and often poorly led … Confederate soldiers fought as gallantly as had the soldiers of any army to that point in history.  Very few of these soldiers considered themselves “traitors”; nor do I.

Eight ancestors on my wife’s side of the family fought for the Confederacy during the Civil War and one of them was KIA at Gettysburg. Once my daughter Larisa, through her genealogical research, identified these Confederate veterans, I added them to the extended family Veterans list that I publish each year on Veterans Day:

Both of the Confederacy’s highest ranking generals, Robert E. Lee …

… and Joseph E. Johnston, disliked slavery and supported some form of emancipation. Lee, who owned slaves through inheritance, freed them before the war ended. The majority of Confederate generals had never owned slaves; few common soldiers ever had.  Even Confederate President Jefferson Davis had come to believe that slavery should be ended, even if the South won the war.

In my collection of challenge coins, I have seven that feature Confederate flags …

… top to bottom, they are the three national flags of the confederacy, the “Bonnie Blue” flag (more on this one below), the Rebel battle flag and the battle flags of Robert E. Lee and Stonewall Jackson.

The reverse of each features the Rebel battle flag.

I like these coins; they are colorful and interesting symbols of one of the most important events in American history — in fact, second only to the American Revolution.

The Bonnie Blue flag was originally the flag of the Republic of West Florida for about 90 days in 1810 (until the U.S. annexed the territory). A close variation of the Bonnie Blue flag was adopted by the state of Mississippi when it seceded from the Union in January 1861. This flag was used as an unofficial Confederate flag during the early months of 1861 and, in fact, was flying above the Confederate batteries that fired Fort Sumter to start the Civil War.

Union General Ulysses S. Grant, known by the nickname “Unconditional Surrender” Grant, nevertheless, in accepting the surrender of Robert E. Lee’s Army of Northern Virginia at Appomattox on April 9, 1865, declined to relieve Lee of his sword (a traditional gesture of surrender).

Then, as Lee rode away to inform his men of the surrender, Grant saluted him by raising his hat, in which gesture of respect the other Union officers present joined.

The United States fought two wars against the British — one to gain independence, the other to preserve it. The British are now our most staunch allies in the entire world. We twice fought the Germans in world wars; they are now friends, economic trading partners and hosts of a number of permanent American military installations. We fought the Japanese during World War II; they are now one of our greatest allies in Eastern Asia. We also fought the Italians during WWII; they are now friends and their country is one of the favorite places for Americans to visit. We fought other wars with Mexico, Spain & the Philippines; they are all now friends and economic partners.

It strikes me as strange that we have been able to reconcile with each of these foreign nations after engaging in what were often vicious & brutal wars, but we somehow have never been able to fully reconcile the two halves of our own country.

Abraham Lincoln concluded his second inaugural address, delivered on March 4, 1865, with the following words:

The Civil War Confederate flags are an integral part of American history. And while I agree that the Rebel battle flag ought not to be displayed on government property, I see neither logical nor emotional reason to attempt to banish it entirely from our national consciousness. Nor do I think it appropriate at this late date to be removing from public display monuments, statues or other remembrances of those who served on behalf of the Confederacy.

I certainly have no intention of removing from my family veterans display the names of the Douglas family members who fought for the Confederacy. Nor will I remove from my collection of challenge coins those depicting the various Confederate flags. These, of course, are personal decisions … and rather insignificant in the big scheme of things, but it seems to me that there is no way I — or anyone else — can improve on the sentiment expressed by Lincoln and we would all be better off if everyone in the United States today lived up to those words, “with malice toward none, with charity for all”.

————————————————————

FLA 71

Riding Dinosaurs … Not

A high school classmate and friend, who spent her entire adult working life as a teacher, today shared on Facebook a link to an article on “AddictingInfo.org” by one Wendy Gittleson. The article, titled “Almost Half of Americans Think Humans and Dinosaurs Lived Together”, is here:

http://www.addictinginfo.org/2015/06/29/almost-half-of-americans-think-humans-and-dinosaurs-lived-together/

And the AddictingInfo.org Facebook page is here:

https://www.facebook.com/AddictingInfoOrg?fref=ts

The author’s apparent primary purpose is to criticize those who are “anti-science”, as well as those who are religiously inclined, suggesting as she does that they are the primary cause of “stupidity like this” and that this is “… also a side effect of a free-market educational system, where people can pick and choose whether to have their children learn scientific facts or the Bible or anything in between.”

When my own kids were in school, my wife & I were big supporters of the public schools they attended. Sandy was often a class mother, was always active in parent teacher organizations (president one year), and frequently volunteered to work at other school events. Eventually, she returned to school herself, earned her bachelor’s degree in education, as well as her teaching certificate, and taught high school even while fighting the cancer which ultimately took her life.

I was a parent escort on field trips, worked the sidelines on football Saturdays, was attorney coach of the high school mock trial team for 4 years, was a volunteer for a school bond measure (serving as absentee ballot coordinator, precinct captain and election day headquarters coordinator), once ran for the K-8 school board (unsuccessfully) and once, when no one else would do it, filled in myself as a class “mother” for a semester. I have a whole series of framed class photos of the two elementary school classes that I “adopted” each year by making direct cash donations.

However, the last of my kids graduated from high school in 1997 and, from what I have seen since, our public school systems across the country have gone seriously downhill in the last 18 years. If I had a school-aged child today, there is no way I would send him or her to a public school … it would be a private school or home-schooling.

The idiocy (sorry, but no other word suffices) of so many of the people running our public schools today is frustrating and intolerable. I have been compiling a host of examples of what I refer to as “Zero Intelligence” being exhibited by American school officials and will eventually write a major blog on the subject. I did write about one brief example awhile back, which is here:

https://freelegaladvice.wordpress.com/2015/01/08/more-zero-intelligence-from-our-so-called-educators

So, to get to my point today: the fact that a significant percentage of Americans think that humans and dinosaurs lived or “probably lived” at the same time IS both sad and distressing (albeit the headline on the article is, in my opinion, misleading, 41% not being “almost half”). What motivated me to comment, however, is the suggestion that, “This is a side effect of a free-market educational system”.

First, according to the Council for American Private Education (CAPE) and as of the 2011-2012 school year, only 10% of all K-12 students in the U.S. attended private schools. See the full CAPE report here:

http://www.capenet.org/facts.html

Almost 43% — 42.9% to be exact, which makes use of the qualifier “almost” correct in this instance — of private school students attended Catholic schools. Only 14% attended conservative Christian schools. Which means that at most only 1.4% of all students attended born again Christian schools.

So, even if every single one of them … as well as every single other private school student in the country … is among the 41% who are misinformed about people and dinosaurs, that still means that 31% of that misinformed portion of the population attends (or attended) public schools. This problem most assuredly cannot be blamed on the “free-market educational system”. It is primarily a function of a public school system which is seriously broken.

And second (here I find myself in the unusual position of speaking up on behalf of conservative Christians, of whom I am usually more likely to be critical), I also think the comment in the article that born again Christians are more likely to believe that “people rode dinosaurs like horses”, is both intellectually dishonest and inaccurately disparaging.

There is nothing in the actual study … linked in the article and available here:

https://today.yougov.com/news/2015/06/18/jurassic-world/

… which indicates that born again Christians are more likely to believe that “people road dinosaurs like horses”. That characterization is a gratuitous and factually unsupportable slap at a relatively small group of people, apparently thrown into the article with no better motivation than personal animus against persons of a presumably different religious persuasion than the author’s.

In my opinion, personally insulting comments like this are both needlessly offensive and ultimately counter-productive.

I submit that the author of the article and others of a like mind would be more helpful in addressing and ultimately solving our country’s educational issues by concentrating on improving their own public schools, rather than worrying about what is going on at someone else’s private school.

——————————————————————–

FLA 70

There is no Gay Marriage “Slippery Slope”

Yesterday’s U.S. Supreme Court decision approving gay marriage throughout the country is a long overdue recognition that everyone has a right to love and to share marriage with the whomever they like, regardless of gender.

Unfortunately, the decision has already motivated an irrational — and, on the part of some, hysterical — reaction (listen, for example, if you can stand it, to Ted Cruz) by opponents of marriage equality.

For the most part, response to these rantings would be both futile and a waste of time. However, in two respects, it is worth the time and effort to respond — these are the related claims that this decision puts the US on the path to approval of, among other things, pedophilia and polygamy.

Pedophilia

The discussion regarding pedophilia exemplifies two significant rhetorical fallacies — the so-called “slippery slope” argument and another called “moral equivalence”.

In its simplest form, the “slippery slope” argument goes like this, “if A happens, B will happen” (often with disastrous results).

However, except under circumstances where B is inevitable (which are rare), and as long as discretion can still be exercised over whether or not B will happen, the argument fails.

An example of a valid “slippery slope” argument (which will also exemplify why they are rare): “If I jump out of a 10th floor window, I will fall to the ground”. (Likely with those disastrous results mentioned above.)

On the other hand, the suggestion that “legalization of gay marriage will lead to legalization of pedophilia” is a false argument because society (through its various legislatures) still has the discretion not to legalize child molestation. And the likelihood is quite high that no legislature will ever legalize child molestation in part because of the second rhetorical fallacy here:

“Moral equivalence” is an argument that compares two things, implying that they are equal or at least similar, when in fact they are not. The significant difference between gay marriage and pedophilia is that in the former, the two participants are consenting adults who mutually desire to enter into a marriage … while in the latter, one of the two participants is a minor and therefore legally incapable of consenting to any sexual activity (and also probably mentally and emotionally too immature to make a rational decision on the subject in the first place).

Ergo, “gay marriage” is not morally equivalent to “pedophilia” and there is not logical reason to conclude that approval of the former will in any way lead to approval of the latter.

Polygamy

Similarly, the suggestion that “legalization of gay marriage will lead to legalization of polygamy” is a false argument because society also still has the discretion not to legalize polygamy.

Which is not to say that the ongoing changes in societal attitudes that have led first to acceptance of interracial marriage and now to acceptance of gay marriage will not someday lead to acceptance of polygamy … for they surely may. If they do, however, then it will be fair to say that, like gay marriage, perhaps polygamy isn’t such a bad thing after all.

As with the animosity toward gay marriage, the current strictures against polygamy are fundamentally religious in nature, albeit enforced through governmental compulsion. On the other hand, polyamorous relationships are already quite common (in the United States and other countries), even if not legally sanctioned.

Historically, polygyny (the technical name for a single male married to multiple wives), polyandry (one woman married to more than one husband) and plural marriages (families composed of multiple intermarried adult males and females) were quite common throughout the world prior to the rise of the Roman Empire and Christianity. Hindu, Jewish and Chinese history are all replete with examples of men taking multiple wives.

Polygamy is currently legal in several African and Middle Eastern countries and is acceptable in some religions other than Christianity. Muslim men, for example, may marry up to four wives (with the significant caveat that the man has to be able to care for each equally).

One historical reason (the tendency of men to get themselves killed in wars) for the acceptance of polygyny was that it helped to insure that some women and children, who would otherwise lack support, would have a man to provide for them. That historical justification is less valid today, but it remains the case that there are significantly more women than men in the world … which leads inevitably to the conclusion that if each woman is to enjoy the benefits of a legalized marriage, at least some degree of polygyny is not only acceptable, but necessary.

Separate and apart from all of that is the underlying fundamental issue of personal freedom and the right of consenting adults to enter into the romantic relationships of their choice.  If two women want to marry the same man … and he is amenable to that arrangement … it is no business of mine — and, by extension, no business of the government’s — to tell them that they cannot do so.

There are certainly some legitimate societal issues involved, most notably the ability of the polygamous family to be self-supporting, so as not to be a burden on society (see comment above re the Muslim practice). That particular imperative, however, is no more compelling with respect to plural marriages than it is with respect to traditional marriages, into which many people enter despite a lack of financial stability and responsibility on the part of the couple.

Into the Future

It is fairly clear to me that whatever change to American society results from the Supreme Court’s marriage equality decision, it will not be the end of the world as we know it.  And, to the extent that it is the end of the world as we know it, we will be a better society — and country — for the change.

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In 2008, when gay marriage was a significant issue in California, I blogged extensively on the subject.  I am not so modest that I cannot observe that now both the California Supreme Court and the US Supreme Court agree with my legal and practical opinions!

My previous gay marriage blogs (which some excerpts):

https://freelegaladvice.wordpress.com/2008/05/15/california-supreme-court-yes-on-gay-marriage/

https://freelegaladvice.wordpress.com/2008/05/16/comment-re-gay-marriage-posted-on-slate/

“Remember these words: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’

“I see nothing there which justifies a majority of people of any state (or, for that matter, all of the states) in denying to a minority group of people a right which the majority enjoys. Nor is there anything in the Constitutions of the United States or the State of California which would support denying people the right to join in a same sex marriage if they choose to do so.”

https://freelegaladvice.wordpress.com/2008/05/16/will-california-gay-marriages-be-legal-in-other-states/

“… it appears to be the current state of constitutional scholarship (derisive laughter in the background) that ‘full faith and credit’ need not be given by other states to California same sex marriages.

“At least, that is, unless and until the U.S. Supreme Court steps in and recognizes that same-sex marriage is protected by the federal constitution. That court has already held in Lawrence v. Texas that homosexual sex is constitutionally protected, in the process invalidating a Texas law criminalizing sodomy. So it is, perhaps, not that big a step to full-fledged constitutional protection of gay rights and same-sex marriage.

“As an interesting (at least to me) aside, Justice Antonin Scalia, the self-styled “originalist” (his way of saying he’s a “strict constructionist” based on the “original” language of the constitution), dissented in Lawrence. Among other things, he complained that, by its majority opinion in that case, the court had:

“‘… largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.’

“He also worried that the decision would undermine other state laws relating to sexual activities, including those prohibiting same-sex marriage. So much for ‘originalist’ interpretation of ‘equal protection’ and ‘due process’, never mind what little is left of ‘full faith and credit’.”

https://freelegaladvice.wordpress.com/2008/05/17/redefining-marriage/

https://freelegaladvice.wordpress.com/2008/06/14/randy-desoto-on-gay-marriage/

In which I responded to the following question:

“… if courts were to follow the Supreme Court’s reasoning to its logical ends, how could judges possibly uphold any state or federal law regarding private sexual conduct including incest, prostitution, polygamy, child molestation and child pornography?”

My response:

“The California Supreme Court decision held that consenting adults, even if of the same sex, have a right to marry. There is nothing ‘logical’ about extending that reasoning to such conduct as child molestation or child pornography, in particular, since neither involves consenting adults.

“The argument that this decision could lead to legalization of incest is a ‘slippery slope’ argument — there is a logical legal basis for differentiating between unrelated consenting adults and those whose degree of consanguinity would bring them within the definition of ‘incest’.

“Furthermore, the California court’s decision is based on the right of each individual ‘to establish a loving and long-term committed relationship with another person’, which would hardly seem to include the typical prostitutional relationship.

“The only one of the perceived ‘evils’ which might constitute a logical extension of this ruling is polygamy. That possibility, alone, hardly seems a reasonable basis on which to deny gays the right to marry.

https://freelegaladvice.wordpress.com/2008/06/24/point-counterpoint-with-randy-desoto/

“… proper constitutional interpretation starts not with the question of whether a particular right is ‘granted’ in the Constitution, but whether by anything contained in the Constitution the people have specifically given the government the power to deny the right which is the subject of controversy. In short, not ‘is there anything in the Constitution which gives gays the right to marry?, but rather ‘is there anything in the Constitution which gives the government the power to deny gays the right to marry?’

“… the Constitution is silent on the subject. That being the case, proper constitutional interpretation leads inescapably to the conclusion that the people have not given the government the power to deny gays the right to marry. To the extent that the court in the precursor case of Lawrence v. Texas found a ‘new right’ to make one’s own private sexual choices, it was mistaken … not because there is no such right, but because that right has been there since the day the Constitution was ratified and is not new at all.”

https://freelegaladvice.wordpress.com/2008/06/25/california-anti-gay-marriage-initiative/

https://freelegaladvice.wordpress.com/2008/07/17/california-supreme-court-agrees-with/

“… there is a religious basis for objecting to gay marriage, but religion is perhaps the worst of all foundations on which to base social policy. Which is to say nothing of the fact that our government is constitutionally prohibited from doing so.”

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FLA 69

“Take It Down”??

The Battle Flag of the Army of Northern Virginia

I have been giving a lot of thought to the issues raised by the flying of the so-called “Confederate Flag” — which, of course, ISN’T the “Confederate Flag” at all — see my previous blog post on that subject:

https://freelegaladvice.wordpress.com/2015/06/19/that-is-not-the-confederate-flag-flying-in-south-carolina/

The shooting at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, and the flying of the Battle Flag of the Army of Northern Virginia on the grounds of the South Carolina state house, have motivated a wide-ranging re-evaluation of how the United States deals with the issue of racial hatred and discrimination.

There are now calls for the removal of the Rebel Battle Flag from the state house grounds in Columbia, South Carolina, and the South Carolina legislature has agreed to debate the issue.

The governing board of The Citadel, a military academy in Charleston, voted to remove the Confederate Naval Jack from the school’s chapel. One of the Emanuel shooting victims was a graduate of The Citadel.

Virginia’s governor has ordered the removal of “the Confederate Flag” from all of his state’s license plates (thereby joining the chorus of people incorrectly identifying the battle flag, which appears as an optional design on some Virginia license plates). Politicians in several other states, including Maryland, North Carolina and Tennessee have vowed to do the same with their states’ license plates.

Mississippi’s Republican speaker of the house issued a statement calling for the removal of the Confederate battle cross from the Mississippi state flag (at least he knows what the symbol actually is).

Alabama Governor Robert Bentley ordered the removal of the Confederate battle flag (he got it right, too) and three other flags from the grounds of the state Capitol in Montgomery, where they stood in front of a memorial honoring Civil War soldiers. The other three flags? The three versions of the actual Confederate flag.

And it’s not just the flags and symbols of the Confederacy that are drawing fire. The president of the Kentucky state senate said in an interview that a statue of Jefferson Davis, President of the Confederacy, should be removed from the Capitol rotunda in Frankfurt, Kentucky.

In Tennessee, politicians of both parties have also said that a bust of Confederate General Nathan Bedford Forrest, who was an early leader of the Ku Klux Klan, should be moved out of the state house.

In Minnesota, not exactly a hotbed of confederate fervor, activists have demanded that a lake named after John C. Calhoun be renamed because Calhoun, though both a US Senator and American Vice President, was from South Carolina and a supporter of slavery.

Even South Carolina State Senator Paul Thurmond, son of US Senator Strom Thurmond, who ran for president in 1948 as a segregationist, announced that he would vote to remove the battle flag from the state house grounds, saying that he is “not proud of this heritage”.

Private companies are also weighing in … Walmart, Sears, eBay and Amazon have all announced that they will no longer sell confederate themed items.

In Maryland this past Monday, the Baltimore Sun opined in an editorial, “For a state to endorse a symbol of the defenders of slavery by putting the Confederate flag on representations of government speech is unconscionable.”

It therefore appears that supporters of slavery — and the symbols of that support — are under unrelenting pressure which is going to result in the permanent removal of both from public display. I personally support the banishment from public places of all versions of the Confederate flags (albeit, as mentioned in my earlier blog post, I also support the right of private persons to display Confederate symbols on their private property).

Shortly after being transferred to the Sixth Naval District in Charleston in January 1969, I encountered what I thought at best an odd circumstance — the Charleston Naval Base, bowing to political pressure from the state of South Carolina, was to be closed for a holiday on the birthday of Jefferson Davis, but all personnel were to work on Abraham Lincoln’s birthday, then a national holiday. I wrote a letter to the editor of the Charleston News & Courier, suggesting that it was time for South Carolina to rejoin the union. I signed it “James T. Reilly, LTJG, US Navy”, which earned me a visit with my boss, the Sixth Naval District commander (a rear admiral), who allowed as how I had the right to express my opinion, but asked me to please sign any future letters with my name only, omitting my military rank.

However, and this is the point of this blog post, if we are going to vanquish memorials to rebellious supporters of slavery and their symbols of oppression, the measures described above are manifestly inadequate. To do this job right, we will also have to vanquish from the public forum memorials to ALL rebellious supporters of slavery and slave owners, starting with …

… George Washington (the “Father of our Country”) …

… Thomas Jefferson (the primary author of the Declaration of Independence) …

… James Madison (the primary author of the Constitution) …

… Patrick Henry (he of “Give Me Liberty or Give Me Death” fame) …

… John Hancock (whose signature is the most prominent on the Declaration of Independence) …

… Benjamin Franklin (who owned slaves for 40 years before finally becoming an abolitionist in 1785) …

… and many other Founding Fathers who were also slave owners.

The Constitution of the United States, adopted in 1787, authorized the continuation of slavery in the country and counted slaves as “three-fifths of a person”. And so, to truly eliminate all vestiges of rebellious supporters of slavery …

… it is down with the Washington Monument …

… demolish the Jefferson Memorial …

… and the Benjamin Franklin Memorial …

… blast Washington and Jefferson off of Mount Rushmore …

… remove Washington, Jefferson and Franklin from our currency …

… and get rid of the Stars & Stripes, which waved over slavery for nearly a century.

Not doing so may be seen as a particularly disingenuous form of hypocrisy.

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FLA 68

That is NOT “the Confederate Flag” Flying in South Carolina

Hearing a lot of babble from talking heads today about the flying of the “Confederate Flag” over the State House in South Carolina.  However, that flag flying in South Carolina (whatever it might symbolize — good or bad — to some people) is NOT “the Confederate flag”.

There were three flags representing the Confederate States of America. The first, referred to as the “Stars and Bars”, was in use from 1861 to 1863, and came in several varieties, first with 7 stars and then adding others as additional states seceded, until the final version had 13 stars.

The Stars and Bars

The Stars and Bars proved too easily confused, in battle, with the American flag, so was replaced with the second Confederate Flag. This one was called “The Stainless Banner” and was in use from 1863 to 1865.

The Stainless Banner

During the last few months of the Civil War, a third Confederate Flag was briefly in use. It was called “The Blood-Stained Banner”.

The Blood-Stained Banner

The flag flying in South Carolina is actually the Battle Flag of the Army of Northern Virginia.

The Battle Flag of the Army of Northern Virginia

It may well be that this flag has come to be a symbol of rebellion, racism and hatred, but it is NOT “the Confederate Flag”, as so many are calling it. 

A good argument can be made that this flag ought not to be flying on government property (though I support unequivocally the right of private persons to fly it on their private property) … but, in my simple mind, it seems to me that so-called “professional” communicators ought to at least be able to correctly identify it.

________________________________

The Wikipedia article on Confederate flags provides more information about the flags discussed here, as well as other flags used by the Confederate states and their military units:

https://en.wikipedia.org/wiki/Flags_of_the_Confederate_States_of_America#Battle_flag

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FLA 67

The Assassination of Abraham Lincoln

Today is the 150th Anniversary of one of the saddest days in American history.

The previous evening, April 14, 1865, John Wilkes Booth had shot President Abraham Lincoln in the back of the head, mortally wounding him.

The President, however, lingered for several hours, during which he occasionally stopped breathing, only to fitfully restart.

It was, however, not until 7:22 am on April 15, 1865, that Lincoln died. At that moment, Secretary of War Edwin Stanton, who had attended Lincoln throughout the night, said, “Now he belongs to the ages”, and lamented, “There lies the most perfect ruler of men the world has ever seen.”

Lincoln was the first of four American presidents to be assassinated.

On July 2, 1881, just 16 years after the death of Lincoln, our 20th President, James A. Garfield, was shot by Charles J. Guiteau. Garfield lingered for two-and-a-half months before dying on September 19th, 1881.

The third presidential assassination in just 36 years occurred on September 6, 1901, when 25th President William McKinley was shot Leon Czolgosz while attending the Pan American Exposition in Buffalo, New York. McKinley died on September 14, 1901.

The fourth president to be assassinated, of course, was John F. Kennedy, who was shot and killed by Lee Harvey Oswald on November 22, 1963, in Dallas, Texas.

I have previously blogged about the Kennedy assassination here:

https://freelegaladvice.wordpress.com/2013/11/22/jfk/

The murder of Abraham Lincoln had far-reaching consequences, the full extent of which it is impossible to know. Suffice it to say that the reunification of the country, the reconstruction era in the South and, in fact, race relations and civil rights for the next century or more were all adversely effected by Lincoln’s death.

It is the general consensus of presidential scholars and other observers that Abraham Lincoln was the best of all American presidents, a judgment with which I agree:

http://en.wikipedia.org/wiki/Historical_rankings_of_Presidents_of_the_United_States

FLA 66

More Zero Intelligence from our So-Called “Educators”

Recently proposed legislation in South Carolina would require schools to spend three weeks teaching about why the 2nd Amendment was included in the U.S. Constitution.

See:  http://bearingarms.com/lawmaker-wants-mandate-second-amendment-education-schools/?utm_source=bafbp&utm_medium=fbpage&utm_campaign=baupdate

Three weeks on the 2nd Amendment seems like a bit much, though a three week section on the entirety of the Constitution would be a good idea.  That, however, is not what prompted me to write this. Rather, it’s to comment on the underlying reason for this proposed legislation.

See this article:

http://blog.sfgate.com/sfmoms/2014/08/21/high-school-student-arrested-for-writing-story-about-shooting-dinosaur/

It describes a circumstance which can only be characterized as bizarre in the extreme. For one of his assignments, a 16-year-old high school student wrote a fictional “Facebook-type status report telling something interesting about himself” which read:

“I killed my neighbor’s pet dinosaur. I bought the gun to take care of the business.”

For this, he was taken in by cops for questioning, while they also searched his locker and backpack for guns. None were found.

Police said that the student was “difficult” during questioning, so they arrested him and charged him with disturbing the school. He was also suspended for a week.

His mother said that she “understands the gravity of the situation”, but appears to have been referring to what her son wrote. The real gravity of the situation is that the school and police authorities so flagrantly over-reacted — if I was this kid’s parent, I’d be publicizing this everywhere I could, suing both the school and the police, and doing everything possible to have the school officials fired.

This is just one more example of why zero tolerance = zero intelligence.

Robert Francis Kennedy

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Today is the anniversary of one of the saddest days of my lifetime — June 5, 1968 — the date on which Robert Francis Kennedy was assassinated in Los Angeles.

I was a great admirer of John F. Kennedy and was greatly saddened by his assassination.  JFK’s death marked the start of a five year period during which the United States was changed in ways that continue to this day.  That transition, which was also significantly impacted by the murder of Martin Luther King, was tragically concluded with the killing of Bobby Kennedy.

No American presidential candidate since has captured the imagination of the country the way the Kennedy brothers did — and none has inspired in me the confidence I felt in their leadership.

I was overseas in June of 1968, serving with the U.S. Navy’s 7th Fleet off the coast of Vietnam.  At the time, I was assigned to the staff of the commander of the 7th Fleet’s Cruiser-Destroyer Group, which was embarked on the heavy cruiser USS St. Paul. 

Because of the time difference between California and Vietnam, we first heard that Bobby Kennedy had been shot during the afternoon of June 5th.  I spent most of the next 24 hours in the ship’s radio room, waiting as Kennedy fought for his life in an LA hospital.  I sat through several watch changes and never did go to bed that night.

When the news came the next afternoon that Bobby had died, I went finally went to bed and cried myself to sleep.

The Kennedy brothers share a spot among the handful of historical Americans I most admire.  I believed then … and still do … that Bobby Kennedy was the single individual most capable of leading our country out of the morass of Vietnam, while simultaneously guiding it through the civil rights tumult that was dividing the country at home.

Sadly, he never had the chance to demonstrate his leadership abilities — and the country struggled through nearly seven more contentious years in Vietnam and an even longer period of civil rights unrest.

There is, of course, no way of knowing how different the country might have been, had either or both of the Kennedys survived their assassination attempts.  I am, however, convinced that the United States would have been a better place during the intervening 50 years … and to this day, I mourn for what might have been.

RFK’s Simple Gravesite

It’s a Man’s World … Not!

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I was sitting in a Marin County courtroom the other day, waiting for the judge to take the bench and for my client’s case to be called. As I looked around, I was struck by the fact that of the court personnel and attorneys in the courtroom at that time, I was one of only two men present, the other being one of the two bailiffs.

Over the next few minutes, other attorneys and two probation officers arrived, and the defendants were allowed into the courtroom. By the time the judge took the bench, those present in the courtroom, other than the defendants, included 15 women and just 7 men.

The women included …

… the judge, the court reporter, both court clerks, one of the two probation officers, one of the two bailiffs, a district attorney’s investigator, and eight of the 13 attorneys present in court (all three prosecutors, all three public defenders and 2 private attorneys) …

… while the minority group included one bailiff, one probation officer and five private attorneys (myself included). Otherwise, the only men in the courtroom by the time I left were all of the defendants whose cases had been called!

The World’s Smallest Political Quiz and the “I Side With” Quiz

I am at the Libertarian apex on

The World’s Smallest Political Quiz,

which I consider a great little test.

The World’s Smallest Political Quiz

You can take this test at:

http://www.theadvocates.org/quiz/quiz.php

—–ooo—–

There is also a more comprehensive quiz available

on the “I Side With” website here:

http://www.isidewith.com/political-quiz

On this test, which is considerably longer and more comprehensive,

I ended up closest to the Libertarian apex,

but more centrist overall than I expected.

The “I Side With” Political Quiz

 —–ooo—–

For more information about the Libertarian Party,

see the website “Advocates for Self-Government” here:

http://www.theadvocates.org/

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The World’s Top 10 Funniest Legal Blunders … from “The Top Ten of Anything and Everything”

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I am a big fan of Russell Deasley’s WordPress Blog:

… and particularly like his weekly “Caturday” posts (Saturday blogs about cats).

Yesterday, he posted a legal-themed blog which is entertaining — funny, actually — rather than serious, but worth taking the time to read.  Russell juxtaposed funny legal transcripts with photos of dogs dressed as lawyers, making this a treat for dog lovers as well as lawyers (and those who dislike the latter).

See Russell’s “Top Ten Funniest Legal Blunders” blog here:

http://theverybesttop10.com/2014/02/23/legal-blunders/#comment-36046

… and enjoy!

It is Time to End “The Insane War on Drugs”

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US Constitution 21st Amendment in the National Archives

Today is the 80th Anniversary of the passage of the 21st Amendment of the United States Constitution, which repealed the 18th Amendment and the Prohibition of alcoholic beverages in the country.

Prohibition was surely one of the dumbest ideas in American history, surpassed in stupidity perhaps only by the current Insane War on Drugs, which has had many of the same ill effects as prohibition, only worse.

Proponents of prohibition offered any number of justifications for imposing their religious & moralistic opinions on the rest of the country.  Among these claims were that prohibition would reduce drunkenness, reduce crime & increase respect for the law, reduce insanity, reduce child neglect & domestic violence, and reduce taxes (largely by reducing the need for courts, jails, hospitals, poor houses and insane asylums).

The Reverend Billy Sunday gave a speech at the beginning of prohibition in which he said:

“The reign of tears is over. The slums will soon be a memory. We will turn our prisons into factories and our jails into storehouses and corncribs. Men will walk upright now, women will smile and children will laugh. Hell will be forever for rent.”

In fact, prohibition had exactly the opposite effect with respect to all of the projected “benefits”.  Most noticeably, prohibition significantly increased crime in the U.S., giving rise as it did to bootlegging and organized crime.  The number of serious crimes increased, as did drunkenness, disorderly conduct, drunk driving, theft & burglary, assault and even homicide.

The costs of fighting crime increased dramatically during prohibition.  Funding for law enforcement had to be increased rather than decreased. The number of individuals convicted of federal crimes increased 561% during prohibition.  Federal prison population increased 366%.  Federal expenditures on penal facilities increased 1000%!!

Infighting among the gangs organized for bootlegging resulted in 400 gang related murders in the city of Chicago in a single year, including the infamous St. Valentine’s Day massacre. 

Prohibition made the Mafia possible and gave rise to some of the most famous criminals in American history:

Al Capone

Al Capone, Joseph Bonanno, Bugs Moran, Lucky Luciano, Bugsy Siegel, Meyer Lansky, Dutch Schultz, Tommy Lucchese and Frank Nitti, to name a few.

Did we learn anything from the experience of prohibition?  Apparently, not much.  Prohibition ended in 1933 — by 1936, all 48 states had enacted laws regulating the possession, use & sale of marijuana, which was blamed for an increase in violent crime and was touted by some as the “foremost menace to life, health and morals in America”.

Nevertheless, the federal government did not become involved in outlawing (rather than simply taxing) most drugs, other than narcotics, until 1965, when amphetamines & barbiturates came under a federal prohibition.  LSD was added to the list of prohibited drugs in 1968.

Then, in 1970, the Comprehensive Drug Abuse Prevention and Control Act of 1970 (also called the Controlled Substance Act of 1970)  created the federal Drug Enforcement Agency (DEA) and brought all drugs under federal jurisdiction.

Nixon Declares “War on Drugs”

On June 17, 1971, President Richard Nixon made it official, declaring a federal “war on drugs”.

Thereafter, a flood of anti-drug legislation, both federal and state, imposed more and more restrictions on drug possession, use and sale, while simultaneously imposing increasingly severe sanctions for such possession, use and sale.

What are the governmental justifications for prohibiting the use of drugs by American citizens?  Typically, they include that such prohibition reduces drug use & the resulting impairments, reduces crime & increases respect for the law, reduces child neglect & domestic violence, and reduces the financial burden on society of dealing with drug abuse.  Sound familiar?

And what results have these draconian drug laws accomplished?

Most notably, they have created a whole new version of organized crime and gang warfare, now international in scope.  We have once again seen substantially increased crime in the U.S. (with more than 1.5 million people a year being arrested for drug related offenses) and incredibly higher costs of law enforcement (more than one TRILLION dollars spent in the “war on drugs”).

Drug-related gang activity, including turf wars, has resulted in a veritable blood-bath on the streets of many American cities (as well as in a number of other countries).  Property and assault crimes committed for the purpose of obtaining drug money account for as much as half of all such crimes in many cities.

Largely because of the “insane war on drugs”, the United States imprisons a higher percentage of its population (716 people per 100,000 population) than any other country in the world.  The next closest large country is Russia (484 per 100,000), while other developed countries have uniformly lower rates of incarceration:  Brazil (274), New Zealand (193), Spain (149), England (148), the Netherlands (82), Germany (80), Norway (71), Denmark (68), Sweden (67), Finland (60), Japan (54) and India (30), to name a few.

On the 40th Anniversary of Nixon’s declaration of the “War on Drugs”, the Libertarian Party issued a press release discussing why this “war” has been an utter failure and should be abandoned.  See Note 1 below for a link to this release.

In that release is a link to a report by Law Enforcement Against Prohibition (LEAP) which discusses in sometimes gruesome detail just what a failure the drug war has been.  See Note 2 below.

The Libertarian Party release goes on to say:

“Ultimately, of course, this tragedy is the result of our government’s refusal to allow people to engage in peaceful choices as to what they consume. Even if drug use were to rise upon a return to the American tradition of tolerance that existed before the 1914 Harrison Narcotics Act, our streets would be safer, innocent people would not have their homes raided and pets killed by narcotics agents entering the wrong house, victims of asset forfeiture laws wouldn’t have their houses and other assets seized without due process, and resources would be freed to spend on improving peoples’ lives instead of destroying them.”

It concludes with two planks of the Libertarian Party Platform:

1.0 Personal Liberty
Individuals should be free to make choices for themselves and to accept responsibility for the consequences of the choices they make. No individual, group, or government may initiate force against any other individual, group, or government. Our support of an individual’s right to make choices in life does not mean that we necessarily approve or disapprove of those choices.

1.2 Personal Privacy
Libertarians support the rights recognized by the Fourth Amendment to be secure in our persons, homes, and property. Protection from unreasonable search and seizure should include records held by third parties, such as email, medical, and library records. Only actions that infringe on the rights of others can properly be termed crimes. We favor the repeal of all laws creating “crimes” without victims, such as the use of drugs for medicinal or recreational purposes.

It is way past time to bring this insanity to a conclusion, to make law the Libertarian ideal that individuals have the right to choose for themselves whether or not to use drugs, to repeal all laws prohibiting the medicinal or recreational use of all drugs, and to release from our jails and prisons all individuals incarcerated for the possession, use or sale of drugs.

Doing so will mean having to overcome opposition from some segments of law enforcement (which derive significant financial benefits from the war on drugs), as well as the religious right and other moralists who think they should be able to dictate the actions & control the lives of others.

Albert Einstein once defined insanity as “doing the same thing over and over again and expecting different results”.  Einstein’s definition applies perfectly to the “war on drugs” and the time has come to end the insanity.

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Note 1:       http://www.lp.org/news/press-releases/libertarian-party-40-years-is-enough-end-the-drug-war

Note 2:       http://www.leap.cc/wp-content/uploads/2011/06/Ending-the-Drug-War-A-Dream-Deferred.pdf

Note 3:       For more on the Libertarian view on ending the War on Drugs, see:

https://www.lpmn.org/libertarians_assert_powerful_case_ending_war_drugs/

Note 4:       For the complete Libertarian Party 2012 Platform, see:

http://www.lp.org/platform

Note 5:       The Libertarian Party website is here:

http://www.lp.org/

Teachers & Plumbers

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A friend whose husband is a teacher and who has three kids in California public schools, recently posted on Facebook the following quotation from President John F. Kennedy, asking, “Why are we still dealing with this 50 years later?”

“Modern cynics and skeptics… see no harm in paying those to whom they entrust the minds of their children a smaller wage than is paid to those to whom they entrust the care of their plumbing.”

My late wife Sandy was also a high school teacher, as is my prospective brother-in-law and West Point classmate, Trey Sayes.  I have even taught myself for several years, albeit at the post-graduate level when the students were no longer children.  When our own kids were in school, Sandy & I were strong supporters of their teachers and heavily involved in school activities.  Combined with my own experiences as a student, I have studied under, worked with or observed many teachers over the years.  As a result of those experiences, I have a great admiration for the hard-working, dedicated and excellent teachers who educated me (see Note 1 below) and my children and who helped us all become useful, productive adults.

That said, the explanation for the observation in this Kennedy quote is quite simple, if perhaps a bit cynical — it’s the law of supply and demand.  We require, as a society, far more teachers than plumbers (or, for that matter, most other professions).  It is an undeniable economic reality that those who perform a less common service — particularly one which, when needed is needed “now” and which requires a specific skill set that few people have obtained — will command higher compensation than those who perform a more common and less demanding service.  Hence, plumbers make more than teachers.  Which is not to say that the service provided by plumbers is more important to society, long- term, than that provided by teachers, but the immediate need to restore interrupted water service or repair a damaged waste-disposal system can be, in the moment, very pressing indeed.

There is another consideration as well, which is based in part on hard-earned personal experience and in part on information obtained second-hand (largely through the media).  People in general and I in particular would never tolerate in a plumber, or other such professions as also command higher wages than do teachers, the levels of incompetence that we tolerate among of teachers of our children.

This is a human distortion of the law of the jungle, the survival of the fittest.  Because we need so many teachers, it is unavoidable that we will be able to hold the profession as a whole only to a lower standard of competence than one in which the number of practitioners is smaller.  Even the less fit are able to “survive” as teachers simply because of the demand for large numbers of them.

In general, if someone hires a professional, such as a plumber (or a lawyer!) who does a poor job, there are several readily available remedies:  non-payment for the services, avoiding that professional in the future and even suing for damages.  There is no such recourse against an incompetent teacher — a child assigned to that teacher’s class almost certainly will have to remain in it for the entire school year.  And that child’s younger siblings may also end up in that teacher’s class in the future, with little or no opportunity for the parent to avoid the assignment .  Most parents, in fact, would have no way of even knowing that a particular teacher’s performance is sub-par.

All too often, school administrators are reluctant or even outright unwilling to take action against or even help to improve the performance of teachers under their supervision.  The atmosphere in many schools appears to be adversarial — administrators and teachers against parents and students — rather than cooperative.  And don’t even get me started on the stupidity of some of the current policies being devised by administrators and implemented by teachers (a subject on which I have been compiling examples and regarding which I will blog in the not too far distant future).

Finally, teacher’s unions have evolved (or perhaps devolved, depending on your perspective) into organizations one of the primary functions of which is to protect incompetent teachers from any consequence for their failings.  The single most politically powerful organization in the State of California today is the California Teacher’s Association.  A 2010 report by the California Fair Political Practices Commission revealed that political contributions by the CTA over the preceding 10 years ($211.8 million) were nearly double the #2 contributor (the California State Council of Service Employees with $107.4 million) and more than Chevron, AT&T, Philip Morris and the Western States Petroleum Association combined.

See here for the full report:

http://www.fppc.ca.gov/reports/Report31110.pdf

Which makes me wonder, if teachers’ salaries remain unacceptably low, compared to other professions, to what end is the CTA expending this incredible amount of money, the primary source of which is union dues from their underpaid constituents?  (See Note 2 below.)

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Note 1:  My Lindenhurst High School track coach and physical education teacher, Carl Greenhut, had a particularly profound effect on my life.  I wrote an earlier blog post in which I described his influence on my life here:

http://jimsthreedot.wordpress.com/2013/06/08/in-the-meets-lindenhurst-high-school-track-field/

Of course, I had other teachers who greatly influenced my life as well:

One of my high school English teachers, Miss Angela Hughes, greatly encouraged my analytical and writing skills and was the primary motivator for my subsequent addiction to putting my thoughts on paper (and now, the internet).

My fifth grade teacher at Edward W. Bauer Elementary School, Mrs. Muriel Giese, engendered my life-long love of books and reading.

At West Point, one of my English teachers, Col. Jack L. Capps, helped hone my writing skills and motivated me to excel in the subject.  Ultimately, this enabled me to achieve my only note of particular distinction at the academy — receiving the Colonial Daughters of the Seventeenth Century Award as Honor Graduate (first in my class) in the Department of English.

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Note 2:  As of 2009, the president of the CTA was being paid more than $200,000 per year, roughly triple the average California teacher’s salary.  And that doesn’t even take into consideration the generous benefits paid to CTA staff, including for the union president use of a home valued at more than a million dollars.  For a further discussion of the uses to which the CTA puts California teachers’ dues, see:

http://www.utsandiego.com/news/2009/Jul/02/no-recession-teachers-unions/?#article-copy