Internal Control and the Federal Police

Scenes from Portland are frightening. This weekend I began to wonder just who these federal agents were because the feds were never meant to ever have a police force. The prohibition of a federal police was fundamental to the founding fathers (and mothers) view of the new version of federalism created by the US Constitution. We all are learning more as the media uncovers more. The “fourth estate” may be redeeming itself, imho, as journalists begin to unearth who these agents are in order to help us grapple with the legal legitimacy of the federal interference. Also, recent federal court decisions concerning the police and federal agents in Oregon create a one step back, two steps forward scenario. If the federal government has the legal right to enlist federal agents, then court decisions and new laws are permitted to check that power.         

 

THE COURTS

While a federal judge recently refused to grant the State of Oregon a restraining order against the deployment of federal agents in Portland, the ACLU has been successful obtaining a restraining order against the use of force by police and federal agents against the press and legal observers. In all the situations cited by the ACLU, the press and legal observers were 30-40 feet away from protestors, wearing press badges as well as vests clearly identifying them as NOT protestors. The order stops federal agents from dispersing, arresting, threatening to arrest, or targeting force against journalists or legal observers at the Portland protests for 14 days. A restraining order stops temporarily an activity, until a full hearing or review of the matter is possible. Seattle erupted in sympathetic protests this weekend and a federal in Seattle judge ruled that a recent ordinance approved by the Seattle City Council that bars police from using tear gas, pepper spray and other crowd control devices COULD go into effect on Sunday hopefully reducing harm to any and everyone. Black Lives Matter organizers in Chicago, joined journalists and civil rights attorneys to file a preemptive suit in federal court against the Trump Administration to prevent federal agents from being utilized Portland-style in Chi-town.   

 

FEDERAL POLICE?

The  Secretary of Homeland Security justifies the use of federal agents in Portland under 40 U.S. Code § 1315, which is most commonly used to enlist help for the Federal Protective Service, to protect federal property. The Department of Justice also has power under federal criminal law to protect government property.  U.S. Marshals, Federal Protective Service, U.S. Customs and Border Protection and Homeland Security Investigations (ICE) have alternated officers through Portland. The U.S. Marshals Service appears to be the lead agency. Department of Justice Office of Inspector General is reviewing federal agent activity in Portland. The administrative agencies that house these agents are under the direction of the President or an appointed leader. Some of these agencies are under the direction of interim presidential appointees because they never completed the congressional review of those appointments which is the norm. Perhaps that plays a part in the ease with which the federal agents appeared at protests. Perhaps a more qualified appointee would have refused the request to use federal agents. Some have argued that the agents are poorly trained because they were never meant to police civilians or civil unrest. What if all of this is perfectly legal?

 

THE Constitution

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.” (James Madison, Federalist Paper #45)

If the above was TL;DR,  et me break it down. The Federalist Papers are newspaper articles written by James Madison, John Jay, and Alexander Hamilton, published in New York newspapers during the debates over the drafting of the Constitution. The helps us understand what the framers were debating and how THEY understood the powers they incorporated into the Constitution. The above says, federal power is greatest during time of war. Otherwise, federal power is limited and small and must defer to the states. For the state’s main concern should be the lives and property of the people and “internal order.” It does seem that while the letter of the law may allow the presence of federal agents the spirit of the law does not. And perhaps the letter of the law also does not. A court will need to declare that or a new law must be passed to ameliorate the situation.      

 

Author Michael Lewis, in his 2018 book The Fifth Risk: Undoing Democracy, describes the danger to America of poor appointments to important agencies. The current administration has not appointed competent leaders for critical agencies. Agency directors who are incompetent (lack of experience) create all types of insecurity over legitimacy. Poor leadership decisions have caused great harm in the past – Waco.

The civil unrest of today is extraordinary. We were legally unprepared. It is time to catch up.   

Civil Rights Report Card for Facebook

Laura Murphy was the first African American and first women to head the Washington D.C. Office of the American Civil Liberties Union (ACLU). Laura recently worked with lawyers from the Washington Civil Rights law firm Relman Colfax to conduct a civil rights audit of Facebook. The audit was not just limited to racial justice but also included possible instances of discrimination in education, employment, as well as protected classes including sex, sexual orientation, gender identity, disability, national origin, religion, and age.

The audit was called for by civil rights organizations, advocates, and a few members of Congress. Facebook agreed to it and chose the auditors themselves.  Facebook was being taken to account for perceived failures during the 2016 Presidential elections and other failures to balance the safeguarding of free speech with hate, discrimination, and inequality.

The auditors began by interviewing over 100 civil rights organizations and members of Congress. The first preliminary audit report was release in 2018 with a second update in 2019. The focus of the audit was the Facebook app and no other Facebook products.

The audit found that civil rights organizations were most concerned about the failure of Facebook concerning race-based hate, voter suppression, advertising targeting and practices, and civil rights implications of privacy practices. Even with some noted positive changes at Facebook currently, the report found Facebook’s dealings regarding civil rights reactive and piecemeal. The report found it ironic that Facebook had no qualms about stopping anti-vaccination proponents and misinformation surrounding COVID-19 but was reluctant to take on board firm rules limiting misinformation regarding voting and voter suppression.

                Facebook Community Standards are what guides its decisions regarding posts. Here is the May 2020 Community Standards Enforcement Report.  The report only covers activity until March. Instagram was included in this report noting a concerning rise in Hateful Speech, Adult Nudity, Violence and Cyberbullying. Drug-related content surged during the months from January to March 2020. Despite improving tools and technology, Facebook estimates there are over 130 million fake profiles active on the platform. Also increasing is the number of governments seeking public data, which is concerning.

The ACLU audit’s primary concern is that Facebook do better during November’s 2020 Presidential election. The #StopHateforProfit and #HitPauseonHate campaigns’ ask advertisers to pause their ads on Facebook until it changes how the platform meets certain standards – establish a civil rights infrastructure, regular independent audits of identity-based hate and misinformation, find  remove groups focused on white supremacy, climate denialism, and antisemitism, to name only a few. 970 groups, advocates, and corporations such as The North Face, Verizon and Microsoft have joined the boycott. Facebook has met with the campaign organizers but no specific answers regarding the recommendations were clearly articulated.

Mark Zuckerberg owns a special class of shares that grant him 57% of the voting rights at board of directors meetings of the company = powerful. Moreover, hate speech is protected by the First Amendment. Neither, Zuckerberg’s power (and ignorance) nor hate speech’s protections can be viewed in isolation from our society and our own responsibilities. Assuredly, Facebook can do better and so can the rest of us.

At the end of the day more civil discourse and dialogue at all levels of each of our communities would go a long way toward improving things. My community is the California Community College system with its own struggle with Free Speech. I hope civil discourse is healthy enough to face #CancelCulture. There is a place for the social and societal pressure to act better that we are seeing  yielding positive change. However, we still need to be capable of standing in the same space with someone who does not believe the same things as us but we listen, learn, and rebut them if they are wrong.

  

Parenting during COVID

 

California is peaking when it comes to COVID. I am currently located in Southern California.   

My family lives a bike ride away. As California has relaxed restrictions, COVID case have gone up. My family of a 27 year old working disabled son and an 81 year old mother does not want to get together in person. They want to FaceTime and Facebook (FB) video message.

My son wants to FB video message and leave it on while we do other things. Sometimes we connect and he watches a movie while I play Animal Crossing New Horizons. Sometimes I do work while he watches something after work. I listen to it and continue to work.

This new COVID behavior is very interesting to me. Previously, he would never connect like this. He was busy working and being social. These days he works at a company that makes hand sanitizer. He is amazingly social on Zoom in a way that I envy.

My Zoom calls are all about work. Sometimes they are "Happy Hours" but usually not. 

We, as a family, have met up on Google Meet. But Zoom and FaceTime are our go to. What fascinates me is the sitting on zoom or messenger while the other person does something else. This is new and fascinating. 

During these sessions we are relating and not relating. We are watching each other. Responding when things require it but mostly keeping each other company.

There are multiple realties related to COVID. At home with too many people. At home alone. And maybe at home with intermittent people coming and going.

My son is truly connecting with me in ways we have not before. I am feeling less alone. Maybe he is too. It took me awhile to get used to this. Previous to COVID, I would have disconnected if he was watching something while video calling me.

Now I stay connected to him and I feel relief. I feel less alone. I feel more motivated to connect to others by video as well. Very strange and exceedingly relevant. I hope to evolve while the virus does. I hope to stay current and responding to changes as they appear to me and as my circle reveals them to me.       

Death and Inheritance

This summer I am teaching Wills, Trusts, and Estates to/with my amazing paralegal students. I have 60 students in my class this summer which is taught online due to COVID 19 . We are seeing a surge of students in classes this summer. We believe it is related to COVID19. I have never, ever had 60 students in a summer class before. The norm is 45. This class is 8 weeks long and very compressed. IN light of Black Live Matter and the diversity of my students, I am infusing more equity in my course this summer.

“Infusing Equity” is all about understanding that the people who wrote the textbook I am using for the class are most likely of white descent. Last names Hower, Walter, Wright for the textbook but that does not reflect my students who want to and will work for a local law firm.

In an effort to make the class more accessible for them, I make sure my examples when I lecture are not only about white privilege. White persons in Orange County, California inherit. Men inherit wealth and land. While the RIGHT to inherit or own land has become more equal the ability has not. Women and persons of color just have so much less wealth and own less land.

My journey this summer continues and I will update. In other news, the American Bar Association no longer has FW de Klerk as its keynote speaker for its annual conference.  Important voices are needed as the globe moves forward. I have no opinion about this event. I ask are voices with experience necessary? I want success so I only seek that success. How can we move forward successfully? Who leads that success movement?       

   

An Introduction to Civil Discourse

Several years ago, an organized group came to my college campus quad, to exercise their First Amendment right to say horrendous and hateful things with bullhorns about the Prophet Muhammad, Muslims, women, gays persons, and people of Jewish descent. After teaching a Business Law class that morning, I crossed campus to see what the gathering and noise was about. The group was large and loud. Students stood in a large group encircling the visiting speakers.

Several of the students from my class who were Muslim stood listening to the hateful rhetoric. I attempted to get them to somehow signal their disagreement with the speaker. Did they know a chant or song - even in Arabic - that we could all say at the same time? I asked them to sit with me with my back to the speakers to show our disagreement. Most stood with their mouth agape struggling with the fact that no one was stopping the hateful speech. American students struggled as well.

Campus police had already detained one student for spitting on the speakers. Forced to leave to teach my next class, I felt useless and confused. Campuses around the country were struggling with student protests against conservative voices on campus. The speakers were (allegedly) a Christian group and they videoed the entire time they spent on our campus.

At IVC, we began to call the day the organized group came, our First Amendment event. We held open forums and discussed hate speech. As faculty we discussed how to help student better face disagreeable dialogue with an equally protected response. Most of the discussion seemed to end once someone said the speakers had a protected right to speak. I began to lecture at open forums and in the classroom and explain that the First Amendment protects the response to that hateful speech as well.

Dean Erwin Chemerinsky, then Dean of University of California, at Irvine law school, and other experts came to our community college campus to teach us about the first amendment. I listened and learned. I was asked to speak on Free Speech at the Fall 2017 California/Nevada regional meeting of Phi Theta Kappa  – the honors society – helping students understand protected speech. I was astonished in speaking to students that they knew very little of the rights afforded them under the US Constitution’s First Amendment. 

I began to understand part of the puzzle – students did not know how to respond to ideas and words that were deeply hurtful and offensive. I also appreciated that by not participating they were muted and silenced.    

America is polarized. #BlackLivesMatter has been brewing for so long. Most Americans no longer know how to engage in discourse. Peaceful or unpeaceful protests are not a cause for concern. What is concerning is the failure to listen by both sides. LISTENING is a crucial part of civil dialogue. Failure to listen to opposing views is peaking on all sides of America’s polarization. Protests & counter protests, are symptoms of a complicated and layered problematic USA. Listening leads to understanding. There is no quick and easy solution and that makes America uncomfortable.

For my own part, I am applying for a National Endowment of the Humanities grant. The grant will fund the development of an Introduction to Civil Discourse course and related forums and activities on campus to help us all learn how to dialogue effectively. Effective dialogue and discourse will mean listening and understanding concepts that are offensive and responding with evidence-based arguments. Looking forward to digging deep on civil discourse.  

When the statues come down

The unnecessary killing of George Floyd led to historic unrest. All over the world protestors in support of #BlackLivesMatter are defacing walls and statues with the words “I can’t breathe.” The protests are resulting in statues being removed one way or another.

In the city of Bristol, England a bronze statue of Edward Colston – former slave trader – was torn down and thrown into the harbor. <= Check out the BBC interview with Bristol’s Mayor Marvin Rees! In multiple cities in Belgium, statues of King Leopold II were set on fire or defaced. Belgian’s colonial history in Africa under Leopold was brutal and dark. In Antwerp, a defaced statue of Leopold was taken down by the city and delivered to a museum for restoration and storage. An act to be repeated by cities in the US.    

A few days ago, in the US city of Philadelphia, a statue of a former Police Commissioner and Mayor Frank Rizzo was removed by the city. The removal was already planned due to the renovation of the plaza where the statue sat. The statue was defaced during #BLM protests and removal was expedited. In the following days, a mural of Frank Rizzo at an Italian market in South Philly was painted over. 

My family has been in Pennsylvania for centuries. I lived outside Philadelphia, in East Norriton Township, as a child when Frank Rizzo was mayor (1972-1980). Race was very important then but not in a healthy way. I grew up in white privilege. There was great division between black and white people at the time exacerbated by Rizzo’s support of police brutality which was particularly anti-black. My parents pulled me out of public school (free) and sput me in a Catholic one for a few years due to violent racial problems between students at school.           

In the US state of Virginia, The Mayor of the city of Richmond, also decided to voluntarily remove the statue of General Robert E. Lee, a Confederate (Southern) General from the US Civil War. Beginning July 1^st of this year legislation gives Virginia cities the discretion to remove Confederate statues. That law was passed in April 2020 and ended a former prohibition in Virginia of the removal of Confederate war memorials. 

Governor Northam of Virginia announced that the statue of Robert E. Lee in Richmond would come down immediately and put in storage. Shortly after that announcement, a judge temporarily blocked the removal of the statue for 10-days in response to a speedily filed claim of irreparable harm should it come down. The statue sits on a portion of land in the city of Richmond that was deeded to the state. The effect of the language of the deed on removal of the statue will be resolved in the courts review. It must be pointed out that threats of removal of this same statue sparked the Unite the Right march in Charlottesville, VA in 2017.

I lived in Richmond, VA while at school at the University of Richmond. I was there in 1984 when the Richmond Spiders Men’s basketball team made it to the NCAA tournament. Charles Barkley played for Auburn in that game. One of my many part-time jobs in college was as a bartender and waitress for the Country Club of Virginia. Race was also very important and equally unhealthy but, in a manner, exceedingly different from Philadelphia.

In the 70s, Philadelphia saw protests and journalists speaking out about race inequality and police corruption. Richmond in the 80s was a walk back in time. It was sleepy and asleep. There was no hope for equality given the deep, ingrained institutional bias against black people. The same Virginia Governor Northam who wants to pull down Robert E. Lee, admitted then denied being photographed in blackface in a Medical School yearbook photo from the 1980s.

White privilege is real. Unwinding it in America will take a great deal of dialogue and education. We cannot forget intersectionality. For every Person of Color who is disabled, a woman, or trans or any marginalized identity – they are experiencing layers of bias and overlapping discrimination. 

Both the City of Philadelphia (City of Brotherly Love) and the State of Virginia (Virginia is for Lovers) have played crucial roles at important points in American history – Founding Fathers (and Mothers), American Revolution, Civil War. I do not see them as leaders right now but they might be bell-weathers for concrete change.  

#AmericanSpring

“I wish I could say that racism and prejudice were only distant memories. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the mistrust…We must dissent because America can do better, because America has no choice but to do better." - Thurgood Marshall 

U.S Embassies in Africa, in an unprecedented fashion, have condemned the death of George Floyd at the hands of the Minneapolis police.  Additionally, the head of the African Union Commission, Moussa Faki Mahamat, rejected the “continuing discriminatory practices against Black citizens of the United States of America." America has a problem with systemic racism. The world is watching. COVID19 may have made this moment of nationwide civil unrest possible. Difficult to know if it will last or if lasting change will be the result.

The State of Minnesota Department of Human Rights has opened an investigation into the Minneapolis Police Department. This type of probe can reveal ways to correct the police departments history of racial discrimination. But we have been here before. After the killing of Michael Brown in Ferguson, Missouri in 2014, the US Department of Justice opened Federal Civil Rights investigations. Some things changed and things remained the same. Police wear body cameras but the Floyd killing went viral based on a bystander video, not a police body cams.  What provides some hope is the speed with which the police officer involved was charged with a crime. That is new. And it seems that COIVD19 may have prepared some of the US to have this dialogue on the streets and online.

COVID19 in the US saw the rise of the effective and powerful state Governor. That was new.

In the wake of a failed US Federal Government response to the Pandemic, California’s Governor  Gavin Newsom and New York Governor Andrew Cuomo rose in power and profile on the national stage as leaders in combatting the virus. We listened and watched online no matter what state we lived in. I live in California and Newson is a particular hero in most parts of the state.   

There are many layers to racism and inequality in the US. America had already begun some discussion of the inequitable impact of COVID19 - closures, infection rates, access to affordable healthcare had been the national and state dialogue. All of the dialogue was virtual. Months stuck at home with no healthy outlet for frustration on many levels.

There is some evidence of outsiders aggravating the protests. What is different from the Ferguson protests is the use of helpful words such as systemic racism, white privilege, and bias. This new language that white America must face, digest, and embrace is a healthy step forward. Privilege is unearned and unasked for. The challenge is to generate the momentum to move to the next step in our understanding in order to allow a broader discussion of police abuse of power and bias toward those of African descent. Also, the US must face its limitations and approach its role on the international stage with a great deal more humility.