Ferguson: Quand on l’attaque, il se défend!

If truth and justice had been done August 9th in Ferguson, Michael Brown would be alive and facing charges for strong-armed robbery: He wouldn’t be dead. If truth and justice had been done subsequently by the grand jury, Officer Darren Wilson would be facing charges for killing Brown: He wouldn’t be free and exonerated.

Millions of words have been written about Ferguson. Almost all aspects of the topic have been touched on: Ferguson and Race; Ferguson and police methods; Ferguson and the American Culture of Violence; Ferguson and Local Government Tyranny; Ferguson and Federal Solutions; Ferguson and Respect For the Police.

The case has been taken apart and pieced together by many excellent writers. My favorite is probably Ezra Klein at Vox, who with his colleagues has separately looked at Wilson’s testimony, Dorian Johnson’s testimony, the way St. Louis County Prosecutor Bob McCullough handled the case, and the protests that have accompanied the story from the beginning. That is a lot of links to one source, but Vox is doing a tremendous job in its chosen role of “explainer.”

Breaking news and recent revelations get most of the press coverage. There’s another perspective that hasn’t gotten much attention in urgent drama of the Michael Brown case. And that is the vast disconnect between what Americans want (and deserve) and what the laws and legal procedures provide. The Constitution promises . . .  well, you can read for yourself what the Constitution promises:

 “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

There are some who believe that the Ferguson grand jury’s decision was “justice.” No one thinks there has been “domestic tranquility” around Ferguson these last few months. And darn few would agree that the rioting and anger and division are signs of a perfect union. And my contention is that whoever is pointing a finger in any direction, they should point it at the Constitution, too,

Domestic tranquility.

Domestic tranquility.



(I write this after the grand jury decision has been announced and full transcripts of all the testimony have been released. I’ve read Officer Wilson’s testimony and watched his interview with George Stephanopoulos. Wilson’s certainty that he did the right thing runs through his training for the local police department back through years of case law all the way to the Constitution.

The 4th Amendment guarantees citizens freedom from unreasonable searches and seizures. But since it only says those few words, history and case law have decided what is reasonable and what is a seizure.


The relevant law is based on several Supreme Court cases, including Graham v. Connor (1989), which says in part that the court should not use the benefits of hindsight. In other circumstances we believe that the best decisions in life come when we consider all the evidence that is available. But Graham v. Connor holds the police to a different standard. It doesn’t matter if subsequent investigation turns up evidence that the policeman’s snap judgment was wrong. If what he did seemed “reasonable” at the moment, then it was legal.

I don’t pretend to be able to parse legal language. I have to rely on the interpretations of experts. In this case, one of the resources for understanding Graham v. Connor is a recent article in Police Magazine, which says,

“The officer’s force should be applied in the same basic way that an “objectively reasonable” officer would in the same circumstances. The Supreme Court has repeatedly said that the most important factor to consider in applying force is the threat faced by the officer or others at the scene.”

The article really ought to have said “the perceived threat faced by the officer.” Because the officer’s perception of circumstances during the moment are the critical issue.

There’s a saying in French that goes: Cet animal est très méchant, Quand on l’attaque il se défend. Translated, it reads, “That is a very wicked creature. When I attack it, it defends itself.”

We have it directly from Wilson that he swung his car door open vigorously to push Brown away (“Quand on l’attaque”), Brown retaliated by pushing the door closed again (“Il se defend.”) Never mind that it may not have happened that way. Wilson’s own testimony is enough to show that he interpreted Brown’s (or Dorian Johnson’s) actions as threatening. And that right there opened the door to his use a moment later of deadly force.

Another important case is Tennessee v. Garner (1985). Tennessee law at that time stated, “if, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.” That last phrase (“all the necessary means”) was uncontroversial under old common law when few officers carried guns.

Tennessee v. Garner tested whether Tennessee’s law was still proper under more modern conditions, and found that it wasn’t. But far from saying police ought not to shoot people on the street, the Tennessee v. Garner case only changed from allowing the police to use “all the necessary means” to allowing them to use deadly force whenever it is “reasonable.” That word “reasonable” comes from the 4th Amendment, and the judges decided that it applies here. But the writers of the Constitution didn’t explain clearly what was reasonable, and neither did Justice White in the Tennessee v. Garner. That has always been left pretty wide open.

At the time, the Tennessee case seemed conducive to fewer police shootings. It did, after all, add stipulations. But from today’s perspective it still seems to leave the door wide open. A policeman who provokes a citizen into a defensive reaction can then, with all legal justification, shoot that person.

I’m not confortable with that. Are you?

Sam’s Chocolate

Sam Cooper showed up right about sundown. And that’s a good thing, because Sam Cooper was one of the sweetest people who ever lived. This was back in the ‘80s when my wife and I were Peace Corps Volunteers in Liberia, West Africa.

Zwedru, the city we lived in, had 20-thousand, and occasional electric service, and four high schools. Students from smaller villages round about came to Zwedru to study. Many of them had a hard time of it. Sent to the city with just enough money to pay tuition and buy the mandatory uniform, these students hoped to find some relative who would take them in and allow them a daily bowl of rice and a bed on the floor. But even those who wangled bed and board struggled to pay the not-infrequent surprise fees their teachers and principals demanded. Public servants typically didn’t get paid very often or very much by the corrupt government. Their way of making ends meet was demanding students pay a fee to sit for a required exam.

It is no surprise that students wore a trail to our door. They seldom needed much, and they truly did need help. And we had it to give. There were just a couple of hitches. First, there were too many students; we couldn’t possible help them all. And second, those students had relatives who were obligated to help them. If we were too generous too often, we’d be disrupting their culture. We got lots, LOTS, or requests for money. The worst cases were students who told us about their goal of finding a patron and sponsor who would satisfy all their needs and wishes, hinting that we might, just possibly, be that sponsor if we worked at it. Sometimes it was easy to say “No.”

Sam Cooper wasn’t like that. He was as needy as any of his schoolmates. The relatives he stayed with were common folk in a backwater town of a cash-poor country. But with Sam, enough was as good as a feast. We helped him some, but the basis of our relationship was friendship. I was always glad to see him.

Sam Cooper and me.

So when Sam showed up right about sundown and Damaris and I were making hot chocolate, we invited him in and offered him some. He’d never had hot chocolate but he know about M&Ms. Some months earlier I’d given Sam a one-pound bag of M&Ms that came in the mail. A day or two later when I asked if he liked them. He giggled and said, “Oh, Zehner! Those things were calling to me all night long. They said, ‘Sam! Wake up! Come and eat us!’” Which was his way of explaining that he’d finished the whole bag before morning.

But on this occasion we were drinking powdered hot chocolate. I pulled a third mug down from the rat and snake proof cupboard and poured hot water into each, added chocolate powder to my mug and went outside to watch the sunset. (Thrills were cheap in those days.) Sam followed me a moment later, and Damaris shortly after that. We sat and talked about what had happened that day, stirring and sipping our chocolate. Sam stirred his mug persistently, long after it was well mixed and cool enough to drink. When I asked if he liked it, Sam said, “It’s really hot water.” A while later, when I was about finished with mine and Sam was still stirring I asked again if he liked his chocolate and he said, “It’s just hot water.” Liberians sometime use “just” as an intensifier meaning “very” so I took it to mean the drink was still hotter than he liked. But then I asked a third time and Sam blurted out, “Zehner, there’s nothing here but hot water!”

Damaris and I looked at each other and asked, “Didn’t you put chocolate in Sam’s mug?” Neither of us had. Sam had sat there all the while stirring the water and patiently waiting to see if it would turn dark and chocolate-y. The sun had set during our conversation, and by this time he couldn’t see what was in the mug anyway. But he did know what plain hot water tastes like, and this was it. Damaris and I both apologized and leaped up to correct our oversight. We heated the water again, and made sure he had a proper mug.

When he finally got a proper taste, Sam pronounced hot chocolate delicious.

Police Reform: A good idea and a better one

Responding to the decision of a grand jury in Ferguson, Missouri not to indict police officer Darren Wilson for killing teenager Michael Brown, change.org is calling for nationwide reform of police departments.


The online document reads, in part:

This petition is for these men, and for many other unarmed men and women who have been killed by the police. It is unacceptable for the police to serve as JUDGE, JURY, and EXECUTIONER. The recent murders of Eric Garner, Michael Brown and John Crawford this past month at the hands of police have so inflamed communities across the country that we believe we are reaching a tipping point of anger.

It is our hope to channel this collective anger into effective policy solutions that will not only make life safer for citizens, but will restore confidence in police, and bring hope to hopeless families and communities devastated by these egregious acts of violence.

The petition then lists these 7 demands:

1. The avoidable shooting and killing or otherwise murdering of an unarmed citizen who does not have an outstanding warrant for a violent crime should be a federal offense.

2. Choke holds and chest compressions by police (what the coroner lists as the official cause of death for Eric Garner) should be federally banned.

3. All police officers must wear forward-facing body cameras while on duty. They cost just $99 and are having a significant, positive impact in several cities around the United States and the world. Turning them off should warrant immediate termination.

4. A trusted 3rd party business should monitor and store all videos from forward facing cameras.

5. Suspensions for violations of any of the above offenses should be UNPAID. If a third party review board clears the officer, the back pay, which could sit in escrow could be given back to the officer. If found guilty, the money in escrow should be given to victims of police violence.

6. All murders by police must be investigated, immediately so, by a trusted and unbiased third party. It is not sufficient for the police, who are like a family, to investigate a murder by one of their own.

7. Convictions for the above offenses should have their own set of mandatory minimum penalties. The men who killed Diallo, Bell, Grant, Carter, Garner, and others all walk free while over 1,000,000 non violent offenders are currently incarcerated in American prisons.

These are worthwhile recommendations and citizens petitions are just the sort of real-democracy actions that I like to see. I’m going to sign the petition (as nearly a quarter of a milion people have already done as I write this). I urge everyone to do the same.


Let’s remember that anytime we fix a problem at the federal level, we’ve fixed it broken. The advantages of local autonomy shouldn’t be sacrificed wherever they can be preserved. Working at the local level is much more practical for ordinary people, and should be more effective. The purpose of change.com is particularly to influence change by and through President Obama’s office. That isn’t the right place for all action.

In a country as big and diverse as America, there’s never a one-size-fits-all solution for any problem. People tend to think the rest of the world is just like them, but it isn’t true. For example, demand #3, calling for body cameras on every law enforcement officer.  It makes sense, but it doesn’t make sense for every possible local contingency. What if a community wanted to enlist walking patrolmen or officers on bicycles who wouldn’t carry weapons at all. Must they have these cameras, too?

My greater reservation about the change.org petition is that any changes that are forced on communities from the state or federal capital removes rather than strengthens the community ties. Anything worth doing should be developed with local support.







The Constitution versus America: On Immigration


A majority of Americans want reform of US immigration policy. House Speaker John Boehner said in September that immigration reform would be good for the economy. President Obama’s plan to change US policy is arguably the will of the people and arguably good for the country. As soon as the president announced his plan, some declared he was doing too little and others that he was doing too much. But there is a very different argument being made that worried me most.

Political cartoonist Gary Varvel (Indianapolis Star and Creator’s Syndicate) depicts President Obama driving over the Constitution: disrespecting and even harming it. Varvel isn’t very good at his job, and here he fails to show the reader what Obama has done to harm the Constitution. We have to infer from tha timing that he refers to Obama’s November 20, 2014 executive action on immigration.


Rick Mekee of the Augusta Chronicle is clearer about the issue with his cartoon. Mekee shows Obama laying down the Constitution across a gap in the US border fence, inviting people to step on the Constitutional “welcome mat.”


Both cartoons stress the dignity of the Constitution over the details of the immigration question. Neither cartoonist is a Constitutional authority. But each knows his own values and priorities. Neither implies in his comic that Obama’s action is bad in itself – but bad because something something the Constitution.

They imply that the dignity of the Constitution is an important goal – even that it is more important that the immigration question. Are they right? What matters most when the will of the people conflicts with Constitutional considerations? When the good of the country requires action that can’t or just won’t happen under the Constitution, must the good of the country yield?

I want to insist on something conservative. I want to assert that the Constitution is the foundational document of the US government and society. Whatever the United States is, the Constitution makes it so. The strongest supporters of the Constitution agree with that. But they often fail to take the next step and recognize that whatever failings we have as a nation are Constitutional failures. The defects in our political process are Constitutional defects. The flaws in our collective national character are flaws the Constitution allows.

If my cows jump the fence and get into your cornfield, you’ll call me and demand two things. You’ll demand that I get the cows back onto my property and you’ll also insist I fix the fence. If I say the fence is OK as it is, you can quite reasonably insist that it isn’t. The purpose of fences is to contain cows. The fact the cows escaped proves the fence isn’t good enough.

The purpose of the Constitution is to provide good government enabling citizens to be pursue happiness. (I don’t say the purpose of the Constitution is to guarantee happiness for all. Its purpose is to give good government, which should be measured by the mood of citizens.) If the government isn’t good (as America’s isn’t), or the people are not happy (as Americans aren’t), the Constitution isn’t doing what it’s supposed to. It isn’t helpful to say the Constitution is fine if only the people would behave. If cows didn’t wander into cornfields every chance they get, fences wouldn’t be necessary.

A major theme of this blog will be that great changes to the national character and governing compact are needed. Good government and happy citizens are important. I’m not hostile to the Constitution. The changes I think are needed would retain much of the old language and nearly all of the original principles and values. But the existing document mustn’t stand in the way of good government, a thriving society, or happy people. We mustn’t allow foggy thinkers to force a choice between the current imperfect implementation of the Constitution and the kind of polity and society we want and are capable of implementing.

On the subject of immigration, I agree with most Americans that US policy needs to be fixed and the illegal status of millions of people needs to get normalized. A few of the illegal immigrants ought to be expelled from the country (as the new Obama policy allows). Most of them are decent people who just want to work and support their family.

As both President Obama and Speaker John Boehner have said recently, America is a nation of immigrants. Many Americans have got an interesting and inspiring immigrant story to tell. But I have one thing they haven’t got: a heroic ballad about my first ancestor. Folk musician Marji Hazen performs the Ballad of Adam Zehner at the link Or if you want to do the song yourself, here’s the lyrics and music.

My ancestor came to American as something very like an illegal alien. He spent the first three years here as an indentured servant, and I’m sure the neighbors felt he was driving down their wage rate. But he fought in the American Revolution, raised a big family and by the end of his life was counted a good American. For this reason, I incline to be soft-hearted and sympathetic toward later immigrants. Their reason for leaving home is similar to my ancestor Adam’s reason for leaving Germany. Their status here in the US is at present about as nebulous as his status was. And for the most part, I think they make good workmen and good neighbors, just as Adam Zehner did.

Don’t be an idiot!

The word idiot comes into the English language from French, and before that from Greek  (ἰδιώτης) where the word carried a different meaning. To the Greeks of Athens, an “idiot” was someone who minded their own business. A person with high intelligence was still an idiot if they spent their time only on their own business and never on the concerns of the community. An idiot took, but did not give back.

The best source for information about how meanings of words evolve over time is the Oxford English Dictionary. I checked it. But if you don’t have an OED, the Wikipedia entry is very good

“An idiot in Athenian democracy was someone who was characterized by self-centeredness and concerned almost exclusively with private—as opposed to public—affairs. Idiocy was the natural state of ignorance into which all persons were born and its opposite, citizenship, was effected through formalized education. In Athenian democracy, idiots were born and citizens were made through education (although citizenship was also largely hereditary). . . Declining to take part in public life, such as democratic government of the polis (city state), was considered dishonorable. “

In old Athens, every citizen was expected to get involved. Of course, most people weren’t citizens. The Greeks kept women, foreigners, slaves and others outside the circle of true power. In modern America, almost everyone is  a citizen, but our chances to participate in democracy are as much curtailed as if we were an outsider.

Outside of the New England town meeting, Americans have no chance at all to participate as citizens in governance. (I use governance to mean the actual decision-making and operations of public affairs: deciding which road will be paved, who will be arrested or bombed or sent back to Mexico. Or who will be awarded a multi-billion dollar bailout reward for their criminal malfeasance. The people who make those decisions are either elected to office or hired for an administrative job. They came from the citizenry, but they govern because of special status.)

Ordinary citizens can only vote, write letters and attend public meetings. Those things at best exert a loose and indirect influence on public affairs. At worst they are meaningless.

Yes, I said voting is meaningless. And I mean that the single vote of an individual voter is never going to determine any outcome of any public election or referendum. I’m not suggesting that anyone not vote. I vote myself in most general elections. I get a nice thrill out of flipping the levers, out of all proportion to the significance of my votes or the probable conduct of the people I’m voting for. But I never for a moment imagine my votes will mean anything. Mental Floss offers this fun list of instances where one vote supposedly determined an election. But every case on their list either happened long ago, in another country, or was actually settled in court or by some other means than the vote tally. The Bush/Gore election in 2000 is proof enough for me that our electoral system can’t be relied on to settle a close election. Not every jurisdiction is as messed up as Florida, admittedly.

Americans have plenty of opportunities to volunteer for community service projects. They can clean up trash along a highway, or cook at a soup kitchen for the homeless. When disasters occur, they can volunteer time or money – especially money – to help the victims. What they can’t do is determine that public needs will be met in a thorough, fair and proactive way. They can only watch while those in political control leave affairs in a mess and then volunteer to mitigate the damage afterwards with their own time and money.

It isn’t easy to play a meaningful part in civic affairs. Even for people who don’t wish to be idiots.