Pollos Armados -- Part I, Sophistries as Fact.

Last October a 13 year old boy was shot point blank while carrying a toy AK47 rifle on a Santa Rosa, California Street. The usual community outrage was met by the usual official evasions and assurances. This week, the District Attorney’s Office released its report of the incident which not surprisingly exonerated the deputy sheriff who killed the boy.

The investigative report — 52 pages of analysis and 40 pages of appendices — is the usual hash of bureaucratese, technical jargon and cop-speak all wrapped in the soft taco of legal burble.

The Sonoma County District Attorney's Report to the Public concludes that the “evidence establishes that while in the lawful performance of his duties, Deputy Gelhaus was faced with a highly unpredictable and rapidly evolving situation” in which he reasonably believed “that he was faced with a ‘do or die’ situation” warranting “the implementation of lethal force.” (RTP p. 51) Since his actions were “reasonable” a prosecution for murder could not overcome a defense of self-defense and therefore “no criminal charges will be filed against him at this time.” (Id. p. 52)

The ensuing two-part feature will analyze the factual and legal components of this crock of shit. What the evidence actually shows (in so far as it has been laid out in the Report) is that Deputy Gelhaus shot Andy Lopez all but point blank and that if any “do or die” dilemma existed it was created by his own precipitous proactive behavior.

The Andy Lopez case illustrates several issues which ought to be of public concern. It shows how policing in this country has degenerated into a form of militarized urban warfare, the “full spectrum” features of which are indistinguishable from those employed in Baghdad or Kabul.

The case also shows how prosecutors and the judiciary have prostituted themselves to the police, concocting cover-ups iced with smarmy legal pieties. The political result is a criminal justice apparat which is a law unto itself, which is to say, no law at all. What we have witnessed in the Andy Lopez case is State Thuggery in action.

Before parsing the District Attorney’s factual recitals, and with the foregoing in mind, it will serve to ask why the D.A.’s Office is conducting this investigation at all?

NEMO IUDEX IN CAUSAM SUA

The phrase means, “no one shall judge his own case.” It is a legal maxim as old as it is fundamental. It is impossible to prove why no one should judge his own case except to say that if everyone did then the very concept of “law” itself would cease to exist because law itself would be reduced to individual will and desire, which is no law at all.

And yet, with grotesque indifference to this maxim, the District Attorney’s report begins by informing the world that “the Santa Rosa Police Department assumed overall responsibility for supervising, coordinating and conducting the criminal investigation.”

This “assurance” is followed up with a long roll-call of all the law enforcement officials who participated in the “complete and comprehensive investigation” -— a chief deputy district attorney with 23 years of experience; a DA investigator with over 33 years of experience; members of the Santa Rosa Department violent crime investigation unit and forensic experts from the California Department of Justice, etc., etc.

It is true that Deputy Gelhaus may have committed a crime. It is true that the District Attorney’s Office is charged with investigating criminality. It does not follow that because the District Attorney is the chief law enforcement officer of the county it should be entrusted with investigating one of its own. Duh.

In a society which retained a modicum of ordered principle such a conflict of interest would discredit the report without more. The report would be considered a massive, verbose nullity from its inception.

But such is the decayed and enervated state of public life in Late America that the public dumbly acquiesces in the assurances of their masters whose self-exonerating findings the press broadcasts as proven fact. It would be pathetic were it not so contemptible.

THE MUSIC BOX

Like any good opera, the report begins with an overture of sorts which signals what is about to take place: a shifting and shuffling whitewash.

“The sole purpose of this criminal investigation and review is to establish the presence or absence of any criminal liability on the part of any person, including the involved law enforcement employee(s).” (RTP, p. 4)

The statement is a transparent lie. A law enforcement officer shot a teenager who was walking down the street with a toy rifle. No one else was involved in the incident. The sole purpose of the investigation was to investigate the conduct of Deputy Gelhaus.

The reason for pretending that it was an inquiry into the liability of “any person” was to paint the matter as one entailing a general criminal investigation by experts entrusted with the responsibility — nay, the duty! — of conducting such investigations.

In so saying, the report actually makes explicit the false logic of its premise; namely that law enforcement can be trusted to investigate itself because, after all, we are just doing what we are trained to do.

The report continues with a disclaimer of sorts which falls into the vaudeville of “Far be it from us....”

“As the chief law enforcement official,” the District Attorney is duty bound not to file charges unless the evidence is of “such convincing force that it would warrant conviction.” (p. 4)

The assertion sounds good but  is actually a risible canard.

What constitutes “convincing force” —— how strong a case must the D.A. have? The report does a pretty shuffle. It first tells us that under Rules of Professional Conduct, Rule 5-100, a prosecutor should not file a case if “the charges are not supported by probable cause.” It follows this up with “Simply put, the standard for charging a crime is high because the proof required at trial is quite high; i.e. proof beyond a reasonable doubt, which is the highest burden of proof under the law.” (RTP, p. 4)

First the comedy.  There is not a criminal case in which the prosecution does not begin by telling the jury that proof beyond a reasonable is not such an onerous burden as one might think; it’s all basically “common sense.” It is the defense attorney who starts the heaving, groaning and moaning about what a “high and heavy” burden the standard is.

The fact that our intrepid “chief law enforcement official” should begin the report by sounding like a defense attorney is not only ironic, it tells you what is really going on. We are going to be treated to an investigative defense.

Now the cheat. The statement is a canard because having proof beyond a reasonable doubt is not the standard for filing charges. The cited rule of professional conduct explicitly states that the standard is “probable cause” That is the standard used for an arrest on the street. It requires only a reasonable probability that a crime might probably have been committed. That is oceans away from near-certain proof “to a moral certainty” that a crime was committed.

The standard for filing charges is in fact low. It is even less than the civil standard of “more likely than not.”

And it remains low. Once charges are filed a preliminary hearing is held at which a judge-magistrate determines if there is probable cause to proceed to trial. This procedure double-checks the prosecutor’s decision to bring charges but at no time does the court reach the issue of whether the charges would “warrant conviction.”

The reason such a standard is not required is that the concept of proof beyond a reasonable doubt is inseverable from a trial by jury. The burden is not just a certain level proof  but proof which is also strong enough to convince twelve jurors.  Quala and quanta go together.

No single person can assess whether a proof is strong enough to convince twelve persons and the law does not require a prosecutor to make such an ultimately futile assessment. The cases are legion where charges are filed knowing in advance that a potential defense exists and that such a defense could raise a reasonable doubt in the jury's mind, all of which would leave the prosecutor's short of “beyond.”

A prosecutor has discretion not to file charges for whatever reasons of policy or mercy he might deem fit. It is common sense that he should be persuaded by the convincing force of his evidence and that, if he is, to expect that others might be as well. But it is untrue to say that he requires anything more than probable cause to file a case.

Precisely one of the recognized functions of the jury is to be the ultimate decision maker in controversial or dubious cases.

In lieu of adhering to the correct standard, the report makes hay with the phrase “criminal liability” in order to pull the wool over the public’s eyes. “Criminal liability” means subject to indeterminate penal consequences. It does not mean “criminal guilt” or conviction. In shuffling the actual criterion for filing charges, the report once again betrays what it is really about: it is a defense style argument as to why Deputy Gelhaus is not guilty of unlawful homicide.

Not surprisingly, the overture concluded with a coda of distractions and ad homs — reciting Gelhaus’ allegedly heroic military and police record, noting that Andy’s autopsy showed he had smoked marijuana and finding a way to work in the supposedly relevant fact that a John Doe 3 “felt guilty” for the whole thing because he had loaned the toy rifle to Andy.

“DO OR DIE”

The atonal garbage concluded, the report then set out the thesis of its defense: that  faced with a do or die dilemma Gelhaus had no choice but to blow Andy away.

“It was determined that Deputies Gelhaus and Schemmel were conducting some proactive police work that day.

“Gelhaus could see the field... and saw Andy walking northbound about 25 years ahead... carrying what appeared to be an AK47 at his side...”

“Gelhaus yelled [to Schemmel]... 'Do you see that?' and radioed in the observation as a 'Code 20'” [requesting the assistance of two more patrol units].

Here the report adds that as a former soldier, Gelhaus was cognizant of an AK47's destructive potential.

“As Deputy Gelhaus radioed for assistance, Schemmel drove the patrol car into the oncoming lane and parked at an angle to the curb. .... He activated the light bar and blipped the siren.

“As the car pulled up, Gelhaus released his seatbelt, opened his door and drew his pistol... [at a distance of 20 yards from Lopez] “whose back was still turned to the car.

“Schemmel put the car in park and took up a position similar to ... Gelhaus on the driver side... Gelhaus was heard to call out either once or twice, depending on the observer, to drop the gun.

“Both deputies reported that rather than obeying the command, the subject turned to his right toward the deputies with the weapon in his hand and the barrel, which had been pointed down, began to ascend. As the subject turned toward the deputies, both deputies reported being in fear for their lives or that of ...surrounding citizens....

“Deputy Schemmel was coming into position to fire when he heard Deputy Gelhaus fire and saw the subject take a step backward. The subject either fell to his knees or to the ground and the weapon lay either under or near him... He appeared to be seated facing the deputies [who] remained in position until backup support arrived. ...Schemmel can be heard in the background telling the subject not to move... (RTP, pp. 12-13)

At the end of 50 pages of investigative defense, this gets wrapped up as:

“Lopez had an AK-47 in his hand, had refused to comply with commands to drop it and was turning towards Deputy Gelhaus and his partner, thereby causing the barrel of the rifle to turn towards them... Given his training and experience he believed, honestly and reasonably, that he was faced with a ‘do or die’ dilemma...” (RTP, p. 51)

The italicized words are the keys to the defense and the entire review will be aimed at stretching the facts just enough to enable the D.A. to accuse Andy of disobeying a lawful order and pointing a rifle at the deputies.

Of course the D.A. will never actually say that point blank because it cannot. But it will use artful ambiguities to say it close enough to leave the impression that that is what it was all about.... and do or die.

Ironically, the District Attorney forgot  the first line of Kipling’s famous couplet:

Theirs not to reason why,

Theirs but to do and die:

Indeed, it is not for soldiers to reason why. But cops are not soldiers. In a civilized society police do not charge into civilians or into their homes like light brigades.

Cops are supposed to reason why.

That is why concepts like “reasonable suspicion” and “probable cause” exist. Cops are supposed to act upon on a reasoned basis. This aspect of the matter will be discussed in Part II.

But, in quoting Kipling’s poem, the District Attorney inadvertently disclosed what is really at issue in this case: the militarization of civil police forces has resulted in their treating their fellow citizens as enemies and charging for the kill like rampaging cavalry.

TOSSING  THE TESTIMONY

The crux of the case rests on two important pieces of objective forensic evidence: the “CAD” log of radio reports and the autopsy of Andy Lopez. A third element of objective evidence would be the direction Gelhaus was traveling immediately before the incident, although the investigative defense left this important fact buried in the hay-stack of eye witness accounts.

Not unusually, those accounts were not completely congruent but they all coincided on the principal details.

Andy Lopez was walking north on Moorland Ave, north of West Robles. Gelhaus and Schemmel were driving north on Moorland south of West Robles. When Gelhaus came to the stop sign at the corner of Robles he spotted Andy walking north and carrying some kind of rifle in his right hand.

 Scene Photograph from the Report

The above is a police photograph of the scene a minutes after the shooting. The white speck lying across the sidewalk between the White and Gelhaus vehicles is Andy’s body.

This is what Gelhaus would have seen at the stop sign.

Intersection of West Robles looking north on Moreland
(not included in the D.A.'s report)

All of the witnesses who saw the events were agreed that Gelhaus’ patrol car drove passed the intersection and came to a stop with the vehicle nosed into the left (west) sidewalk several yards into Moorland.

All of the witnesses agreed that immediately after the car came to a stop they heard gun shots after which Andy fell to the ground.

The witnesses differed as to how many gun shots they heard and as to whether they heard the deputies say or shout anything before shooting. But there was unanimity that the sequence of events — stop, (shout), shoot — was seamless.

John Doe 5 was driving southbound on Moorland and was one block north of Robles (at Newmark Street) when he saw the patrol car cross Robles and “quickly” pull to a stop at an angle. As soon as the Sheriffs vehicle came to a stop, the driver’s door opened quickly. Approximately three seconds later he heard four rapid gun shots followed by three more which were a little more measured. In Doe 5’s mind “the progression of events... was seamless. Car pulling up, the door opening, just enough time for somebody to assume a position … and the gun shots.” (RTP, p. 20)

John Doe 4 was driving northbound on Moorland Ave toward West Robles. In his rear view mirror, he noticed a van behind him and a sheriff’s unit behind the van. Doe 4 passed Andy and looking into his rear view mirror he saw Gelhaus “drive real quick to the side,” “open the door and shoot him right away.” He estimated that five seconds elapsed between the opening of the door and the first shots. (RTP, 19)

Five other witness heard the patrol vehicle make a “chirp” or “bleep” as it pulled to the curb after which the deputies got out of the car and yelled at Andy to drop the gun before firing.

Jane Doe 1 was in a car immediately behind Gelhaus’ vehicle. She saw the vehicle pull over and heard the deputies yell “drop the gun” before firing. She said, “They did not give him an opportunity to do anything.” (John Doe 6 who was in Doe 1’s car, saw and heard the same thing, except he added that one deputy yelled a second time “as the [other] deputy began shooting.”) (RTP 21, 22-23)

Jane Doe 3 was also in Doe 1’s car. She the patrol unit stop, both doors open and “heard one of the deputies speak in a loud voice. … She then heard four shots fired very quickly...[and then] heard one of the deputies yell loudly again.” She believed the drive side deputy issued more commands through the microphone. (RTP 23.)

John Doe 3: heard the siren “bleep,” saw the deputies take positions behind the vehicle doors and yell “put your gun down” after which “Andy turn[ed] around to face them.” He heard the deputies yell a second time followed by five shots. (RTP p. 16.)

John Does 13 & 14, were in their homes when they heard a quick “blurp” followed by shouting and then three to four or six to seven gunshots. (RTP, p. 27-28.)

John Doe 12, was inside his house when he heard the short “bleep” and “[a]pproximately five seconds later... seven quick shots.” (RTP p. 27)

Four more witnesses heard police shouts after the shots were fired. (John Doe 11: three or four shots then more shots then police yelling; Jane Doe 5: Five or six shots followed by deputies yelling “Stay down” and “Stop moving;” (p. 26) John Doe 10 heard four or five gunshots in succession and a minute later saw Andy lying on the ground and heard the police say “Put you hands on your head.” (RTP, p. 26)

The last of these four was John Doe 9 who was driving north on Moorland approaching West Robles. When he came to a stop at the stop sign he saw two deputies ducking behind their car and someone lying on the ground. He heard one of the deputies yell “Don’t reach for the rifle.” Doe 9 turned right on Robles, did a U-Turn and drove west, crossing Moorland where he took the following picture. The video from which this still was taken shows Andy face up, legs pointed toward the deputies and his arms extended outward. (RTP, pp. 24-25)

 Deputies Still Crouching after Andy Shot

Still other witnesses saw Andy walking north bound, and heard “chirps” or gun shots but neither added nor subtracted to the above-summarized narratives.

The testimony of the witnesses was actually consistent. The fact that Doe 5 and Doe 4 did not hear any commands is explainable by the fact that they were in their cars and at some distance from the actual location of the shooting.

The reason the second group of witnesses only heard the post-shooting commands was that these were broadcast over a microphone.

Those witnesses who heard all the shouts described two different commands: the first, uttered by loud voice and consisting of an order to “drop the gun” or “put your gun down” followed by shots; the second a command issued over the loudspeaker telling Andy to “Stay down,” “Stop Moving, “Put your hands on your head” and “Don’t reach for the gun.”

This is a significant piece of testimony which the investigative report smudges over.

A person cannot “stay” down unless he has been brought down and cannot “not reach” for a gun unless the gun has been dropped from one’s grip. Thus, the “second” set of commands was issued after Andy had been shot.

Preferring to leave matters vague, the report never bothers to chronologize the verbal content of the commands because it wants to be able to conclude on some semantical basis that Andy ignored “two commands” to put the gun down before being shot.

But the eye witness testimony describes an event in which any pre-shooting “two” commands to drop the gun were as sides of one coin. According to these witnesses, the deputies come to a stop, yell at Andy to drop his gun and “seamlessly” thereafter gun him down after which they yell at him to stop twitching in his death throws and not to reach for the rifle.

This was not a very helpful scenario for the desired “investigation.” It was an outrage. Gelhaus’s behavior was one stop short of a drive by shooting.

The District Attorney desperately had to drive some sliver of “perceived danger” and “reasonable fear” into the situation.

Accordingly, the report summarized the witness’ statements in a random order which obscured their consistency. It was made to sound as if they saw things “differently” and, thus, provided no reliable account of what actually happened. 

"[T]he range of statements of all persons interview varied ... some heard yelling before and after the shots; some heard yelling only before... some did not hear voices; some hear a siren while others did not some heard a succession of shots fired while others heard a few, then a pause and then a few more.   These inconsistencies were considered but did not have an impact on the ultimate conclusion."  (RTP, p. 26.)

The report then proceeded to describe at some length how Gelhaus was in a “distinctively marked” patrol vehicle and was wearing a “uniformed” shirt with the all thus usual patches, badges and jingle-jangle stuff.

The purpose of this prose is to convey the notion that Gelhaus was an on duty officer of the law, whose commands we should but obey. But what the narrative does its true best to ignore is that Gelhaus was behind Andy who could not have seen that Gelhaus was an Officer of the Law except by turning around – the very act which the D.A. will argue justified his being blown away.

STRETCHING  TIME

In order to make that argument, the investigative defence had to stretch time. It did so by exploiting a confusion in the CAD logs. (See RTP pp. 9-10)

CAD logs are the recorded voices and written notes of communications between police in the field and central dispatchers. As such, CAD logs embody two parallel sequences: the time something is called in and the time something is noted by the dispatcher. The time stamps of the two processes may be off by a several seconds, but they otherwise should line up more or less sequentially.

Needless to say the investigative defense summarizes the CAD logs in a way that will most easily confuse things. Unscrambled this is what they show.

Patrol Unit Sequence

__:__:__   -   [ nothing listed for anything previous]

15:13:58 -   “called in” a Code 20 request for two units

                     blurp of siren is heard

15:14:17 -    Schemmel reports “shots fired”

On this basis, the report concludes that 19 seconds elapsed from time of the request for two units until the first shots.

Dispatcher Sequence

15:14:15 -  “an event created by a suspicious person on

                    Moorland and West Robles”

15:14:19 -   dispatcher logs “call for Code 20 two units”

                    blurp of siren is heard.

15:14:25 -   dispatcher logs “shots fired”

Under this sequence the elapsed time from the request to the shots is six seconds.

The District Attorney's report doesn't even bother to reconcile the glaring asynchronicities between the two time lines. It effectively ignores the Dispatcher Sequence and concludes that 19 seconds elapsed between an S.O.S. for help and the first shots.  

The District Attorney prefers to leave it a full 19 seconds even if this contradicts the testimony of virtually all the witnesses. After all, after all one can't argue with recorded time-stamps.

The long and short of it is that the D.A.'s creative chronologies mismatched the accepted beginning of Gelhaus' transmission (15:13:58) with the end of what he said during the transmission.   The correct Patrol Unit Sequence is:

15:13:58 -  Gelhaus clicks button & begins speaking

15:*?:*?  -  ends by “calling for” a Code 20 request

                    blurp of siren is heard

15:14:17  -  Schemmel reports “shots fired”

The operatics began by noting that the fact Gelhaus put out a call for two extra units indicated he was acting under the duress of a perceived danger. Perhaps so, but the focus is a red-herring.

A "danger" is a possibility of or a potential for harm. Depending on how neurotic one wants to get, a man with a rifle presents some degree of danger. (Danger is always a question of degree, a simple fact which seems to have dropped from our legal and political speech.)

No one can fault Gelhaus for being extra cautious. But the issue in this case is not when Gelhaus called for more units but when he told Andy to drop the gun and how long later he fired after telling him to do so.

The first thing to note is that, according to the witnesses, the shooting occurred after the patrol car's “bleep.”   Thus the starting point is not the request for a “Code 20” but the time-mark for the bleep.

The second thing to notice is that Schlemmel's report that shots were fired was not necessarily contemporaneous with their “actual” firing. The D.A.'s report is very keen to twice remind us that 15:13:58 is the time Gelhaus “actually” initiated the call, but it is equally keen to assume that the time of Schlemmel's report was “actually” the same as the time the shots were fired.

Doe 5's testimony bears in at this point. He heard seven shots, which was close to the actual eight known to have been fired. According to him, there were four rapid shots, followed by a pause and then three more. That interval, whatever it was, has to be subtracted from the time-stamp of Schlemmel's report.

Thus the relevant time-frame is not from the beginning of Gelhaus' call-in to the end of Schlemmel's report, but for some period of time between those two end-marks; some time less than 19 seconds.

One would think that given the importance of the CAD logs, a complete transcript of the critical portions would have been included in the 50 pages of appendices. But no.  Instead the report pads the appendix with the curricula vitae of the prosecution experts.

Although the report does its best not publish relevant information it does disclose one significant fact. The report informs us that the “bleep” is heard as Gelhaus “finishes his words.” So the question becomes how many words did Gelhaus utter.

The report tells us that he put out a call for a Code 20 and then digresses into discussing the stress this indicates Gelhaus was under.   But is that all he said? “Code 20! Code 20!”

Uh huh. In true Keystone fashion, cops are zooming all over Santa Rosa and crashing into one another looking for a “Code 20.”

Most likely Gelhaus would have identified himself, his location and probably some generic description of the situation faced. He probably said something like,

“Unit 259, unidentified male with firearm at Moorland and Robles. Code 20.”

And in fact, the dispatcher's log begins with “an event created by a suspicious person on Moorland and West Robles” which the D.A. refers to two pages later saying Gelhaus “radioed in the observation.” (RTP p. 12)  In other words he didn't just bellow a "Code 20" -- he narrated what  he saw and then requested backup.

According to the Dispatcher Sequence, the time the call was first received (14:15) to the end of the Code 20 request (14:19) was four seconds. On this basis, taking into account the start time and the words spoken,  the entire dispatcher sequence is four seconds longer, for a total of 10 seconds.

But the same conclusion cannot be reached for the Patrol Unit Sequence because the D.A.'s report very explicitly states that Gelhaus's call “began” and was “initiated” at 15:13:58. In other words, the line-up between the two sequences should be 15:13:58 and 15:14:15.

(In tandem, the entry for 15:13:58 should read “called in” a report of a suspicious person at location and a Code 20 request for two unit.)

Using the Dispatcher Sequence, it can be assumed that whatever Gelhaus said, it took him four seconds to say it and thus that on the Patrol Unit timeline he finished speaking at 15:14:02 which is the actual time the “bleep” is heard.

Thus, the re-calculated time frame is reduced to 15:14:02 -to- [seven shots before ] 15:14:17 ( Schemmel's report of “shots fired”)

How long did it take for the shots to be fired?  According to the prosecution's own expert witness (p. 46), each round would take ¼ of a second to fire, with a resulting one second for five and 1 ¾ seconds for eight. Given that Doe 5 witness heard a pause between the fourth and fifth shot, it can be inferred that the firing took somewhere in the vicinity of 2.0 to 2.5 seconds.

On that assumption, the resultant interval is 15:14:02 to 15:14:15 or 12 seconds, a result which is closer to the adjusted Dispatcher Sequence interval of 10 seconds.

However. from either the 10 or 12 seconds, it is necessary to further deduct the time it took to bring the car to a stop, and to assume position behind the opened doors. This interval cannot be deduced from the CAD log, although it could have been reconstructed from a geographical location for the first sighting coupled with a re-enactment of getting out of the car and assuming position.

Gelhaus doing Weekend Something or Other

Instead of doing precisely that,  the investigative defense pads itself with a page and a half of CAD log sequences as to when back ups arrive, when EMT's were called for, when Andy was evacuated and blah, blah, blah.   But the case does not turn on those facts.

Whatever the exact figure, the critical “interval” between shouting at Andy and shooting him was not 19 seconds but something under 10 or 12 seconds, a CAD time-line which is far more consistent with the witness' testimony that the events were a “seamless” three to five seconds from either the “bleep” or the door opening to the first shots.

(According to Does 4 and 5 there was a three or five second interval between the doors opening and the first shots. According to Doe 12, five seconds from “bleep” to first shots.)

The D.A.'s report doesn’t discuss these critical details or provide a time-line transcript because it is only interested in creating a spurious “time wedge” in order to distance Gelhaus from doing what he actually did: shoot first, investigate later.

KEYSTONE CORONERS

Creating a “time-space” was only the necessary first step in the investigative defense. In order for Andy to present a “threat” to the officers during that time-space, he had, at least, to be facing them.

Andy was struck by seven of the eight rounds fired. The shot which killed him hit him in the chest. This forensic fact provided a basis for arguing that that Gelhaus had fired when Lopez turned around and it appeared that he was raising his rifle.

Alas, the District Attorney’s own pathologist (Dr. Josselson) concluded that Andy was first shot in the right arm from behind. (RTP p. 30-31, 37) This gave rise to a certain degree of what might called investigative angst.

As it turned out, however, Andy’s family had arranged for a private autopsy and their pathologist was of the opinion that the arm wound was created by a shot from the front. (RTP 30-31)

When the D.A.'s Office found about this report they demanded a copy and then hired a bloodstain expert from the Santa Clara D.A.’s Office to confirm these results. (RTP 31)

Alas, the blood stain expert concluded that the private pathologist was wrong and that the bullet had entered from behind. Angst again. (Ibid)

So the D.A. turned to an outfit called Precision Simulations, “to assist us in rendering opinions about bullet wound #7...” After much 3-D modeling and trajectory analyses, Precision Simulations concluded that it was most likely that the arm wound was sustained while Lopez “was directly facing Dep. Gelhaus.” (RTP, 37.)

One problem with this conclusion was that it was contradicted by the commonly accepted forensic fact that exit wounds are larger than the entry ones. In Andy’s case the front side wound was larger indicating that he had been shot from behind.

And so the D.A. “undertook extensive research regarding bullet wounds” consulting numerous on-line “medical treatises” and (no doubt thanks to Google) found “compelling research” indicating that “the majority of gunshot wound misinterpretations result from the ... assumption that the exit would is always larger than the entrance wound.” (RTP p.33)

However, this authority  went on to explain that there are five variables which determine whether the general rule holds true or not in any particular case. The general rule holds true “when the exiting projectile has substantial velocity...” Conversely, “if the velocity of the exiting projectile is low, the wound it leaves behind may be equal to or smaller than its corresponding entrance wound.”

Strangely enough, velocity estimations were not conducted in connection with the wound. After all, what was important was finding some verbiage which appeared to explain away the fact that wound on Andy’s front arm was larger than the one on the backside.

After being confronted with all these sources and investigations the D.A.’s pathologist (Dr. Josselson) revised his initial findings and concluded that the arm wound had been sustained when Andy was facing Gelhaus. (RTP p. 33)

As for the two gun shot wounds in Andy’s buttocks, the D.A. concluded that these were sustained as Andy was spinning around from the impact of the first shots.

At long last, the investigative report had its autopsy ducks lined up. As reviewed and revised, they “confirmed” that Andy had been facing Gelhaus when he was blown away.

WRINGING  CONDUCT  FROM  SYNTAX

But even so adjusted the time-space configuration by itself, still did not close the case. While Andy might be facing Gelhaus, he still had to do something which justified his being snuffed out.

The conclusion the District Attorney wanted to reach (and ultimately did assert) was that, in the slo-mo of 19 seconds, Andy, while facing the officers, had ignored Gelhaus’s twice given command to drop the rifle while instead seeming to raise the rifle’s barrel in the officer’s direction. Andy should have known he was being addressed by cops and the deputies were justified in fearing for their lives and the lives of others wherever they might be.

However, not even Gelhaus or Schemmel pointed to anything very specific,  such as being aimed at with a rifle. So in the absence of hard facts the D.A. fell back on malleable grammar.

It is here that prepositions and tenses become critical. The D.A.’s own recapitulation states that Schemmel “was coming into position to fire when he heard Deputy Gelhaus fire ...” In other words, the first shots occurred before Schemmel was fully in position and as he was getting out of the car to crouch behind the door.

This scenario is actually consistent with the testimony of John Does 4, 5 and 12 who (as noted) timed the first shots as five seconds after the “bleep” or three to five seconds after the door opening.

Consistent with this rapid sequence the report also states that Lopez was shot “as he turned to his right.” In English, the word “as” when used adverbially means “While; during or at the same time that” (Webster's Revised Unabridged Dictionary, p. 87.)

In short, by the report’s own account this was not a situation where Andy fully turned, faced the deputies and then appeared to be raising his weapon (the image the D.A. would like to suggest). Ignoring the possibility that he might in fact have been shot from behind, he was at least shot while turning around.

Nevertheless, the report sufficiently obfuscates the facts so as to conclude:

“From this data we were able to conclude that at the time Deputy Gelhaus fired his weapon at Andy Lopez, Andy had turned towards the Deputies and was facing the deputies when the first shot was fired.” (RTP p. 39)

But “as he turned” and “had turned” are not the same. At least to anyone who understands English.

Once the miracle of fuzzy grammar had metamorphosed a turning into a completed deed, it only remained to metamorphose the aim of the rifle.

The D.A.’s report was perfectly aware that Andy’s “natural turning moment” would tend to lift the rifle’s barrel. (RTP, p. 48) But it buried that natural fact under the grammatically creative reconstruction that “the barrel of the weapon [was] coming up and beginning to point towards the officers ...”

Yes indeed! Every raising begins with a first degree. But no one saw, no one said and the investigative defense cannot truly assert that the barrel was raised against the officer or that it was even parallel to the ground.

After nine pages of essentially irrelevant further legal analysis, the report finally emerges with its final version of the events:

“When Andy initially glanced back, he seemingly should have seen the marked vehicle with emergency lights on and perhaps heard the blip of the siren. One would expect that he’d heard the admonitions as well and would comply with the command to drop the weapon. (RTP p. 48)

• • •

“We can speculate as to why Andy didn’t comply... but that doesn’t change the circumstances … [¶] .. . a deputy... cannot assume turning a weapon towards them is just innocent body mechanics. (RTP p. 48)

• • •

“It appears from the evidence that Deputy Gelahus didn’t get a good enough view of Andy to determine he was a teenager. (RTP p. 50)

• • • 

“Andy Lopez had an AK-47 in his hand, had refused to comply with commands to drop it and was turning towards Deputy Gelhaus and his partner, thereby causing the barrel of the rifle to turn towards them... (RTP p. 50)

“Given his training and experience he believed, honestly and reasonably, that he was faced with a ‘do or die’ dilemma...” (RTP p. 51)

Where did “initially glanced back” come from? The deputies themselves never stated that Andy “initially glanced back.” What he “initially” did was turn around.

At this point, the investigative defense is simply banking on the reader being too exhausted and confused to realize that it has vouched for a fact that is simply not in the record at all.

If a prosecutor “created” facts that way in closing arguments it would be considered reversible misconduct. There was no evidence that Andy glanced back before turning.

This conjured up act is necessary because the investigative defense is desperate to impute some sort of knowing and willful disobedience on Andy’s part; i.e. upon glancing back he “should have seen” that he was being yelled at by Uniformed Officers of the Law whose commands he was under a bounden duty to obey.

At this point, the report again emphasizes that version of the events that Gelhaus commanded twice. Putting aside the pre- and post- shooting commands, let it be assumed that two commands were given prior to shooting. Big deal. “DropItDropIt” is twice.

Having shifted blame onto Andy, the report then brazenly states that Gelhaus certainly could not assume that the turning was “innocent body mechanics.”

But that is precisely what he ought to have assumed, given the fact that there was no initial “glancing” back and that he had yelled at someone who was not facing him and could not see that he was a sheriff.

In order to cast blame on Andy for disobeying a “lawful order,” the report imputes knowledge of the deputies’ presence on the basis of that fact that as he drove by John Doe 4 “had alerted Andy that he needed to get rid of his gun because the police were coming.” (RTP p. 48)

According to Doe 4, as he drove past Andy he yelled out his window “Cops behind. Throw away that thing.” Andy did not pay attention but kept on walking. Whether he heard, or whether he thought someone was just messing with him is speculation.

But it is speculation which is beside the point. The issue is not whether Andy should have known that he was being ordered to drop the rifle by the police; the issue concerns the reasonableness of Gelhaus’ trigger pulling. On what basis could Gelhaus be expected to know that Doe Four had “alerted” Andy?

The “should have known” standard is used to assess a person’s liability for something. By using it against Andy the D.A. blamed the victim in order to escape the fact that Gelhaus did nothing to identify himself as a police officer.

If Gelhaus was faced with a do or die situation it was one entirely of his own creation. It was one based on never once reasoning why.

PULLING  EMERGENCIES  FROM  A  HAT

The Santa Rosa District Attorney has not published all of relevant transcripts and reports so that it is not possible for anyone to conduct a truly comprehensive review. But what it has made public is downright shabby.  It has omitted and obfuscated facts, it has engaged in subtle character assassination of a dead victim while heroizing the subject of the investigation and it has played on semantics to shuffle issues and twist facts. 

Most shamelessly,  the investigative defense conjured up exculpations from thin air.  But before testing how thin the air is, it bears noting how the entire framework of the investigation has been subtly shifted.

An "exculpation" is not  a fact.  It may require and rely on predicate facts, but an exculpation is inherently a judgement.   It is the kind of judgement -- guilty or ex-culpated -- that juries are empaneled to render.   The ultimate issue in the Andy Lopez matter was whether to bring charges to trial before a jury.   In arguing an exculpation as a reason for not filing charges, the District Attorney simplified shunted the jury aside and negated the very thing juries exist for: to protect the public from official persecution, oppression or malfeasance. 

Even so, its attempted exculpation is literally based on nothing except the fluff of semantics.

The bottom line is that a deputy shot a boy without a moment of investigation beforehand. Thus, the D.A.’s ultimate investigative strategy was to paint the situation as one involving “exigent circumstances” because once “an emergency” exists the police — despite their years of training, professionalism and expertise are allowed to run around like chickens with their heads cut off....  

But there was no exigent circumstance. There were no complaints about a man brandishing a gun. There were no reports about a man with a gun making threats or shooting in the air. There was no report of anyone being kidnapped, robbed or held hostage. If there was no report of any life endangering crime in progress there can be no “emergency.”

It can be assumed that upon crossing West Robles, Gelhaus saw a figure carrying some kind of rifle. Even without considering that the neighborhood was a known gang area, that fact presented a basis for at least some concern. 

But what the D.A. labors mightily to confuse is that a latent potential for some harm is not the same as an imminent danger of such harm.

It is critical to understand the semantic confusion that the governments — including the Federal Government — use to justify their tyrannies. It bears repeating that the words “danger” and “threat” mean a potential harm. When police or agency spokespeople start blabbing about potential threats they are jabber-talking nonsense.

That they do it all the time and that people have been razzle-dazzled into swallowing the oyster doesn’t make it not nonsense. Do we speak English or are we just making sounds that sound like maybe something articulate is being said?

Properly used, the phrase imminent danger refers to that situation where there the probability of harm is clear and immediate — a virtual certainty.

It is true that a firearm can possibly be used to kill someone. But since when do we execute people without trial on the basis of a possibility? A possibility that by its very general and inchoate nature is even less than probable cause.

District Attorney Jill Ravitch - Spooking the Audience

The D.A.’s report makes a show of places the toy and real AK47’s side by side. Look how real! Look how dangerous! “The mere silhouette of such a weapon instills a sense of foreboding in the average person.” (RTP, p. 51)

But Gelhaus did not see the rifle from the side. If he saw it at all he saw if from behind at a distance of over 20 yards (at the intersection).

Nevertheless, let's be generous, let it be assumed that with his kryptonite vision Gelhaus could tell, in fractions of seconds, that the object was an AK47. Could he not also tell that the person carrying it was a small boy? Every other witness placed Andy’s age at 11 to 15.

Let us bend over more and suppose that Gelhaus was reasonably convinced that the person carrying what he reasonably believed was an AK47 was an adult.

SO FUCKING WHAT?

Absent any indication that the person was doing something which constituted an imminent threat to life, absent prior knowledge that the person carrying the rifle was a known crazy-man or known cold blooded killer, absent facts implicating a clear and present danger, what stopped Gelhaus from driving alongside, to get a closer look at the person and the “gun” and, if he felt it necessary, ordering the person to stop and drop from that position. He had a partner to cover him.

The investigative report simply pumps a "threat" out of nothing but a happenstance. 

The fact is Gelhaus took no steps to assess the situation any further. He took no steps to identify himself. He did not even use the microphone to blare out “THIS IS THE POLICE. STOP AND RAISE YOUR HANDS!”

Whether Andy heard “DropIt” or “DropItDroptIt,” he did what was completely natural and that was to turn around. This ought to have been reasonably foreseeable to the ever-so trained, veteran Gelhaus.

To distract from what Gelhaus failed to do, the report (once again) shifts the blame -- this time with a brazen cheek.   Ending 50 pages of a creative and omissive investigative defense, the District Attorney concludes that "Andy's actions of not complying with a law enforcement officer's clear commands to drop the weapon [and] turning toward that officer with an AK-47 in his hand" justified Gelhaus' conduct.

"Clear?"  Where did "clear" come from?

"DropItDropIt" coming from a voice behind one's back is not a "clear" command "clearly" coming from a law enforcement officer.
 

To complete the heap of canards, the report then contrives to metamorphose the non-emergency into a potential public danger.

If the cops reasonably believed that their own lives were in the balance that was a necessary and sufficient basis for their action. But the D.A. is not satisfied with that justification. The report asserts that “both deputies reported being in fear for their lives or that of ...surrounding citizens...”

This is standard rubber stamp burble for those who practice that language known as “Seeming English.” But on what basis were they concerned about the “lives” of surrounding citizens?

As already mentioned, they had received no complaints or reports concerning a man with a rifle. Their explanations did not indicate that they seen others in the vicinity or that they had counted who else was present, or that they saw Andy pointing the weapon at anyone.

This gratuitous burble without any factual basis aims simply to inflate the impression of "potential" (confused with "imminent") danger.  We are to supposed to  feel that the police were only Protecting the Public from a Public Threat!   But despite all the factual shuffling and semantic twisting, the investigative defense still can't quite suppress the heart of the matter. Gelhaus, it says, was faced with a “unpredictable situation.”

Unpredictable: unforeseeable, uncertain, unsure, doubtful, dubious.

On such an "unpredictable" basis, no one is safe from cop-violence; and certainly not from deputies suffering from a Rambo Complex.    Omitted from the investigative whitewash was any discussion of allegations that Gelhaus had engaged in proactive misconduct on at least two prior occasions.

Bumper Sticker Allegedly Used On Gelhaus' Personal Car

But even without considering such factors, the entire matter boils down to: see, shout and shoot. That was completely unreasonable and fatally violent. It amounted to an other instance of an all too familiar phenomenon on American streets: official murder.

In the next part of this analysis, we shall discuss what is called “the law” and how the judiciary have acquiesced in fomenting a culture of state-thuggery.

©Woodchip Gazette, 2014

Discovering Elephants in Mouseholes

Predictably enough, with the Supreme Court’s decision in Burwell v. Hobby Lobby (2014) 573 U. S. ____ , the dicta hit the fan.  The Court split 5-4 over whether a closely held corporation could be required to provide employee health insurance benefits which included pay-outs for abortion procedures.  The Court held that such a requirement contravened the Religious Freedom Restoration Act of 1993 (RFRA).

As I shall attempt to explain without writing a law review article, the majority’s opinion was a dishonest piece of work.   But although this article discusses the merits of the decision, it also seeks to discuss legal methodologies and to highlight the features of a jurisprudence which has become decadently over-refined and, at the same time, grossly animated by objects of desire.

We begin at the end. 

Most commentary in the press has summarized Hobby Lobby as holding that corporate employers have a First Amendment Right to refuse to support government mandates which infringe upon their religious beliefs.

However, the majority opinion concludes as follows,

“The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory  question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.”

Huh? 

“In determining whether challenged government actions violate the Free Exercise Clause of the First Amendment, ....

“...under the First Amendment, “neutral, generally applicable laws may be applied to religious practices...

“The RFRA prohibits the ‘Government [from] substantially burden[ing] a person’s  exercise of religion ....’”

After 48 pages of such ink, a reasonable man might be excused for thinking that the case was about First Amendment protections.  How could the court “not reach” the parties’ First Amendment claim?

Nowhere in the court’s opinion did it bother to explain what that First Amendment claim was.  Nor for that matter did the dissent. 

To verify our suspicion as to what that claim might be we chased down Hobby Lobby’s filed brief.  Indeed, that brief raised two separate claims: (1) that the insurance requirement was a violation of the Religious Freedom Restoration Act of 1993 and (2) “that corporations should be treated as natural persons for virtually all purposes of constitutional...analysis” including “freedom to speak, to worship, and to petition the government.”  (Resp. Brf. pg. 24.)

In plain words, Hobby Lobby argued that a for-profit, fictitious person had an affirmative right, under the Free Exercise Clause, to worship as it best saw fit.  How this might be possible would present an interesting theological question.  But as a merely legal issue, since it is an accepted principle that ‘the right to believe includes the right to abstain,’ the implication from the First Amendment premise was that Hobby Lobby, Inc. had a direct First Amendment “worship-right” not to be forced to subsidize abortions.

However, the Hobby Lobby brief never quite drew that conclusion.  It never said “under the First Amendment... Q.E.D.”   Instead its brief slid back into talking about a statutory violation of the RFRA. 

That act provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”  Under the act, once a “substantial burden” is shown to exist, the government must then prove that “application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Thus, under the Act, any government regulation which prohibits some religious practice or which requires conduct that contravenes a religious tenet is illegal if the prohibition or requirement is more than trivial and is not really, really necessary.  For example, an orthodox Jew deployed to the NORAD Command, could be required to press the red button on the Sabbath on the basis that defense from a nuclear attack was an outweighing “important public interest.”

There was no question among the justices that this is what the RFRA in fact requires.  Nor was there any question that the overall purpose of the Religious Freedom Restoration Act was to implement and reaffirm First Amendment religious rights.

The reason the act was passed was that, in Dept. of Human Resources of Ore. v.  Smith  (1990) 494 U. S. 872, the Supreme Court had promulgated a rule to the effect that prohibitions on religious practices (such as eating peyote) were permissible under the First Amendment so long as the purpose of the rule was not aimed at discriminating against a religion per se but was part of some general, namby-pamby, public health, safety and welfare scheme. 

Of course, under that amorphous standard, the government could run roughshod over any number of religious practices and, as Ginzburg’s dissent noted, the RFRA passed through Congress without so much as a peep.  The purpose of the RFRA (again, as Ginzburg noted) was to restore the Supreme Court’s own prior jurisprudence.

Under previous, Supreme Court cases, prior to Smith, any infringement on the free exercise of religion was subject to “strict scrutiny” which is the short way of saying that it must be justified by a really compelling state interest which cannot be achieved by other or less restrictive means.

Smith had lowered the bar for government interference with First Amendment rights, allowing infringements so long as government lawyers could conjure up some reasonable sounding excuse.  This, as I shall explain further on, was a key aspect of the Court’s 20th century “functional” jurisprudence.  In essence, through RFRA, Congress ordered the Supreme Court to apply the stricter standard of its own previous cases.

But those prior Supreme Court cases were not decided under the statutory authority of the RFRA (which after all didn’t didn’t exist) but under the First Amendment itself.  

And so we have come full circle.  The reason the Hobby Lobby brief slid imperceptible from a First Amendment premise into talking about a statutory violation of the RFRA is that there is no substantial difference between the two.  It is a truism that the Constitution means what the Supreme Court says it means; and the Act simply restated what the Supreme Court said the First Amendment meant in the context of religious exercise. 

Since at least the days of Euclid, it has been an accepted axiom of thought that things equal to a third thing are equal to one another.  If the RFRA revived the Supreme Court's pre-existing First Amendment jurisprudence, then an issue decided under the RFRA is decided under the Supreme Court's First Amendment jurisprudence, which is to say that the case is decided "under the First Amendment."

Thus, the majority’s concluding dictum that it was “not reaching” the First Amendment question was pure and simple pixy dust.   A “non-First Amendment, Free Exercise Issue,” is about as honest and upright as a “non-tax tax.”  Both are part of a jurisprudence which consists of “distinctions without a difference.” 

That the Court could even engage in such mutterances illustrates how caselaw has become overly-clever, overly-refined and intellectually decadent.   To understand how the majority could get away with such skullduggery it will help to get  a sense of how Supreme Court jurisprudence has become an impenetrable thicket of compound complexities and hypothetically contrived distinctions.  Any point can be argued six ways to Sunday, even without recourse to the bad grammar and lax thinking which currently infuse any given case. 

In terms of legal methodology, the Court’s cases are burdened by dicta.  Dicta means words, phrases, comments, general bon mots which are not necessary to the decision.

Every case ends in an Order such as, “judgement affirmed” or “judgement reversed.”   That order, most strictly speaking, is what the case stands for; e.g. “on an appeal from a denial of a petition for habeas corpus, the judgement of the lower court is reversed.”

However, such a procedural summation does not have much precedential value without some reference to the substantive issue which the case decided and on which it turned.  This is called the ratio decidendi — what the logic was which tipped the balance one way or the other.

Here things get dicey because the result in any case may depend on a series of questions or string of issues.  Traditionally, good legal thinking follows what might be called the “Straight Line Rule” — the ratio decidendi consists in the minimal necessary steps to get from point A to point B.   Minimal includes not only least in number but least in weight or importance.  A court should not decide a case on a grand, juicy ground, if it the case can be decided on a small, dry, boring one.  These rules promote a discipline of economy.  It is a fact of life that the more anyone talks (or writes) the more he or she simply creates grist for controversy.  Courts exist to settle controversies not to stir up the pot by writing Op-Eds or “advisory opinions.”

Although some of the most famous cases have violated precisely these rules, by and large, the Supreme Court has abided them.  But in the past 50 or so years, the Court’s cases have increasingly been larded with dicta and, as a result, have become lengthy, disputatious advisory opinions arguing over something which is most charitably described as “judicial philosophy.”

All too often opinions cite other cases not for what they actually held but for speculations, theorizings, observations and  even throw away lines.  All too often, opinions are laced with, “As we have said...”  or “As Justice So and So observed...”  One might as well take all of literature as precedent.  A certain amount of fat gives lean meat its flavor; simply frying fat produces goo.

In addition to the goo of dicta there are the thin shavings of legislative over-refinement.  All too typically the Hobby Lobby case presented a daunting array of citations such as: “26 U. S. C. § 5000A(f)(2)” or “§§4980H(a), (c)(2)” and “45 CFR §147.131(b)” or “78 Fed. Reg. 39874 (2013)” and references such as “RFRA through RLUIPA see 42 U. S. C. §2000bb-2(4) (2000 ed.) (incorporating §2000cc-5).” 

The overall result, as Edward Gibbon observed of late-empire Roman law, is

“[an] infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase and no capacity could digest.”

Supreme Court literature has the tedious quality of a senescent old man talking to himself and quoting himself for nuances and propositions that  bear an idiosyncratic significance comprehended by himself alone.  

A contributing cause of this wretched state of jurisprudence is plain bad grammar.  After all, most of the justices are products of the post-war non-educational system.  Obama managed to get through Columbia without knowing what a “catechism” was and Justice Sotomayor recently wrote about "ongoing emergencies”  which "encompassed ... a threat potentially to the police" and "possible danger to the potential victim." (Michigan v. Bryant (2011) 562 U.S. ____.)

Huh?  An emergency is an ongoing possible potential harm ("danger") to a possible victim?

Many years ago, a defense attorney was dragging out a proceeding by asking verbose, compound and circumlocutional questions.  Leaning forward, the old geezer judge implored the lawyer to “just get to the point.”  “You honor,” the lawyer replied hotly, “I am obligated to defend my client to the best of my ability and words are the tools of my trade!”   “Well counsel,” the judge replied, “I suggest you get a new set of tools.”

The Supreme Court might well heed Ol Geezer’s advice.  It’s opinions are littered with pleonasms, dangling participles, composite noun-adjectives as substitutes for subordinate clauses and pseudo-concepts such as “objective reasonableness,” as distinguished from what? From,

"the reason of your reasons does with reason convince me of your comeliness” (Don Quixote, Ch. 1.) ? 

Do we really need to be “thinking” in terms of “subjective reasonableness” when the word “arbitrary” will do just as well?   As George Orwell observed in a delightfully trenchant article, "This mixture of vagueness and sheer incompetence is the most marked characteristic of modern English prose, and especially of any kind of political writing."  (Politics & the English Language (1946).)

Words are indeed the “tools of the trade” and “the Law” is nothing but words.  Bad Grammar is a major cause of the current deplorable state of American jurisprudence.  

But thinking is not possible without grammar.  (Unless one is Hillary Clinton in which case “thought” is reduced to adjacent but disconnected phrases and labels exploding in the mind like some psychedelic light show.) 

Bad grammar cultivates disjointed thought. An example of lax thinking was found in the Hobby Lobby majority opinion in which Justice Alito wrote that if the complaining companies “do not comply [with the insurance requirement] they will pay a very heavy price; as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.”

To say as much confused the burden of the requirement with the burden of punishment for violating the requirement.   It is like saying that a requirement to wear seat belts is a “heavy burden” because the state might choose to punish a violation of the seat belt law with three years imprisonment.  The punishment may be excessive, but the requirement itself (to fasten one’s seatbelt) is not a “substantial burden.”

In all events, when the law becomes a heap of hyper-clever and subtle distinctions mushed together with bad grammar and sloppy thinking, anything goes.   There is no there there to guide the mind and any decision is not the deductive product of precedent but rather a manifestation of Will.  “I want” becomes the real determinant of any issue and all the rest is a masquerade of articulate howling. 

The Supreme Court justices are reportedly sensitive to the charge that they are mere second tier politicians.  The actual situation is worse.  When Will is the driving force behind Law, the Law ceases to exist.

Law, as I have said, is words and either words guide or they don’t.  If words do not guide or inform a decision then they become mere covers for an exercise of will.  Desire for a result, and no more, is the ground of decision.    One of the reason dicta is so prevalent is on account of the fact that free form "functionalist" speculation as to social goals and purposes has replaced drawing delineated inferences from existing precedents.

In Germany, the will as law was called “teleological jurisprudence.”  The law will mean what it has to mean in order to fulfill a decided upon purpose.  In the United States this methodology is referred to as “outcome determination.”  One picks a desired “social policy goal” and scrounges up the “rationales” needed to get there.  This method is taught in law schools and is considered to be be a kind of sophisticated real-jur. 

It never seems to have occurred to the deans of law schools that once the law is presented a collection of “rationales” prostituted to a result there is no good reason to take any of it seriously, unless one just happens to like being a law review monkey. As for the rest of us, once again, Gibbon,

"the Romans were oppressed at the same time by the multiplicity of their laws and the arbitrary will of their master."

And so, in the Hobby Lobby case, the deciding factor was no more and no less than the arbitrary will of the majority.  The majority fluffed up its opinion with a lot of blabber about how “sincerely” held were the beliefs of this “family corporation”  whereas the minority fluffed up its with yap about how access to “reproductive care” (aka non-reproductive abortion) was essential to “womens right to participate in the work force.”  Blah, blah, blah.

"The books of jurisprudence were interesting to few and entertaining to none; their value was connected with present use, and they sunk for ever as soon as that use was superseded by the innovations of fashion, superior merit, or public authority." (Op. Cit.)

To the extent that Hobby Lobby involved an actual legal principle, it  had nothing to do with the burdens of insurance or the viability of “reproductive care” but with the question of whether the RFRA applied to artificial persons (i.e. corporations).  In this regard, whichever way the decision went, it could have gone in three to four pages; and, in my opinion, the 54 pages of fluffy rationales which surrounded the core were intended to obfuscate the shabby rot.

The majority held that the RFRA applied to closely held corporations, citing the Dictionary Act, (1 U. S. C. §1) to the effect that  “the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
 
The argument was sophomoric.  They might as easily have cited Websters or WikiWord.   It was seemingly direct and minimal.  But if it was sufficient, then how to account for the plethora of pages that followed?

All meaning is contextual and the issue was not the abstract and generally possible meanings of the word ‘person’ but whether, in context, Congress intended to include that part of the range of meanings which meant “corporations.”  It did not.

As has been said, no one disputed that the purpose of the Act was to over-rule the Smith decision and to restore the Supreme Court’s strict scrutiny standard for evaluating impacts on religious exercise. But Supreme Court decisions prior to the RFRA had never held that for-profit corporations had “worship-rights” under the Free Exercise Clause.  Nothing in the Act’s terms or stated purpose indicated that Congress intended to expand the Supreme Court’s First Amendment so as to give blanket First Amendment rights to any and all types of corporations. 

By ruling that the RFRA expanded prior Supreme Court First Amendment decisions, the majority actually did reach an issue it said it was not reaching.  It just masqueraded the result.

Alas, the pristine cleverness of the majority's ran smack into the wall of impossibility.   On  its plain face the statute excluded corporate persons because it is impossible for a corporation to worship.  Simply put, no one in their right mind would think that a statute which prohibited discrimination against persons in public accomodations applied to Ma Bell, because corporations do not sit at lunch counters or on busses.

No matter.  When logic fails, get indignant!  Pristine absurdity was followed by a sophistical tour de force  in which the majority chastised the dissent for not proving how a corporation “cannot exercise religion.”  “Is it because of the corporate form?” the majority asked rhetorically.  Would the minority be so bold and foolish to assert that mere corporate form prevented General Motors from taking Communion?! 

In answer to its own rhetorical question the majority replied that  “nonprofit corporations can be protected by the RFRA”  But this answer switched issues.  The question the majority asked was not whether the RFRA protected nonprofit corporations but how does a corporation exercise a religion.  How does it pray?  How does it repent?  How does it laud the Lord?  How does it earn eternal life?  (In fact, why should it even bother seeing as corporations by definition are of “indefinite duration.”)

This, then, is how the majority’s argument went: (1) the RFRA applies to all “persons”; (2) how can a corporation not exercise religion?  ergo (3) the RFRA applies to nonprofit corporations.   Normally this is called “talking in circles.”

Not only did the majority duck its own rhetorical question it followed up with a non-sequitur.  The reference to “non profit” corporations was an allusion to the fact that the Common Law has always recognized “religious corporations” such as monasteries, seminaries and bishoprics.  These are sui generis and have their origins in the medieval fact that ecclesiastical entities were, at one time before the nation state, their own jurisdiction independent of Crown authority. It was that independence which Article One of Magna Carta vindicated and which ultimately became our First Amendment, as updated for the bourgeois state.

To smooth over the inconvenience of a non-analogy the majority resorted to the trite but oft used analogy-by-function.  As already noted, this is the favorite hobby horse of modern jurisprudence. In this case the functionalist argument was was that just as a religious corporation “furthers individual religious freedom”  so too “allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.”  To say as much both begged and shuffled the question. 

The question at issue was whether the RFRA, by its terms, applied to corporations in the first place.  The begging began by shifting the issue from the Greens and Hahns as clothed in corporate form to them as individuals “naked before their God.”  This switch was followed up with a second which retrieved an answer from the supposed function or societal purpose of the statute.

As precedent for its functional analogy the majority cited Braunfeld v. Brown (1961) 366 U.S. 599 which had held that a Sunday blue law did not infringe an Orthodox Jew’s religious practice of the Sabbath.

The Braunfelds were “merchants engaged in the retail sale of clothing and home furnishings.”  As observant Jews they closed up shop on Saturdays.  Nothing in the law required them to be open on Saturdays.  Their argument was that they had a religious right to be open on Sundays. 

As thus summarized, Braunfeld's argument was fallacious.  Because God enjoined labor on Saturdays does not mean that He required work (as a religious observance) on Sundays.

The Court (then in its functionalist hey day) rejected the claim, ruling that “the establishment of a day of community tranquility, respite and recreation, a day when the atmosphere is one of calm and relaxation, rather than one of commercialism”  was a legitimate secular police function which served the desirable goal of  “improving the health, safety, morals and general well-being of our citizens.” 

The Court’s ruling was as grotesque as Braunfeld’s claim.  Blue Laws were not enacted for a secular health and safety purpose but on the basis of pure and plain Biblical injunctions. The correct decision would have been that by being forced to close on Sundays a Christian observance of the Sabbath was imposed on the Jewish Braunfelds. 

As Scalia has pointed out, such “functionalization” of the law allows the Court to re-write statutes and provisions in whatever way it pleases. By the same token it allows judges to by-pass arguments they cannot refute.

So, what did the Hobby Lobby majority extract from this precedent? “In Braunfeld, 366 U. S. 599, we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims.”

In other words, according to the majority Braunfeld stands for a proposition not reached in the case.  We have truly reached a superlative state of jurisprudence when, going beyond even dicta, a case stands for nothing it ever considered. 

Not only was the corporate issue not reached it was not even latent.  The Braunfelds had not sued as a corporation or under the RFRA, but (as the majority could not but note) as individuals under the First Amendment which it will be recalled was a claim supposedly not reached in Hobby Lobby. 

Ginzburg’s dissent rightly pointed out that Braunfeld and similar cases had involved individuals and never considered the question of “corporate” exercise of religion.

Moreover, Braunfeld  involved at most a sole proprietorship and as Ginzburg noted, “[i]n a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity ...”

She likewise pointed out that “religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations.  “Workers who sustain the operations of those corporations commonly are not drawn from one religious community.” 

In tandem, Ginzburg observed that if corporations served to protect and further the religious scruples of the Hahns and the Greens, what was one to do about the the religious beliefs of other employees who might ascribe to “sincerely held” religious values different from those of the Greens.   After all, under corporate law, the Hahns and the Greens were just as much "employees" of the corporation as the night janitor.

In Ginzburg’s view, there was an obvious and fundamental distinction between non-profit and for-profit entitities and there was no indication that the RFRA was designed to encompass both.  “Congress” she said, “does not hide elephants in mouseholes”

Ginzburg was spot on.  The defect in her dissent was that she tacitly acquiesced in the majority’s shell game  that the First Amendment issue had somehow not been reached.  Moreover her trenchant refutation of the one critical point in the case was buried in fifty pages of blather about reproductive rights and the benefits of a uniform health care system. 

In fairness to Ginzburg, she doubtless felt compelled to dissect and reply to each of the fallacious points the majority had tossed about like so much hay.  But it  would have been more efficacious in my view, if she had adhered to the premise of good judicial practice by reaching only the least, minimal and necessary question in any case. 

If the RFRA applied to non-profit corporations the case was all but decided on that point.  If it did not, then the case would have to proceed to the First Amendment” claim as such.  Since, in Ginzburg’s view, the RFRA did not apply to she ought then to have addressed why (in her view) for profit corporations did not have religious rights under the First Amendment.

But Ginzburg as much as her colleagues is a creature of capitalism and is unlikely to discard the wool sack on which she sits.

The Court has never squarely confronted whether the Bill of Rights applies to artificial persons. Instead, it has adopted an underhanded, incremental approach which has over time resulted in the civil enfranchisement of corporations which could never be justified in the light of plain day.

The skullduggery began in the notorious case of Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886), in which the court reporter, a former railroad mogul, took it upon himself to write into the headnote of the case that all of the justices were of the opinion that the Fourteenth Amendment applied to corporate persons.   The case opinion said no such thing and never reached that issue.

Even if it had reached the issue, forthrightly and on the up and up, it would not have had a leg to stand on.  

The underlying theory of the Bill of Rights is that it constitutes a reservation of primordial natural rights by natural people as against their duly contracted government.  It is not a grant of right but a reservation of birth-rights upon entering into the “social contract.”

Corporations, by contrast, are creatures of the State created by the State for such purposes and under such terms as the State shall determine best serves the public interests.  Any extension of privileges or immunities to a corporation is a matter of grace not right.  It is as simple as that.

For profit-corporations are allowed a plethora of immunities and benefits not allowed to natural persons.  They are allowed to “headquarter” themselves in one state so as to avoid paying taxes in another.  They are allowed to arise phoenix like from the ashes of bankruptcy.  Corporations are endowed with these public gifts, benefits and emoluments because they are deemed, ultimately, to serve the public interest by generating economic activity and wealth for all. 

Accepting the premise that the corporate entity serves the overall public good, there is no reason why the State cannot also impose such obligations on its creatures as it sees fit.  If a corporation wants a cornucopia of benefits for itself it can be required to provide other benefits for its employees on such terms as the State may require.

Nor is there any need to make a conundrum over newspapers and book publishers as corporations.  Because the corporate entity is a creature of the state, the government can choose to exempt the New York Times from any conceivable restrictions on its privilege of free speech. 

Should the government choose not to do so, the remedy lies in the ballot box.  If the owners of the Times want to claim an absolute free speech under the First Amendment as such, they can disincorporate and print their paper as sole proprietor individuals. 

This is not ignore the facial problem created by the use of the word “person” in the Fourteenth Amendment. Despite the fact that the legislative history of the amendment conclusively shows that its drafters were thinking solely in terms of natural persons, corporate henchmen on or arguing before the Court have contrived to use that mousehole as the the gate through which to drive an elephant.

In fact, viewed historically, the majority’s work in Hobby Lobby falls into the category of plus ça change.

In the present case, the contrivance goes even further by pretending not to reach the constitutional issue while purporting to decide the case on “narrow” statutory grounds.  As explained, that is normally considered good judicial practice but not where the two issues are to all intents and purposes the same.  In this case, there was no truly distinct statutory ground of decision.  The majority decided a major constitutional issue while piously pretending not to. 

If the Supreme Court refuses to confront the fundamental issue head on it is because it prefers a jurisprudence of incremental decisions based on contrived dicta ultimately derived from a headnote.  Its plain and evident aim is to corporatize civil society which necessarily means reducing natural persons to slaves.  The minority prefers to tinker around the edges because it too refuses to confront the fundamentals.

Not surprisingly and focusing on their own objects of desire, opponents of the decision have excoriated Hobby Lobby as “an attack on women.”   However, the principle at issue is broader than particular benefits and concerns the composition of civil society.  

There is an elephant in the room indeed.  It is a blown up contrivance of our own creation and it is time for the mice to pull out their pins and bust the balloon.

©WCG, 2014

The Pope's Hour Glass

ST. AMBROSE

"You are not making a gift of what is yours to the poor man, but you are giving him back what is his. You have been appropriating things that are meant to be for the common use of everyone. The earth belongs to everyone, not to the rich."

~oOo~

Suddenly Pope Francis has become the darling of the liberal press for having condemned the moral, social, economic and environmental bankruptcy of liberalism.

Media mavens crow with delight and act as if now, finally, there is a pope who has come around to our way of thinking.  They quote those morsels of his "Apostolic Exhortation" in which they delight and ignore those which they consider to be churchy-preachy stuff. It is a pathetic spectacle devoid of any conceptual comprehension.   

Typical of the idiocy were statements that "Pope Francis, in his simple black shoes and house, is ... uniquely qualified to make the Vatican an outpost [sic] of Occupy Wall Street " (BBC)  and  that "he has expanded his mandate [sic] to economics with a groundbreaking screed [sic] denouncing "the new idolatry of money." (Guardian)  Rather dubiously, the Guardian rattled on to say that Pope Francis was "the first globally prominent figure" to figure out that grotesque "income inequality" is the single most critical economic issue facing society and that it cannot be solved by trickle-down theories.  

The best that can be said of the enfatuation is that This too shall pass.  In substance, Francis has said nothing the Church hasn't said before.

In 1890, Pope Leo XIII issued a comprehensive  encyclical on socio-economic justice in which he condemned the "enormous fortunes of some few individuals, and the utter poverty of the masses."  (Rerum Novarum)  "Justice," he continued, "demands that the interests of the working classes should be carefully watched over by the government, so that they who contribute so largely to the advantage of the community may themselves share in the benefits which they created."

In 1931, after noting that Leo XIII had "boldly attacked and overturned the idols of Liberalism," Pius XI issued his own encyclical stating, "Free competition has destroyed itself; economic dictatorship has supplanted the free market; unbridled ambition for power has likewise succeeded greed for gain; all economic life has become tragically hard, inexorable, and cruel." (Quadresimo Anno.) "Socialism," he noted, "inclines toward and in a certain measure approaches the truths which Christian tradition has always held sacred."

In 1967, in Populorum Progressio, Pope Paul VI, returned to the issue of economic disparity, in which he applied his predecessors teachings and themes to the institutional and inter-national level

Lastly, in 2009, Pope Benedict, issued Caritas in Veritate, a comprehensive distillation of the Church's socio-economic doctrine. "[T]the social doctrine of the Church," he wrote, "has unceasingly highlighted the importance of distributive justice and social justice ... [I]f the market is governed solely by the principle of the equivalence in value of exchanged goods, it cannot produce the social cohesion that it requires in order to function well. Without internal forms of solidarity and mutual trust, the market cannot completely fulfil its proper economic function."

Benedict's encyclical received at best passing mention in the western media. If there are "firsts" here it is rather in the fact that the media has finally bothered to pay attention.

This is not to say that Pope Francis has not said anything of note.  It is to say, rather, that he has only reiterated what the Church has always said, although he has done so in blunt language suited for the times.

The Church's doctrine on wealth and its creation has consistently sought the greater good of the community with emphasis on the needs of the poor. It decried the pursuit of wealth well before that pursuit got exalted into an economic theory.

"God does not demand much of you. He asks back what he gave you, and from him you take what is enough for you. The superfluities of the rich are the necessities of the poor. When you possess superfluities, you possess what belongs to others.   . . .  You give bread to a hungry person; but it would be better were no one hungry, and you could give it to no one. You clothe the naked person; would that all were clothed and this necessity did not exist.  (St. Augustine, Exposition on Psalm 147, 12; Tractate 1 John 8,8.)

In so saying, Saint Augustine (354-430), as Jesus, hearkened back to the Jewish prophetic tradition of concern for the weak and dispossessed. This tradition was unique, inasmuch as economic injustice did not appear as a theme in Helleno-Roman literature. The doctrinal and practical divergence which arose with the Jews was that Jews reserved these admonitions for themselves whereas Christians extended the message to the peoples of the earth.

The Christian message is something like the dual cones of an hour glass, going from great to small and from small back to great:  As God loves you so love one another; as you want for yourself, so do unto all others.

Absolutely nothing has changed in this doctrinal and practical teaching, although the Church has adjusted its expression in differing circumstances and even though the Church, both in its institutional and individual aspects, has often failed wretchedly in its application.

The pope's exhortation, entitled The Joy of the Gospel, is the latest iteration of the Christian mission in the world.  What the liberal media has ignored is that the pope's exhortation is about doctrine and practice, faith and works, as inseverable aspects of the same coin which must be rendered unto God.

What we would like to do, as summarily as possible, is to contextualize the pope's economic points within the Church's larger social and moral teaching.  No one really needs the pope to point out that an unregulated market does not work.  The only people who adhere to the unmitigated nonsense of a "free market" are utter morons or  shameless predators who richly deserve to be broken slowly on the wheel.

Nor need we look to theologians for a mechanical solution to the breakdown in the economic engine.  The Church has always stated that technical solutions are the proper province of technicians.  What the Church does offer is a modus vivendi -- a social habit -- which prevents any socio-economic mechanism from being misused or misdirected.    Both Francis and Benedict have called a "time out" not just on economic liberalism but on the entire construct of liberal rationalism which underlies the Reformation, the so-called "Enlightenment" and capitalism.

The inextricable connection between economic, social and political liberalism is nothing new.  But as the poisonous seed bears increasingly rotten fruit it becomes more urgent to focus on the root cause of the present social, economic and environmental dysfunction which is devouring everything.

In the Church's view, this dysfunction is the result of a dichotomy between public and private morality which seized the Western World in the past 500 years and which began with Martin Luther's adamant assertion that "justification" for one's existence arose through faith alone without any necessity of good works.  At the same time, rationalists, such as Francis Bacon, denied the utility of faith, reposing hope in the progress of empirical reason. These two revolutionary premises gave rise to a dichotomy between subjective and objective realities, between form and function, between embellishment and workability.

Luther effected a radical departure in our mode of being.  In classical Greece, the word liturgy referred to public works of various sorts -- from military outfitting  to funding religious festivals -- undertaken by the wealthy for the community.  These "people-works" were a species of ad-hoc taxation based on the idea that the rich had a duty to the city state which had nurtured them. 

In the Early Church, this liturgy was democratised.  An offertory of goods for the poor was part of the original koinonia or "communion," meaning joint participation and sharing.  "Generosity  gives proof of our gratitude ... This public service does more than supply the needs of the saints; it yields a rich harvest of thanksgiving in the name of the Lord." (2 Cor. 9:12-13.)  In the Sixth Century, Saint Benedict extended the concept of "communion" so as to encompass a way of life which united work, charity and prayer in a seamless whole.  His rule was distilled in the motto ora et labora.

Protestantism effected a schism between "ora" and "labora" which was ideologically  necessary for the free market. This is not to say that Protestants did not undertake charities.  But by relegating works unessential to faith, they rendered faith irrelevant to works.  The free market could do its thing while free churches did their own separate and apart thing.

The Invisible Hand is simply the economic correlative of  Calvinism's predestinarian god.  For the market as for individuals, for profit as for grace, God does and will guide everything for a greater good we cannot possible comprehend.

By the same token, "works" -- that is, the entire compass of material and pragmatic considerations -- became the sole province of the rational sciences be they physics, biology, sociology, pyschology or business.  As Luther had changed our mode of being, Bacon altered our mode of thinking.   Empirical proof was its own justification.   "Does it work?" became the sufficient criterion.  The rest was "optional poetry" -- if you went in for that sort of stuff.

This dual revolution was summarily distilled by the Twentieth Century Catholic theologian Hans Urs von Balthasar, 

"[W]whenever the relationship between nature and grace is severed (as happens... where 'faith' and 'knowledge' are constructed as opposites), then the whole of worldly being falls under the dominion of 'knowledge', and the springs and forces of love immanent in the world are overpowered and finally suffocated by science, technology and cybernetics. The result is ... a world in which power and the profit-margin are the sole criteria, where the disinterested, the useless, the purposeless is despised, persecuted and in the end exterminated .... (Love Alone,  pp. 114-15).

Although the full implications of the protestant and rationalist revolutions did not emerge until the Enlightenment, both rested on the foundation of Liberalism -- freedom of conscience, of thought, of experiment, of trade.

Today, we accept this premise without pause or blush and regard liberalism as natural and self-evident.  But while freedom of thought and action might be good, freedom from accountability -- ir-responsibility -- is not.  It is the very nature of liberalism that it cannot provide a singular and constant referrent; rather, its nature is continual and fluid change.

Justice Brandeis' famous remark about testing truth in the "market place of ideas" represented the ultimate fetishisation of liberalism.  It simply assumed that an invisible hand (in the form of an irresponsible consensus) would guide the emergence of "whatever is truest and best."

In tandem, the notion that Man is the measure of all things found its ultimate reductionism in the individualism of man as the measure of everything -- what Alexis de Tocqueville scored as the single most salient characteristic of Anglo-American society.

Those in the press who are heartily applauding Pope Francis' "exhortation" accept these liberal premises tacitly and by default.  But the Church has always rejected such a fundamentally fractional and irresponsible attitude. The Church's position was and remains that faith and works are correlatives neither of which can exist without the other or independently of community.

The core assertion of liberalism was condemned by Pope Leo XIII in his encyclical Libertas (1888). It was condemned again by Pope Benedict, in Spe Salvi, within a broader critique of rationalism,

"How could the idea have developed that Jesus's message is narrowly individualistic and aimed only at each person singly? How did we arrive at this interpretation of the “salvation of the soul” as a flight from responsibility for the whole, and how did we come to conceive the Christian project as a selfish search for salvation which rejects the idea of serving others?  In order to find an answer to this we must take a look at the foundations of the modern age  ... [and its] new correlation between science and praxis....  It is not that faith is simply denied; rather it is displaced onto another level—that of purely private and other-worldly affairs—and at the same time it becomes somehow irrelevant for the world.  ... As the ideology of progress developed further, joy at visible advances in human potential remained a continuing confirmation of faith in progress as such.  ...  [T]wo categories become increasingly central to the idea of progress: reason and freedom.  [pursuant to which]  which man becomes more and more fully himself.  In both concepts—freedom and reason—there is a political aspect.  .... Reason and freedom seem to guarantee by themselves, by virtue of their intrinsic goodness, a new and perfect human community.  (Spe Salvi, §§ 16-18.)

Although Leo XIII had framed his criticism of liberalism within the Thomistic dichotomy between natural and divine law, Benedict XVI, attacked the Enlightenment on its own terms taking explicit swipes at Francis Bacon and Immanuel Kant. (Op cit, supra.)

Benedict went on to criticise Marxism -- not because of Engels'  trenchant description of the "dreadful living conditions" of the working class and not because of the "great analytical skill" with which Marx critiqued capitalism and or prescribed "the means for radical change" -- but because of his tacit acceptance of Baconian and Kantian rationalist premise.

"The nineteenth century... continued to consider reason and freedom as the guiding stars to be followed along the path of hope.  .... Progress... no longer comes simply from science but from ... a scientifically conceived politics that recognizes the structure of history and society and thus points out the road towards revolution, towards all-encompassing change    ... [Marx] simply presumed that with the expropriation of the ruling class, with the fall of political power and the socialization of means of production, the new Jerusalem would be realised  ...   His real error is materialism: man, in fact, is not merely the product of economic conditions, and it is not possible to redeem him purely from the outside by creating a favourable economic environment." (Spe Salvi, §§ 20-21.)

From Leo to Benedict the Church has contextualised economic issues within a larger theological framework and has criticised an exclusive reliance on "reason" and "freedom" as productive of its own "pathologies."  It is within this  trajectory that Pope Francis should be understood when he states,

"God, in Christ, redeems not only the individual person, but also the social relations existing between men.  ...  It follows that Christian conversion demands reviewing especially those areas and aspects of life “related to the social order and the pursuit of the common good”.

In so saying, Francis concisely summarised a cluster of related issues and reiterated the Church's rejection of theological and economic individualism.

The Church rejects the notion that faith is merely an "interior attitude" or subjective "disposition."  (Spe Salvi § 7.)  "Salvation," Pope Benedict said, "has always been considered a 'social' reality." (Spe Salvi § 14)  In other words, faith is communitarian and the "habit" or "substance" of faith can only arise within community.

"Such a community," Pope Francis says, "has an endless desire to show mercy, the fruit of its own experience of the power of the Father’s infinite mercy."  As God for us so each of us for one another.

Thus, the core of Pope Francis' "exhortation" was not merely a critique of free-market capitalism, but a critique of the those tenets of Enlightenment Liberalism which are grounded in the individual pursuit of happiness  (and profit) as "God gives him the light to see right."

"Society," Francis said, "needs to be cured of a sickness which is weakening and frustrating it."  The "inordinate defense of individual rights or the rights of the richer peoples" needs to be replaced by a spirit of solidarity and this "presumes the creation of a new mindset which thinks in terms of community and the priority of the life of all over the appropriation of goods by a few."

In so saying, Francis echoed his predecessor's assertion that "authentically human social relationships of friendship, solidarity and reciprocity can also be conducted within economic activity, and not only outside it or 'after' it. The economic sphere is neither ethically neutral, nor inherently inhuman."

In rejecting the dichotomy between faith and works as an anti-social error, Benedict and Francis  also implicitly reject our atomised concept of society.   For them,  as for St. Benedict, life is not complete at any point unless penetrated with prayer the first intonation of which is to displace self in favour of others.  The Church does not deny individuality, but asserts that it has true meaning only as nourished by and subservient to the whole.

What Francis has said is not just that our economy is sick but that our entire concept of societas -- of community -- is sick.  We are oriented inward on ourselves, our improvement, our self-maximization and our consumption, where we should be oriented outward toward service as servi servorum dei

At the same time Francis was not simply internalising a social issue as if economic injustice were were capable of  being rectified soley by personal attitudinal adjustments.

“A society becomes alienated [from itself]  when its forms of social organisation, production and consumption make it more difficult to offer the gift of self and to establish solidarity between people.  .... The need to resolve the structural causes of poverty cannot be delayed,  ...  As long as the problems of the poor are not radically resolved by rejecting the absolute autonomy of markets and financial speculation and by attacking the structural causes of inequality...."

In other words, part of our attitudinal adjustment, part of our "prayer", must be to lay hands on the structural problem and craft a different socio-economic mechanism.

The "progressive" but basically liberal-minded descendants of the 16th century rationalist reformers deny the essentiality of faith while focusing solely on social justice, as enlightened solely by the empiricism of their personal experience and taste.   They want to enlist those material aspects of the Pope's exhortation while ignoring his greater spiritual orientation.  Such a bifurcated approach will lead nowhere because the present situation is the inexorable result of the bifurcation to begin with.

Whether the Church has a workable liturgeia to offer in place of the free market is another matter.

~oOo~

"I know both those guys [Dimon and Blankfein];  they are very savvy businessmen.  I, like most of the American people, don’t begrudge people success or wealth. That is part of the free-market system.”


©Woodchip Gazette, 2013

Obamination in Syria

        

It is difficult to believe that anyone would fall for the razzle dazzle that the Obama Administration is serving up in support of its desired intervention in Syria.

The Government's case that "Assad" used chemical weapons against civilians does not amount to anything more than alleging he had the capacity and opportunity to do so.   That is certainly the case, but any moron ought to understand that opportunity does not equate with commission.  The Administration has proffered no evidence (far less proof) that Syrian forces deployed the weapons on the dates in question.

That some kind of chemical attack took place appears to be undeniable.  The question of who mounted it depends on an antecedent issue; namely, the capacity and opportunity of the rebels to deploy such an attack themselves.  Curiously enough, the Administration did not argue that the rebels were incapable of mounting such an attack, although the British Prime Minister, David Cameron, did.  Still, as Cameron stated to the House of Commons, the evidence that the Syrian Government deployed chemical weapons was a "judgement."

In the absence of objective factual evidence going beyond circumstances of opportunity, one is left with arguments over motives.  On this plane, it is clear that the argument tips in favour of the Syrian Government, which could have had no reasonable motive for triggering international outrage by mounting a chemical attack.  That the rebels would wish to mount a false flag operation is equally obvious on the other side.

At best, there is simply no reliable evidence or credible argument that the Syrian Government is responsible for the attack.    But the issue of who smoked out whom is a red-herring in any event.

Assuming for the sake of argument that there was a government use of chemical weapons, the question becomes whether there is any legal basis for doing anything about it.  Given this assumption (that the Syrian Government is guilty as charged), there are three modes of reaction: political, economic and military. 

There is no question but that any and all nations have a right to shun Syria on whatever grounds and to the extent they deem expedient.  They may refuse to trade with Syria, they may exclude it from reciprocal treaties and engagements.  They need not even proffer a reason for doing so, but if they wish to assert  a  moral aversion to the use of gas, that would provide ample justification for responsive conduct which is in all events within national prerogative.

However, once a state proposes invasive measures, the question passes as to its legal authority under conventional international law to proceed in a violent manner.   Here, the premise for all further discussion is that no state has the right to intervene in the internal affairs of another.  The entire structure of international law is built on the premise of sovereign autonomy which accords to each and every nation a right not to be attacked by any other state.   This axiom ought not to be discarded with jejune cynicism because the alternative is simply ongoing chaos and war.

Clearly, all states reserve the right of self-defence and this includes retaliation after an attack.   The right arguably includes pre-emptive self-defence at least in cases where there is clear and convincing intelligence of an imminent attack.  To this extent the allowed conduct of states is analogous to the law of self-defence among individuals.

However, the extension of pre-emptive defence to include attacks aimed at degrading or destroying a potential enemy's capacity to attack is nothing but a polemical perversion put forward by those whose secret aim is to undermine the entire structure of international law.

It is important to penetrate the sophistries underlying this perversion.  An adversary is a state which has opposed interests of one sort or another and which may harbour hostile designs.  An enemy is an actor who has declared or embarked on acts of war.  The competitive and adversarial nature of international relations is both undeniable and contemplated.  But the entire point of international law is to keep the competition pacific and on this side of aggressive acts.  A potential enemy is merely an adversary  -- a state which is not subservient to, or aligned with the interests of the potential aggressor.  To argue for preemptive defence against "potential enemies" or mere adversaries is none other than to assert a "right" to make war at will.

Equally vague is the asserted right to defend against a "capacity" to attack.  International lawyers are currently quibbling over the distinction between "capacity" and "capability."  The quibble is beside the point.  All states have some capacity to make some kind of war, even if only with bows and arrows.  Most states have varying degrees of capability to make effective modern war.  Any state with a modern industrial base has a significant capability to make effective war.   Defence against a capacity or capability is another word for destroying an adversary's civil, economic and military infrastructure.   This was why, in the run-up to the U.S. invasion of Iraq, fertiliser factories  were alleged to be weapons sites. 

When a U.S. administration speaks of deterring "potential threats" (that is, a  potential, possible harm) it is not referring to any imminent aggression or actual harm but rather to using "forward presence operations" to "preclude the development of any potentially hostile entity" and for the sake of "deterring potential competitors from even aspiring to a larger regional or global role," as Dick Cheney's  Defense Planning Guide put it. (Ibid,  Cover Letter, 18 Feb. 1992, I 91/28291, pp. 2, 26   [1].)

This double conditional phraseology has become entrenched in Washington's strategic lingo which routinely casts geopolitical issues in terms of "maintaining U.S. preeminence" by means of "power projection operations" aimed at "precluding" and "deterring" "potential rivals" or "potential enemies" or "potentially powerful states" which might seek to "expand their own  influence" or "that may threaten America's ability to exercise its dominant military power." (See e.g., P.N.A.C's  September 2000 White Paper, entitled Rebuilding America's Defenses [2] ).

While the public's general indifference to English grammar might make it tone deaf to what is being said, Government statements and memoranda invariably conceive national defence in terms of ongoing "power projection" or, in plain Anglo-Saxon, bullying.

With this summary in mind, it can be seen that the neocon doctrine of preemptive defence against the capacity of potential enemies to present a threat (i.e. a possible harm) to the United States in unspecified ways is nothing less than advocacy of ongoing chaos and destruction.   To label such policy, "satanic" is hardly an exaggeration, for that is what Satan is about.

There is, in the present situation, no assertion, yet, that the use of gas in Syria constituted an attack or presented a true and imminent threat to the United States.  In the world of phantasmagorical (or pathological) abstractions, Syria might possibly attempt a gas attack on some United States installation or craft.  The likelihood of her doing so, without provocation is, zero.   There is simply no basis for asserting national self-defence on the assumed basis that the Syrian Government deployed chemical weapons against its own domestic insurgents.

President Obama might intone that Syria's use of chemical weapons implicates "core national security interests" but he does not even attempt to explain how other than to fall back on the neocon doctrine that the potential of any state to possibly present a threat qualifies as a "clear and present danger" which justifies a pre-emptive attack.   Within a more rational construct of reality, it suffices to say that a U.S. attack on Syria simply cannot be justified as self-defence.

Nevertheless,  the use of chemical weapons against domestic insurgents or a civil population does give rise to a conundrum in international law.  For, while the resort to such weapons, as a substantive fact, may be universally condemned, there is no universally agreed upon or satisfactory procedure for responding to their use.

After the Great War, virtually all nations signed a convention against the use of chemical weapons during war.  The idea was that, by whatever means nations might obliterate their young men, the use of gas was not one of them.  Since no attack at all against civilian populations is permitted, it went without saying that the use of gas against an enemy's non-combatants was also prohibited. 

If such an attack takes place, during war, the aggrieved belligerent party is entitled to take such proportionate retaliatory measures it deems fit.  In this context, "proportionate" typically means a tooth for a tooth, and maybe one more for good measure.

What happens, however, when a country uses chemical weapons against its own population, or "gasses" them in large numbers by other means?   This was the conundrum which presented itself at the Nuremberg Trials after the World War.  Germany and Germans could be tried and convicted for war-crimes against nations with whom it had been at war and against civilian populations under occupation.  But there was no basis for prosecuting anyone for crimes Germany committed against its own citizens, in particular against German Jews.  Horrendous as it might have been, it was not a war crime but rather a moral outrage which had occurred within the temporal framework of a war.

It was the Victors' determination to punish such conduct which gave rise to the newly-minted doctrine of "Crimes against Humanity." Accordingly, the Nuremberg Tribunal did the legal equivalent of a skip-and-shuffle, ruling that "insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity." [3]   In other words, non-prosecutable crimes against a belligerent's own citizens were piggy-backed onto the war-in-general.

As it evolved after Nuremberg, the doctrine of "Crimes Against Humanity" applies without more to any country's own civilian population, but the conduct in question must be  part either of a government policy or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority.  Isolated or sporadic events simply do not qualify. (Article 7, Rome Statute of the International Criminal Court, (2002).) [4]   Sporadic events may be violative (and prosecutable) as violations of the traditional laws of war but absent systematic practice they do not constitute crimes against humanity.  

Historically speaking, the requirement of  a "widespread or systematic"  practice had its genesis in the fact that the concept of  "crimes against humanity"  arose in reaction to ongoing practices such as the slave-trade, the reduction of entire populations to slavery and genocide.   The practical purpose of the systemic requirement, was to set a fairly high threshold for responsive action.  

The limitations of the concept are implicit from the circumstances out of which it evolved.  They presuppose an ongoing practice of multiple, successive horrors and they envision after the fact prosecution by some victorious agency.  In other words, the deterrence lies principally in the fact that if the perpetrator(s) loose the conflict they will be punished.

Recognising the weakness of the beer, the United Nations Charter did provide a mechanism for intervention against presently ongoing atrocities, provided the intervention was authorised by the international community as  represented by the Security Council.  The obvious and practical purpose of this requirement was to preclude the chaos which would ensue from individual states unilaterally assuming the prerogatives of Lord Protector of the World. 

The problem with this mechanism was that the Security Council itself was merely the formalisation of rival world hegemonies.  Unanimity among the major powers in the Council was unattainable with respect to any country in which a major power had a protective interest.  

This deadlock is a reflection of the actual scepticism countries harbour with respect to humanitarian crimes.  The deadlock not only reflects one major power's venal desire to shield crimes by its own, it also reflects the rival power's equally venal desire to promote its own interests under the pretext of a humanitarian intervention.

The U.S. media is prone to harping on Soviet vetoes of Council resolutions.  But the United States has not been laggard itself.  It has consistently vetoed resolutions adversely impacting on its own interests and in 2011 both the Obama Administration and the House of Representatives signalled a U.S. veto of any resolution condemning Israel for "systematic and deliberate" war crimes against the civilian population of Gaza (including the use of white phosphorous) which were determined to have occurred by  United Nation's independent Goldstone Commission. [5]

Removing the requisite authorisation for intervention from the Security Council to the General Assembly would constitute an obvious and actual democratisation of the ideal of "international consensus."  However, the United States has been the principal opponent of any such improvement.

The ineffectiveness of existing mechanisms to interrupt and put a stop to "crimes against humanity" has recently given rise to the related doctrines of "humanitarian intervention" and "responsibility to protect" aggrieved populations ("R2P").   Generally speaking, these doctrines expand the scope of crimes against humanity so as to include various forms of civil discrimination and, at the same time lower the authorisation required for intervention.  [6]  [7]   [8]

Despite the veneer of politically correct moralising, the purpose of  these doctrines is simply to provide a supposedly "objective" set of standards for unilateral state action.  But legality is always less a matter of substance than a question of procedure.  The issue is not "what" but who determines "when". 

Humanitarian Intervention is simply the canard which accompanies the chaos of unilateralism.  In the 19th century, it was routinely invoked as a cover for  European colonial enterprises launched under the banner of the White Man's Burden to protect the native from his own. 

It is important to grasp that the concept of humanitarian intervention presupposes that national self-defence is not at issue.  There is no threat whatsoever to the intervening nation which supposedly acts solely for the good of others.

With this in mind, it can be seen that the doctrine is far older than modern colonialism.  It has its genesis in the christian doctrine of "just war" which was first explicitly put forth in 851 by St. Cyril of Constantine who argued  that while a Christian was affirmatively forbidden to resort to violence in order to defend himself it was laudable and requisite for him to come to the defence of others.  

This convenient doctrine was enthusiastically taken up by Pope Urban II in defence of the First Crusade, launched he said, to defend the helpless Christians of Jerusalem and to avenge the barbarities and sacrileges committed upon them,

They circumcise the Christians, and the blood of the circumcision they either spread upon the altars or pour into the vases of the baptismal font. When they wish to torture people by a base death, they perforate their navels, and dragging forth the extremity of the intestines, bind it to a stake; then with flogging they lead the victim around until the viscera having gushed forth the victim falls prostrate upon the ground. Others they bind to a post and pierce with arrows. Others they compel to extend their necks and then, attacking them with naked swords, attempt to cut through the neck with a single blow. What shall I say of the abominable rape of the women? To speak of it is worse than to be silent."  (Translations and Reprints from the Original Sources of European History, Vol 1:2, (Philadelphia: University of Pennsylvania, 1895), 5-8.)  [9]

The modern, enlightened age has been no less ornate in its rhetoric.  During the Great War, British soldiers were urged to their own slaughter with fabricated stories of the Huns roasting babies on bayonets and of the Kaiser's infernal  Kadaververwertungsanstalten or corpse-rendering factories, where bodies of the battle-slain were allegedly turned into soap.  [10]

The most recent incarnation of the interventionist doctrine was the  Canadian R2P  proposal put forward in 2001 which sought to establish a set of clear guidelines for determining when intervention is appropriate  and how the intervention itself should be carried out.  The proposal recommends a conceptual shift from a "right to intervene" to thinking in terms of "a duty to protect." 

The proposal is correct in its understanding that "a non-defensive right to intervene" is to all intents and purposes a contradiction in terms.  But casting the issue in terms of a duty to protect is simply a modern day resurrection of St. Cyril's doctrine -- although the authors of the report were undoubtedly ignorant of first millennium orthodox moral theology. 

The critical question is not what constitutes a humanitarian violation nor how the intervention is to be carried out.  The only way to provide a truly disinterested procedure for determining when intervention is necessary and appropriate is to put the matter before the international community as a whole.

Unfortunately, any present-day discussion of humanitarian intervention gets burdened with what lawyers call "a parade of horribles" or an invocation of "The Holocaust" which, supposedly, trumps all argument and serves as a trumpet for any  intervention.   Argumentum ab horibilis is a species of rhetoric that passes into dramatic spectacle the purpose of which (as Aristotle pointed out) is to suspend credulity and to equate caution with acquiescence. The spectre conjured up is  that of babies being tossed into the flames or a reburnished  Kadaververwertungsanstalten  in which millions were lined up for gassing, incineration and recycling into soap, slippers and lamp shades.  "How," it is asked, "how can one do nothing in face of such unspeakable horrors?!?!?"

The flaw in the rhetoric is that, by definition, "widespread and systemic" crimes do not take place as they are unitarily depicted after the fact.  There is, as it were, no there, there.  This is illustrated by the  genocide of European Jews itself, which, as the most serious "non-revisionist" historians concede,  was the result of a confluence of often separate and unrelated actions always taken under cover of war or cover of production.  Two impeccable sources provide examples of what was known:  Rafael Lemkin, the Polish Jew, who analysed Nazi Occupation policies and who coined the word "genocide" which until then did not exist ( [11] [12] ) and Pope Pius XII who, in 1942, denounced the "progressive extermination" of the Jews which, he said, was taking place. [13] 

Both men saw the situation up close;  Lemkin from a first row seat and Pius through the thousand eyes of clerical reports.  At the same time, neither man saw the whole phenomenon but rather myriad pieces only some of which involved mass "executions." What both came to understand was that the Nazis had deployed policies the cumulative and ultimate effect of which would be the erasure of Jews from society as an intellectual, social, and physical phenomenon. 

But the fact that distinct and dispersed policies might unite in a common result does unify those policies in their actual execution.  The singularity of the term "holocaust" misleadingly suggests a singularity of event -- that a genocide took place, like a murder.  However, genocides and systematic crimes against humanity do not take place in the unitary singular but through a multiplicity of instances. They may be united conceptually by plan, purpose or confluent effect, but "the crime"  occurs severally and distinctly. 
 
Thus, against what precisely were the Allies supposed to intervene and how were they to do so?  At the time, alleged "gas chambers" were little more than a rumour and even if accepted as true left open the question of where exactly they might be located.  When President Roosevelt stated that the best way to stop the depredations then being committed against Jews and others was to win the war, he was not making excuses but rather an completely correct assessment based on what was reliably known. A pervasive crime could only be stopped by an equally pervasive solution.

This brief digression into a particular historical issue has been necessitated by the polemical arguments of those who advocate "humanitarian intervention" and who cite The Holocaust  as a trump card  to shame and silence any and all opposition.  But when the facts are objectively analysed the argument is void of substance. 

The conceptual defect of "humanitarian intervention" to prevent "crimes against humanity" is that it is not possible to take "tailored"  action against a "system" or to  target something that is widespread. Analyzed with practical logic,  the doctrine of humanitarian intervention is simply a pretext for general war. 

If on the other hand, the crime in question is some isolated non-systemic horror, then there is no legal authority for one state to violate the sovereignty of another in order to act as a prosecutor ad litem for what is, essentially, a discrete criminal act.

The attempt to fashion a doctrine of "responsibility to protect" simply wipes aside the difficulties with a moral bromide that  subjectively gratifies our inner sense of righteousness without providing any check, either substantive or procedural, against the abuse of morality in pursuit of nefarious national interests.

The intervention into Syria contemplated by the United States suffers from all the defects of the R2P protocol.  Even assuming that the Government of Syria is responsible for an incident of gassing its own civilians and assuming further that this incident constitutes a systemic crime against humanity or a violation of accepted humanitarian modes of conduct, there is simply no international consensus warranting an intervention. 

Instead, President Obama falls back entirely and fully on Cheney's neocon doctrine of preventive power projection.  In his request to Congress, Obama scores "Syria's acquisition of weapons of mass destruction" which he declaims, "threatens the security of the Middle East and the national security interests of the United States."   Accordingly he, requests authority "to deter disrupt, prevent and degrade the potential for future uses of chemical weapons or other weapons of mass destruction"  in order " to protect the United States and its allies and partners against the threat posed by such weapons."  [14]

The game is given away by the "or."  Obama does not limit the request to destroying existing arsenals of chemical weapons but wants approval to destroy any weapon of mass destruction on the ground that their mere existence is a "threat" to the United States "or" Israel.  Dick Cheney could not have said it more bluntly.

In his previous statement on 31 August, President Obama sought to sharpen the bluntness by a rhetorical pitch worthy of Urban II, in which he spoke of "young girls and boys gassed to death by their own government" which constituted "an assault on human dignity" and which made "a mockery" of international law.  "What message will we send," he asked, "if a dictator can gas hundreds of children to death in plain sight... What does it say about our resolve to stand up to others who flout fundamental international rules?  To governments who would choose to build nuclear arms? To terrorist who would spread biological weapons? To armies who carry out genocide?"  [15]

The statement bespoke its own hypocrisy.  International norms require international approval for an "intervening" attack on a sovereign nation.  The Administration has presented no pretence of a claim that the Syrian "rebels" constitute anything like a recognisable de facto rival belligerent and government.  The only state in the region who has chosen to build nuclear arms is Israel.  If any party has a record of "spreading" biological weapons in the region it has been the United States which supplied them to Iraq, condoned their use in the 1980's and deployed white phosphorous  in Fallujah in 2004.

The Administration has obliquely referred to the fact that dastardly Syria has refused to sign the protocol against biological weapons.  What the Administration omits to note is that Israel has refused to sign the nuclear non-proliferation treaty.  When the two facts are viewed together what is more than obvious is that Syria's refusal is made to counter-balance the hegemony of the Israeli nuclear threat. 

In 2004, Obama loftily intoned his hope for an emergence from the "long political darkness" into which the Bush Administration had plunged the country.  In 2013, with a "righteous wind" coming from his mouth, Obama  seeks to extend the long night of darkness even further.  

©Woodchipgazette, 2013

[1]http://en.wikipedia.org/wiki/Wolfowitz_Doctrine

[2]http://www.sourcewatch.org/index.php?title=Defense_Policy_Guidance_1992-1994

[3] http://avalon.law.yale.edu/imt/judlawre.asp

[4]http://untreaty.un.org/cod/icc/statute/romefra.htm

[5]http://en.wikipedia.org/wiki/United_Nations_Fact_Finding_Mission_on_the_Gaza_Conflict

[6] http://en.wikipedia.org/wiki/Humanitarian_intervention 

[7]http://www.responsibilitytoprotect.org/

[8] http://en.wikipedia.org/wiki/Responsibility_to_protect

[9] http://www.fordham.edu/halsall/source/urban2-5vers.html)

[10]http://en.wikipedia.org/wiki/Kadaververwertungsanstalt

[11]http://www.preventgenocide.org/lemkin/americanscholar1946.htm (links to original works)

[12] http://en.wikipedia.org/wiki/Raphael_Lemkin

[13]http://www.newoxfordreview.org/reviews.jsp?did=0200-cavalli

[14]http://www.cnn.com/2013/08/31/us/obama-authorization-request-text

[15]http://www.whitehouse.gov/the-press-office/2013/08/31/statement-president-syria