Posts Tagged ‘U.S. Supreme Court’

 The Hottest Places in Hell Are Reserved for Those Who in a Period of Moral Crisis Maintain Their Neutrality—Dante


With the loss of 17 young lives at Marjory Stoneman Douglas High School in Florida the United States is now engaged in a soul-searching mission like never before. Young people have taken to the streets and voicing their opinions with a “take no prisoners attitude.” No subject is off limits regarding gun control or other control mechanisms. And there is no shortage of ideas on what to do about the problem of mass murder in the face of opposition from the gun lobby.

Ninety years ago Will Rogers said, “America has the best politicians money can buy.” You know what? He was right. Politicians, particularly conservative Republicans, have sold their souls for the almighty dollar. Some might even say, “They’ve sold their soul to the devil by trading on the death and suffering of others.”

Influence of NRA on American Politics

Gun manufacturers, NRA lobbying groups, and Congressional and Senatorial political entities, who’ve been bought by the NRA, are all collectively—Merchants of Death.

Rationalizations from these economically-driven piranhas would suggest that it’s all done to defend the Second Amendment. Nothing could be further from the truth (more explained later). The real motivation underlying NRA actions is money, plain and simple. For them, lobbying and paying out large sums of money is an investment in future profits. How much money is the NRA worth? More than five years ago, (December 2012), the National Rifle Association had $227.8 million in revenues and $163 million in the worth of their assets.

I would estimate now that this organization has a combined (revenues and assets) in excess of ½ billion dollars.

In 2017, total lobbying expenditures paid out by the National Rifle Association were $5,122,000 on behalf of the Gun Rights industry.  This included $4,802,000 for the Parent National Rifle Association and $320,000 for its subsidiary Institute for Legislative Action.

In the 2016 election, the NRA spent $11,438,118 to support Donald Trump and they spent an additional $19,756,346 to oppose Hillary Clinton. That’s over $31 million spent on one presidential race. No organization would pony up that much money unless they expected an excellent return on their investments.

Second Amendment to the United States Constitution

The Second Amendment to the United States Constitution protects the right of the people to keep and bear arms and was adopted on December 15, 1791, as part of the first ten amendments contained in the Bill of Rights.

The Supreme Court of the United States has ruled that the right belongs to individuals, while also ruling that the right is not unlimited and does not prohibit all regulation of either firearms or similar devices. State and local governments are limited to the same extent as the federal government from infringing this right, per the incorporation of the Bill of Rights.

Please note that the right to bear arms is not unlimited. This is a significant interpretation of U.S. Constitutional law. 

I mentioned earlier that the rationalization of the NRA is money, not the Second Amendment. This is because they know they can influence and buy politicians like purchasing cattle or sheep, but engaging in criminal activity and bribing federal judges at the Supreme Court, District Courts of Appeal, or lower district courts is quite a different matter. Courts are powerful. And legal interpretation and analysis is always needed. I must point out to my readers that calling a Supreme Court justice liberal or conservative may not necessarily help one predict how they analyze data or how they are going to vote. For example, I was struck by the legal reasoning of the late conservative United States Supreme Court justice Anthony Scalia.

Back in 2012 he was interviewed by Chris Wallace on Fox Sunday News. Here is the gist of what he had to say on Fox news about the Second Amendment:

The conservative justice notably authored the Supreme Court’s 2008 opinion in District of Columbia v. Heller, which ruled that the Second Amendment protects a person’s right to bear arms and struck down a D.C. ban on handguns. The court also ruled, though, that “the right secured by the Second Amendment is not unlimited.” Scalia pointed out  that that the Second Amendment “obviously” doesn’t apply to weapons that can’t be hand-carried and modern-day weapons like “hand-held rocket launchers that can bring down airplanes” weren’t factored in at the time of the writing of the Constitution.

Supreme Court Justice Antonin Scalia said that there are “undoubtedly” limits to a person’s right to bear arms under the Second Amendment, but that future court cases will have to decide where to draw the line.

Where to draw the line

I would like to say something about the logic and thinking that needs to be considered about drawing such a line between individual gun rights on the one hand, and limitations of gun rights on the other.

With respect to Anthony Scalia’s statement that future courts will have to decide where to draw the line, it tells me that sociologically speaking, legal interpretation of the law cannot completely divorce itself from making value judgments. This is why there is always a window of opportunity for both liberal and conservative justices to put forth their own political or ideological spin on any particular case.

The implication of Scalia saying future judges must decide where to draw the line suggests that the fine points of legal reasoning are, at its core, predicated on both values as well as facts in a particular case. Whenever you hear any judge use the term “reasonableness” when rendering any legal decision, that is your clue to know that values (are) were part of that decision.

What are the implications of all this? Courts don’t make laws per se; that’s what legislative branches of government do. Courts however are charged with interpreting laws. In theory it is a good system; in reality however no system is perfect. And even what a “perfect” decision-making system would be ultimately is still based on value judgments.

But the courts don’t get much help from legislative bodies. Why? Because our democratic political system doesn’t work when politicians can be bought or sold. When that happens our political system becomes tainted and stinks of undue influence. Put another way, the public’s interests and concerns matter little except at election time. And even then more is promised but little is ever delivered.

Since values are critical to decision making (legal or otherwise) think about this! What kind of insanity would exist if “right to bear arms” was interpreted to include: military tanks, RPGs, bazookas, flame throwers, or should I say it—the right to have an atomic bomb in everyone’s one’s garage. Why not, if that was ever permissible under the Second Amendment? Oh! But you’re going to say—that’s insane. Tell me folks, is that really any more insane than an AR-15, automatic weapons made into killing machines from bump stocks, or high-powered, high capacity magazine rifles used with the goal of murdering scores of people, including teenagers and children? You draw your line; I know I’ve drawn mine.

Being Upfront with my Readers

     I am not unbiased in my feelings about this issue. I’m a gun owner and a really tough old navy veteran in my 70s. Nevertheless, as emotionally strong as anyone, I totally lost it one day back in December 2012 when the events at Sandy Hook Elementary School.in Connecticut took place.

Pictures of 20 first grade students were shown on the TV. Their young faces caught my attention immediately and cut me to the core. I broke down in tears and sobbed like a young child; my tears were uncontrollable. Did I personally know any of these people? No! But it didn’t matter. I am a human being with feelings and I care about humanity as much as I care about my own family. A piece of me died that day.

If any horrific event like the Sandy Hook slaughter was ever going to bring about change it had to be this tragedy of tragedies. Nevertheless, Republicans in both houses of Congress, backed by the NRA, prevented any change at all. Republicans from the Freedom Caucus, Tea Party and some conservative Senators were still genuflecting, and bowing down in supplication before the high priests of money—those powerful merchants of death—the NRA.

Now, we have a psycho in the White House to make matters worse. Not only is he a carbon copy of his ultra-conservative stooges but he is, by his actions with the Russians, a traitor to his country. He is the Benedict Arnold of our time.

Donald Trump came to Washington to drain the swamp. Come this November we’re going to help him do that. But it won’t be what he expects. If he isn’t already impeached by then, the millennials, along with one “angry as hell” public, are going to remove every shameless, immoral, political reprobate bought and paid for by the NRA.




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Police in American Today:

Should a Police Officer’s License to kill be revoked in the United States?


This is one of the most difficult questions to address. A civilized society needs police and they should be honored for service to their communities. There are criminal offenders out there who want to commit violent crime, and who are willing to murder police officers who try to stop them. Societal self-policing just isn’t a viable concept in a large modern-industrialized country.

At the same time, social institutions like the police in America need to be held accountable for their actions as well. Some of the “bad guys” police are sworn to take down should also include some people who dress in blue and carry a badge and a gun. Some of these individuals need to have their license to kill—permanently revoked.

The crux of the problem in America is that police officer standards for the use of deadly force vary from state-to-state and agency-to-agency. These standards imply that training in the use of lethal force vary as well. This hodge-podge of training and lethal force standards has led to the worst of situations—the indiscriminate murder of people, thus violating the United States Constitution. The upshot of all this has made the officer on the beat judge, jury and executioner, whether warranted or not. This needs to change.

International Standards

At the international level there does exist international standards for lethal force that incorporates into it the belief that all human life is valued and needs to be protected. But this acceptance of the importance of the sanctity of all life is not universally shared or valued. Evidence of this is the wanton discriminatory murder of unarmed black men in the United States.

One of the great ironies of this lack of police standards for lethal force is that the United States is predominantly a “Christian nation” where there is an important Christian doctrine known as “Thou Shall Not Kill.”

In this blog I suggest that leadership does not start at the agency level. Leadership and new lethal force standards for all police agencies nationwide need to come from the federal level, primarily the House of Representatives and the United States Senate. With a Republican change in the White House, House of Representatives, and Senate I am not optimistic there will be any forthcoming leadership shown towards this important issue.   

The Police Problem in America

     Every year in America police officers murder or kill nearly a thousand people. This is more than triple all the terrorist and mass-shooting victims combined in the United States in a single year. Nearly 25% of all those killed or murdered by police officers are unarmed. The overall question that should be asked by society is this: Should a police officer’s license to kill be revoked?

The following information was obtained from Wikipedia:

“Although Congress instructed the Attorney General in 1994 to compile and publish annual statistics on police use of excessive force, this was never carried out, and the FBI does not collect these data either. The annual average number of justifiable homicides alone was previously estimated to be near 400.

Updated estimates from the Bureau of Justice Statistics released in 2015 estimate the number to be around 930 per year, or 1240 if assuming that non-reporting local agencies kill people at the same rate as reporting agencies. The Washington Post has tracked shootings (only) since 2015, reporting 990 shootings in that year, and more than 250 by the end of March 2016.”

Deaths by Race/Ethnicity Groups in 2015, according to The Counted

“The Guardian newspaper runs its own database, The Counted, which tracked US killings by police and other law enforcement agencies in 2015, and counted 1140 killed, with rates per million of 2.92 for “White” people, 7.2 for “Black”, and 3.5 for “Hispanic/Latino,” 1.34 for “Asian/Pacific Islander,” and 3.4 for “Native American.”


“The database can be viewed by state, gender (1086 male, 53 female, 1 nonconforming) , race/ethnicity, age, classification (e.g., “gunshot”), and whether the person killed was armed (853 armed, 224 unarmed). The database has continued to add new cases into 2016.

“Projects on police killings in the United States by The Washington Post and The Guardian were finalists for the 2016 Goldsmith Prize for Investigative Reporting.

Two Related Issues of a Technical Nature

A related problem is that police nationwide are more effectively taught how to kill someone with a gun, but virtually no one is taught how to wound (e.g., how to shoot someone in the legs rather than the chest area). The chest area is large in comparison to the legs and would require “expert” use of a firearm to shoot someone in the legs. Too many officers nationwide are amateurs when it comes to the effective use of handguns like revolvers or semi-automatics. When a suspect is at a great distance it is better to use a rifle with a scope as far as accuracy is concerned.

The 224 unarmed victims of police shootings described above might be alive today had someone been good enough a marksman. Federal legislation is needed to overturn local and state training standards (where they exist at all) in the use of deadly force.  The shooting skill sets of police officers need to improve greatly, perhaps adopting FBI shooting skill levels. Or, perhaps not any officer to be hired who does not already have the shooting skills of an expert.

A second issue of a technical nature has to do with the need of police officers to be in possession of night vision goggles. Night vision goggles can, with some training, help police officers see their environment at night with more details. Differentiating between someone carrying their car keys from someone carrying a handgun might spell the difference between life and death in a dark alley. Research is needed to look at both of these technical issues.

U.S. Supreme Court in Tennessee versus Garner    

According to Wikipedia, in Tennessee v. Garner, 471.U.S. (1985) is a civil  case in which the Supreme Court of the United States held that, under the Fourth Amendment, when a law enforcement officer is pursuing a fleeing suspect, he or she may not use deadly force to prevent escape unless “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” It was found that use of deadly force to prevent escape is an unreasonable seizure under the Fourth Amendment, in the absence of probable cause that the fleeing suspect posed a physical danger.

Amnesty International Report on Deadly Force, 2015

The following is the Executive Summary from that report:

Hundreds of men and women are killed by police each and every year across the United States. No-one knows exactly how many because the United States does not count how many lives are lost. The limited information available however suggests that African American men are disproportionately impacted by police use of lethal force.

While the majority of the unarmed African Americans killed by police officers are men, many African American women have also lost their lives to police violence. Police officers are responsible for upholding the law, as well as respecting and protecting the lives of all members of society. Their jobs are difficult and often dangerous. However, the shooting of Michael Brown in Ferguson, Missouri and countless others across the United States has highlighted a widespread pattern of racially discriminatory treatment by law enforcement officers and an alarming use of lethal force nationwide. 

     Indeed, just 10 days after Michael Brown was fatally shot in Ferguson,        Missouri, on August 9, 2014, St. Louis police officers shot and killed a young black man, Kajieme Powell, 25, who was reportedly holding a knife. Police claims that he was brandishing a knife were not borne out by the available video footage of the shooting.  Some of the individuals killed by police in the United States include the following: Rekia Boyd, an unarmed 22 year old black woman was shot and killed by a Chicago police officer on March 21, 2012; Eric Garner, a 43 year old black man, died after being placed in a chokehold by New York Police Department officers after being approached by an officer who attempted to arrest him for selling loose, untaxed cigarettes on July 17, 2014; Ezell Ford, 25, an unarmed black man with a history of mental illness, was shot and killed by Los Angeles police officers on August 11 2014; Tamir Rice, a 12 year-old black boy, was shot and killed by officers in Cleveland, Ohio while playing in a park with a toy gun on November 22, 2014; Walter Scott, a 50 year old unarmed black man, was fatally shot in the back after a traffic stop for a broken light on his car in North Charleston, South Carolina on April 4, 2015; and Freddie Grey, a 25 year old black man, died from a spinal injury after being taken into police custody in Baltimore, Maryland on April 19, 2015. These are all cases that have received national media attention; however, there are many more including Hispanic and Indigenous individuals from communities across the country who have died at the hands of the police.

The use of lethal force by law enforcement officers raises serious human rights concerns, including in regard to the right to life, the right to security of the person, the right to freedom from discrimination and the right to equal protection of the law.  The United States has a legal obligation to respect, protect and fulfill these human rights and has ratified the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, which explicitly protects these rights.

One of a state’s most fundamental duties which police officers, as agents of the state, must comply with in carrying out their law enforcement duties, is to protect life.  In pursuing ordinary law enforcement operations, using force that may cost the life of a person cannot be justified. International law only allows police officers to use lethal force as a last resort in order to protect themselves or others from death or serious injury.  The United Nations (UN) Basic Principles on the Use of Force and Firearms provide that law enforcement officials shall not use firearms against persons except in self-defense or the defense of others against the imminent threat of death or serious injury, and that, in any event, “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.” Furthermore, international law enforcement standards require that force of any kind may be used only when there are no other means available that are likely to achieve the legitimate objective. If the force is unavoidable it must be no more than is necessary and proportionate to achieve the objective, and law enforcement must use it in a manner designed to minimize damage or injury, must respect and preserve human life and ensure medical aid are provided as soon as possible to those injured or affected.

Amnesty International – June 2015                      


All 50 US States Fail to Meet Global Police Use of Force Standards, Report Finds

“Amnesty International report describes ‘shocking lack of fundamental respect for the sanctity of human life’ as nine states have no laws to deal with police force.

     Police response to protests across the country in the wake of several high-profile police shootings points to a need for better standards, says Amnesty.

“Every state in the US fails to comply with international standards on the lethal use of force by law enforcement officers, according to a report by Amnesty International USA, which also says 13 US states fall beneath even lower legal standards enshrined in US constitutional law and that nine states currently have no laws at all to deal with the issue.

“The stinging review comes amid a national debate over police violence and widespread protest following the high-profile deaths of 18-year-old Michael Brown in Ferguson, Missouri; 43-year-old Eric Garner in New York; 50-year-old Walter Scott in South Carolina; and 25-year-old Freddie Gray in Baltimore – all unarmed black men killed by police within the past 11 months.

Amnesty USA’s executive director, Steven Hawkins, told the Guardian the findings represented a ‘shocking lack of fundamental respect for the sanctity of human life.’

‘While law enforcement in the United States is given the authority to use lethal force, there is no equal obligation to respect and preserve human life. It’s shocking that while we give law enforcement this extraordinary power, so many states either have no regulation on their books or nothing that complies with international standards,’ Hawkins said.

Amnesty found that in all 50 states and Washington DC, written statutes were too broad to fit these international standards, concluding: “None of the laws establish the requirement that lethal force may only be used as a last resort with non-violent means and less harmful means to be tried first. The vast majority of laws do not require officers to give a warning of their intent to use firearms.”

“The report also suggests taking action at all levels of government, making recommendations to the president, Congress and the US justice department, along with state legislatures and individual law enforcement departments. Amnesty suggests that laws be brought into compliance with international standards at every level, and that the justice department oversee a national commission “to examine and produce recommendations on policing issues, including a nationwide review of police use of lethal force laws … as well as a thorough review and reform of oversight and accountability mechanisms.”

“Hawkins told the Guardian he expected some resistance to the recommendations from police unions and other agencies but added his hope that ‘with so much attention on law enforcement and its use of lethal force within the US, in the next legislative session this report will produce some energy for change.”


The Supremacy of Federal Law

Article VI of the Constitution makes federal law “the supreme law of the land,” notwithstanding the contrary law any state might have.  In the important 1958 case of Cooper v Aaron, in which the Court considered the efforts of state authorities to block integration of Little Rock’s Central High School, the Court unanimously declared, “No state legislator or executive or judicial official can war against the Constitution without violating his undertaking to support it….If the legislatures of the several states may at will, annul the judgments of the courts of the United States and destroy the rights acquired under those judgments, the Constitution itself becomes a mockery.”

Federal law, not state law, is “the supreme law of the land.” Despite the efforts of some states, even today, to “nullify” federal laws they disapprove of, few things in constitutional law are any clearer than the fact that any such efforts are grossly unconstitutional.  What remains a much more difficult question under Article VI is when a state law or action, which is at least arguably consistent with federal law, in fact creates sufficient conflict so as to justify finding it “preempted.”

Final Comments

The problem of totally professionalizing local police and county sheriff’s departments across the country will require a common sense approach that is composed of 7 recommendations:

  1. Requiring every police department in the country to adopt international standards in the use of lethal force
  2. Setting brand new guidelines in the training of police officers and deputies including shooting qualification standards currently required by the FBI.
  3. Establishing a new standard of investigative protocols that every agency must follow when a shooting by a police officer has occurred.
  4. A U.S. Justice Department program needs to be created for an ongoing assessment of the fitness of every police or sheriff’s agency in the country every two years and a report that is shared with local governmental jurisdictions.
  5. Non-lethal force technology needs to be front-and-center on the agenda of every law enforcement agency at the federal, state and local level.
  6. Every federal, state and local police agency needs desperately to acquire resources for the psychiatric evaluation of duty officers before any officer is authorized to wear any badge and carry any firearm.
  7. Every training package used needs to have a component to explain constitutional and all federal, State and local civil rights laws and their relevance.

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