Slip Slidin’ Away

Tuesday, June 2, 2020

It seems important to write this down—this barely noticed, largely unquestioned power grab that occurred in our city Sunday evening.

As local activist and state house candidate Ben Marcus says:

“Totalitarianism rarely shows up overnight. It’s a slow drip that eventually drills a hole through basic human rights like speech and movement. We cannot allow unjustified executive power grabs go by lest we make it the norm.”

            So, we need to document the drips. We need to especially document those “drips” for which people end up getting arrested.

On Sunday, May 31, 2020, at 5:54 pm, Jacksonville Mayor Lenny Curry tweeted news of his decision, in consultation with Sheriff Mike Williams, to implement a citywide curfew beginning at 8 pm, to end at 6 am Monday morning. Mayor Curry tweeted:

“Due to criminal activity that threatens first responders, other people, and private property, Sheriff Williams @jsosheriff and I have decided to implement a citywide curfew. Effective 8pm today until 6 am tomorrow, I am putting a curfew in place for the City of Jacksonville.”

            “Let me say this plainly,” the mayor went on to tweet in the same series, “if you are in our streets after 8 pm you are subject to arrest by law enforcement.”

Whether or not our city needed a curfew isn’t the issue. Imposing one might have been a good decision. I appreciate the complex calculus public safety officials perform in order to make decisions about protecting our people.

But do our city ordinances permit our mayor to restrict, via Twitter, with two hours’ notice, by virtue of one telephone call, the movements of 958,000 people?

Do a phone call and a tweet enable him to have people arrested for violating his decree?

Ben Marcus didn’t think so. And I’m with Ben.

***

Chapter 674 in our local ordinance code confers power to the mayor to declare a civil emergency. He is obliged by 674.306, however, to convene the city council in a special meeting when he invokes those powers. Subsection 674.306 reads as follows:

Concurrently with the declaration of the state of civil emergency, the Mayor shall convene the Council in special meeting, at which he shall report to the Council all the facts and circumstances known to him concerning the civil emergency and his recommendations in connection therewith.

Concurrently.

Google defines the word as meaning, “at the same time,” or “simultaneously.”

“Convene,” in turn, means to “bring together for a meeting or activity,” according to Google.

What “convene” does not mean, in this non-lawyer’s opinion—particularly in conjunction with the word “concurrently”—is “put a meeting on the calendar.”

The rest of the section lays out the mayor’s obligation to state his reasons to the council for the civil emergency and to make his recommendations. The city council’s power to override the mayor’s decision is described in the chapter, as well.

Arguably, the requirements of 674.306 were put there to ensure a legislative check on local executive power. But it does not appear the mayor bothered with fulfilling those duties.

“Sheriff Williams and I have decided,” he tweeted.

I saw no official declaration of civil emergency, nor any special meeting convened concurrently with said (unmade) declaration.

When I reached out to city council representatives this morning to express my alarm about this potential abuse of power, I was told there would be a Zoom meeting on the issue today. I asked whether a meeting had been convened on Sunday, online or otherwise. None of them answered the question.

It stretches the imagination, even for the very imaginative attorneys in the Office of General Counsel, to read “concurrently” as “two days later.”

Since people were arrested for violating the curfew, its legality is bound to become a litigable point.

Because the arguably illegal curfew order involved the official power of the state, I’ll leave it to the lawyers to determine if those arrests constitute grounds for civil rights lawsuits. At the very least, given the two-hour window, there’s the problem of fair warning, which, as even non-lawyers like me know, is inherent to due process of law.

Lest there be any confusion, the curfew is easily distinguishable from the declarations regarding business shutdowns this past March. We knew those were coming ahead of time, and there were no criminal penalties. No one got arrested, to my knowledge, for going to work during the shutdown.

***

Our nation has survived tumultuous times, and I believe we will get through the current uprising. The protesters are on the side of the angels, after all. They want more police accountability and transparency.

Most of all, they want what any person of conscience in America wants—to heal racism. Racism is the default-cultural setting in our nation, a legacy in part, of slavery, which Toni Morrison named, “America’s original sin.”

As scripture will confirm, our country’s sin is now being visited upon our children, slaughtering them: Ahmaud Arbery in Glynn County, Georgia; Trayvon Martin in Sanford, Florida; and Jordan Davis here in our own city. The list is unconscionably long, but these are our kids.

***

Council Member Brenda Priestly Jackson said it best on Melissa Ross’s show this morning: “There’s a fine line between authoritarianism and protection.”

He might not be wrapped in a flag and waving a cross, as the quote about American fascism goes, but President Trump is crowing about law and order. He’s threatening to deploy the military into our hometowns. He’s rolled back liability protections for social media platforms. And he’s using flash bombs to clear crowds so he can pose in front of local churches, Bible on full display.

Drip, drip, drip.

Justice Cedes its Ground

May 18, 2020

I wish my father were still alive. I’d like to talk to him about Ahmaud Arbery’s killing.

Dad was a homicide detective who taught me the value of due process of law. He also carried a concealed weapon every time he left the house. He’s not here to see the ugly intersection laid bare: Second Amendment activism overlapping with naked racism in America.

If he were here, I would ask him about the difference between policing and self-defense. I’m pretty sure he’d tell me self-defense doesn’t entail chasing down other people with guns, as video released today in Arbery’s case purports to show. Arbery’s killers, according to news accounts, pursued him for four minutes before they confronted, shot, and killed him.

I wonder how my father would feel about Stand Your Ground authorizing everyone to work a job to which he dedicated his life for 26 years.

I never thought twice about my father’s ability to defend himself or the public. Policing was his profession, after all. He’d long ago been screened, trained, armed, and entrusted by the state to serve and protect the public at large.

That training included chapter and verse about meeting force with force—a split-second calculus designed to ensure, among other things, a police officer’s ability to return to his family after his shift ended.

He also swore to uphold the United States Constitution. I’d like to think the solemnity of taking that oath involved something more than “grab your gun and hop in the truck, son.”

Those are the words I imagine retired district attorney investigator Gregory McMichael uttered to his son, Travis, before the two chased, confronted, shot, and killed 25-year-old Arbery.

Now it’s the McMichaels, not Arbery, who are being afforded due process of law.

***

Instead of calling the currently badged professionals, the father-and-son duo took it upon themselves to patrol their mostly white, unincorporated “Satilla Shores” community in Glynn County, Georgia. The two maintain Arbery, who was black, resembled a burglary suspect they had viewed on video.

The first DA assigned to the case recused herself, noting the elder McMichael worked for her office for two decades. She’s on record stating the incident was portrayed by police as an attempted robbery, followed by the McMichaels’ attempted “citizen’s arrest.”

The second district attorney, George Barnhill, recused himself only after Arbery’s family, citing conflict of interest, demanded the case be assigned to someone else. Before his recusal, Barnhill had made the decision not to prosecute the McMichaels or the man who video-recorded the shooting, William Bryan.

In a widely publicized letter, Barnhill outlined the reasons he didn’t think any of the three men should be arrested for Arbery’s homicide. Barnhill cited laws pertaining to citizen’s arrest, open carry, self-defense, Georgia’s “no duty to retreat” statutes, and the defenders’ “reasonable belief” about an impending felony.

With prosecutors like that, who needs defense attorneys?

In Barnhill’s defense, prosecutors are trained to file charges only for cases they believe they can win in court. It’s an in-depth legal calculus necessitating evidence. (I’m not a lawyer, but I’m married to a former prosecutor.)

After two months, but within only two days of receiving the case, the Georgia Bureau of Investigation calculated differently and arrested Arbery’s attackers.

Before GBI took the case, however, Stand Your Ground had clicked into place, like a lens in an optometrist’s phoropter, zooming in on the potential defenses of killers while blurring evidence that could speak on behalf of the victim.

This farsighted analysis also overlooked a critical factor, one meant for jurors to decide: are the killers telling the truth?

Whether the McMicheals’ “perceived a threat” and whether their beliefs and actions were “reasonable” also seem like questions for a jury to answer, in this non-lawyer’s opinion.

Assume Arbery’s killers were telling the truth. Assume—though there’s no evidence of it—that Arbery was committing a felony. Can the US Constitution withstand how Stand Your Ground’s matrix of “perceptions and beliefs” eclipses a young man’s right to live?

***

There is a newspaper photo from the 1980s, featuring my father bringing a suspect to jail. The perpetrator in the photo, escorted by Dad and his partner, was accused of pistol whipping a police officer to the point of broken bones.

I asked him why he was smiling in the picture. He told me it was because they had brought in the suspect unharmed.

A white policeman who graduated the academy in the 1960s, Dad joined the force about when Miranda v. Arizona began to change the manner in which police did business. He explained to me bringing in suspects unharmed—particularly in cases involving injured police officers—had not always been a top priority.

From the perspective of black family members who have survived a loved one’s police victimization, it still isn’t. Bad cops exist.

Good ones do, too.

Suspects have rights, my father taught me, and the challenge was to protect those rights so the system—the criminal justice process—could work. He acknowledged the system wasn’t perfect, but he insisted it was better than anything else the world had yet tried.

He abhorred vigilantism, aka “street justice.”

While my father is not here to shake his head, pause before speaking—as he always did—and then judiciously explain what he might have done differently in the same situation, I have no doubt: he would not have approved of the McMichaels’ actions.

Instead of acting like police, if they were concerned about a burglary, they should have called the police.

***

SYG repealed centuries of common law and a millennium of common sense.

In Stand-Your-Ground states, lawmakers have removed the “duty to retreat” from the laws of self-defense, ostensibly deputizing every cop-wannabe in the land. The streets of Florida and Georgia, as a result, belong to any armed person who would claim them as his “castle.”

George Zimmerman. Michael Dunn. Gregory and Travis McMichael.

Dunn failed in his attempt to get away with murder against former State Attorney Angela Corey’s office. Though it took two juries to accomplish it, as the first one was split on the murder charge, the State Attorney in Jacksonville was a quick study. After Zimmerman, her office wasn’t about to let Dunn get away. He’s now serving life in prison for the first degree murder of Jordan Davis.

Citizen patrollers have now imbued themselves with the once-reserved power to police, thanks to SYG–as if factually fraught police use-of-force scenarios weren’t enough for society to contend with.

The laws of self-defense sufficed, before 2005, for force-users in public who were unable to retreat. The Castle Doctrine, as old as common law itself, has never required any defender to retreat from his own home.

Ahmaud Arbery, Jordan Davis, and Trayvon Martin would all be alive today if overzealous, unbadged, gun-toting white men had not felt empowered by the police authority Stand Your Ground purports to confer.

That ought to offend all good cops who take seriously their distinct position of public trust, their professionalism, their training, and their oath to uphold the US Constitution.

Instead, SYG licenses Wild-West style vigilantism. To this cop’s daughter, that’s untenable.

This opinion column is dedicated to the beloved memories of Ahmaud Arbery, Trayvon Martin, and Jordan Davis. I pray for your families, for those who uphold and enforce the US Constitution, for justice, and for the abomination that is “Stand Your Ground” to be forever stricken from our law.

Ode to a Fallen Comrade

The death of yet one more print publication is a heartbreak grieved amid much larger, overarching tragedies. Folio Weekly, howeverJacksonville’s alternative weekly magazine—was more than just any publication. She was the written repository of progressive souls in an ostensibly conservative, Southern city.  To her progressive-minded readers, writers, and workers, the loss of Folio Weekly is nothing less than a punch to the gut.

Good thing we’re tough.

As we reflect, here in the United States of Narcissus, in the middle of a global pandemic exacerbated by presidential recklessness, as we count our dead, 78,200 Americans, 1,600 of them Floridians,

while we hear news of cold-blooded murder in the streets of Brunswick,

and hard-won human rights ordinances hollowed out by hyper-technicalities,

with a million unemployed Floridians battling a system designed to deny them benefits, under a governor doing his best to suppress the votes of poor people, while their livelihoods tank, and our local schools literally leak and crumble

in neighborhoods where homicides multiply

under a mayor bound and determined to fork over hundreds of millions of dollars to one of Earth’s richest men, who in turn will lower bridge ramps as the planet’s waters rise,

yes, as we reflect,

we might even be numb to this last, dizzying, punch.

Here, in the bluish top-right corner of a purple state ravaged by gerrymandering and GOP-hardball, the news of Folio’s demise bruises, but does not bloody us. Progressives in Jacksonville, after all, are a tough-skinned bunch.

For thirty-three years Folio Weekly afflicted the comfortable, comforted the afflicted, and helped deliver to the meek what was rightfully theirs. It encouraged and fed our arts scene and local artists, who in turn fed the content in an outwardly spiraling dance I can barely begin to comprehend, and which can never be undone.

We’re not going to quit because someone ran off with our megaphone. (To Sam and Farrar, it’s only a metaphor. Thank you for publishing Folio for as long as you did and for stalling her COVID-19 death, for as long as you could.)

Folio held people accountable, especially people in power, in ways no other local media outlet did—or dared. If I had to pick one word to describe the six editors I wrote for, or the numerous writers, countless other contributors, and everyone else who kept Folio going, it would be this:

Fearless. 

Brains and courage are in our DNA, so let’s not lose heart.

Folio Weekly, under the expert editorship of Anne Schindler, helped this writer find her voice. I won’t shut up now, no matter how many secret service agents check me out on LinkedIn.

I hope you won’t, either.

So, keep your face masks on, and keep six feet between you and everyone you meet.

And, in the words of the inimitable Jesse Jackson, “Keep hope alive.”

Hello, Again.

For those of you who have read my pieces in Folio Weekly, The Florida Times Union, Jacksonville Magazine, Florida Politics Online, or any other publication syndicating my work, I’ve missed you.

More than ten years ago, Folio Weekly’s then-editor Anne Schindler gave me my first shot at professional free-lance journalism. A significant portion of my work was dedicated to advocacy on behalf of our leaky, crumbling, financially starved public schools. Over the decade, under five more editors, and in the company of formidable, unsurpassably talented writers, I answered the call to write about much, much more.

It is in homage to the spirit of Folio Weekly that I dare to muddle through these WordPress templates. If you love our city, as I do, even when she breaks your everlovin’ heart, I am here to remind you you’re not alone. If you love your country, even as you fantasize about renewing your passport and sewing jewelry into the hems of your garments, I feel you. If you want rational, well-considered reflections on matters of importance and mutual concern, I hope you’ll find it here.

I’ll also let you know when I publish my first novel, Seen.