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Still Pondering Black History Month, 2022
(A White Guy’s Reflections)

A blizzard of thoughts and feelings accompanied this year’s Black History Month – before, during, and ever since. I’ve long had a love/hate relationship with Black History Month, anyway.

What I Love

I love learning of special people I’ve never heard of before and their remarkable ideas, exploits, and inventions.

I love having new heroes from hearing their stories of overcoming immense obstacles of hardship and hate.

In late January, a friend delightedly said he had seen John Coltrane’s A Love Supreme and an album by Sam Cooke on display in a Target store. It was, of course, for Black History Month. I love seeing overdue celebration for the deserving, with the chance it brings of enriching more lives.

Far more invitations to speak about the music I have studied and particularly love, Jazz and Blues, have come my way in February over the years. Giving this great music the presentation it deserves is immensely gratifying.

What I Hate

I hate the fact that I’d never before heard of those special people and their remarkable ideas, exploits, and inventions.

I abhor the hardship and the hate these new-to-me heroes had to overcome. Why they faced obstacles of hardship and hate is even worse.

My one visit to the Rock & Roll Hall of Fame in Cleveland was in mid-2017. I did not begrudge the enormous roomfuls of stuff expected for Elvis, the Beatles, and the Stones. (The huge, comprehensive, albeit temporary, display for John Mellencamp was a bit surprising, though.)

What I dreaded was what I’d find for Chuck Berry. Sure enough, the visitor got to see a guitar or two, a jacket or two, some pics, a nice plaque. Easy to miss was one of the best things in the museum: a piece of paper containing the lyrics to “School Days” in Chuck’s handwriting. Berry’s exhibit was lumped in with similarly underplayed tributes to Bo Diddley, Fats Domino and Little Richard in a section for early contributors.

It was infuriating, especially shortly after Chuck Berry’s death, which should have converted the place into a shrine for the music’s most important founder.  

I hate it when I hear a white person sneer, “When’s it gonna be White History Month?” Admittedly, it does make me chuckle thinking of the time I asked my mother on Mother’s Day, “When is Kids’ Day?” Bet you got the same answer if you asked your parents that question: “EVERY day is Kids’ Day.”

In short, I love Black History Month, and hate that it’s still necessary.

The Bad Stuff

At least as unfortunate as leaving significant contributions by African Americans out of American History is hiding so much awful stuff that has happened to them. The result is a number of Whites who seem not to grasp where we really are, and how we got here. Aggrieved they are, to be hearing about all this race stuff. Articulating this can take any number of forms, but it often goes something like this:

Yeah, slavery was bad, but that ended after the Civil War. Segregation was wrong, too, but we got past all that in the Civil Rights era. My people [Irish, Italian, Polish, etc.] weren’t welcomed here either. They called us names, denied us jobs, made us live in tough neighborhoods. We climbed our way out through determination and hard work.

The first two sentences of this are beyond naïve; indeed, they’re essentially false. Sure, they’ve put racial atrocities behind them. (What systemic racism?) The last three sentences present grotesquely false equivalencies.

Most lessons offered in February for Black History Month are remarkably benign, actually, focusing on neglected good stuff. Grasping an accurate, balanced perspective on the truth, however, requires a dive into some very disturbing history with real-world consequences to this day.

The Really Bad Stuff

I am no historian, much less one who devotes life to digging up every negative thing that’s ever happened to anyone. Something’s been hard not to notice, though, even from a very young age: Many have crazy ideas about other people based on skin color. Along the way, a resolve formed to both (a) appreciate cultural contributions on their merits and (b) face the facts as I found them on the bad stuff. This was for my own good.

When subjected to an aggrieved-white-person harangue, I find myself asking if they’ve ever heard of one or more of the following:

Specific Violent Incidents
Memphis  1866
Clinton, Mississippi  1875
History of Ku Klux Klan
The 1898 Coup/Massacre in Wilmington, NC
East St. Louis Massacre of 1917
The Red Summer of 1919
Tulsa 1921
Lynchings – of thousands, over decades

Discrimination by Operation of Law
[For background] The actual thriving, for a while, of many African-Americans working hard and playing by the rules, when given the chance during early days of Reconstruction
The Black Codes
The presidential election of 1876 and how it was resolved by the so-called Compromise of 1877, effectively ending Reconstruction and issuing in a new era of terror for Blacks
Jim Crow laws, era, and way of life
Redlining
Restrictive covenants
The “crime” of Miscegenation
Mississippi’s ratification of the 13th Amendment – in 1995/2013
Neo-slavery/involuntary servitude/forced labor

How I wish this were an exhaustive list! Unfortunately, it comprises mere shavings off the tip of an ugly iceberg. And these are just ones I know about. Here’s a depressing thought: The atrocities known must be far fewer than all that actually happened. Some attempts at covering up horrific racial crimes undoubtedly succeeded.

What is known is horrific enough. Anyone doubting as much is sincerely welcomed to look into any or all of the above with reputable, documented sources. Read them, and weep. (And, as always, if anything in this post is wrong, PLEASE say how and why in an email to KenBossong@gmail.com.)

Short Summary

At the end of the Civil War, there were some genuine attempts, by the Republican-led federal government, to give former slaves some chance at success. These attempts to meaningfully implement the 13th, 14th, and 15th Amendments are collectively referred to as Reconstruction.

Newly freed Blacks were not the only poor people in America. If there was one thing many white people, especially those doing poorly, could not stand, it was seeing formerly-owned black people doing better. Many were.

Early on, freed people eagerly availed themselves of much that had been denied them as slaves, especially education, beneficial work, and the vote. Some immediately excelled in all lines of endeavor. As individuals found success in business, the arts, law, medicine, sciences, education, and public service, the communities in which they lived similarly began to thrive.

Violent reaction by individuals and groups of Whites began immediately in response to Blacks being elected to office, acquiring land, and starting schools, churches, and businesses.

An incalculably important pivot point in history was the resolution of the bitterly contested presidential election of 1876. The short version of this Faustian bargain is that the Republicans got their candidate, Rutherford B. Hayes, sworn in as President. In exchange, they essentially agreed to forego Reconstruction. That included withdrawal of federal troops whose presence had helped keep “freedmen” somewhat free.

Predictably, this provided carte blanche for white supremacists. Both the frequency and severity of racial violence grew apace. Although provocation ranged from negligible to non-existent, the truth is that innocent men, women and children were killed, and whole neighborhoods, even towns, were burned to the ground. Groups like the Klan ran amok. Folks brought snacks, and the kids, to public lynchings.

“Legal” Machinations

More insidious than individual acts of violence, however, was the deliberate, carefully orchestrated discrimination institutionalized within legal structures. This is the (also incomplete) second part of the “Really Bad Stuff” list above. Those who scoff at the notion of systemic racism want no part of this information.

Herein lies an extraordinarily important point often missed for being more subtle than murder and mayhem. Practices like redlining and restrictive covenants – enforced as a matter of law – present a whole other aspect of evil, beyond acts of discrimination and violence. When odious statutes are passed, or such contracts enforced in courts, discrimination becomes official public policy. Cloaking hate in law makes a mockery of the Fourteenth Amendment’s guarantees of Due Process and Equal Protection of the laws.

Please don’t miss the last item on that list of bad things, by the way: Neoslavery. Like every other concept in this post, the topic deserves its own book. Luckily there is one: the winner of the 2009 Pulitzer Prize for general non-fiction, Douglas A. Blackmon’s Slavery By Another Name. No brief summary of this convincingly documented book could do it justice, but here’s a teaser: Human beings were no longer bought and sold; they were leased. By the tens of thousands, for decades.

When coal mines, quarries, factories, railroads, lumber camps, brickyards or farm plantations needed workers, officials would swoop into an area, arrest men over the age of around twelve for charges like vagrancy, and convict them. Sentences always included large, unpayable fines, and the men were taken away to work off their “debts” under unspeakable conditions. It was rigged so that the indentured servitude lasted for years, or until death for many. The scope and the details of the system are mind-boggling.

Bottom line: The Jim Crow era, in the century following the Civil War, was as shameful as slavery. (Slavery was an execrable institution for millennia before America existed; Jim Crow, sadly, was very much American.) Admirers included the worst people on earth; proof abounds that Jim Crow America inspired the Third Reich’s architects of the heinous Final Solution to their “Jewish Problem”. Hitler and his henchmen studied and emulated the implementation of race hatred through US legal mechanisms (compare the Nuremberg Race Laws to criminalizing miscegenation in 30 of the 48 states) after slavery’s official abolition. The patina of legal authority helped keep any foes the Nazis might have had at bay until it was too late.

The Sinister Sequences, or Why Cluelessness Matters

The point here is not that all Caucasians are inherently hateful or bad, of course. Those who are, however, have found demagoguery very lucrative. One reason is that too many of us have no idea about the subject matter of this post.

This really matters. Ignorance sets the stage for fear, the demagogue’s favorite tool. Absent the facts, almost anything or anyone can be cast as The Problem. Then, hate can stroll right in. This is not the “I-hate-Brussels-sprouts” kind of hate; this is blinding, irrational hate that is personal. Who benefits? Only the demagogue. This sinister sequence gravely harms everyone but the demagogue, who finds it irresistible because it works.

Race is the ultimate Us vs. Them (see post of 2/19/19), however. Those people are responsible for all problems – theirs and ours. Luckily, one can spot demagogues by their rhetoric. Lately, they’ve seized upon their two greatest threats to our society: being “woke” and “critical race theory”. They can’t stop saying either one. Whether unprompted or in response to any mention of racial justice, demagogues eagerly knock down their two favorite straw men.

The sequence at work for decades regarding race has been especially sinister. It perpetuates itself: Segregate; denigrate; then stigmatize. Repeat. Specifically, when the stigma is believed widely enough to stick, segregation and the rest simply flow. Marginalization ensues, preventing families from attaining financial or personal security for generations.

Less fancy wording makes clear these are the oldest tricks in the book: Deny certain people decent jobs and call them lazy; deny them education and call them stupid; force them to live crammed together in poverty and complain about their bad neighborhoods. And so forth. It’s OK to let some superstars do well; a certain few spectacularly so. Even for them, there can be a price to pay – the sense that you are the exception being used to prove the racist rule.

Why This Black History Month?

Getting back to the present, why did all these things especially resonate this year when so much of this is nothing new?

Indeed, for years, I’ve wondered whether folks who feel the wrong side won the Civil War, yet piously sing “Amazing Grace” on Sunday morning, have any idea what had made the hymn’s author a “wretch”.

This February’s musings, though, involved fellow Caucasians who know the right side won the Civil War, but seem oblivious to much of what has occurred from then to now.

Thoughts turned to conversations had with white friends and acquaintances.  For example, with the sight of officer Derek Chauvin snuffing out the life of George Floyd (with that smirk on his face, no less) emblazoned in my brain, I recalled people saying how disgusted they were by the images on screen. Not the images of the cold-blooded murder, you understand, but of knuckleheads skipping out of K-marts with televisions and sneakers.

Outraged they were, and frightened by the (overwhelmingly peaceful) protests that erupted in the wake of Floyd’s death – which they seemed to confuse with the looting. My brain juxtaposed these sentiments with an unforgettable brief exchange during coverage of the protests: Reporter: “What do you say to all the people worried about this unrest?” Protester: [incredulous] “Well, white people are doing the worrying, and we black people are doing the dying. What else is new?”

A Brief Aside

Is it necessary to say that, of course, vandalism and theft are not OK and should also be prosecuted? If so, then it’s also worth mentioning this: A much higher percentage of the few who tossed Molotov cocktails under police cars are being brought to justice than all those whose brazen criminal conduct caused the devastating financial carnage of 2008’s Great Recession.

For a nation so sensitive to property damage, it should be a national scandal that precisely one banker received jail time in the US. Then there are the individuals trusted to rate securities who knowingly slapped AAA grades on junk. But, I digress.

Back to Why This Black History Month?

Do a quick word association with the phrase “race riot” and the majority of responses will be Watts in 1965, or Detroit or Newark in 1967. Not a glimmer of recognition is likely to be found of the unrelenting racial terror and violence aimed at Blacks by Whites that preceded (and undoubtedly had a cumulative role in provoking) Watts, Detroit, and Newark.  Or that, to this day, white people are doing the worrying and black people are doing the dying. Cluelessness precludes the context and perspective needed.

That’s nothing new. What seems kind of new in 2022, though, beyond the usual passive acceptance of history’s whitewashing, is a dogged, active, almost desperate pursuit of ignorance. Ignorance is the stated goal, and knowledge is the enemy. Lately, we have the specter of teachers, school board members, librarians, election officials and other public servants fearing for their lives for doing their jobs and speaking plain truth.

It’s bad to not know. It’s worse to not try to know. It’s worse yet to not want to know. This, however, is active, proud, explicit advocacy for ignorance. It’s lying, and wanting to be lied to. Unsurprisingly, the “advocacy” bears little resemblance to rational debate. They can’t prove that facts are false, so they just attack those presenting the facts.

That’s not to say falsehood advocates can’t be clever. It’s strategic genius to cast the fight as being whether parents can have any say over what’s taught in school, for example. Of course, parents have a role in curriculum, but that role can’t be to insist their children be shielded from knowledge. Yet, this was the difference in Virginia’s last race for governor. “Parents’ Rights!” is a much more appealing rally cry than “Keep our Kids Dopey like Us!” or “Teach ‘em the Lies We Need!”

With startling clarity, the last thing these parents want is for their children to be taught the truth in school. Nope, slaves were treated like family. The Civil War was really the War of Northern Aggression. It was fought over states’ rights, you see, not slavery. All these minorities have to do is work hard, but they won’t do it. All this affirmative action crap is unfair. In fact, we’re the victims here. Oh, how I long for a color-blind society!

Calling All Patriots

Here’s one more reflection that ran through this white guy’s brain during and since Black History Month. It was the iconic scene from the movie A Few Good Men. Tom Cruise’s JAG officer, Lt. Kaffee, cross-examining Jack Nicholson’s Col. Jessup, has asked whether he ordered the Code Red.

Jessup: I’ll answer the question. You want answers?
Kaffee: I think I’m entitled to them.
Jessup: You want answers?!
Kaffee: I want the truth!
Jessup: You can’t handle the truth!

Actually, we can handle the truth; we must. Averting our eyes from the truth does not alter reality; it just hampers our ability to cope with it.

Our choice is not between being ”woke”, or patriotic. It’s between loving America enough to consider all of its history (including the painful parts), in order to unleash all of its incredible potential – or not. Real patriots categorically reject what keeps America from attaining its full promise.  They repudiate the sinister sequence of Ignorance>Fear>Hate.

Ignorance is not bliss; it’s misery. Centuries of needless misery aren’t over just yet. The FBI is hot on the trail of those responsible for a wave of bomb threats at more than one-third of the nation’s 101 historically Black colleges and universities throughout this Black History Month. (And why did America need HBCUs? Oh…) How’d you enjoy those Senate confirmation hearings for soon-to-be Justice Jackson? Black lives mattering is a controversial notion?

This is not a call for white people to wallow in guilt or self-loathing. Rather, the suggestion is actually to mean what we say when reciting the Pledge of Allegiance:
I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands: One Nation under God, indivisible, with liberty and justice for all.
Then behave like we mean it. Imagine what we could achieve together if we simply ensured that every American family knew they had a real, reasonable shot at success.

Time To Unshackle Ourselves

America’s true greatness lies in the liberty, justice, and opportunity it offers. (No wonder we have immigration challenges.) Yet, utterly at odds with such lofty core values, there’s been this tragic, senseless interweaving of white supremacy. Why not rid ourselves of the latter by discarding what has never belonged? Could there be a better way to celebrate our 250th birthday on July 4, 2026?

Pipe dream? Maybe not. A quarter-page ad in the real estate section of a recent Sunday Philadelphia Inquirer led with “This Ad Won’t End Discrimination In Real Estate. People Will.” Continuing:
“If recent events have taught us anything, it’s this: we have more work to do. Racism is real, tragically so. Discrimination in all its forms still casts a long shadow in this country, and too many are being denied the opportunities that all Americans deserve.” There follows a description of the group’s code of ethics, and then:
“As the Bucks County [PA] Association of Realtors we believe that fairness is worth fighting for, and we won’t stop until the fight is won.” Then, in bold, there’s an urging that any discrimination be reported to hud.gov/fairhousing. From a segment of an industry once in the middle of restrictive covenants and redlining, it’s a step.

Is a quarter millennium long enough to wait before fulfilling the promise of our American Experiment and its truths, self-evident since 1776? It’s certainly long past time to undo completely the horrendous mistakes flowing from that deal with the Devil in 1877.

Ken Bossong

© 2022 Kenneth J. Bossong

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There’s Much to Discover in Latest Lawsuit

Papers and newscasts mentioned that former President Donald Trump filed class action lawsuits Wednesday against Facebook, Twitter and Google over their suspensions of his accounts.

Three thoughts immediately came to mind; one in particular persists.

Thought #1: The First Amendment

The first, the suit’s lack of merit, has been mentioned widely elsewhere, citing various experts. As Paul Barrett, deputy director of NYU’s Center for Business and Human Rights was quoted in the Washington Post, Trump has the First Amendment “exactly wrong”. Facebook and Twitter have a First Amendment right to “determine which speech their platforms project and amplify – and that includes excluding speakers who incite violence…”

Indeed, the interesting question is whether, as many argue, such platforms have a duty to exclude such speech as crossing the line from speech into harmful conduct.

Thought #2: Irony

This was an offshoot of the first: the obvious irony of this purported conservative beseeching the Judicial Branch of the Federal Government to tell private companies how to run their businesses. (They must provide him accounts?) At least these defendants are large, powerful entities that can take care of themselves, compared to the countless individuals and small businesses ruined by dealings with him over decades.

As pointed out in prior posts, the Donald is “conservative” only when – and to the extent – it serves his immediate, personal interests. Any notion of his being a champion of the First Amendment is simply laughable.

Thought #3: Imagine the Discovery

But, most of all, the overriding thought was: Oh, how I would love to do discovery in defending these lawsuits! Lawyers for the defendants must be salivating at the prospect. They, along with prosecutors and investigators waiting in the wings, might almost hope the cases aren’t summarily tossed like the 60+ frivolous election cases. After all, this could be fun.

A Little Background

Before they go to trial, parties in legal cases both reveal and seek information reasonably available about the case they’re in. That applies to both the facts and legal arguments. The process for doing so is called “discovery”. Robust discovery is encouraged and often required.

It’s good for TV and movies to have last-minute “OMG!” surprises at trial. (Hey there, fans of Perry Mason.) It’s good public policy, however, to have parties better understand their opponents’ cases – and their own – earlier. Among the advantages of clarifying legal and factual issues up front are increasing the chances of (a) settling the case and (b) having a focused trial result in justice when the suit can’t settle.

Important point: We value discovery so highly that its scope is very broad. Generally, you don’t have to prove information would be admissible at trial in order to obtain it in discovery, for example.

Typically, all three methods of pre-trial discovery are under oath: interrogatories – where parties answer each other’s sets of questions; depositions – where witnesses testify; and (my favorite) requests for admissions – where parties must either admit or deny assertions made by the other party.

So…

It follows that anything arguably relevant is fair game for development via discovery. There are some very interesting items of relevance to the suspending of these accounts, given the events of January 6. Surrounding, but not necessarily limited to, January 6.

An obvious defense – perhaps the obvious defense – available in these lawsuits is that the plaintiff and his followers were misusing the defendants’ platforms to engage in dangerous, criminal, even seditious, conduct. The insurrection, horrendous in itself, is also both culmination of prior activity and precursor to future threats. (What exactly is to happen, by the way, when DT is NOT restored to the presidency in August?)

So, prepare those interrogatories, draft requests for admissions, and by all means schedule multiple depositions. And remind everyone that perjury is still a crime worth prosecuting.

Why’d He Do It?

This plaintiff has employed diversionary tactics often in the past. When something negative is brewing, outrageous statements and actions meant to distract are automatic. With various state and federal prosecutors poring over records, the organization being indicted, and Rudy Giuliani’s law license being suspended in New York, the seriously negative is just beginning to percolate. Perhaps he thought a pre-emptive strike in which he portrays himself as a victim might help.

On the other hand, maybe he just wanted his bullhorn back. He isn’t the lead story much anymore. It’s awful.

Finally, it may just be his latest fund raising scam.

Regardless, he may have been better off this time staying away from courtrooms and litigation. He’s going to be seeing more of each than he’d like, some on the criminal side, soon enough.

Ken Bossong

© 2021 Kenneth J. Bossong

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Now What?! A Suggested Approach to Pre-Inaugural Angst

The pandemic rages on with more victims than ever. The President of the United States cares only about convincing as many of his followers as possible that the recent election was stolen, while knowing it was not. OMG, what crazy, stupid, lawless thing will the President do next? If we find ourselves anxiously fretting over this, the Donald has us right where he wants us.

OK, so how is one to react to the latest assault on our country’s democracy? Matter-of-factly. The time has come to stop rewarding Donald Trump and his followers with howls of outrage, however deserved. With the possible exception of the inherent pleasure they derive from wrongdoing, nothing pleases Trump or a true Trumpster more than the apoplexy they elicit with bad behavior.

So, it’s not “You make me so mad I can’t sleep!” Rather, it’s time to shrug and say, “We expected nothing but the worst possible behavior from you, Mr. President. Someone willing to obstruct justice as you have is certainly going to obstruct a transition. Hire your movers and the best criminal defense team you can find. Pitch a reality TV show. Please excuse us, though; we have a lot to do, repairing the damage you’ve done to this country.”

We Saw This Coming, Right?

We were expecting, maybe, bowing to the will of the people? A gracious acceptance of obvious reality? Cooperative transfer of power in the nation’s best interests? An end, or even slowdown, to the barrage of lies? Doing the right thing?

We thought that after the election Donald Trump would urge all Americans to take reasonable measures to protect themselves and each other? Tamp down the politicization of the pandemic? Do something that actually would help the economy?

This Republican “leadership” (excuse the expression) was going to rein in Donald Trump? They were going to say harming the country with lies demeaning its democracy was going too far? They’re going to get interested in saving lives after a quarter-million lost?

C’mon. Seriously?  

This is not to suggest that dishonesty does not matter; quite the contrary. Honest, experienced election officials – Republican, Democratic, and Independent – are receiving death threats for doing their jobs and telling the truth. Exhausted health workers report patients using their dying breaths to deny the virus killing them.

The most famous current report comes from South Dakota, where nearly a half million bikers sneered at science with a super-spreader event in Sturgis. There is no doubt why the Upper Midwest became one of the nation’s hotspots this fall. Unmasked and undistanced partiers went home to every state, and, combined with smaller but similarly foolish gatherings everywhere, have made the whole country a hot spot again. Dishonesty matters, alright, especially when believed.

A Few Undeniable Facts – Election

By all accounts, regardless of political persuasion, 2020 was the cleanest election anyone can remember. That stands to reason, since everyone knew it would be the most scrutinized election ever. Elections generally are clean; our system works. But the chance of getting away with election fraud in this one was closer to zero than ever.

Joe Biden won. His 306 electoral college votes were the same number garnered by Trump in 2016. For four years we’ve been hearing from the Donald that this was a “landslide”, despite losing the popular vote by around 2.9 million votes. In contrast, Biden’s 306 electoral votes in 2020 saw a corresponding popular vote victory of over 5.5 million. It’s a clear, solid win.

Any assertion to the contrary is not only incorrect, but a knowing lie. Everyone with access to the facts knows this election was clean. To suggest it was stolen is a slander against our country, and all those who work hard and well on its elections.

Overturning any election in court requires compelling proof. In cases filed against this election, forget about proving anything – what’s being alleged is incoherent. If any specific fact is asserted, it turns out not only false but often the opposite of the truth. The suits filed aren’t just losers; they are frivolous.

Yes, He Knows

By the way, of course Trump knows he lost. He knew he was cooked when Biden won the South Carolina primary and then did so well on Super Tuesday. Why else would he be furious with Elizabeth Warren for not pulling out of the race and backing Sanders? Trump knew he’d have a chance against Bernie. Why else did he pursue that idiocy in the Ukraine before Biden was even the nominee?

If he knows he lost, why this behavior now? The easy answer is he’s just being the Donald. It’s no mere sore-loser petulance, however. The sad truth seems to include: (1) This keeps him the lead story, even as a lame duck, as long as possible. (2) Whatever can be done to hurt Biden, he’ll do. (3) He enjoys harming people in general, and our country and its core values in particular. (4) There are a few more items on the to-do list Vladimir gave him. (5) He is helping himself to one last fleecing of his adoring followers. As has been reported elsewhere, the small print in the current fundraising indicates that little or no money raised actually funds the baseless lawsuits.

A Few Undeniable Facts – Pandemic

COVID-19 is not just another flu. It is more contagious, more stealthy, and much more deadly. Its presence in a person days before symptoms manifest means that people unknowingly spread the virus everywhere, unless they take measures.

Transmission of COVID-19 is by personal contact, specifically most often by respiratory droplets. How long they linger, and under what circumstances, are still not fully understood. It’s easy to understand, though, that people breathing on each other spreads the coronavirus. Keeping a distance of about six feet, and knocking down droplets with masks, obviously help. So do circulating clean air, cleaning surfaces, and avoiding crowds.

At any time in our history other than the Trump Era, denying any of the above would have been regarded universally as sheer lunacy. Yet, one mask seen at a farm stand said “This Is What Tyranny Looks Like!” No. This is what common sense looks like.

The message from the White House has been “Ignore those fins of the great white shark. Everyone in the ocean!” (Indeed, not to beat the point to death, but the presidential response to COVID since March has been a real-world, large-scale rendition of the film Jaws, complete with mayor telling citizens to ignore the experts for fear of slowing an economy.)

The Need for Consequences

The expression is “No good deed goes unpunished.” The only thing worse than good deeds being punished, though, is bad deeds going unpunished. The wrongdoing recently, like that of the last four years, has been so voluminous and so serious as to require consequences. Otherwise, there will be no credible deterrent to future crimes and unethical behavior in high places. Don’t go after little stuff, but don’t ignore really bad stuff, either.

This is not for Joe Biden’s attention, by the way. He has even more important things to do. At every level, state and federal, we have good people who have made it their lives’ work to respond to bad behavior. Unfettered, these experts can be trusted to just do their jobs in various realms.

The Civil Case Realm

It is entirely appropriate in most jurisdictions to request both attorneys’ fees and sanctions in response to frivolous litigation. Without a shred of evidence, the suits being filed by or on behalf of Donald Trump are the epitome of frivolous. Every pleading in response to this nonsense should contain requests for sanctions and attorneys’ fees. It’s bad enough that gullible Trump supporters send their money in for this “cause”, only to have all or most of it diverted. Why should taxpayers have to fund the defense?

It is worth remembering that certain doctrines of law, like fraud and the RICO (Racketeer Influenced and Corrupt Organizations) Act, operate in both the civil and criminal arenas.

One other thought: How about a writ of mandamus against public servants who refuse to do their job in critical areas? This tends to come up when dedicated professionals are fired in favor of political hacks and donors. There are very good reasons for the Hatch Act and for political appointees to be greatly outnumbered in the public workforce.

The Ethical Realm

It is unethical for any lawyer to file pleadings lacking any merit. (RPC 3.1: A lawyer shall not bring or defend a proceeding, nor assert or controvert an issue therein unless the lawyer knows or reasonably believes that there is a basis in law and fact for doing so that is not frivolous.)

It is separately and especially unethical to do so knowingly. (RPC 3.3: A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting an illegal, criminal or fraudulent act by the client… (4) offer evidence that the lawyer knows to be false… or (5) fail to disclose to the tribunal a material fact knowing that the omission is reasonably certain to mislead the tribunal…)

Attorney Ethics prosecutors, often called Bar Counsel, should prepare themselves for a wave of cases. The Rules of Professional Conduct are not limited to those in private practice, by the way; they apply to all licensed lawyers.

Lawyers aren’t the only ones with ethics standards. Other professions, like medicine, have them. All three branches of the federal government have offices to ensure ethical conduct. While Trump and congressional Republicans each consider whether there is any act whatever Trump could do that would draw condemnation, here’s a link to the Office of Congressional Ethics: https://oce.house.gov/learn/citizen-s-guide

The Criminal Realm

The enormity in volume, scope, and severity of the crimes committed by and on behalf of Donald Trump boggles the mind. And that’s just what we already know. History will teach that our President Law ‘n’ Order broke more laws than any other ever, perhaps more than all others combined.

Crimes (like perjury, fraud, treason) each have elements that must be proven. They either happened or they didn’t. They either can or cannot be proven beyond a reasonable doubt.

The topic of pardons would justify its own post. Suffice it to say (as I have been for a couple years) that on his way out, Trump will

  • Pardon a long list of bad actors who committed crimes at his behest or for his benefit and
  • Either resign and have Pence pardon him, or pardon himself – or both

Donald Trump may find one last constitutional crisis irresistible, so brace yourself for that self-pardon thing. I’m not aware of anything definitive on whether a president can do it, but there’s this from a memorandum opinion written in the time of Nixon out of Justice’s Office of Legal Counsel:

“Pursuant to Article II, Section 2 of the Constitution, the ‘Power to grant…Pardons for Offenses against the United States…’ is vested in the President. This raises the question whether the President can pardon himself. Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.”

As to Vice President Pence: he is not in Jerry Ford’s position; Trump is not in Richard Nixon’s position; and someday maybe we’ll count the number of Trumpian scandals that dwarf Watergate. Depending on how far Trump is willing to go with his treachery before January 20, the 25th Amendment, Section 4, might be the more to the point than Article II.

Finally, I’ve seen a suggestion that Biden should pardon Trump. I don’t think he should, and I don’t think he will.

A Quick Story

As an undergrad a long time ago at Rutgers, I bought an advance general admission ticket to a concert. I was excited because it was my first chance to see Archie Shepp, then as now one of my favorite tenor saxophonists. Excited enough was I to not pay attention as I approached the outside doors. Someone stuck out his hand and I handed him my ticket. While peering inside the lobby, I didn’t notice at first that the stub wasn’t given back to me. I looked back and the guy was gone, with my ticket.

At first, I was puzzled. Looking back inside the lobby, I realized they were actually taking tickets at the doors from the lobby into the venue. The ticket was gone, I couldn’t prove anything or identify the guy, and I couldn’t afford another ticket. I was almost as angry at myself as the thief. How could I have been so stupid? I hated the feeling of being “had”. (Indeed, until now, I haven’t told this story to very many people.)

It’s happened to most of us, one way or another, and we all hate the feeling of having been had. For at least two reasons, we don’t want to believe that’s what has happened. First, someone did something wrong to us. Second, we feel really foolish.

Millions have been had by Donald Trump. Some will never realize it; some will realize it, but never admit it. Some have realized it, or are beginning to realize it, already; for others it will take a while. It’s never easy, and it hurts. He’s quite the con man.

All cons are not the same, but it does feel better to learn from it and let it go. I’ve enjoyed many great events at Rutgers over the years. I’ve also seen Archie Shepp play three times now, worn out some of his albums, and loved every second of it.

So…

True and False.
Good and Bad.
Right and Wrong.

My parents taught me all about these concepts – which was which, and why the distinctions between them always matter. I’m eternally grateful. It’s time to fix the mess we’re in, preferably together. We’ve never needed these, our first principles and the building blocks of society, more.

To be effective, it’s better to skip the snark and the vitriol, but we must insist on fairness, and answer every lie with the truth. Investigate all wrongdoing, wherever the truth takes us. Prosecute proven crimes. Discipline breaches of Ethics. Do all this not out of spite or revenge, but simple justice. We can’t afford not to do it.

Matter-of-factly.

Ken Bossong

© 2020 Kenneth J. Bossong

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Good News About Lawyers: Client Protection Funds

Lawyer joke: What do you call 200 lawyers on the bottom of the sea? Answer: A good start.

As we slog through the shutdown, the need for something positive to contemplate is real. Given all the jokes about lawyers, they might seem an unlikely source of uplift. The truth is that lawyers and judges do something terrific that is little known or understood.

As with any profession, Law is a barrel in which there are a few rotten apples. That’s the bad news. The good news is (1) how few there are and (2) what all the honest lawyers do to address the harm done by the dishonest few.

What they do is maintain a Client Protection Fund. (By way of full disclosure, I served as director and counsel to New Jersey’s Fund for thirty years.)

The Basic Concept

Each state disciplines unethical lawyers. The rules (of professional conduct, or RPCs) tend to be similar across various jurisdictions, but not identical. Generally, a lawyer who has done something terrible, like stealing from a client, can expect to be disbarred.

All of which is good and necessary to prevent harm to future clients. But what happens to the clients already harmed? What happens to them, hopefully, is a remedy provided by the bench and bar of the state. Among the remedy’s names are Lawyers’ Fund for Client Protection, Client Security Fund, or Client Protection Fund. We’ll just use “Fund”.

Whatever it’s called, the concept is simple: a trust fund paid for by the state’s lawyers and judges to reimburse clients of dishonest lawyers. The Supreme Court appoints a cream-of-the-crop board of trustees to run every aspect of the Fund’s operation. This includes deciding claims, hiring and firing staff, safeguarding and investing the Fund’s assets, and proposing rule changes to the Supreme Court to which it reports.

The mission is to pay claims based on dishonest conduct (not malpractice) by a lawyer within an attorney-client or fiduciary relationship. The American Bar Association has a model rule for Funds (https://www.americanbar.org/groups/professional_responsibility/resources/client_protection/), and the National Client Protection Organization has a set of Standards (under “Resources” at www.ncpo.org).

Together, the Model Rule and the Standards lay out the characteristics of a Fund that matter most.

Most Important: the Fund’s Nature as a Trust

It’s hard to believe anything could be more important to a Fund than adequate resources, but something is – an independent organizational structure as a trust. To put it bluntly, being well funded doesn’t matter if those assets or income can be taken away for any other purpose. If the Fund is anything but a trust, and beholden to those who don’t “get” client protection, there is ultimately no Fund.

The threat is no mere hypothetical. When Fund Trustees and their staff do their jobs well, the Fund grows a reserve even while paying all valid claims. Others inevitably find that reserve irresistible. If a Fund is just another committee among many, or a mere line item in a vast bureaucracy’s budget, the risk can range from outright taking of the Fund’s money to simply diverting needed income elsewhere.

Recognizing the Fund’s nature as a trust exposes a delicious irony in threats against it: taking from it is a theft, the very sort of behavior that gets lawyers disbarred. That doesn’t mean it can’t happen, unfortunately.

So, the term “trustee” is not used lightly here. The role goes well beyond that of “committee member”. Trustees of a Fund have fiduciary duties with respect to the trust: to the Supreme Court as grantor; to the state’s lawyers as benefactors; and to the public as potential beneficiaries.

Financial Health

What is a Fund without steady, secure, and adequate funding? Well, nothing. If underfunded enough, it actually may be worse than nothing – an embarrassing sham.

Decades of national experience show that a Fund can fully reimburse nearly all claimants with an annual assessment of between $25 and $50 per lawyer. (The amount needed depends on cost of living and whether loss prevention mechanisms exist.) Anyone doubting that this is a tremendous bargain need only check the cost of comparable fidelity bonds for all lawyers.

Indeed, how do Funds do it? The first key is to collect the assessment every year, good and bad, growing the reserve when claim payments are mercifully low. The second is to exempt very few attorneys. Every honest lawyer can argue “I don’t contribute to the risk” covered by the Fund.  This misses the whole philosophical foundation of the Fund – see below.

Another key is to pursue recovery from the disbarred lawyer, and anyone else liable from how the theft occurred. It’s hard work, but worth the effort; Jersey has recovered $24M of the $92M paid since 1969.

Finally, Funds must not listen to anyone arguing it has “too much”. Unless a Fund is fully endowed – fully paying each year’s claims and expenses out of the reserve’s income – it doesn’t have too much. The “Murphy’s Law” of Client Protection is this: Any Fund that reduces or eliminates its assessment because it has “too much” will be decimated by catastrophic claims. Soon. Since victims of catastrophic losses are no less deserving, the Trustees have a duty to build a substantial reserve.

Accessibility

A Fund can’t help people who don’t know about it. Law clients who need the Fund must be able to find it. The Fund should not be the Bar’s little secret. If lawyers have been disbarred for theft, but the Fund is getting no claims, something’s amiss.

Some lawyers hate admitting a Fund is needed, but that’s just silly. Human nature being what it is, all professions could use a Fund – more on that later. At least the Law has one; if done well, it’s a source of pride. Robust efforts to get the word out should reflect that pride.

Publicity for a Fund isn’t always easy, though. It’s still bad news that sells. When a lawyer is suspended or disbarred, there are headlines. Indicted, convicted, or sentenced: definitely headlines. When a Fund supported by every lawyer and judge in the state takes care of each victimized client, however – not so much.

One other aspect of accessibility: After they find the Fund, clients must be able to file a claim without experiencing Dante’s nine Circles of Hell. What is required to file a claim should be clear and doable.

Responsiveness to the Need

There are two aspects to responsiveness: the reimbursement’s amount and timing. The only sensible goal for a Fund is to replace every dime stolen as quickly as possible.

What’s the message to a client, and to the public, when a Fund pays 20 cents on the dollar of a valid claim? We kinda, sorta regret what happened? We don’t care enough to make you whole, but we wanted to make a gesture? Lawyers are 20% trustworthy? Other ways to limit claims, like needless disqualifications and limitations in the rules, similarly thwart the purpose of the Fund.

Timeliness matters, too. A claim should not outlive its claimant. Getting the evidence needed can be a chore, but once a claim is proven, relief should be on the way.

Trouble in this area – a Fund paying too little or too slowly – is often a funding problem in disguise.

Philosophical Foundation: the Compact

In submitting ourselves to the rule of law, “We, the People” place special trust in the highest court of the state (often called the Supreme Court). Such courts not only are the last appeal in court cases but run the judicial branch of government under state constitutions. In leading the systems of justice, it sensibly follows, these supreme courts regulate lawyers and the practice of law.

In deciding who may practice law (through bar admissions) and who may not (with discipline), the Supreme Court is telling the public which individuals are worthy of their trust. This is a very big deal.

As New Jersey Chief Justice Robert Wilentz said in a landmark 1979 case, In Re Wilson:

“Whatever the need may be for the lawyer’s handling of clients’ money, the client permits it because he trusts the lawyer.

It is a trust built on centuries of honesty and faithfulness. Sometimes it is reinforced by personal knowledge of a particular lawyer’s integrity or a firm’s reputation. The underlying faith, however, is in the legal profession, the bar as an institution. No other explanation can account for clients’ customary willingness to entrust their funds to relative strangers simply because they are lawyers.” [My emphasis]

Thus, when a client is hurt for trusting a lawyer, “Gee whiz” is not an acceptable response by the bench and bar.

Much better is what a Fund says to clients in replacing all the stolen money: “You were not wrong in trusting your lawyer. Clients need to trust their lawyers for our system to work. The lawyer was wrong in abusing your trust. On behalf of all the state’s honest lawyers and judges who make your award possible by paying into this Fund, we are sorry you had this terrible experience. We hope this award helps you going forward and begins to restore your faith in the profession.”

Restoring public trust vital to the justice system, the Fund is the best response to lawyer wrongdoing in light of the Compact between the People and the Court. It is essential to the rule of law.

Not Without Controversy

The Fund is not really controversial. It generally enjoys wide support. Now and then, though, a lawyer will complain “Am I my brother’s keeper?”  To which there are at least three replies:

  1. The Fund doesn’t do this for the dishonest lawyers, but for their deserving clients. After paying, the Fund goes after the disbarred lawyers to collect.
  2. See Chief Justice Wilentz, above.
  3. Of all the heroes in the Bible available to quote, you chose Cain? Really?

The Fund’s merits are clear enough that it is difficult to oppose publicly, but not everyone gets it. So, the Fund is not without controversy. The corresponding need for education never ends.

How Few Are the Dishonest Lawyers?

Very few. In its 51-year history, the New Jersey Fund has paid claims against 840 lawyers. There are currently about 98,330 lawyers licensed in New Jersey. So, in over a half century the Fund has paid claims against 0.85% of lawyers licensed now. Add in all the lawyers who have passed away (and those disbarred) over these years, and there’s little doubt that the percentage drops at least to one-half of one percent.

Note that 840 respondents in 51 years means that an average of 16 to 17 lawyers “go bad” each year.

Those few can do a lot of damage, however. The 840 have cost the Fund $92,471,845, or an average of $110,086 each. You wouldn’t expect anyone to get disbarred over nickels and dimes, but some do. They balance off the huge claims in the statistics.

One Last Subtle Point

The Fund is a moral imperative, not a legal one. Lawyers are not liable for the misdeeds of total strangers, just because they’re in the same profession. Clients do not have claims of right, but of grace; their claims are not causes of action.

The Fund exists because it’s the right thing to do, not because it is legally compelled. Therein lies its beauty. Deciding claims in their discretion makes it more incumbent on the Trustees to do justice, not less. I’ve known many trustees from all over the country. Almost every one has been passionate about getting claims right and protecting the Fund. Anyone not so inclined should resign, or simply decline the appointment.

For those who argue that Law is no longer a profession but “merely” a business, the Fund is Exhibit A why they’re wrong. The hallmark of true professionals is that they put the interests of clients before their own.

Other professions should consider it. The March 15 Philadelphia Inquirer had a story about a Pennsylvania payroll service that had failed to pay clients’ payroll taxes for years. Not only were the clients’ funds missing, but the IRS was looking for interest and penalties. Losses in the millions apparently have no remedy in that industry.

Conclusion

Law clients facing ruin for having trusted a lawyer, only to have a Fund restore their life’s savings, do not consider 200 lawyers on the bottom of the sea “a good start”. (There may be one ex-lawyer they wouldn’t mind seeing there, though.) Many a claimant has wept with joy and relief upon learning of a Fund award; there are hearings I will never forget. So, is an independent, well-funded, accessible, and responsive Fund good for the legal profession? You bet.

Working on something that is both this good and this prudent is quite a privilege. And, done right, Client Protection Funds are amazingly good for everyone – the bench, the bar, the public, the system. All 50 states plus the District of Columbia have a Fund. None is perfect, but most are quite good and diligently working toward the aspirations not yet attained.

I thought you’d like to know.

Ken Bossong

© 2020 Kenneth J. Bossong

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Superior Forces

Lawyers all over the country are brushing up on a legal doctrine called Force Majeure. Why? Because it is the key lens for viewing deals disrupted by the pandemic. Since COVID-19 is disrupting almost all human interactions, Force Majeure and related doctrines are well worth examining. If you haven’t already, you’ll be hearing the phrase soon – and often.

When the Law names a concept or a doctrine, it usually resorts to Latin. You may have heard phrases like quid pro quo (“this for that”) or res ipsa loquitur (“the thing speaks for itself”) bandied about recently, for example. Force Majeure is French (“superior force”). So, there’s that.

What really makes Force Majeure interesting and not only for lawyers, though, is how aspects of the doctrine relate to our every-day approach in facing adversity. There are lessons for life in considering what matters here. (No, it’s not that hordes of readers are combing the Internet for posts on the law of Contracts. And no, what follows is not legal advice, obviously.) So, what is it?

The Concept

In ordering our affairs, we seek to hold each other, and ourselves, to doing what we promise to do. Courts are not pleased with those who breach contracts, and assess money damages for doing so. We value promise-keeping.

What happens, though, when an abnormal, outside event prevents one or both sides of an agreement from doing what they promised? That is, if a force superior to the parties’ intent intervenes? (Note: we’ll refer to this simply as the “event”. Also, to do what was promised is to “perform”.)

If someone has a contract with a town or a county to fix a road’s potholes (don’t we wish!) and an earthquake destroys the road, what happens to each side’s obligations? Or if one is hired to paint a barn that burns to the ground? The possibilities of events beyond the parties’ control (whether the cause be nature – floods, earthquakes – or mankind – terror attacks, war) are endless. The potential for complexity far exceeding these plain examples is limited only by the scope of our entanglements.

Sophisticated written contracts often contain Force Majeure clauses. In them, a parade of catastrophes is listed with some attempt to agree in advance who gets to skip, change, or delay performance – and under what circumstances. Some clauses include a catch-all provision to deal with events not mentioned.

After The Event

After the event occurs, if everyone agrees what should happen next, there’s no legal problem. (There are always the hardships and heartaches involved in picking up the pieces, unfortunately.) When the parties disagree, however, even after trying mediation, the courts ultimately must decide.  Was the event a Force Majeure? If so, how does it affect what the parties promised to do?

If there is a contract with a Force Majeure clause, the court will interpret and enforce that language. As in many areas of law, state law will govern. While that means the law will vary some, certain kinds of issues generally will matter:

  • If not completely unforeseen, the extent to which the event was unavoidable or not within the control of the parties  
  • Whether the event directly caused the inability to perform
  • To what extent there was a true inability to perform
  • Whether there were any attempts to perform
  • If the doctrine applies, what the appropriate remedy should be

The burden of proof is on any party seeking to invoke Force Majeure. Obviously the cases will depend on their facts, but there’s no doubt that COVID-19 will present numerous, daunting legal problems.

When There Is No Force Majeure Clause

It is possible to have either (a) an enforceable contract that is verbal rather than written, or (b) a written contract that does not contain a Force Majeure clause. Either way, there may still be a remedy. To address this very briefly, two similar doctrines of law have evolved in our so-called “common law”, on a case-by-case basis.

Impracticability is not just impracticality with an extra syllable, so lawyers can have another word nobody else says. It means something is beyond simply not practical to do, even if not quite impossible. If impracticable, it can’t be put into practice under the circumstances. So, parties invoking the doctrine must show the event to have been beyond their control and destructive to one or more of the contract’s essential assumptions.

Then there is Frustration. This is not exactly what Muddy Waters was singing about in “I Can’t Be Satisfied”, later inspiring the Rolling Stones’ “(I Can’t Get No) Satisfaction”. It is frustration of purpose. So, again, if parties reach an agreement based on assuming certain things will or won’t happen, and an event not their fault later shatters their assumption(s), relief may be available. Was the purpose of the contract frustrated?

[For anyone wanting more detail on the three doctrines, a quick search will provide scads of information. Continuing Legal Education is going berserk with courses on all this – all webinars, to be sure.]

Digging Deeper Into What Matters

In the flood of litigation expected in the wake of COVID-19, courts will have much to consider. Whether there are Force Majeure clauses to interpret, or doctrines like impracticability or frustration to apply, judges will find themselves asking similar questions:

Was performance impossible, or so difficult that it might as well have been impossible? Or was it just annoying, inconvenient, or somewhat more difficult or costly than anticipated? How difficult is too difficult?  Did the pandemic cause the impossibility in this case? Was it even relevant?

Did the parties act honestly and in good faith? Try to perform? Seek to limit the harm or avoid the negative consequences? Seek alternative solutions? Communicate?

Is there a way out of the situation that makes sense? Can justice be done? Is one side trying to take advantage? Is the event just an excuse to renege, or an attempt to renegotiate a deal one regrets? Should the contract simply be void? What if some sort of under-performance is possible, and better than nothing?

Equity and the Truly Superior Forces

Like anything else, the Law is not perfect. Limitations and imperfections exist, whether in statutes, common law, rules, or regulations. Inflexibility is therefore problematic. Up steps Equity, the conscience of the Law. Equity does not oppose the Law, but supplements it with an overriding concern for fairness and good sense. By the way, “Equity” (or “Chancery”) sometimes denotes a division in the court system where remedies other than money damages are sought. Equity’s principles or “maxims” are generally available to interweave with the Law, however.

Of all the old Equity maxims, my favorite is this: He who seeks Equity must do Equity. Wise words, those.

Honesty, fair dealing, good faith, reasonableness, decency, concern for the big picture – these are the kinds of things courts will be looking for in deciding Force Majeure (and related) cases. They’re also what we demand of ourselves and each other when we are at our best.

These are the truly superior forces.

The wise among us don’t wait for the courts to tell us so on a case-by-case basis. What the courts decide to do always carries tremendous significance, but is not as important as what we decide to do – every day, in matters large and small.

The current saying is “We’re all in this together.” In a sense that’s always true, not only during a pandemic and not just with respect to health.  Behavior, good and bad, matters. Bad behavior harms not just the victim but the perpetrator as well, and then ripples through the community. The same is true for the benefits of the good.

Our system and our way of life depend upon our embrace of truly superior forces – among them honesty, fair dealing, good faith, reasonableness, decency, and concern for the big picture. Whether our being “all in this together” ends up a blessing or a curse depends on us.

Ken Bossong

© 2020 Kenneth J. Bossong

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The Flores v. Barr Cringe Fest

A few days ago, on August 15, the U.S. Court of Appeals for the Ninth Circuit released its decision in the remarkable case of Flores v. Barr. I was not expecting to write on immigration again so soon (see “Immigration – Governing with Nods and Winks”, 5/10/19), but there are aspects of this case so cringe-worthy as to require mention. The good news is that a terrible argument lost. The bad news is that such an argument was made and by whom.

Background – the Flores Agreement

A 1987 class action lawsuit on behalf of minors detained by immigration authorities was litigated for years before being settled in 1997. The consent order settling the case became known as the Flores Agreement, or simply “the Agreement”. It required immigration agencies to hold minors in their custody “in facilities that are safe and sanitary.” Such facilities must also be “consistent with…concern for the particular vulnerability of minors.”

The Agreement gets into some specifics: “Facilities will provide access to toilets and sinks, drinking water and food as appropriate, medical assistance if the minor is in need of emergency services, adequate temperature control and ventilation, adequate supervision to protect minors from others, and contact with family members who were arrested with the minor.” There was no dispute that the Agreement remains in effect as a matter of law to this day.

This Case

In May 2016, the plaintiffs filed a motion to enforce the Agreement. They contended that the government continued to violate it by, among other things, detaining class members – that is, minors – in unsafe and unsanitary conditions.

In June 2017, Judge Gee of the U.S. District Court granted plaintiffs’ motion to enforce. The court found that the government was violating the Agreement’s express requirements to provide adequate access to appropriate food and water and “adequate temperature controls at a reasonable and comfortable range.”

The court further found that although the Agreement “makes no mention of the words ‘soap,’ ‘towels,’ ‘showers,’ ‘dry clothing,’ or ‘toothbrushes,’ . . . these hygiene products fall within the rubric of the Agreement’s language requiring ‘safe and sanitary’ conditions.”

Certain Border Patrol stations, the district court found, were violating paragraph 12A of the Agreement by failing to provide such sanitary necessities. Other facilities were depriving the children of adequate sleep. The government appealed to the U.S. Court of Appeals for the Ninth Circuit.

Jurisdictional Quirk

Bear with me here, because it’s worth understanding this point. By federal statute, the Circuit Court of appeals has jurisdiction in this type of case over district court orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.”

Since everyone agreed that Judge Gee did not grant, continue, refuse or dissolve the Agreement, the Court of Appeals can review her ruling only if it “modified” the Agreement. The Ninth Circuit dismissed the appeal because the district court did not modify (change) the Agreement in its ruling, but simply interpreted it. Here’s why this matters.

The Crux

The Ninth Circuit’s recounting of the government’s position is as follows:

Specifically, the government contends that, by interpreting paragraph 12A in the body of its opinion to require that Border Patrol stations provide the most basic human necessities—accommodations that allow for adequate sleep, essential hygiene items, and adequate, clean food and water—the district court modified the Agreement’s requirement that minors be held in “safe and sanitary” conditions that comport with the “special concern for the particular vulnerability of minors.” We emphatically disagree. 

The government first suggests that the key phrases in paragraph 12A—“safe and sanitary” and “special concern for the particular vulnerability of minors”—add nothing to the enumerated specific requirements found in the next sentence of the Agreement (requiring “access to toilets and sinks, drinking water and food as appropriate,” and so on). The government’s brief maintains that as the enumerated conditions said nothing about, for example, allowing the children in government custody to sleep or to wash themselves with soap, reading the “safe and sanitary” requirement to cover those requirements is a modification of the Agreement rather than an interpretation of it.

Wait, What?

You read that correctly. The U.S. Department of Justice argued before a three-judge panel of the U.S. Court of Appeals that requiring a bar of soap, a toothbrush, and food that is edible “modified” a decades-old Agreement requiring safe and sanitary conditions.

That’s after arguing that “safe and sanitary” adds nothing to the requirements for toilets, sinks, water and food. Therefore, the toilets, sinks, water and food need not be safe and sanitary, even though the Agreement says they must.

The Circuit Court’s Decision

The Circuit Court goes on to demolish the argument as an untenable approach to contractual interpretation. It also dismisses the notion that the phrase “safe and sanitary” is so vague that either it cannot be enforced, or it leaves “the specifics of compliance [with the Agreement’s paragraph 12A] up to” the government. From the opinion:

The district court’s interpretation of the Agreement is consistent with the ordinary meaning of the language of paragraph 12A, which does provide a standard sufficiently clear to be enforced. The court found, among other things, that minors (1) were “not receiving hot, edible, or a sufficient number of meals during a given day,” (2) “had no adequate access to clean drinking water,” (3) experienced “unsanitary conditions with respect to the holding cells and bathroom facilities,” (4) lacked “access to clean bedding, and access to hygiene products (i.e., toothbrushes, soap, towels),” and (5) endured “sleep deprivation” as a result of “cold temperatures, overcrowding, lack of proper bedding (i.e., blankets, mats), [and] constant lighting.”

After so finding, the district court concluded that these conditions fall short of paragraph 12A’s requirement that facilities be “safe and sanitary,” especially given “the particular vulnerability of minors.” Those determinations reflect a commonsense understanding of what the quoted language requires… The district court properly construed the Agreement as requiring such conditions rather than allowing the government to decide whether to provide them.

There are other issues in the case, also decided against the government. The opinion is available at http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/15/17-56297.pdf.

An Aside

I am not going after the individual attorney from the Department of Justice who (apparently drew the short straw and) found herself handling the oral argument in this case. The lawyers standing before judges, or justices of the Supreme Court, are seldom the ones deciding which cases to appeal, and on what grounds.

Conclusion (at least for now)

Really, I ask you to pause for a moment to absorb this. A lawyer for the United States of America asked a federal court of appeals to rule that while the Flores Agreement requires detained children to be provided “drinking water and food as appropriate”, it says nothing about potable water or edible food.

This should be the stuff of satire, but I am making none of this up. Most of this post comes straight from the court’s recent opinion. A recording of the oral argument went “viral” – presumably for the equal parts incredulity and dismay with which the judges received such arguments. Consider whether the position taken is worse legally or morally.

Yet, those arguing there are no issues or problems at our borders are clearly wrong as well. Apparently, thousands of people daily find arrest in America preferable to what they face at home. The logistical issues, alone, of dealing with such numbers of people are daunting and must be addressed. According to a July 29 Time Magazine article, 363,300 people from Guatemala, El Salvador and Honduras have been arrested at borders since October. Assuming the number correct and including every day of October 2018, that’s 12,030 people per day for ten months.

Saying we should simply open our borders is almost as silly as saying that our country is “full”. Or that immigrants are a bunch of dangerous criminals. Or that we don’t want hard, honest work done inexpensively and well, when clearly we do. You know the drill.

So, again, we see us paying the price for governing with intellectual dishonesty in this area for many years. In this case, the price is the spectacle of our government taking foolish and despicable positions in formal litigation. Not to mention the suffering at the borders.

Are there folks we need to send home? Yep. Start with the elected members of the executive and legislative branches of our government who refuse to do their jobs. You know, the ones who are too busy pandering, grandstanding, and fear-mongering. Again, we must get adults in the room to hammer out immigration law and policy we can believe in enough to enforce.

Hot off the Press

As I publish this, I understand that the Trump Administration, predictably perhaps, has announced plans today to end the Flores Agreement. Without knowing the details, I’d like to be optimistic and think that’s to replace it with something better. It seems wise to gird oneself for the next outrage, however. Also, I’ll be interested to see how the executive branch would “end” a court order settling a federal class action lawsuit. Presumably there will be new rule-making, with litigation quickly to follow. [Sigh]

Ken Bossong

© 2019 Kenneth J. Bossong

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Immigration – Governing With Nods and Winks

Dichotic Listening

One of my memories from college days at Rutgers a long time ago is of occasional participation in studies for nominal pay. One in particular that I recall was conducted by the Psychology Department involving dichotic listening. Through headphones were piped audio tracks from two different sources. The content in the left and right channels had little or nothing to do with each other. I would listen for a while and then answer written questions about what I had retained. Then there’d be more. This went on for an hour or two. It was an interesting enough way to grab a little pizza money.

I mention this because it reminds me of what I experience when listening to the debate we are having, if you can call it that, about immigration. Immigrants are hordes of rapists, murderers and thieves. Turn them away and expel the ones already here.  No, no, they are virtuous, law-abiding, victimized saints. All must be welcomed unreservedly. What’s the problem? As someone with no ties either to the left or the right, as such, I don’t need this dichotic listening. You can’t pay me enough.

Meanwhile, the most important big-picture issue is not being addressed: the disaster that ensues when governing with nods and winks. Refusing to say what we mean and mean what we say when formulating and implementing public policy leads to major, if predictable, problems in this or any area of law.

Nods and Winks

The mess we are in is most attributable to the intellectual dishonesty with which we have approached immigration for decades. We have been governing in this field with a series of nods and winks, which is always a bad approach.

“So, the harvest is over. Before you go back home, do you think you could stick around for a little while? OF COURSE, we all believe in obeying the law [wink, wink] but you’re a good worker and I’ve got this other little project I’d like you to help me with. If you’ll do that for me [nod, nod], I’ll take care of you.”

Then there’s another little job, and another. The next thing you know, it’s harvest time again. Hey, the work got done well, inexpensively, and on time; the workers fed their families; and everyone behaved themselves. Where’s the harm? Let’s do it again.

It’s my understanding that the great majority of “illegal aliens” are people who entered legally but overstayed their visas, rather than those who sneak into the country. As a people, we are less than eager to enforce the letter of the law – until something embarrassing happens. (Those presenting themselves to seek asylum aren’t illegal anythings, by the way, unless they’re turned down and stay.)

One of America’s great contributions to the world is the Rule of Law encompassed in our Constitution. Saying one thing and meaning another in governance is inimical to the Rule of Law.

It is not easy to get a green card legally, and attaining citizenship is downright arduous. Indeed, one of the arguments against creating a shortened path to citizenship is “What about all these good people who took years to do it the hard, but legal, way?” This concern is far from frivolous. It needs to be part of a serious, detailed discussion on the Immigration Policy that is best for the United States.

The problem is that no one seems interested in having the debate we so badly need. Arguing the merits on the complexities of immigration policy is hard work. It is for adults. Expertise would help.

I am far from an expert on Immigration policy. Good arguments can be made on both sides of its many complex issues; that’s what makes it a tough area.

Honing in on Some Realities

General Principle

Like any country, America has a right to determine a policy on immigration in its own best interests, to secure its borders, and to enforce its laws. “Let ‘em in!” is not much of a policy.

Yet, I also agree that we are a nation of immigrants. I’m pretty sure there were no Bossongs on the Mayflower. And, by the way, those on the Mayflower were immigrants.

In truth, we have allowed people to stay because we want them to stay, kinda. We don’t really believe it’s in our best interest to kick these people out, regardless of our stated immigration policies – except when it’s convenient to pretend we do. Then, it’s Law ‘n’ Order, damn it. The nods and winks do not amount to precedent; they can be withdrawn at any time. That’s why they are the opposite of the Rule of Law. What makes nods and winks tempting is what makes them wrong. The phrase “arbitrary and capricious” comes to mind.

The Economy

Our actual collective opinion seems to be that immigrants are good for our economy. The cost of planting, harvesting, cleaning, preparing, and serving food has been considerably less for all of us than it might have been, for example. I gather that there are industries that would verge on collapse in the absence of undocumented workers. For years, I’ve heard people joke that if the (then) INS drove down the middle of Main Street in Anytown, USA with a bullhorn announcing their presence, the town’s restaurants, hotels, dry cleaners, and construction and landscaping businesses, among others, would empty out each business’s back door.

It’s hard not to notice that the President’s business holdings are in industries particularly dependent on such labor for both construction and ongoing operation: hotels, country clubs, restaurants, etc. He is not alone.

While there may be some jobs for which the undocumented provide unwanted competition, the notion of Americans clamoring for the chance to, say, pick fruits and vegetables in the hot sun strikes me as far-fetched in an amusing sort of way. [How’s your son? He’s home from college for the summer, but he couldn’t get that job picking turnips that he wanted.] The job market is generally not the zero-sum game (see post of April 2) presumed to exist at times.

Interestingly, two different columnists in the April 14 edition of the Philadelphia Inquirer, one conservative and one liberal, made the same point: Our economy is being held back right now by a scarcity of labor at all levels of skill that, given our birthrate over the last few decades, can be satisfied only by immigrants. Trudy Rubin and Marc Thiessen would not agree on much, and they wrote their columns that day for very different purposes, but they agreed completely that the country is not “full”.

Crime

Then there is the criminal behavior issue. Most studies indicate that immigrants are somewhat more law-abiding on average than American citizens. This is hardly surprising, if for no other reason than immigrants are looking to avoid deportation. “Tell that to the family of a person slain by an undocumented immigrant” goes the argument. “Any crime by an illegal alien should not have happened because the perpetrator should not have been here.”

One problem with such argument is that it begs the question of whose presence in the country should be legal. My thesis is the need for policy we believe in enough to enforce. Illegal status is a relatively minor count in the indictment of a murderer – in a minuscule percentage of our senseless murders.

The Discussion We Really Need

Give all interests a seat at the table. Invite the best and the brightest, not the most extreme. Hammer out an Immigration Policy we can enforce with a straight face. It won’t be perfect, and not everyone is going to love it. If it is fundamentally fair and (can I dream?) even a bit wise, we’ll all be better off.

Here’s a proposed outline for an agenda:

  • In general, turn what we really believe and really want into fair, clear, coherent, and enforceable laws and public policies. Sweat the details.
  • Arrive at some reasonable level of consensus on the following: How many new people can this country do a good job of absorbing? Are the categories and priorities of persons considered for admission to the US in the best interests of this country? [Same questions for staying and for ultimately attaining citizenship] What is a fair, humane, and appropriate approach to considering requests for asylum? How arduous should the conditions and process of attaining citizenship be? What are the facts about the danger posed by criminal behavior of immigrants? Is there any reason not to deport or deny admission to genuinely bad actors? (Where do we draw the line between significant and trivial misbehavior?)
  • (Assuming we change laws substantively) create a smooth and rational transition from the old ways (the nods and winks) into the new laws
  • Anticipate, prevent, and solve problems inherent in enforcing the law.
  • Effectively address any genuine security concerns at the borders, or anywhere.
  • Determine if there is ever a reason to separate families. Indeed, is there reason to insist we deal only with entire families when possible?
  • How can we assist newcomers with assimilation (which, notwithstanding the rough ride given to Joe Biden on this subject, remains desirable for all)?

The Discussion We Really Don’t Need

See “Dichotic Listening”, above.

Worth the Effort

If the policies inherent in our current Immigration laws are found to be the best for our country after careful expert consideration, so be it. Let’s set about enforcing them in a fair, even-handed way. That result would be surprising, though, given that our collective behavior has evinced a need for immigration reform for years.

There have been some bad episodes in America’s past regarding immigration. Two immediately come to mind:

  • Being, inarguably and inexcusably, insufficiently open to European Jews seeking asylum from certain death in the 1930s and 40s; and
  • Our mad scramble to handle the Mariel Boatlift in 1980, when Castro unexpectedly announced that any Cuban who wanted to leave could do so. The perception that Cuba emptied its prisons and mental health facilities may have been overstated, but the impression persists that Castro badly outmaneuvered President Carter.

If doing the right thing for its own sake is not enough to motivate us, at least we should look to avoid deep future regret.

We have behaved as if we do not believe in our own Immigration laws for decades. Perhaps we’ve been too busy enjoying the benefits of inexpensive, reliable labor to worry about the niceties of governing with integrity. Or maybe we just haven’t gotten around to fixing this mess we’ve created. Make no mistake, though: the real issue is whether we are going to govern with integrity. However irresistible the posturing may feel, we need to stop this “Us vs. Them” nonsense (February 19 post). Now.

There’s too much at stake.

Ken Bossong

© 2019 Kenneth J. Bossong