VAMPIRES, HOSTS and HOSTAGES

In the PUBLIC SQUARE

Commentary

By

Jay B Gaskill

VAMPING THE METAPHOR

“Obama argued at a press conference in Chicago that his escalating attacks on Romney, whom the campaign has dubbed a ‘vampire’ for making profits as workers were being laid off, are not petty politics…”

Read more: http://www.foxnews.com/politics/2012/05/22/obama-stakes-his-re-election-on-bain-attacks/#ixzz1vdG0aXVP

Vampires everywhere?

Earlier this year, I read a very entertaining and interesting book, Abe Lincoln, Vampire Hunter, by Seth Grahame-Smith.  It will soon be released as a movie.  Note that our president has identified himself with Abe Lincoln (among scores of other iconic figures – see The Martian in the White House http://jaygaskill.com/dot2dot/2012/05/18/the-martian-in-the-white-house/ ). I suspect that Barack Obama sees himself as the Great Vampire Hunter of our time. This raises a question.

Who is the REAL vampire hunter?

Not only is the leader of the free world confused about vampires, it seems that our president doesn’t quite get capitalism.  He has polemically mischaracterized Governor Romney’s tenure as the head of Bain Capital, a highly successful venture capital investment company that has salvaged and turned around scores of failing companies by making them successful (among them Staples, Sports Authority and Domino’s Pizza); but to the Obamistas, this is a form of corporate vampirism.

Presumably the president and his economic team think that all businesses are equally entitled to succeed, and that the failure of investors to subsidize losers is somehow analogous to vampire bats feeding off a herd of wildebeests.  A less inapt metaphor might have been to talk about vultures, but that misses the essential point: Neither vultures nor vampires create new, healthy businesses.

A success-aimed investment strategy, like that which governed Bain Capital, necessarily requires that flawed, broken and inefficient models be cleared out of the way to make room for the new models that will thrive. We should note here that individual commercial enterprises are not like countries when they fail because their employees can and often do quickly migrate to new jobs with the more successful competition. Some economists refer to this process as creative destruction.  Without creative destruction, motorcars would still be hand made in small shops; and only the very wealthy could drive.

That Invisible Elephant

There is an elephant in the room. We are witnessing a very large scale systemic failure, much as the catastrophic failure of an immense bridge might appear in extreme slow motion. Without paying adequate attention, we have been living through the successive collapse of two models of human organization: one is done for, and one is well one the way to the end game:

[1] In the late 1980’s, the large authoritarian socialist states did not generate enough real employment and real prosperity to survive the pressures of competition; either they failed (as evidenced in the sudden collapse of the Soviet Union), or they began adapting (as in China’s blowtorch semi-capitalist economy).

[2] In the late 1990’s through the present, we have been witness to the slow, inexorable collapse of the mixed economy, socialist-Lite welfare-state experiments, especially in Europe and the UK. Without adaptive reform, these states will follow the Greek example and fail one by one.  No modern sate is exempt from this failure trend –the ongoing need to adapt or fail is as old as the human condition.

A Better Vampire Metaphor.

THE PLAYERS

The hosts in this metaphor are all the “breadwinner” enterprises, the (mostly but not entirely private) productive, profitable private commercial businesses that provide real goods and services that actually fulfill a demand that can be measured in real value tendered. There is an allied set of support services (think of legal, juridical and protection functions, mostly but not exclusively performed by public institutions).  Closely linked to the breadwinner enterprises there is an expanding circle of the breadwinner’s dependents (immediate family and extended family). And there is another loosely linked circle of recognized, not-family affiliated dependants. The status of this outer group depends on a fragile consensus among the productive breadwinner enterprises – “We are willing to pay for the care and feeding our grand parents, and even others similarly situated, but our sense of obligation is not unlimited….”

The vampires in this metaphor are all the political and other power manipulators (who mostly but not exclusively dwell in government) who sustain themselves and even thrive by sucking value from the breadwinner enterprises in order to perpetuate their status.  They earn the title vampires when their activities do not represent value added, especially in contrast with voluntary, well managed charitable actions, because this subset of “public servants” do what they do (a) without generating value in return; (b) by burdening the life conditions of the affiliated and not affiliated dependents with irrational rules administered by bureaucrats; and (c) by promoting symbolic faux values (e.g., think of a new, protected ADA category, the ‘morally challenged” to get the idea) that are designed to create ever new classes of dependants who “need to be helped” at public expense. The additional cost to the burdened breadwinners is analogous to vampires swarming a dying horse.

The hostages in this extended metaphor consist of the dependants that the breadwinners actually care about, plus elements of the core support services (typically public protection and national security) that have wide popular support among the “ordinary” people.

THE VAMPIRE-HOST GAME

The vampires are individually intelligent, but collectively stupid.  Over time, their individual blood-sips, all for the nominal cause of some new dependency, aggregate to much a much greater blood loss than the host organism can tolerate.  This is the condition of the overburdened, over-harvested, commercial economies in all of the gravely weakened mixed economy, socialist-Lite welfare states.  A potentially fatal host-disease has infected Greece. The epidemic is growing, and it will not end (if we are not careful) until the USA, itself, collapses.

Collectively the vampires achieved this unhealthy state of control over the affairs of state because by exploiting a political strategy of hostage bartering.  Opposition to increased bloodletting has typically been countered with the threat of cutting support to the dependants that the breadwinners care most about and essential services like public protection. Even a legendary vampire fighter like The Reagan was backed in a corner when the vampires threatened hostages at budget time.

The massive public debt in the Western economies is the byproduct of a series of expensive compromises with vampires to save hostages.

As I write this, the metabolism of the productive enterprises that support the breadwinning economy is behaving like a weakened host surrounded by vampires who are buzzing about, discussing strategies for its revival. Without the host, the vampires will starve; but hungry vampires will not be denied – this collective hunger makes them collectively stupid to a self-destructive extreme.  At the moment, the vampire elites are proposing saline injections, while “radical” voices can be heard in the distance, shouting “Stop sucking the blood!”

Meantime, the baby vampires cavort around the dying creatures, shouting “Occupy!” The vampire children are embedded among mobs of hostage pawns caught up in an agenda only dimly understood.

THE OUTCOME

All metaphors have their limits.  This one doesn’t take into account that minds can be changed (the vampire-host relationship is the result of policies that can be reversed); that rational self interest can lead to self restraint (reasonable vampires understand the need to let the host recover); and that there is an overriding moral component to all this.

The left has attempted (with transient and spotty success) to promote an ethic of “fairness” in which the very condition wherein some enjoy success, while others do not, is inherently and collectively unfair. Via this propaganda campaign (at least three decades old), the left still hopes that the American people can be propelled into a regime that compels leveled outcomes.  This is a thinly disguised sales pitch by vampires to their hosts – “Hold still ‘till we bleed you all the way to equality”.

But there is a more ancient – and more widely held – ethic, one that is much more likely to prevail: It is fundamentally unfair to take away your earnings in order to give them to someone else that did not earn them.  This is seen as particularly unfair – even repellant – when, as is so often the case due to the inherent dysfunction of welfare-state bureaucracies, only a small fraction of the extracted blood actually finds its way to the promised beneficiaries. After all, the vampires must be fed…at all times and under all conditions.

We live in a democratic, constitutional republic, not a vampire feeding pen.  Reasonable minds can differ over the allocation of public resources to benefit activities and people outside the host economy.  But there is little room for reasonable disagreement about one overriding imperative: Keep the productive, breadwinner economy healthy and thriving.

The question of the day is whether the American public gets it, as their current president clearly does not.

THE VAMPIRE TEACHING TOOL

Metaphors can be used polemically or they can be effective teaching tools.  The teaching value of the vampire metaphor is manifold.  When well explained, it helps illuminate a number of things misunderstood by the clueless subset of the left and right:

[1] …how a sequence of separate policy failures and defaults over the last five decades have made fiscal conservatives complicit in the accumulation of crippling sovereign debt;

[2] …why it is now imperative to dramatically lift the regulatory and economic burdens on business development and growth;

[3] …how to frame the urgent case for market-intervention restraint when misguided vampires attempt to selectively “help” politically connected, politically correct business projects at the expense of other more efficient and promising ones;

[3]…why the government vampires are congenitally incompetent at managing the breadwinner sector on which their parasitic livelihoods depend.

The pending collapse of all of the mixed economy, socialist-Lite welfare-state experiments is a valuable warning. If we choose to take heed, Europe will be our crash-test dummy. If not, we will be the crash dummy for the survivors.

JBG

This article is Copyright © 2012 by Jay B. Gaskill, Attorney at Law.  Forwards, links and quotes with attribution are welcome.  For everything else, contact the author via email– law@jaygaskill.com.  Jay B Gaskill is the California attorney who served as the 7^th Alameda County Public Defender (in Oakland, CA) before he left his “life of crime”.  This article and others can be found on The Policy Think Site www.jaygaskill.com and the linked Blogs.

The Martian in the White House

A Political Meditation by

Jay B Gaskill

Attorney at Law

The Acton and Dystel agency distributed an Obama biographical description in a booklet in connection with Barry’s forthcoming book - Journeys in Black and White. The booklet begins with this line –

“Barack Obama, the first African-American president of the Harvard Law Review, was born in Kenya and raised in Indonesia and Hawaii.”

Andrew Breitbart and the affiliated journalists at http://www.breitbart.com/ did not and do not believe that Barry Obama was born in Kenya, just that he claimed to be.  From the Breitbart website –

“Andrew Breitbart was never a “Birther,” and Breitbart News is a site that has never advocated the narrative of “Birtherism.” In fact, Andrew believed, as we do, that President Barack Obama was born in Honolulu, Hawaii, on August 4, 1961.”

The point of interest for them and me is Obama’s ever fluctuating image of himself.

LINKS:

The Policy Think Site — http://jaygaskill.com/TheMartianInTheWhiteHouse.htm

The Dot 2 Dot Blog —– http://jaygaskill.com/dot2dot/2012/05/18/the-martian-in-the-white-house/

The current crop of liberals-in-charge have achieved the seemingly impossible: the alienation of working Americans (those who still can and those who still want to) from those politicians who pretend to still care about an honest day’s work as a value in and of itself.

As published on The Policy Think Site — http://jaygaskill.com/YesterdayKrugmanTodayBrooks.htm

Yesterday’s Krugman, Today’s Brooks

Be Still My Brain

Analysis

By Jay B Gaskill

The commentariat sometimes approach reality…usually obliquely

What reality, you ask?  Subsidized consumption does not cure the economic logjam caused by irrationally generous subsidies in the first place.  In effect, if you pay people and institutions for being less productive[i], you get what you have paid for…and almost nothing else.

Consider Europe. The EU allowed less productive countries to hijack the credit of more productive ones. Bankruptcy, an abrupt end of easy lending and depression loom. That dangerous impasse is the predictable outcome of what some are calling a “structural” problem and of what others might call undisciplined liberalism.

Consider the USA. The federal government has subsidized less productive enterprises and programs (using taxes, fiat money and an unsustainable expansion sovereign debt) at the expense of the more productive (mostly private) sector of the economy…for decades.  Bankruptcy, the abrupt end of easy lending and depression loom.

On each continent, conventional liberalism clings to an outmoded solution:

Subsidized consumption will cure all.

Not.

KRUGMAN ADMITS SOMETHING

http://www.nytimes.com/2012/05/07/opinion/krugman-those-revolting-europeans.html?partner=rssnyt&emc=rss

In Sunday’s New York Times, Paul Krugman writes about Those Revolting Europeans, trying to defend his ever repeated doctrine that they (read ‘we’) just need to pour a lot more borrowed or fiat money on the problem (while accepting a “little” inflation in return); that surely, this time, the  Keynesian nostrum will cure things.

But in the middle of Krugman’s piece, a bit of reality breaks through.

“One answer — an answer that makes more sense than almost anyone in Europe is willing to admit — would be to break up the euro, Europe’s common currency. Europe wouldn’t be in this fix if Greece  still had its drachma, Spain its peseta, Ireland its punt, and so on, because Greece and Spain would have what they now lack: a quick way to restore cost-competitiveness and boost exports, namely devaluation.

“As a counterpoint to Ireland’s sad story, consider the case of Iceland, which was ground zero for the financial crisis but was able to respond by devaluing its currency, the krona (and also had the courage to let its banks fail and default on their debts). Sure enough, Iceland is experiencing the recovery Ireland was supposed to have, but hasn’t.”

That was a fascinating admission.  What Krugman is not telling us is that, unlike Europe, Iceland had no one to bail it out.  The exposed lenders were allowed to fail, and now the country is on the rebound. The Iceland example is usually cited by conservatives as a counter example to the liberal folly that seeks to cure improvident subsidies with more of the same, and rewards failure with somebody else’s money.

Failure is a good thing because it teaches prudence and presages a fresh, wiser restart.

Krugman concludes his piece with the observation that “breaking up the euro would be highly disruptive, and would also represent a huge defeat for the ‘European project”’.  Truth be told, the “answer that makes more sense than almost anyone in Europe is willing to admit” is the same kind of answer that almost any conventional liberal, Krugman included, stubbornly refuses to admit. Why? …because it “would also represent a huge defeat for the liberal project” to which Krugman and others, in spite of the accumulating evidence, have all tethered their rafts.

DAVID BROOKS ALMOST GETS IT

http://www.nytimes.com/2012/05/08/opinion/brooks-the-structural-revolution.html?_r=1&ref=opinion

The Following day, David Brooks writes in the New York Times.  In The Structural Revolution

(May 7, 2012), he points out that-

“…structural problems have retarded growth and wages for decades. Consumers tried to compensate by borrowing more. Politicians tried to compensate by reducing the tax bill, increasing deficit spending, ensuring easy credit for homebuyers and by helping workers shift out of the hypercompetitive, globalized part of the economy and into the less productive and more sheltered parts of the economy — mostly into health care, government and education.

“But you can only mask structural problems for so long. The whole thing has gone kablooey. The current model, in which we try to compensate for structural economic weakness with tax cuts and an unsustainable welfare state, simply cannot last. The old model is broken. The jig is up.

“President Obama is too minimalist. He doesn’t seem to believe America’s structural problems are that big, making his reform ideas small. Mitt Romney and Representative Paul Ryan understand the size of the structural problems, but their reform plans are constrained by the Republican Party’s single-minded devotion to tax cuts.”

The ever civil Mr. Brooks is to be cut some slack for his kindness to the present administration (for “minimalist” above, I’d substitute “clueless”).   But I would appreciate a bit more bright line clarity.  When any society choses to go the extra thousand miles to selectively burden its productive members in order to generally benefit its less productive ones, a painful breaking point always is reached.  That point is now.  We are witnessing the crackup of the postmodern liberal experiment.  The current crop of liberals-in-charge have achieved the seemingly impossible: the alienation of working Americans (those who still can and those who still want to) from those politicians who pretend to still care about an honest day’s work as a value in and of itself.

For every structural dysfunction, there is an underlying moral lapse.  I’m still waiting for that part of the conversation to reach the commentariat.

JBG

Copyright © 2012 by Jay B Gaskill, Attorney at Law

Forwards, links and quotes with attribution are welcome and encouraged.

For everything else, please contact the author by email – law@jaygaskill.com .

Published on The Policy Think Site, linked blogs and sites

---

[i] I am using the traditional definition of “productive” as it relates to those activities and services that make a profit by filling a market demand. The recent scandals relating to federal subsidies for failing (or less than economically viable) solar companies, represent the subsidization of the “less productive”.  The use of public funds to bail out such enterprises, post-failure, is one more form of subsidization of non-productivity.  Risky investments need to be allowed to fail as well as succeed; they are not a wise (nor a particularly moral) use of public resources.

The Norwegian Predator –Grendel’s Bastard Spawn

A Meditation

By Jay B Gaskill, Attorney at Law

The Norse monster, Grendel (that nemesis of Beowulf) killed vulnerable humans in their sleep.

The signature of the modern monster is always the same – the suicidal grandiosity (suicide and homicide are emotional twins), the naked craving for fame and significance, and the obsession with the Final Gesture (they will remember me!).

The details vary, as does the scope of the damage, which is closely tied to the intelligence, luck and planning of the malefactor, and the vulnerability, bad luck and unpreparedness of the victims.

But monsters reveal the innate weaknesses, practical and moral, in the societies that hatch them.  One category of weakness is post-modern liberalism (exempting the robust old fashioned variety).

Norway was asleep on June 22 of last year when Grendel’s bastard-spawn harvested 71 bodies.  Norway and has yet to wake up from the half-sleep called post-modern liberalism.

Now liberalism is often a wonderful thing.  I’m thinking particularly of the early reforms in the US criminal justice system from 1927-1967 founded in the principle that the rich and poor should be equally accountable to and protected by the law; as it worked its way into the system, much more good than harm followed: This was the brand of liberalism that strove to reform the justice system such that that no poor arrestee would go unrepresented by able counsel; that  no rich miscreant would escape justice; and that the police officers would be held to a high standard of veracity and performance.  It was a profoundly liberal idea and it remains profoundly important.  It was a high moment in justice, an apotheosis point, in which the practical and ideal were in league with each other.

But note the word accountability.  No seriously liberal at the time thought that weakening accountability for wrongdoing was a good idea for the poor or anyone else.  After all, poor people (as I can personally attest from 28 years in the field) are harmed far more by criminal activity than are the well off.

In the greater sweep of history, the liberal project is about erasing boundaries, and the conservative project is about preserving them.  Each project has had its day, its value and its place, and each will again.

Post-modern liberalism is toxic.  Among the boundaries that post-modern liberalism has helped dissolve are three that constitute essential bulwarks of the civilized life:

• the boundary between accountability and its absence;
• the boundary between moral categories and medical ones;
• …and the boundary between good and evil.

Now imagine the following scenario taking place during any part of the two decades between 1939 and 1959 in the USA that hatched the Greatest Generation:

An arrogant, 32 year old man sets off an explosive in a major city, killing 8 innocent men and women; then he then methodically mows down 69 more – boys and girls at an undefended youth group, before he is finally taken alive.  After being apprehended, he confirms that his were intentional killings – he was making a political point. [I’ll spare you the gruesome details the screams, the running, the pleas for mercy, the loading and reloading, the remorseless calm of the killer.] Yet no one openly condemns the crimes as evil.

The death penalty has long since been removed from the table – accountability for a deliberate, intentional, culpable murder of another human being is set at 22 years in a well-managed prison or mental hospital.  Soon after the arrest, the appointed mental health professionals declare that the killer is mentally ill. After a political blowback, other experts say that he is sane, taking care not to disrespect their colleagues’ contrary view.  Months later, the law and justice authorities are still hand wringing about this killer’s mental illness or lack thereof – the resolution of which will be up to the trial judges.  Although the crime of first degree murder only carries two decade term in prison (assuming the man is not kept in a mental facility), the official spokespersons say that this killer probably won’t be released (if convicted) because of the government’s policy of “preventative detention.”

Of course this is all about Anders Behring Breivik whose mass murders took place on Utoya Island in Norway June 22 last year, immediately following his Oslo bombing.

By the way, Breivik is currently bragging during his trial, revealing a plan to seize and behead the former Prime Minister Gro Harlem Brundtland on Utoya (a woman who fortunately had already left the island by the time the shooting started).  Note that Breirvik fully expected to be shot during his homicide spree, revealing that this was to be his classic grand suicidal gesture. So we are in his bonus, center stage period.

The first government mental health experts to see this miscreant found that he was a paranoid schizophrenic, a finding that would have averted prison in favor of a hospital.  This caused a public outcry (the first sign that Norway may be waking up).  There is now a contrary opinion by a brace of new mental health experts who spent 37 hours interviewing the killer. The psych file that the prosecutor must deal with is 310 pages long.  The new psych teams opined that there is a danger that Breivik, if ever released, would kill again. Preventative detention must be used.

A representative of the survivors (from a government-support group) has been quoted as acknowledging that when passions were high, some wanted Breivik executed, but said “If we introduce the death penalty, we become like him. I’m proud to be Norwegian, that we don’t have a death penalty such as other countries.”

Norway dumped the death penalty in 1979, having earlier limited its use to military discipline in 1905.  Of course the Norwegian traitor, Vidkun Quisling (who led Norway after a Nazi engineered coup 1942 to 1945), was executed by a military firing squad in October 1945 for High Treason.

Whatever you say about the death penalty, its elimination in favor of a comfortable prison term for 22 years represents a diminution of accountability. In contrast with Anglo-American criminal justice that requires the participation of citizen jurors, the Norwegian system is entirely administrative in nature.  This is in tune with the general socialist cast of Norway’s overall governance.  The Anglo-American criminal law is the product of the rich, textured legacy on the English common law that grew up organically over time on a case by case basis.  Norway’s criminal justice system and philosophy is the product of academic theory, while the common Law springs for cumulative experience.

Contrast the approach to mental illness as it impacts criminal responsibility.  Most American jurisdictions use some variation of the “McNaughton” test. Daniel McNaughton was a real man, not a social theory.  The matter arose when he murdered Edward Drummond the secretary of the British Prime Minister Robert Peel in 1843.  The following rule (as promulgated by the House of Lords) was announced for all future cases:

“[T]he jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

There are a number of modern variations in US jurisprudence but the moral component, the quaint notion that there is a “right and wrong” to which a presumed sane miscreant is expected to direct his or her attention, remains part of the test.

So far, in spite of the march of post-modern thinking, we Americans have not allowed the law to diminish responsibility by eliminating its ineluctable moral component form the criminal law or by allowing medical categories to totally eclipse moral ones.  At some level, mere derangement cannot be twisted into non-accountability.

Contrast Norway:

“Section 44. A person who was psychotic or unconscious at the time of committing the act shall not be liable to a penalty. The same applies to a person who at the time of committing the act was mentally retarded to a high degree.” [From the General Civil Penal Code of Norway, unofficial translation 2006]

In my professional opinion, Norway is attempting to deal with an evil, homicidal sociopath for whom ideology was just a means and a justification – part of a larger nihilist game that is playing out in a vulnerable culture.

Susceptible minds will succumb to evil ideation from time to time, and the test is not the particular flavor of ideology that happens to capture their fancy.  Breivik’s ideation was different in detail and target selection from, say, the homicidal architects of the September 11^th 2001 immolation, but his immoral devotion to indiscriminate homicide, the addiction to a grand gesture that would somehow bring down the world, were clear indicia of a mind succumbing to an evil agenda.

This was Faust succumbing to the blandishments of Grendel, not some hapless, weak minded fool succumbing to imaginary voices.

JBG

Copyright 2012 by Jay B Gaskill, Attorney at Law

First published on the Policy Think Site { www.jaygaskill.com }and the Out*Lawyer’s Blog

{ http://jaygaskill.com/outlawyer/ }

Links, forwards and quotes with attribution are welcome and encouraged.  For everything else, please contact the author via email at law@jaygaskill.com.

Mr. Zimmerman and Florida justice

Analysis by

Jay B Gaskill, Attorney at Law

This analysis is also available on The Policy Think Site at- http://jaygaskill.com/ZimmermanJustice.htm .

I hate it when politics, particularly identity politics corrupts the criminal justice process.

I hated it when white supremacists with all-white juries walked away from solid murder prosecutions in the retrograde South; I hated it when a predominately non-white jury acquitted a popular black icon for killing his wife and her lover, not because these jurors had deep, substantial doubts about his guilt, but because they wanted to send a message to a police department that they deeply suspected was infected with racism; and I hated it when race riots erupted in Oakland when a white BART police officer was supposedly undercharged for the shooting of a non-white man who was resisting arrest.  Leaving aside any fine-tuned analysis of the evidence in these cases, the outcomes were driven by anger and identity politics.

I have not commented on the ultimate merits of the Zimmerman prosecution.  If you’ve been in hiding for the last few weeks, I refer to the criminal investigation and ultimate prosecution of one George Zimmerman for shooting and killing of one Trayvon Martin on the night of February 26th in a little town called Sanford in Florida.

On the face of it, there is what we defense attorneys call a “triable issue” based on Mr. Zimmerman’s self-defense claim.  But the defense is far from slam dunk, partly because the decedent was unarmed, and partly because – well, the dead party was a black male and the shooter had a “white” name.  As one news source put it, “Zimmerman is a white native of Virginia whose mother was born in Peru.” An embarrassing amount of ink and cloud data storage has been taken up by puerile discussions of which “identity” group the, now defendant, Zimmerman belongs to.  The sincerity and reasonableness of Mr. Zimmerman’s reported belief that Mr. Martin was a criminal is germane; the defendant’s tribal affiliation – or lack thereof – is not.

Much also has been made of the Florida Statute, Section 776.013, particularly paragraph (3) which provides that–

“A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

This is not particularly controversial.  The California law of self-defense, for example, is captured in some formula jury instructions, the so-called CALJIC set, having been approved for trial judges to use by the California Judicial Council. Two such instructions – with which I am well familiar – seem to bear on the issues in Mr. Zimmerman’s case.

CALJIC No. 5.51, Self-Defense—Actual Danger Not Necessary, as given (in a particular case where the result was affirmed):

“Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in his mind, as a reasonable person, an actual belief and fear that he is about to suffer bodily injury, and if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing himself in like danger, and if that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person’s right of self-defense is the same whether the danger is real or merely apparent.”

CALJIC No. 5.50, Self-Defense—Assailed Person Need Not Retreat, as given: (in a particular case where the result was affirmed)

“A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of his right of self-defense, a person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.”

The bottom line, the so called black letter law of self-defense adhered to by almost every jurisdiction in the USA, is that

(a)    in defending yourself you are entitled to reasonably rely on appearances when assessing the danger; and

(b)   you do not have to run.

The key qualifier in these cases, the one that functionally allows a degree of jury latitude is the term reasonable.

And there is also the murkier issue of proportionate response.  If you are threatened by a homicidal toddler bearing a table fork, are you entitled to respond with an assault weapon?  No reasonable jury would agree with such a disproportionate response.

Is there a hard and fast rule? No.  This is why we have trials.

A key element in self-defense is that sincerity is an absolute predicate but NOT a free pass.  If you did not actually think you were “defending yourself by the use of all force and means which would appear to be necessary to a reasonable person”, i.e., if your claim was insincere, then you are toast.  But even a sincere claim of self-defense can be rejected if the jury concludes that it was unreasonable. In most jurisdictions, unreasonable or “imperfect” self-defense reduces a murder to manslaughter.

As to Mr. Zimmerman’s case?

I was not there, and I dare say neither were you.  Let’s hope for an impartial and reasonable verdict, not a political one.

And whatever the outcome, no riots, please.

JBG

Copyright 2012 by Jay B Gaskill, Attorney at Law

First published on –

The Policy Think Site {www.jaygaskill.com }

&

The Out*Lawyer’s Blog {http://jaygaskill.com/outlawyer/}

Forwards, links and quotes with attribution are welcome and encouraged.  For everything else, contact the author via e-mail at law@jaygaskill.com.

Jay Gaskill is the California Lawyer who served as the Seventh Public Defender for Alameda County, CA, before leaving his life of crime.  His profile is available online at www.jaygaskill.com/Profile.pdf.

GAME ON – Obama vs. Romney

Election Analysis

By Jay B Gaskill

Also posted on The Policy Think Site –http://jaygaskill.com/GameON.htm

The general election campaign has just begun.  If you doubt this, ask yourself whether Governor Romney is still campaigning against Newt or Rick at the moment.

And suddenly the Rasmussen Poll has the two contenders in a dead heat.  [http://www.rasmussenreports.com/]

And Rasmussen also reports-

“Monday, April 02, 2012

“The number of Democrats in the United States rebounded in March after falling to a record low in February. However, for the fourth consecutive month, more people consider themselves Republicans than Democrats.

“During March, 36.4% of Americans considered themselves Republicans while 33.4% were Democrats. For the GOP, that’s a gain of 0.4% from a month ago. Democrats gained a full percentage point from February.”

In February, I proposed that the election will ultimately turn on Three “T’s”.[i]

“I believe that another, deeply psychological theme, will soon overshadow everything else.  I’m calling it the Three T’s – as I will soon explain.

“Over the long haul, this race will come down to leadership and “followship”. No leader who stands at the head of a crowd of reluctant, tepid supporters can be successful in persuading others. Whether the GOP nominee is former Governor Mitt Romney, former Governor Jeb Bush or the Messiah, it’s going to take an army of enthusiastic followers, or there will surely be an army of “I told you so”mourners on Wednesday, November 7^th.

“At the end of the day this presidential election is going turn on an intangible trio of elements:

‘The Three T’s – Trauma, Trust and Turnaround.

“The electorate has been traumatized.  The American people are willing to make a midstream course correction only for leadership they can trust, and only for a turnaround they can believe in.”

If you want a formula to predict the outcome in November, you will need to factor in the unknowable.  For example, one can make the case that a simple trend projection would have led to a McCain presidency …right up to the pre-election credit crash of 2008.  This was the seismic event that caught almost everyone flatfooted and doomed the GOP campaign.  We can’t rule out another seismic event.

But leave out the unknowable and this is what remains for you to track:

1. Is the economy in a stable, credible recovery mode, or not?
2. Is President Obama running ahead of the democrats, behind or about the same?
3. Is Governor Romney running ahead of the republicans, behind or about the same?
4. What is going on in the swing states? See this analysis for an Electoral College breakdown — http://spectator.org/archives/2012/03/15/election-year-math . Here’s a pull quote – “…newly successful people have become the pivotal bloc that swings the state between Republicans and Democrats. They are not committed to either party. They are not terribly involved with social issues. Their main worry is the economy. If Republicans make birth control and separation of church and state the major issue, they will go Democratic. If the Democrats mess up the economy and produce $4.50 gas and 8.3 percent unemployment, they will swing Republican. That will probably decide the 2012 election.”
5. How are the independent, unaffiliated voters breaking?

It doesn’t take a rocket scientist to notice that if the economy is stuck on bad and the incumbent is running behind his party while the challenger is running ahead of his, an upset is in the making.  Those trends, especially as they manifest in the swing states will be decisive – absent that hypothetical seismic disruption.

APPENDIX

In January, former Labor Secretary Robert Reich opined –

Hillary Clinton on the ticket would generate the enthusiasm Mr. Obama needs. She’d be the first woman vice president. She’d remind voters of the successes of the Clinton administration. And as many recall from 2008, she’s a sharp and articulate campaigner.

Moreover, Ms. Clinton would help deflect attention from the bad economy to foreign policy, where she and Mr. Obama have shined. Chances are the economy won’t be in great shape in the months leading up to Election Day. If the European debt crisis worsens and if China’s economy continues to slow, there’s a better than even chance that unemployment will be back to 9 percent.

With friends like Secretary Reich, who need doomsayers?  Consider the historic correlation between unemployment numbers and trends and the fate of an incumbent president:

Hoover defeat

UNEMPLOYMENT — 22% and stuck

Ford defeat

UNEMPLOYMENT — 7.7%

Carter defeat

UNEMPLOYMENT — 7.5% and stagnant

Bush 1 defeat

UNEMPLOYMENT — 7.8 % unemployment and rising

Obama

UNEMPLOYMENT — 8% and ?

Not add the underemployment wild card:

On March 9, 2012 Gallup reported the underemployment rate. Underemployment is the unemployment rate, plus the rate of people working at part-time jobs who would take full-time jobs if they could find them. Fully 10% of Americans fall into this latter category, giving the US an underemployment rate of 19.1%. This is up from 18.1% earlier this year.

The number of unemployed persons, at 12.8 million, was essentially unchanged in February. The unemployment rate held at 8.3 percent.

US Underemployment Rate is at 18.2%.

Updated: Mar 28 2012, 10AM

Next Release: April 04 2012, 10AM

Source: Gallup

Period: Mar 26 2012

Frequency: Daily

Long Term Average: 18.77%

Value Previously: 18.20%

Change From Previous: 0.00%

Copyright © 2012 by Jay B Gaskill, Attorney at Law, forwards, links and quotes with attribution are welcome and encouraged.  For everything else, please contact the author via E-mail { law@jaygaskill.com }

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[i] http://jaygaskill.com/dot2dot/2012/02/17/the-three-%E2%80%9Ct%E2%80%99s%E2%80%9D-of-the-2012-presidential-election/

THE OPEN LETTER TO HILLARY CLINTON

APRIL 1, 2012

An open letter to

Secretary of State, Hillary Clinton

You may yet be called to serve your country as President of the United States.  But you first need to carefully reflect on the state of the union, a luxury that your grueling schedule as Secretary of State simply has not afforded.  When you are able to think it through fully, we hope you will agree with the majority of centrist democrats who now believe that further association with President Barack Obama is toxic.  We all remember your “when the white house phone rings at 3:00 AM” campaign piece.  It was prophetic.  We hope you remember it, as well.

POTUS addressing the world – note the surrounding vacuum

So far you have avoided the worst of this damaging association through your demonstration of independent foreign policy leadership. In an administration more characterized by leading from behind, your personal, independent contributions as the diplomatic face of the United States are seen as evidence of your leadership, not that of a weak executive.

You have inherited a legacy that will serve you well – if you still choose to embrace it.  You are part of a tradition of foreign policy toughness, common sense compassion and fiscal prudence. You saved your husband, Bill Clinton, from political oblivion when he was drifting to the left.  It was you who called in Dick Morris.  It was you who called POTUS back to the creative, collaborative center, and rescued a presidency.  In the opinion of many centrist democrats, the current occupant of the White house is beyond rescue.  He is no Bill Clinton.

Some of us strongly believe that the worst possible outcome for the country and the Democratic Party would be for Mr. Obama to win a second term.  No one should be deluded that such a scenario would end well.

If Mr. Obama is able to inflict as much damage in the next four years as he has to date, no democrat who has not dissociated him or herself from this administration will be able to succeed this president.  We understand your dilemma.

Suppose you were to accept the nomination for the vice presidency.  Your best and probably only play for the presidency will not come for four years, after Mr. Obama is not reelected.  Better that you sit this one out. You have earned a break. In the unlikely scenario where Mr. Obama wins, you would not be saddled with the malign consequences of his next term.  If he loses, you will be perfectly positioned to run in the next cycle.

Your only viable “Vice President-to-POTUS” play depends on the unlikely scenario in which Mr. Obama does not serve a full second term.  You would be smart not to bet a career on that prospect, no matter what scandalous information about this president might be poised for release.

On Sunday, January 20, 2013, the president elect will face a daunting reality.  Among the challenges: a staggering US sovereign debt; deep structural underemployment; a wildly unsettled world economy; a powder-keg Middle East; energy cost inflation.  The odds are that any man or woman who assumes the office of POTUS in January 2013 will serve only one term.

History may yet call you to serve.  But not this year.

Sincerely,

Senator Henry “Scoop” Jackson

Senator Daniel Patrick Moynihan

Speaker Thomas Phillip “Tip” O’Neill

Copyright 2012 by Jay B Gaskill, Attorney at Law

{The Policy Think Site – www.jaygaskill.com}  — law@jaygaskill.com

UPDATE – A TRAIN WRECK FOR THE ADMINISTATION

The weight of opinion is now in.  The mandate is dead and the entire measure is likely to be flushed.  We won’t know more until the high Court publishes its opinion, most likely in June.  But this is bad news for Obama and good news for Romney.

Paul Clement for the challengers: “What makes this different is that the provisions that have constitutional difficulties or are tied at the hip to those provisions that have the constitutional difficulty are the very heart of this Act… they are interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which is also connected to some of the revenue offsets, which is also connected to Medicaid; if you follow that through what you end up with at the end of that process is just sort of a hollow shell.”

Justice Roberts: “Congress had a balanced intent. You can’t look at another provision and say this promotes patient protection without asking if it’s affordable.”

Justice Scalia: “My approach would be to say that if you take the heart out of this statute, the statute’s gone.”

Justice Sotomayor: “Unless Congress tells us directly it is not severable, we should let them fix their own.” … “Why in a democracy structured like ours where each branch does different things, why should we involve the court in making a legislative judgment?”

CNN’s Jeffrey Toobin: “This still looks like a train wreck for the Obama administration. It may also be a plane wreck.”

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http://jaygaskill.com/DangerousPower.htm

Update

Justice Kennedy is the swing vote on the lynchpin commerce Clause issue.  Note this exchange:

“Justice Kennedy later expressed some sympathy for the government’s claim that young people who don’t buy insurance are “very close” to affecting interstate commerce, but the key distinction is that proximity is not enough and can’t be enforced by the courts. To regulate individuals at any point in their lives merely because they exist would still undermine the accountability and destroy the dual sovereignty that are the touchstones of his jurisprudence.”

Wall Street Journal

http://online.wsj.com/article/SB10001424052702304636404577295883378953596.html?mod=WSJ_GoogleNews&mod=igoogle_wsj_gadgv1

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BE CAREFUL WHAT YOU PRAY FOR

The Obama Care Case analyzed

By Jay B Gaskill

Also posted on The Policy Think Site at – http://jaygaskill.com/DangerousPower.htm.

BE CAREFUL WHAT YOU PRAY FOR

The Obama Care Case analyzed

By Jay B Gaskill

Also posted on The Policy Think Site at – http://jaygaskill.com/DangerousPower.htm.

From time to time history presents moments of correspondence between the religiously motivated (we-pray-the-world-will-be-a-better place), and the well-meaning social engineers, (we-will-make-the-world-a-better-place).

These are combustible moments.

I’m noticing on Facebook and elsewhere a prayer surge in favor of the administration’s position on the Supreme Court’s pending review of the so called “Affordable Health Care Act”[i].  [An aside: Beware misleading labels. Whatever the policy virtues of Obama Care, affordability is not among them.]  This prayer support movement is being cast in a number of forms; the one that recently came to my attention was “prayerful witness on health care”.

The last major push for social reform in the USA that represented the alliance of prayer and public policy took place in 1920, after a great deal of public dispute, when the country banned beer, wine and booze.  In that fateful year, the income tax was generating almost 10 times the tax money received from that older cash cow, liquor taxes.

Income-tax revenues allowed Congress to enact alcohol prohibition.

Here’s the takeaway point.  Imposition of prohibition was a violation of the existing constitutional structure.  Therefore it had to be accomplished via a constitutional amendment (the 18^th amendment, thankfully repealed under Teddy Roosevelt by the 21^st Amendment).

Here’s a second takeaway point.  If the current administration’s constitutional theory supporting Obama Care’s mandate to all Americans to purchase insurance is upheld, we would not need a constitutional amendment to enact prohibition. Please understand – I’m not suggesting that prohibition will actually come back, just that the administration’s theory will leave us with no further constitutional barrier, check or balance against the “we-will-make-the-world-a-better-place” impulses of the social engineers, except a few specifically enumerated rights like free speech.

The great constitutional scheme on which our republic is based consists of enumerated powers of government balanced against enumerated rights in a specifically biased way:  The enumeration of rights was not intended to be exclusive – there are non-enumerated rights as well (such as privacy); but the short list of enumerated powers was intended to be exclusive – there were to be no powers given the federal government that were not enumerated in the constitution.

This frames the overriding importance of the Obama Care case.  The administration is relying on a single enumerated power to force all Americans to purchase insurance: It is the so called Commerce Clause of Article I Section 8, which reads as follows: The Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.

In its origin, the commerce power was designed and used to promote free trade among the states, to effectively restrain them from acting like sovereign nations, barring them from imposing duties and tariffs that would impede the flow of commerce within the US.

There is a century of constitutional litigation here, well beyond the scope of this piece to summarize[ii].  But suffice it to say that this single grant of power has supplied the foundation of a huge expansion of federal authority.[iii] At its most extreme, the proponents of the commerce clause power will argue that even passive behavior affects commerce (much as the flutter of a prehistoric butterfly might affect the timing of Lincoln’s birth.) This view converts the grant of a power originally designed to free the flow of commerce among the states into a truly comprehensive authority over every aspect of our behavior.[iv] The expansion of power is staggering because our every action can be viewed as consumer behavior. If the administration wins this point, the enumeration of powers structure of our constitutional system is dead.[v]

Consider what might have happened.  We might have had congressional hearings, a measure-by-measure debate and a careful consideration of individual reform measures.  Instead we were treated to the sorry partisan spectacle of a frantic effort to push through a package so comprehensive and poorly drafted that, even now we are discovering problems that need correction. The measure’s flaws have prompted the administration to grant 1,200 waivers to date.  We started with a heath care system that served 80% of us quite well; and we could have begun a careful process of extending care to the underserved in ways that would not degrade or damage the care enjoyed by the vast majority of Americans.

We could have, for example, lightened the load on our hospital emergency rooms (already mandated to take all comers without regard to patients’ means) by creating sliding-scale clinics financed by a combination of taxes and contributions.  We could have accomplished a number of rational, incremental reforms.

But we did not. The well-meaning social engineers, (the “we-will-make-the-world-a-better-place” crowd) had achieved a fleeting state of control over both legislative chambers and the executive branch. With no time for reflection, no willingness to give due consideration to the constitution, no patience to consider the public fisc or the prudential requirements of wise policy, they gave us a measure that neither the president nor the members who voted on it were actually able to read, let alone study.

And now we are at the stage in which only the highest court in the land can restore the constitutional balance.

Pray that it is not too late.

JBG

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[i] Dept. of Health and Human Services vs. Florida et al

[ii] The Amicus Brief filed by the Landmark Legal Foundation is a good start — http://landmarklegal.org/uploads/Brief_Filed.pdf

[iii] And I must note the restraint that previous administrations have shown. For example, under Jimmie Carter, the 55 mile an hour speed limit was not imposed using the raw Commerce clause power; it was imposed as a condition attached to the receipt of federal highway moneys.  As a result, states varied somewhat in enforcement policies.  In one state with which I am particularly familiar, speeding tickets that were issued for exceeding 55 but under “the previously posted limit” were more lenient.  In another example, national educational policy is not directly imposed on the states and their various educational institutions, but is attached as a condition to receiving federal aid. The arguments advanced by the current administration in favor of the insurance mandate represent a truly radical departure.

[iv] Credit for the main thrust of the argument goes to Virginia Attorney General Ken Cuccinelli, Duke University law professor Walter Dellinger, and Georgetown University law professor Randy Barnett.

[v] A coalition of 26 states opposes the administration’s position.