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If April is the cruelest month as T.S. Eliot and thousands of amateur dinner-table philosophers have attested then May may be the most poignant month.

And so, as the fifth month roars to a close amid rising temperatures, blooming wildflowers and great summer expectations, let us consider several late-month anniversaries that speak to us at this difficult moment in the American passage. They involve, as so much of our history does, our tortuous, tortured and tardy racial reckoning.

May will forever be remembered as the month in which George Floyd was mercilessly, senselessly and needlessly killed in Minneapolis, triggering a nationwide reexamination of our views on race.

This month also includes the birthdays of Jim Thorpe (the first Native American to win Olympic gold medals, a standout baseball and football player and film star) and Malcolm X (a controversial civil rights leader and prominent member of the Nation of Islam). Both left huge footprints in the pathways of American life.

It also is the birth month of John F. Kennedy, for most of his life a reluctant foot soldier in the struggle for racial justice, but in his last six months a strong voice for the cause he described as being as old as the Scriptures and as clear as the American Constitution.

Kennedy came to his conclusion about racial justice (We are confronted primarily with a moral issue) only after a long-forgotten May moment, Vice President Lyndon B. Johnsons 1963 Memorial Day speech at Gettysburg, where, in marking the 100th anniversary of the landmark battle there, he said, One hundred years ago, the slave was freed. One hundred years later, the Negro remains in bondage to the color of his skin.

That speech jolted Kennedy, prompting him to deliver his reprise of his vice presidents call to arms, saying, One hundred years of delay have passed since President Lincoln freed the slaves, yet their heirs, their grandsons, are not fully free.

Now we approach another 100-year anniversary, and the tensions that surround American presidents and their approach to race are rippling through the country again. Monday is the centenary of the dedication of the Lincoln Memorial, and the anniversary is important because it illuminates the assumptions of that time and the tensions of our own time.

Two American presidents were present to commemorate the life of a third American president. Both were Republicans. Both were white.

One was Warren G. Harding, who had been in office for only 13 months and had, in October 1921, told a large crowd in Birmingham, Alabama, that racial discrimination was the problem of democracy everywhere, if we mean the things we say about democracy as the ideal political state, adding, to the discomfort of the audience and the outrage of Birminghams ruling grandees, Whether you like it or not, our democracy is a lie unless you stand for that equality.

On that May 1922 dedication day, he said the 16th president knew he had freed a race of bondmen and had given the world the costly proof of the perpetuity of the American union.

Also on the dais was William Howard Taft, who after being president was appointed chief justice of the Supreme Court. He spoke of Lincolns instinct for justice, truth, patience, mercy and love of his kind, simplicity, course, sacrifice and confidence in God.

There were other speakers, all of them also white except for Robert Russa Moton, grandson of a slave. Here the educator who succeeded Booker T. Washington as the principal of the Tuskegee Institute clashed with Taft, one of the most prominent figures in the first quarter of the 20th century.

A dozen days before the dedication of the memorial, Taft asked to see Motons remarks. This was a fateful, and disgraceful, moment of conflict, a collision between the commemoration of the freedom won in the 13th Amendment to the Constitution and the freedom of expression enshrined in the First Amendment. Taft objected to several elements of the Moton text and insisted that this passage be excised:

My fellow citizens, in the great name which we honor here today, I say unto you that this memorial which we erect in token of our veneration is but a hollow mockery, a symbol of hypocrisy, unless we together can make real in our national life, in every state and in every section, the things for which he died.

Also cut was this evocative passage:

With equal truth, it can be said today: No more can the nation endure half privileged and half repressed; half educated and half uneducated; half protected and half unprotected; half prosperous and half in poverty; half in health and half in sickness; half content and half in discontent; yes, half free and half yet in bondage.

Moton, a late addition to the proceedings someone recognized that an event celebrating Lincoln could not be conducted without at least one Black speaker was not invited to sit with the white speakers. Indeed, Black people in the audience were shunted off to a roped-off area, prompting the Chicago Defender, the prominent Black newspaper, to remark, The venomous snake of segregation reared its head at the dedication.

Nonetheless, Moton argued in his remarks that greatness for Abraham Lincoln lies in this, that amid doubt and distrust, against the counsel of chosen advisers, in the hour of the nations utter peril, he put his trust in God and spoke the word that gave freedom to a race.

Today the legacy of Lincoln, like that of the Founders and Andrew Jackson, is being reexamined. He remains known for his Emancipation Proclamation, but other elements of his life his opposition to interracial marriage, his advocacy of shipping Black people to Africa, his hostility to racial equality and skepticism of the abolitionism movement are receiving new prominence.

In dedicating the Union cemetery at Gettysburg in 1863, Lincoln employed various forms of dedicate six times in a speech of only 272 words.

At the centenary of the dedication of his own memorial, we might dedicate ourselves to the notion that, as he put it in a speech that transformed the Civil War from a battle for preservation of the Union into a crusade for the abolition of slavery, this nation, under God, shall have a new birth of freedom and that government of the people, by the people, for the people, shall not perish from the Earth.

DAVID M. SHRIBMAN is the former executive editor of the Pittsburgh Post-Gazette.

Read the original here:
SHRIBMAN: On 100th anniversary, Lincoln Memorial reminds us of unmet aspirations - Sharonherald

SAN DIEGO

When San Diego police officers opened the front door to Rosa Calvas apartment studio in East Village, the 26-year-old was holed up in her bathroom.

Calva, in the throes of a mental health crisis, had thrown items a bucket, mop and more out of a window and onto the street below. A bystander reported being struck by flying glass.

Newly released body-worn camera video shows that in a span of 20 minutes, officers gave her repeated commands to walk out of the 5-by-5-foot bathroom and surrender as a police dog barked repeatedly. When she did not, they used a tool known as a Halligan bar to enlarge a hole they noticed in the door, then fired pepperball rounds inside.

The officers and the police dog then moved in. The officers kicked open the bathroom door and, within seconds, Calva, who was holding a steak knife, was shot four times and bitten by the dog.

Police at the time said Calva threatened officers with the knife. The footage shows she was holding the knife in air, the blade pointed up, when Officer Andres Ruiz shot her in the chest and abdomen.

Calva was seriously injured but survived. She was arrested and later charged in San Diego Superior Court with assault with a deadly weapon on a police officer. Her case is still pending.

The series of events was captured on the officers body-worn cameras, but the San Diego Police Department withheld the footage for two years despite a state law enacted in 2019 that mandates the release of video related to such shootings within 45 days, with few exceptions.

The law is intended to increase transparency in cases of shootings by police officers.

The Police Department released the footage May 20, three weeks after the First Amendment Coalition, which advocates for open and transparent government, sent the city attorney a letter that argued the law required police to disclose the video. The coalition also threated to sue.

Along with the body-worn camera video, the Police Department released reports and other records tied to the now-completed investigation. The records reveal that the San Diego County District Attorneys Office cleared Ruiz and that the department determined the officer followed policy.

But the shooting, in light of the footage, has raised concerns.

One use-of-force expert, former Los Angeles County sheriffs lieutenant Roger Clark, said the officers failed to properly handle the situation. Clark, who reviewed the records last week at the Union-Tribunes request, said officers forced a confrontation at a moment when Calva was not a danger to the public.

This is not de-escalation, Clark said.

Rosa Garcia last year as she speaks over the phone with staff at Las Colinas Detention Facility to inquire about her daughter, Rosa Calva, who was shot by San Diego police on May 23 and later charged in San Diego Superior Court in connection with the incident.

(David Hernandez/San Diego Union-Tribune)

The Commission on Police Practices, which reviewed the departments internal investigation into the shooting, also raised concerns. In a report to the department, commissioners said they hoped the department realized there are other means of de-escalation available and urged the department to consider additional training in that regard.

Calvas mother, Rosa Garcia, said she believes police used excessive force and wants accountability. Two years after the shooting, Garcia still is deeply troubled about the way police treated her daughter.

My daughter is not El Chapo, Garcia said. Shes mentally ill.

San Diego police spokesperson Lt. Adam Sharki said the department holds its members to the highest professional standards.

We hear the communitys concerns about this incident, he said.

He said shootings by officers are rare and reviewed thoroughly.

Even if a shooting is deemed lawful and within policy, the department continues to review the tactics and actions of the officer to determine if there are learning points which can be incorporated into training going forward, Sharki said in a statement.

He said Ruiz remains a San Diego police officer.

It was around 9:50 p.m. on May 23, 2020, when police started receiving 911 calls about Calva. Several callers said she had broken her window in her fourth-floor apartment on Market Street near Park Boulevard and was throwing items, including a bucket, mop and folding chair, onto the street below. Two callers said they thought Calva might jump out of the window.

Audio of the 911 calls indicate one caller told a dispatcher he was struck by glass. He told the dispatcher he did not need medical attention.

According to the reports and the body-worn-camera video, officers tried to call Calva, but the number they had did not work. Officers summoned additional resources, including a police dog, and entered the apartment building. They gathered in a hallway on Calvas floor and shouted orders for her to surrender.

Outside, officers saw Calva near the window, waiving a knife, according to officers account of the incident.

Around 11 p.m. officers used a key to open the front door. They noticed blood smeared on the floor and cabinets, although is unclear in the records why the blood was there, or if Calva had hurt herself.

A police canine handler ordered Calva to walk out.

Rosa, this is San Diego police. Were not going anywhere. We want to help you, the officer shouts, according to body-worn camera video.

The officer then tells her she is under arrest and warns her that if she doesnt surrender, police would release a dog. The officer repeats commands as the police dog continues to bark.

There is no response inside the apartment, according to the video, so the police dog and two officers enter the unit and clear the common areas.

An officer then grabs a Halligan bar and hammers the bathroom door, enlarging an existing hole. Another officer fires several volleys of pepperball rounds through the hole.

Some officers had donned gas masks to protect themselves from the pepper spray-like chemicals. Others cough repeatedly. There is still no response from Calva.

The canine handler then sends the dog to squeeze through the hole, but the canine struggles to enter. Calva pokes her hand through the hole, with the knife in hand.

The handler orders the dog to go In, in, in, in! but to no avail as he and Ruiz trail behind.

Ruiz is seen in the video kicking open the bathroom door, but Calva is behind it. The dog handler struggles to open the door all the way.

When the handler finally enters the bathroom, he grabs Calva and appears to push her body, as if to try to pin her against a wall. He grips her right hand as she holds the knife in the air, the blade pointed upwards.

Ruiz appears to aim under the handlers torso and shoots Calva at close range. She falls to the ground and the police dog bites her left arm.

The knife lands near the toilet.

The shooting marked the fourth time Ruiz fired his gun in the line of duty. In the first two shootings, then-District Attorney Bonnie Dumanis cleared him. Her office did not review the third because no one was struck by Ruizs gunfire.

In the most recent case, Ruiz told investigators Calva was about to stab the other officer in the face. District Attorney Summer Stephan noted that the evidence indicates Ruiz was incorrect; the blade was pointed toward the ceiling. But, Stephan said, Ruizs perception in the moment was reasonable because Calva didnt drop the weapon.

Under the totality of circumstances, Ruiz was justified in shooting Calva, Stephan wrote in a letter to the Police Department.

San Diego police Detective Sgt. Jared Thompson reviewed the case for any policy violations and reached a conclusion similar to Stephans: He said that based on all of the circumstances, it was reasonable for Ruiz to believe Calva, with a knife in hand, presented an imminent threat which justified the shooting. Thompson said in a report that officers tried to de-escalate the situation for nearly 30 minutes, citing the commands officers gave Calva and their use of a police dog and peperball rounds.

Clark, the use-of-force expert, said the officers took the wrong approach and escalated the situation with their use of a police dog and pepperballs. He said Calva was contained in the bathroom, which did not require officers to act quickly to subdue her.

This should never have happened this way, he said.

He said a basic lesson rookie officers are taught is if you increase the stress, (a persons) ability to comply decreases.

What I see in these videos is, Youre going to do this my way, exactly as I tell you, or Im going to come and get you, because I am the police, Clark said. Thats the culture. They know they can do this stuff. Theyre not culpable.

Clark said police should have summoned crisis negotiators. The San Diego Police Department has an Emergency Negotiations Team, which works to persuade individuals to surrender, including individuals who are suicidal or barricaded. The team tries to engage in dialogue instead of force.

Clark was one of three use-of-force experts the Union-Tribune contacted. Others did not respond or were unavailable.

Police reform advocate Tasha Williamson, who also requested the body-worn camera video under state law, said she believes the Police Department withheld the footage because it does not show the department in a good light.

She shared several of the same criticisms as Clark. She said the shooting shows that officers unnecessarily put themselves in danger and in situations where they end up feeling the need to use force.

Why not wait this out? Why not call SWAT? Why not have negotiators come in? Why not do all the precautions that are needed to save her life and diminish the risk to officers instead of saying we waited 25 to 40 minutes and that was enough time? she asked. Her life is worth hours.

The reality for us in the community is this was withheld because it was horrific, she said.

The incident occurred two days before the murder of George Floyd by police in Minneapolis, which at the time led to protests and outrage over police brutality and racial injustice. Williamson said she believes the video was withheld to mitigate public outcry in the aftermath.

The San Diego Police Department at the time denied requests for the video, citing an investigation and a criminal case against Calva.

David Loy, legal director for the First Amendment Coalition, said the public had the right to see the videos a while ago, at least once the investigation into the shooting wrapped up, if not earlier. He said state law does not allow agencies to withhold video of shootings by police officers based on ongoing court proceedings.

An exception in the law allows agencies to withhold video if they prove that the release of the footage would interfere with an active investigation, but Loy said the Police Department did not do that. He added that at some point the argument that an investigation was ongoing was not plausible.

When they want to release body-cam video of shootings, they do it, and they do it right away, Loy said.

Calva was charged in San Diego Superior Court with assault with a deadly weapon and assault with a deadly weapon on an officer, with a special allegation that she was armed with a knife.

A judge ruled later based on a psychiatric evaluation that Calva was mentally incompetent to stand trial and suspended the court case until her competency could be restored. The ruling was based on a finding that Calva was unable to understand the court proceedings and assist in her own defense. As is common in such cases, Calva was sent to Patton State Hospital in San Bernardino County for treatment.

Calva later returned to San Diego County and was allowed to undergo treatment as part of the countys Mental Health Diversion program. If Calva completes the treatment, her case will be dismissed.

Follow this link:
San Diego police shot a mentally ill woman who had a knife in 2020; they just released the video - The San Diego Union-Tribune

Being a federal judge is a tough job.

You have to clean up all the screwed up things Congress does. And sometimesand this is even worseyou have to clean up all the screwed up things state legislatures do.

Tall task.

Take the Florida Mini-TCPA, for instance. This thing is plainly unconstitutionaland for a number of reasons. Although it is a restriction on speech it is impossible to know what it applies towhats an autodialer? whats a sales call? who is exempt? I dare you to answer those questions in plain Englishso it is void for vagueness. It is also plainly a contents-specific speech-control paradigm that violates the First Amendment.

The good folks at Subway Franchise Advertising Fund took the first crack at raising these arguments recently and they didnt win. But thats ok. It takes a very brave judge to strike down a statute on constitutional grounds and many ties the federal bench needs several exposures to an argument before it sticks. So I am grateful that SFAF took a shot here, although there is one tweak needed (badly) to their argument.

The case at issue isTurizo v. SFAF. I can send you a copy if you want to read it.

So lets start with the bad argument. SFAF argued that only systems that meet theFacebookdefinition of ATDS can be an autodialer under the Florida statute.

That argument is how can I put this gently? ridiculously bad (at least standing alone).

The TCPA defines ATDS to include an ROSNG. The Florida autodialer definition does not. SoFacebooksrequirement of ROSNG usage is entirely unrelated to Floridas definition. So thats just a terrible argument.

In fairness, however, SFAF likely brought the argument primarily to tether its void for vagueness argument. SFAF pivoted and argued, in essence, if the FTSA isnt coextensive with the TCPA then the FTSAs autodialer definition is meaningless and should be struck down. The second part of that sentence is correctthe FTSAs autodialer definitionismeaninglessbut there was no reason (IMO) to pin that reality toFacebook.

In other words, by leading with a weak FTSA = TCPA argument to frame out the void for vagueness pitch. I think SFAF simply shot itself in the foot. BUT they still did a nice job of raising void for vagueness in the first instance. And I want to see more of that from others.

SFAF also raisedwellthe broader First Amendment implications of the FTSA through the lens ofReedandAAPC.And I LOVE the way theTurizocourt framed the issue directly doesReedandAAPC(on the one hand) crush and destroy the oldCentral Hudsontest?

That is the correct question. The correct answer is YES, where the restriction is content specific and no where the restriction is content neutral.

TheTurizocourt didnt quite get there not sure SFAF gave the answer as crisply as I just did and concluded that because neitherReednorAAPCdealt with commercial speech it was impossible to say, for sure, whether theCentral Hudsontest had been abrogated (but it has been.)

Plus theTurizocourt had an easy way to bail itself out the Eleventh Circuit has continued applying Central Hudson post-Reed. SoTurizowent ahead and adopted the old CH test, notwithstanding the fact that the Eleventh Circuits decision was totally unrelated.

Bottom line: SFAF took a first brave step in challenging the FTSAs constitutionality. It wasnt perfectthey also bloated it up with junky preemption and dormant commerce clause arguments that were going nowherebut they tried. And I give them credit for it.

But the FTSAisdoomed. It simply will not stand the test of time because it IS unconstitutional. It will take a few knocks on the door, but eventually the First Amendment will be answered.

Read this article:
Litigation Starting Against Stat's TCPA's - The National Law Review

So the Eleventh Circuit held today inU.S. v. Jimenez-Shilon, in an opinion by Judge Kevin Newsom, joined by Judges Elizabeth Branch and Andrew Brasher; the opinion focused on Framing-era history, and concludes,

[Under eighteenth-century law,] aliens could not surreptitiously enter a foreign nation in violation of the immigration prerogatives of the sovereign and expect to receive all the rights and protections of the citizenry. Nor can they do so today.

Other courts have likewise upheld the federal ban that was upheld in this opinion, but generally without such detailed historical analysis.

Judge Newsom also adds a separate concurrence, in which he questions the use of strict scrutiny, intermediate scrutiny, and similar tests both as to the Second Amendment and as to other constitutional rights, such as the First Amendment. Allowing constitutional rights to be overcome by compelling or substantial government interests, he argues, "elevates the normative views of 'we the judges' over 'We the People' through an ill-defined balancing test." And, turning to the First Amendment, he adds:

It's not just that the [First Amendment strict scrutiny / intermediate scrutiny] doctrine is exhaustingalthough it certainly is that. It's that the doctrine is judge-empowering and, I fear, freedom-diluting. If we, as judges, concludeas I've said we shouldthat Second Amendment rights shouldn't be casually balanced away by reference to manipulable means-ends balancing tests, we might need to start asking the bigger question: On what basis can we do exactly that when dealing with other, equally fundamental rights?

Of course, this is just a quick summary of the results the opinion and the concurrence reaches; for more, see here.

Link:
"Illegal Aliens" "May Be 'Disqualified from' Possessing Arms Without Violating the Second Amendment" - Reason

An intra-congregational dispute over control of church bank accounts led the Wakefield Missionary Baptist Church to a schism that forced out a senior pastor, saw church doors locked, and resulted in competing factions worshipping under the banner of a once-united unincorporated association. In McKnight v. Wakefield Missionary Baptist Church, Inc., 2022 NCBC 10, the Business Court confronted a tangle of disputes between dissident church factions largely out of its reach given the First Amendments edict that the judiciary may not resolve ecclesiastical questions or resolve controversies over religious doctrine and practice.

The Court found a path under which neutral principles of law would allow it to determine whether a purported vote of the churchs congregation to approve the pastors dismissal and reorganize itself as an incorporated entity was valid. Over its 150-year existence, Wakefield had been a congregational church that was self-governing and that in a more recently adopted constitution and bylaws entrusted that authority in its members. Id. 3. But when the congregation approved movement of Wakefields property into the new incorporated form, a dissident faction challenged and sought to undo the splintering.

A challenge to that action in North Carolina faced long odds given that the congregation has the right to control the church, including the authority to change its customs and rule upon earlier church decisions. Graham v. Lockhart, 42 N.C. App. 377, 379 (1979). Thus, the Business Court determined that when the incorporated entity re-opened and its 37 members in attendance unanimously ratified its change in form, the movement of Wakefields property, and the termination of its pastor, the churchs governing body had declared the matter closed. NCBC 10, 7, 18.

But even that deference to the boundaries of North Carolina law left the Court resolving a dispute using neutral principles that could not fully resolve even the underlying controversy over the propriety of the congregations action. For instance, congregants who didnt join the group which incorporated thought they still constituted Wakefield, and that those who voted for ratification had ceased to be church members. Judge Conrad noted that [t]he Court has no business rendering a decision that would, in effect, excommunicate church members for siding with one faction over another in matters of church governance. Id. 17.

Yet, even in ruling that the Court could not overrule the congregations edict, a neutral decision about who constituted the churchs governing body was weighted with the baggage of which of Wakefields congregants could continue to worship under a dearly held 150-year-old church banner and which could not. Id. 20.

Trade Name Infringement

The Business Courts decision was also freighted with the responsibility to tackle which of Wakefields dissident groups could appropriately use its name. Judge Conrad observed that, too, posed tricky First Amendment issues because [w]hat a church or other house of worship chooses to call itself is, after all, an expression of its religious identity. Id. 58. Perhaps that is why, the Court noted, the North Carolina Supreme Court has avoided resolving whether an injunction may be issued to forbid one church to use a name similar to that of another church. Id. (quoting Bd. Of Provincial Elders v. Jones, 273 N.C. 174, 184 (1968)). The issue was resolved, ironically enough, on the principle that:

[t]he right to use the name inheres in the institution, not in its members; and when they cease to be members of the institution, use by them of the name is misleading and, if injurious to the institution, should be enjoined.

Daniel v. Wray, 158 N.C. App. 161, 173 (2003). Here, then, the power of the congregations members fueled the change in corporate form, but it was then the newly formed entity that controlled use of the Wakefield name as its organizing label.

Takeaways

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Read more:
A Business Court Finds There is Little Neutral Ground in Disputes Over Church Business - JD Supra