Gun Possession Law: I, the Jury

July 15, 2022
Posted by Jay Livingston

I thought that the Supreme Court decision in the recent gun-possession case was a bad decision. I still do, but as I listened to a recent podcast — Lulu Garcia-Navarro’s “First Person” (here) — my thinking about it changed. 

Sharone Mitchell Jr.  is a prosecutor. He’s Black. He grew up on the South Side of Chicago. He knows the dangers of guns. When he was in middle school, a classmate of his was shot. Another kid he was friendly with had a gun.

And yet, as he says on the podcast, he supports the Supreme Court’s recent decision that allows people to carry guns. His reason is that gun-possession laws are used mostly against Black men who are not criminals and who are merely trying to protect themselves.

There is just the random threat of violence growing up in the neighborhood, right, this idea of gangs and getting jumped, getting jumped for your Jordans or getting jumped for your Starter jacket. I think people had an interest in keeping themselves safe. My friend who showed me my first gun was of that same mindset. Like this is what I’m going to do to make sure that I protect myself.

Mitchell’s experience as a prosecutor provided him with more evidence to support that view.

As I became a more experienced attorney, more and more of our cases, my cases, involved guns. . . actually gun possession cases. They are people who are accused of illegally possessing a firearm. That was the vast majority of my cases. Lulu Garcia-Navarro: And just to be clear, that’s the only crime these people are being charged with a quarter of the time, just having a gun? Sharone Mitchell Jr.: Illegally having a gun, yeah.

I remembered my own encounter with gun laws. In the 1980s, I served as a juror on a gun-possession case. The defendant was a young Black man, and the case sounded very much like the ones Sharone Mitchell prosecuted.

Lulu Garcia-Navarro: So can you talk me through the circumstances in which people are being arrested for gun possession not involving another crime? What typically draws the attention of the police in the first place? Sharone Mitchell Jr.: Typically a search, you know, an encounter. Police could pull people over in a car. They could stop people on the street. We know that certain communities are policed very heavily. There’s lots of contact folks will have with police. So we’re talking young Black men in very particular neighborhoods.

That was my case all right. Harlem, one a.m.. Three Black men in a gypsy cab, two in the back seat, one (the eventual defendant) in the front passenger seat. The driver too is black. They make a brief stop for cigarettes, and as they pull out from the curb, the cops pull them over. They say that the cab had pulled out from the curb illegally, but that was clearly a pretext. The real reason was what Mitchell says: Black men in a Black neighborhood.

The driver, the DA’s main witness, testifies that when the man in the passenger seat saw the flashing light, he said, “Oh, shit,” and put something under his seat. The cops searched the car and under the seat they found a gun.

It seemed like a strong case, and I wondered why it hadn’t been pleaded out to some lesser charge. I knew that in New York illegal possession carried a mandatory one-year minimum sentence. So my first assumption was that our defendant was a bad guy, a criminal well-known to the police, a guy with a string of arrests and maybe a few stretches in prison, but that the gun charge was what they would get him on. At least he’d be off the streets for a year.

Instead, he seemed much more to fit Sharone Mitchell’s typical case. He took the stand in his own defense, and while the DA could not bring in any criminal history, she could ask about employment history. But our defendant had no long gaps between jobs that would indicate prison time. Even the DA allowed that the defendant was carrying the gun for protection. He had been mugged recently, and he was going to Harlem at one in the morning. But the law is the law.

In the jury room several people asked pretty much the same question that Mitchell raises: Hey, this is New York City.  Murders, robberies, assaults. Bad people doing bad things. Why are they wasting our time with a case like this?

We deliberated for about an hour.

Not guilty.

Majority Rule and the School Curriculum

June 4, 2022
Posted by Jay Livingston

Should schools teach things that a lot of parents don’t like even if those things are true? If most parents are creationists, should the science curriculum nevertheless teach about evolution or mention that the earth is four billion years old rather than 10,000? Or should curriculum avoid anything that contradicts the views of parents?

When it comes to the facts that children are taught, Reihan Salam wants majority rule.

And here the big challenge is whether or not you have public institutions that are advancing curricula and ideas that are basically going against freedom of conscience. Do we have situations in which people are being compelled to adhere to certain ideas, certain controversial ideas?

(From his recent interview with Ezra Klein.)

I don’t know where Reihan went to school, but in the schools I went to you were “compelled” to learn what was taught. Well, you weren’t compelled. But you would do better on the exams if you did learn it. Even if your conscience told you that Aristotle’s four elements theory was spot on, your chem teacher went against your freedom of conscience and compelled you to learn about the periodic table. The exams didn’t have any questions about earth, air, fire, and water.

Reihan goes on:

And I think that that’s something where it is good and healthy to have transparency in school curricula. I think it is good and legitimate to believe that parents should have access to good, reliable information about what is being taught and about the ideological content of what is being taught. This is obviously a very contentious issue, but I think that it goes part and parcel with our general belief and educational pluralism. That is the idea that schools tend to work best when they’re broadly aligned with the values and sensibilities of families.

It sounds so good. Who could be against freedom of conscience, against transparency or good, reliable information, or pluralism, or families?

Of course, Reihan isn’t talking about creationism or phlogiston theory. He’s talking about Critical Race Theory, but the issue of who designs the curriculum is basically the same.  What Reihan is offering is a calmer and more reasonable-sounding version of what louder right-wing politicians are saying. Much like the con man in “The Music Man,” they are telling the parents, “You got trouble my friends, with a capital T, and that rhymes with C and that stands for Critical Race Theory.” Twenty years ago, politicians like these were railing and legislating against “Sharia law,” which they claimed posed an imminent threat to freedom, family, and apple pie. Now it’s CRT. Plus ça change.

Should schools teach about the crucial place that race, especially the treatment of African Americans, has in American history and in the American present? It’s not a pleasant story, and it does not show White people as being predominantly noble. Not surprising that it makes some people feel uncomfortable or that they would prefer the “patriotic education” promoted by Donald Trump.

And if that’s what they want, in Reihan’s book that’s what they should have. He doesn’t say exactly what he means by “educational pluralism.” But it certainly suggests that “the values and sensibilities of families” should shape the curriculum. In many cases, that means that kids will get a Whitewashed version of US history, a version that does not make the majority feel uncomfortable.

But wait. Aren’t we past that? Don’t we acknowledge that slavery was bad and that the secession in order to preserve slavery was wrong? What about all those statues that have been torn down?

The same day that the Reihan Salam interview appeared, sociologist Peter Moskos tweeted a photo he had taken of a sign in Greenville, SC, a city of 70,000, 70% White, 23% Black. (The Greenville County population is 533,000, 76% White, 18% Black.) The sign was next to a statue of Robert E. Lee.

“Dedicated in reverence and admiration for their courage and integrity to the five signers Ordinance of Secession from Greenville County.”

Here’s the text Peter tweeted below the photo:

I really did not expect to see this. My naiveté. "In reverence and admiration"? These aren't founding fathers. These were literally traitors.

I don’t know what the history curriculum in the Greenville schools compels students to learn, but I would guess that, like the sign and statue, it is, as Reihan says, “broadly aligned with the values and sensibilities of families.” Well, the 70% of families that are White, not the 23% that are Black.   

Guns — How Addiction Makes Sense, and Doesn’t

May 25, 2022
Posted by Jay Livingston

A useful definition of addiction: trying to solve a problem by doing more of what caused the problem in the first place.

That’s the definition that came to mind when I read the response of politicians like Sen. Ted Cruz and Texas Lt. Gov.Dan Patrick to the massacre in a Uvalde, TX elementary school. They want more guns.

It’s the good-guy-with-a-gun solution, and it seems to make sense. Once you have created a world in a world where guns are a big problem because every bad guy can arm himself with military assault rifles, more guns seems like a logical solution.

I studied compulsive gamblers for my dissertation research. The men I hung out with certainly seemed to be in the grip of an addiction that kept them from thinking clearly about their problem. There wasn’t a lot of scholarly literature on the topic then (a big time-saver if you’re a grad student writing a dissertation). The Freudians talked about unconscious desires, and the behaviorists talked about reinforcement schedules. This was long before the days when brain activity would light up the fMRI screens.

What nobody considered was that compulsive gambling makes sense.
 

Does it make sense, is it rational, for a man to bet twice his weekly salary on a basketball game? From a distance, that seems crazy. But suppose he is already thousands of dollars in debt and has payments falling due soon — rent, phone bills, loan sharks. He needs a lot of money fast. He can’t get it from friends, loan companies, and banks any more. He has already used up his credit with them. A bet on the right team though could solve a lot of these problems or at least give him some breathing room. Is it possible? Of course it’s possible. He knows that he has made winning bets before. He knows that thousands of people will make that bet tonight and win. Of course, other thousands will lose, but all he has to do is be in the first group. And if he loses, well, the financial pressure he’s under is already so great that losing another few thousand will not substantially change his life.

Most of the gamblers I knew were, to varying degrees, in Gamblers Anonymous, a program that promotes abstinence as the only solution. Many of the men (there were no GA women in those days) said that initially they didn’t think they could ever get out of debt on just their regular income, but gradually they had done so. None of them had ever gambled his way out of debt, nor had any of their gambling buddies. They recognized the dream solution of the big score as a tempting but dangerous fantasy.

Many of them had made a big score occasionally. They took delight in recounting these, like the guy who spent ten minutes telling me how he had once handicapped the exact order of finish of the eight dogs in a race at Raynham. You can get a nice payout when you hit an exacta or trifecta. But he wound up in deep debt and eventually in GA.

The NRA similarly has a storehouse of good-guy-with-a-gun stories. Similar to the big-score stories of the men in GA, these frame “more guns” as a rational solution to the problem of gun violence.*  Texas Governor Greg Abbott, back in 2015, touted more guns as a worthwhile goal.

Thousands of Texans got the message. This year, one of them was Salvador Ramos. 

------------
* In “Arise Heroes” (here) Seth Brady Tucker, who grew up in Wyoming with guns and served in first Persian Gulf war, explains why the good-guy-with-a-gun is largely a fantasy.

Making “I Won” the Default

May 19, 2022
Posted by Jay Livingston

“Dr. Oz should declare victory. It makes it much harder for them to cheat with the ballots they ‘just happened to find.’” So posted Donald Trump on his social media platform Truth Social.*

He may be right. By declaring victory, you make that the default outcome. You put the burden of proof on the other side. That was Trump’s strategy in 2020. He started claiming victory before the election. Thus, his claims of victory after the election were merely a continuation of an established “fact,” even though that fact was established only by Trump’s repeatedly asserting it. That made it easier for his supporters to remain convinced that he won and to believe all his claims about fraudulent vote counts. It also apparently has raised doubts even among those who were not ardent Trump supporters.

In the pre-Trump era, a candidate in Dr. Oz’s position would say something like, “Well, it’s a very close, and we’ll have to wait for all the absentee ballots. But when all the votes are counted, I’m sure that we will have won.” That is in fact the situation that exists.

Or he could play the Trump card and declare victory – loudly and frequently, on TV and on Twitter.  If the final tally shows McCormick winning, that result will seem to go against an established fact. And even if courts and recounts uphold the result, Dr. Oz will avoid being labeled a loser.

Maybe this same strategy would work in other areas. I imagine Mark Cuban, owner of the Dallas Mavericks, declaring on Tuesday that a Mavericks victory the next night was certain. Then, after the game, which Golden State won 112-87, he could claim that there was basket fraud – that many of the Warriors’ points were “fake baskets.” He could get Dinesh D’Souza to make a film showing nothing but Mavericks’ baskets and the Warriors’ misses. He could call up the scorekeeper and tell him to “find me just 26 more points.”

OK, maybe we’re not there yet in basketball. But in politics this is another area where Donald Trump may have a lasting influence.  I expect that more politicians will use the strategy of declaring victory and then claiming voter fraud. The gracious concession speech will become a rare event.

----------------------
* I think that they call these posts “truths.” Twitter has Tweets; Truth Social has Truths. I don’t think they have yet come up with a verb equivalent to Tweeting. “Dr. Oz should declare victory,” Donald Trump truthed?