REFLECTIONS ON RACISM IN KING'S DAY AND OURS

While reading Jonathan Eig’s King, a masterful biography, I wrote and published a blog on affirmative action and received a handful of responses.  All but one were favorable, ranging from “interesting” to “wonderful.”  That one, from an officer (“They” but with a singular verb) of the local NAACP chapter, was unfavorable:

 

“It interviewed four women classmates, all less qualified than I, for the position.” and “Few have been as well schooled as I was.” These are your words, and they wreak [sic: reek] of white privilege. While your sense of entitlement is typical, it renders you ill-equipped and unqualified to weigh in on affirmative action. The SUNY Albany English Department did its students a tremendous favor when they bypassed you.

 

Since They had once before attacked me in this fashion, I was surprised by They’s failure to consider my reply at the time or reconsider They’s conduct.  What is the matter with They?  They knows little more about me than that I am a white male, well-educated, and an NAACP life member since 1968—longer than They has been alive.  Obvious at least to me is hard-to-control, black racist anger at me; both the “white privilege” and “sense of entitlement” imputed to me are “typical.”  Similarly obvious is They’s resort to the color of my skin, not the content of my character, about which They knows nothing.  Arrogant is They’s pronouncement that privilege and entitlement render me unfit to “weigh in on affirmative action.”  They thus dismisses my lived experience as a white man affected by discriminatory programs and assumes that only—who?—is equipped and qualified to have an opinion on affirmative action—not a free speech or a democratic position.

 

They is an example of King’s depressing foreboding at the end of his life, that racism, whether by blacks or whites, would endure until Americans had achieved a conversion of conscience.  For They, even as an officer of an organization opposed to racism, certainly remains obdurately racist.  In this respect, They is no different from, say, Paula Deen, who has remained a racist throughout her life and excuses herself because her parents raised her to be a racist, as if she, a slightly younger contemporary of mine, could learn nothing from the media about racial incidents and public discussion.

 

I can also accuse my maternal uncle, Ralph, a liberal intellectual of whom I was once fond.  Paula Deen has the excuse of being born and bred in the South; Ralph lacked that excuse.  Not long after I had doubted and debated affirmative action with a family friend and my mother, I had lunch with him.  Like many liberals in the North, he was ardent in his criticisms of racism in the South.  For Northern liberals, criticizing Southern bigots was easy.  But I knew that dealing with racism in the North would be difficult because most whites—liberals, conservatives, what-have-you’s—were racists whether they knew it or not and blind to racism in their states and cities.  And so it has proved to be.  Ralph thought that King, beginning to bring his campaign northward, was a dangerous man, a threat to the country.  I not only disagreed, but also warned that not listening and learning from King, who preached love and non-violence, would ensure that militants disposed to hatred and violence would succeed him.  They did.

 

Most are not all, in the South or in the North.  Some white Southerners and some white Northerners are not racists.  But the majority of Americans are.  Today, the dividing line is less geographical than political, and a matter of degree.  The Republican Party has become resolutely racist.  Republican attacks on “woke” and on “critical race theory” reveal the inherent racism of unreasonable denials of racism.  In the extreme, Florida Republican Governor Ron DeSantis maintains that slavery was an unpaid internship or a job training program.  No prominent Republican has publicly rejected his falsehood.  The Democratic Party reveals its racism in milquetoast tinkering to deal with racism, the grudging politics of political correctness.  Widespread, bipartisan racism is reflected in the continued existence of greatly different economic, educational, occupational, and residential conditions of blacks and whites.  The persistent inferiority of mostly black (and Hispanic) schools reinforces and perpetuates racially disparate conditions.  Although gaps in these areas have narrowed slightly since the 1950s, they abide and blight the lives of millions of American citizens.

 

King’s foreboding has become a prophecy realized.  King has been honored, but his message has been ignored or forgotten, not implemented.  In his “Epilogue,” Eig refers to physical facts which demonstrate King’s foresight.  “From Montgomery to Chicago, along those streets named Martin Luther King Jr. Drive and Martin Luther King Jr. Avenue and Martin Luther King Jr. Highway and Martin Luther King Jr. Boulevard, poverty and segregation rates remain much higher than local and national averages.”  I know of one exception: Cleveland, Ohio, where Martin Luther King Jr. Boulevard runs along an inner-city parkway with commemorative gardens bordered by thriving businesses and comfortable apartment houses.  Still, this urban oasis is surrounded by the usual scars of abandoned or dilapidated stores and houses, and deteriorating schools and playgrounds.

 

So there is much to do to recover King’s dream from the nightmare which it has become.  The major laws in the 1960s and others since have made discrimination illegal, but they are not self-enforcing and have not changed hearts and minds.  Racism, institutional and personal, abides.  The change of conscience which King knew was necessary has, decades later, still not occurred.  Because most whites still resist changing society and themselves, most blacks still remain discouraged, disgruntled, or angered by barely perceptible progress.  Nevertheless, those who believe in King’s dream, black and white, must carry on; recognize those who share that dream, as They does not; and work together to realize it.  Like those of the lucky few who do, I feel like the woman, who, during the Montgomery bus boycott, was offered a ride but, with thanks for the offer, refused it: “my feets is tired but my soul is rested.”

A REPLY TO GERALD M. BYERS'S "PEACE OFFICER USE OF DEADLY FORCE"

Having followed and researched Police Officer Jared Gosper’s murder of Sra. Amelia Baca, I was puzzled by Third Judicial District Attorney Gerald M. Byers’s op-ed (accessible to subscribers only) “Peace Officer use of deadly force” (21 July Sun News).  What prompted it?  What is its purpose?  Why now?  Why 15 months after LCPD Officer Jared Gosper murdered Sra. Amelia Baca?  Why not when he needed to explain his decision to avoid a decision on charging Gosper?

 

Byers’s op-ed neither answers nor even addresses any of these obvious questions.  And it mentions no specific cases, only general decisions.  It relies entirely on judicial citations about a limited range of circumstances justifying the police use of deadly force.  It never asks about the limitations of those circumstances.

 

First, Byers’s op-ed asserts that the officer may use deadly force in making an arrest for a felony.  Does the officer always know that he is making an arrest for a felony?  If not, what justifies its use?  Is a person behaving erratically, possibly shouting threats, possibly holding a tool or a weapon, committing a felony or suffering from a mental condition?  Given imperfect knowledge in different or dynamic situations, is the officer’s judgment to use deadly force appropriate or wise?  Byers should know better than to assume that the officer’s judgment about felonies or danger is unaffected by the race, religion, ethnicity, or gender of the person.

 

Second, Byers’s op-ed asserts that the officer may use deadly force in defending himself.  But what if he is not attacked?  What if there is no showing of an attack?  Byers cites an opinion that “An officer does not need to wait until he sees the glint of steel before he can act to protect his safety.”  This opinion says nothing about what the officer either needs to wait for or has to see.  The result is that the officer can resort to things invisible to the naked eye, to usually unimpeachable reports that he thought himself in danger, to justify a use of deadly force.  The usual: “I thought…blah, blah, blah.  Byers should know that such testimony clears most police who have killed a person.

 

Third, Byers’s op-ed asserts that the officer, necessarily the “aggressor,” may use deadly force to make an arrest for a felony.  Is the need to make an arrest for a felony, many minor or non-violent, worth the taking of a life, especially if the person flees?

 

Byers’s concluding paragraph, quoted in full, allows a diversity of perspectives.

 

No person, police or private citizen, is perfect; but judges and legislators chosen by (“we”) the people have declared the law on government use of deadly force.  While this overview is certainly not exhaustive, or completely definitive, it hopefully informs the discussions of many well-meaning people from differing perspectives on police use of deadly force.

 

That is, the standard in such discussions is the prevailing law.  Byers is right that his “overview is certainly not exhaustive, or completely definitive.”  It is not sensitive to the limitations of the law, as legislated or adjudicated.

 

Byers’s penultimate paragraph, quoted in full, is a plea, not about understanding the law, but about sympathizing with the officer.

 

Each police-citizen encounter is fact specific, and police training incorporates these and other standards to facilitate the safe application of the law.  Sometimes risk to an Officer’s safety develops in much less time than it took to read this sentence. The resultant use of force is analyzed from the viewpoint of a reasonable officer.

 

This op-ed makes me wonder what happens to people like Byers when they become prosecutors or court attorneys that they have so little regard for citizens.  The bland assertion that “police training incorporates these and other standards to facilitate the safe application of the law” is at odds with recent incidents of police murders in Las Cruces.

 

Indeed, this assertion raises questions about Byers’s decision-making.  His op-ed seems an exercise in whitewashing his performance in the Baca case.  He received a multi-agency task-force report on Baca’s murder; he promised a decision to charge or not charge Gosper within a few days, but he failed to fulfill his promise.  Instead, he sent the case to the NM Attorney General, where it has languished under both Hector Balderas and Raúl Torrez.  Byers’s handling of the Baca case undermines his op-ed.  First, he found the “standards” for the police use of deadly force inapplicable in the Baca case.  But, then, he was unwilling to regard the reasons for their inapplicability grounds for charging the murderer.  Given his botch-up, I think it is fair to say that “(“we”) the people” have chosen some judges, some legislators, and, yes, some district attorneys unwisely. 

WHAT DOES AFFIRMATIVE ACTION AFFIRM? A PERSONAL VIEW

Sitting on the family porch 60 years ago, in 1963, I found myself engaged in a heated conversation about the then-emerging notion of race-based, affirmative action.  Dr. Ken Clement, a prominent black physician, political activist, and family friend, and my mother, a prominent mental health worker and political activist, were arguing in favor of it, against me, who doubted its wisdom.  Everyone knows their side of the argument, and many people imagine mine.  But I had no dog in the fight; then completing my second of four degrees—first, a BA; second, an M.Ed.—, I did not worry that anyone would take my place at the graduate level.  I had three reasons for doubt.  I expected whites to think themselves the victims of reverse discrimination and to resent it.  I expected program supporters to partly justify its discrimination as pay-back for past discrimination against blacks (the idea of reparations was not then in vogue).  And I expected the programs to yield underwhelming results.  I did not see undisputed goods justifying dubious means.

 

Six decades later, no one has won and no one has lost the argument.  The jury is still out.  Undeniably, on average, the black population as a whole is better off now than it was then.  But how much, if any, of that improvement can be attributed to race-based, affirmative-action programs no one knows.  I know that one program at The University of Michigan got off to a bad start.  During my five years there for two more degrees (an M.A. and a Ph.D.), the university admitted a number of intelligent, promising, but poorly educated inner-city Detroit blacks.  Despite varied and vigorous efforts to help them adjust to a predominantly white student body and a small-city campus, and to overcome a deficient education, many struggled, dropped out or failed, and, I suspect, carried with them feelings of failure, shame, and perhaps anger.

 

What affected me were gender-based, affirmative-action efforts.  When, in 1973, I entered a suddenly very tight and distorted job market for any English Ph.D., especially a white, male Shakespearean, the faculty consensus was that if only one graduate got a job that year, I would be the one.  I did not.  Because of gender-based, affirmative-action efforts, the SUNY Albany English Department was determined to hire a female assistant professor in my field from my department.  It interviewed four women classmates, all less qualified than I, for the position.  None initially seemed good enough.  I was finally invited for an interview, but my host advised me that the dean was determined to hire a woman.  She made the interview most unpleasant, and I learned that I was not going to be hired only when I heard that one of the four was finally selected.  She went on to have a good career; since she was a friend of mine, I was and remain happy for her.  However, she never seemed comfortable when we met at scholarly conferences.

 

Although my initial reaction was, of course, great disappointment—I had already published and been recognized as a distinguished teacher—, I never resented gender-based, affirmative-action efforts.  I thought them unwise, if only because they denied me and other promising male would-be professors the chance to do in their fields and for their students what past achievements promised for the future.  But I accepted the nation’s decision that such efforts were necessary, though unfair from a meritocratic perspective.  I am glad that they have done women, black as well as white, much good, but I worry that their effect on many males is one of the causes of malaise among recent generations and counting of many males, white males especially.

 

My good fortune, thanks to a superb and, in the jargon of the day, well-rounded public-school education, was to have many arrows in my quiver.  Because of strengths in math and science—I had enrolled in engineering physics at Cornell (but switched ASAP to the liberal arts)—, I developed a successful career as an independent consultant in defense, energy, environment, mainly.  I retired to another successful career as an independent scholar in my field.  Both careers as consultant and scholar were infinitely superior to any career which I might have had institutionalized as an English professor.

 

But what about others?  Few have been as well schooled as I was.  I know that, in the rush to find candidates to satisfy their affirmative-action efforts, many higher-ranked colleges did as Michigan did and enrolled students unready for college-level studies at their level.  I hope that such sad consequences are infrequent today.  But the taint of being an “affirmative-action baby” still casts a shadow on the accomplishments of those who have benefitted from those programs.  An obvious case: Justice Clarence Thomas.  Throughout his professional and personal life, he has suffered under that shadow.  His judicial opinions seem designed to repudiate every liberal achievement as punishment of that persuasion for that shadow.  His conduct, from marrying a white woman (OK by me) to accepting large gifts from wealthy, white men to feigning incompetence in filing or filling out the requisite paperwork, seems designed to scorn liberal establishment norms.  Thomas is an extreme, but others likely share his grievance and resentment.

 

Yet the recent SCOTUS decision eliminating race as a factor in admissions seems a reasonable one.  Even with its benefits, the percentage of blacks in institutions of higher learning (12.5%) remains lower than the percentage of blacks in the population (13.6%).  This result after five decades of race-based, affirmative-action programs suggests their limitations; their educational benefits have not outweighed their social costs.  Increased race-based, affirmative-action admissions cannot compensate, as Michigan learned, for a poor education.  The implication is that, if minorities are to get a fair chance at a college education, they must first have a far better education than what they are getting today.

 

I speak not just of inner-city blacks.  I speak also of any-size-town Hispanics.  In New Mexico, only about 25% of all students can read and compute at the fourth-grade level.  What that means is that 75% of students are weak, probably irrecoverably weak, in the fundamentals on which they must build in later grades and have for careers, not mere low-skill jobs.  Obviously, state government is content with the silent discrimination of a persistently lousy public education most adversely affecting the large minority student population.  But all students, especially minority students, need affirmative action, that is, action which affirms their right to an education ensuring proficiency in their subjects by implementing it.  It has to begin with a reality check: the curriculum in most subjects is incomplete or incoherent, and most K-4 teachers are incompetent and uncommitted to teaching it.  (Increasing the salaries of current teachers will not improve their teaching.)  The sop to Hispanic and other minority parents is the pitiable affirmation of diversity, ethnicity, and identity—dead-ends in a meritocratic economy and a society increasingly stratified by education and resulting wealth.  In that economy and society, New Mexico looks again to rank last.

MORE ABOUT THE SECRET PUBLIC SAFETY SELECT COMMITTEE

In a previous addendum (2 June) and a previous blog (6 July), I provided a little information about the Las Cruces City Council’s Public Safety Select Committee.  Now I provide the results thus far of my investigation of this Committee so that readers, many of them Progressives, can see how some senior city officials, many of them Progressives, may operate behind closed doors.

 

The Committee included as members Mayor Ken Miyagishima, Mayor Pro Tem and District 1 Councilor Kasandra Gandara, District 2 Councilor Tessa Abeyta, City Manager Ifo Pili, then City Attorney Jennifer Vega, then Police Chiefs Patrick Gallagher and Miguel Dominguez, Fire Chief Jason Smith, and others on an ad-hoc basis, including City Clerk Christine Rivera.

 

Despite its charter, the three Council members withheld knowledge of the Committee and their membership on it from the four other Council members.  If I were one of those Councilors kept in the dark by three colleagues, I would have good reason to regard them as untrustworthy.  Despite its charter, the Committee provided no information or recommendations about public safety to Council.

 

On 26 June, I made an Inspection of Public Records Act (IPRA) request:

 

for all documents in whatever media or format related to the Public Safety Select Committee since 6 January 2020. Such documents include, but are not limited to, meeting emails and other social media messages among committee members, announcements, agendas, notes, minutes, memorandums, reports, and recommendations.

 

On 29 June I received a response:

 

The City of Las Cruces has reviewed its files and has provided thirteen (13) documents responsive to your request.  Some of the documents were redacted, please see redaction log at the end of each redacted document for details….We need additional time to respond to this request.  You will have a response from our office on or before July 11, 2023.

 

On 11 July, I received another response: 

 

We believe that this request is excessively burdensome or broad and we need additional time to respond as the Information Technology Department searches for responsive emails or other electronic records.  There are also six (6) additional documents under Legal review.  You will have a response from our office on or before August 11, 2023.

 

On that date, I made two replies (hurriedly written):

 

[1] I want to register my disagreement that my request is excessively burdensome or broad.  It merely requests documents which exist as part of the Select Committee’s work, and it is quite specific in identifying them.  Some of the documents, as per your previous distribution, are readily available.  Others, like emails, may require more work to recover them.  But any difficulties should not be an excuse to avoid disclosure under IPRA.  The fact that there are many redactions on the basis of “attorney-client” privilege suggests that the committee has misrepresented its work, that it has engaged in impermissible executive actions, and that it has thereby operated in defiance of the Public Meetings Act.

 

Moreover, after seeking a 10-day delay, you now seek an additional 30-day delay.  In view of the membership of this committee and the candidacy of two of members for election in November [Gandara and Abeyta], this additional delay looks like a stall or prevent to keep potentially damaging information from the public in further defiance of the letter and spirit of IPRA.

 

[2] In addition, I want to note that the City Clerk has been a member of or participant in this Select Committee.  That fact means that Christine Rivera may be in a conflict of interest in having to deal with my IPRA request.  Assigning staff to operate independently seems not to be a credible means to avoid that conflict.  And it is an interesting question why the City Clerk would be a member or participant.

 

Some of the thirteen documents already released have been imperfectly reproduced, with words cut off at the head or end of lines.  (Apparently, no others will be released in increments as they are cleared until all others are cleared for release.)  Those released have numerous and extensive redactions, most justified by attorney-client privilege, an allowed basis of exemption from IPRA requirements for disclosure.  Although I know nothing about the discussions redacted, I am suspicious of this claimed basis for the redactions.  I do not know whether the discussions involved attorneys and clients, who those attorneys and clients are, and whether the exemption applies if they occurred in the presence of those who are not attorneys or clients.  I do know that the former City Attorney and a Senior Assistant City Attorney lied not only to me, but also to an Assistant Attorney General of New Mexico about their claimed basis for redacting or withholding documents covered by my IPRA request regarding the LCPD investigation of five phony allegations of code violations.  So it is easy for me to suspect dishonest claims of exemptions to conceal possibly far more nefarious conduct by public officials.

 

One inevitable question is, what has this Select Committee, operating in secret, claiming attorney-client privilege, and neither providing information nor making recommendations to Council, been doing.  One obvious question is, has it been making decisions then executed by department officials, without the authority under its charter to make them but with the secrecy necessary to get away with making them.

 

A tentative conclusion: In matters of public safety, some Progressives on City Council are as prone as politicians in other parties to prefer secrecy, to oppose transparency and accountability, and to hinder police reform.

LAW ENFORCEMENT ETHICS IN NEW MEXICO

My experience notwithstanding, I remain stunned by the lack of law enforcement ethics from the lowest-ranking officer to the highest-ranking legal official in New Mexico.  I skip a re-hash of the LCPD’s refusal, motivated by antisemitism, to admit the falsity of five alleged code violations—a minor but revealing matter.  Instead, I focus on the so-called investigation of LCPD Officer Jared Cosper’s murder of Sra. Amelia Baca—a major matter, one indicting all ranks.

 

Just over a year ago, I wrote two blogs about the investigation.  In “Baca Investigation Compromised by Conflict of Interest - Non-Prosecution Almost Certain” (20 June 2022), I addressed the-conflict-of-interest issue of the four task force agencies—NMDPS, DACSO, LCPD, NMSUPD.  I noted that the other agencies approved former LCPD Police Chief Manual Dominguez’s development of an edited version of the body-cam footage of the murder.  Otherwise, I cleared the investigation of that problem.  I wrote:

 

Investigators from three of the four agencies in the law enforcement community—the NM State Police, the DAC Sheriff’s Office, the NMSU Police Department—staffed a task force to report on the killing.  Because its officer is under investigation, the LCPD was limited to a supporting role to avoid the appearance of a conflict of interest.

 

No one corrected the concluding statement, which I based on presumably reliable sources, the most reliable seemingly DA Sheriff Kim Stewart.  But it is incorrect.  For I soon learned that the LCPD had been involved in the investigation after the incident. 

 

In “The Fix Is In: Task Force Officers in Conflict of Interest Ensure Biased Baca Killing Recommendation” (30 June 22), I reported that the task force committee to review its report included six LCPD officers of the twenty officers and DA representatives, and was chaired by an LCPD officer, with Dominquez present.  I concluded, “I can double-down on my claim of a compromised task force recommendation.”

 

Even so, I assumed that these two conflict-of-interest incidents were departures from the rule made in a particularly notorious case with serious political repercussions.  I have recently learned that I was wrong.  The task force operated in compliance with a “Joint Powers Agreement” (14 October 2009); it stipulates, “The law enforcement agency that employs the officer involved in one of these situations shall be designated as the ‘lead agency’ for the investigation” (I.E.1).  This agreement among four police agencies directs the agency with the most at stake in public embarrassment and financial risks to investigate itself and lead the reporting of its findings.  So the other agencies approved LCPD’s biased presentation of the body-cam footage and LCPD’s.  Local law enforcement agencies build conflict of interest into some investigations.  Truth and trust are victims.

 

Third District Attorney Gerald Byers received the task force report on 21 June 2022.  First, he said that he would make a decision on the Baca case in a few days; then, about ten days later, for reasons never given, he forwarded it to then Attorney General Hector Balderas, who then left it for Attorney General Raul Torrez.  When I wrote Torrez about action on this case, an underling reported on 2 June 2023 that the case was still being investigated (the reason given for denying my IPRA request for the task force report).  NMAGs have delayed this decision for over a year.  Justice delayed is justice denied.

 

Everyone knows who the victim and perpetrator are, investigators have presumably interviewed family members and others who may have witnessed the murder or known its circumstances, and the public has seen unedited body-com footage.  So it is hard to imagine that there is anything more to investigate.  But it is easy to imagine that no investigation is on-going at all, only a stall to save Torrez from making a decision apt to infuriate either the police or the public—a result incompatible with his likely desire to run for governor in a few years.  So Torrez will make no decision and will leave it to his successor as Balderas did.  Political calculations dominate legal decisions in New Mexico.

 

The Baca case alone suggests that the state’s law enforcement community is riddled with systematic, self-serving, ethical lapses.  Its people, inured to unprincipled conduct, tolerate police abuse in a moral wasteland.

 

But if police abuse in ordinary encounters and police violence causing bodily damage or death are to stop, some independent agency is required to begin reform by exposing abuse and violence.  The opposition of City Council to police reform makes it worse than useless.  It prefers the certainties of deaths and taxes (to pay citizens for settlements).

 

Problems with Progressives on City Council abound and abide.  Some are too nice, polite, or timid to raise or debate controversial issues; or ignorant of Council procedures or government practices to operate openly and effectively.  Others oppose police reform or whatever else the police oppose; some attack those who seek higher-quality policing.  A case in point: District 2 Councilor Tessa Abeyta.  From her hostile interrogation of Peter Goodman at a City Council working session to her membership in the secret Public Safety Select Committee—four members of Council knew nothing about it—, she tolerates police conduct unaccountable to citizens.  Mayor Pro Tem and District 1 Councilor Kasandra Gandara, also a secret committee member, shares her proclivities.  In matters of public safety, Abeyta, who seeks re-election, does not represent her constituents, and Gandara, who seeks the mayoralty, provides neither moral nor executive leadership.  Both should be challenged and defeated.  I say nothing about the Council member who appointed them, Mayor Ken Miyagishima, soon to leave office but not soon enough.  All three support the police against the public, have deceived other counselors by hiding their membership on the secret committee, and ignore the ordinance which directs disclosure of membership and specifies its purpose, namely, to provide information and recommendations to Council, not make clandestine decisions on legal matters.

 

As I expect to show in a future blog, this committee operates in defiance of the spirit, if not the letter, of the Open Meetings Act.  Abeyta may not know or care about this law.  But Gandara should have learned something about the criminality of secret meetings from her husband, Bill Soules, who, convicted in 2002, apologized ten years later when he ran for office and won.  Maybe she has learned not to apologize for breaking the law until an apology could have a timely effect on her campaign.