BroadSnark

Thoughts on politics, religion, violence, inequality, social control, change, and random other things from an autonomous, analytical, adopted, abolitionist, anarchist who likes the letter A
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Is Stand Your Ground a Distraction?

April 02, 2012 By: Mel Category: Inequality, Politics, Violence

A lot of people, especially in mainstream media, have been talking about the “stand your ground” law. Darren Hutchinson wrote an excellent post about how “stand your ground” has nothing to do with the Trayvon Martin case. Definitely read the whole thing, but the short of it is this.

In some states, self-defense is not available if the defendant had the ability to “retreat” from the harm. In other words, if the defendant could have escaped the danger without using violence, then the use of force is not justifiable. These states impose a duty to retreat in order to discourage the unnecessary use of force.

In 2005, Florida amended its law to remove the duty to retreat provision. So long as the person claiming self-defense had a legal right to be in a particular location, that individual can stand his or her ground and remain there without any duty to retreat from the threat

So why are people talking about lobbying to reinstate the duty to retreat in the context of this case? Doesn’t that imply that the shooter was possibly acting in self defense? An armed man followed an unarmed kid under the pretext of there having been some robberies in the neighborhood? Even if you believe the kid might possibly (eyebrow raised) have punched the shooter who was creepily following him, that just boggles the mind.

Did Martin have a TV in his hoodie pocket?  What if he had stolen the world’s tiniest TV? Is theft now a capital offense? Zimmerman didn’t even see the kid do anything, much less have reason to fear for his life. Is every bar brawl where somebody punches somebody now a self defense claim for murder? Not even the people behind the law change think it applies in this case, cynical as their statements may be.

Let me repeat. ZIMMERMAN WAS FOLLOWING HIM!!! I’m sorry to yell, but really.

This case isn’t just tragic and infuriating, it is absurd. And we should be focusing on the absurdity that any kind of self defense claim was accepted by the police. Seems to me that talking about the  “stand your ground” provision as though it applies is almost helping the defense.

We should be focusing on the murder and on the police and prosecutors who let someone walk away from it. Why are so few people discussing all the citizens of Sanford that have come forward about how local police have handled their cases? Why aren’t we discussing a pattern of Sanford police letting people connected with the police department get away with murder? Why is there so little discussion about how Zimmerman may have walked away from previous charges because his father is a judge? I mean the guy had an altercation with a cop and got no charges. Who the hell does that ever happen to?

The law is applied differently to people who are poor or black or otherwise marginalized.

“I can tell you that if it was the other way around, someone would be in jail by now,” Ulysees Cunningham said Wednesday.

No shit.

Florida is a cesspool of thug cops and corrupt officials. One of my earliest memories growing up in Florida is of the Liberty City riot that broke out after a bunch of white cops got away with beating a black man to death. The cops tried to cover it up. The truth came out. They went to trial and then they walked away.

Nothing much has changed. Seven black men were shot and killed by Miami police in the course of eight months. As of last July, there were 63 police shootings in Miami (25 resulting in death) that remained under perpetual “investigation” while nothing happened to the officers. Growing up in Florida, I can tell you that I didn’t know many young males that were not regularly harassed by cops. If you were black, it was far worse and far more often, but Florida cops are real fucking thugs.

To the best of my knowledge, the “stand your ground” provision does not compel police and prosecutors to let somebody go if there are no other witnesses. It may be true that self defense claims have increased since the law was enacted. And the Garcia case that Ta-Nehisi Coates mentions on his blog is disturbing as hell. But I personally would be careful to assume that is typical.

Changes in the law around the obligation to retreat actually came about in part in response to battered women who killed their abusers.

And 100 years later, courts and legislatures faced a new problem: What to do with women who said they were victims of domestic violence and had killed their husbands to save themselves? Did you have a right not to retreat if the person coming after you lived under the same roof? At first, the answer was no, to the fury of feminists. Then in 1999, the Florida Supreme Court said a woman who shot and killed her husband during a violent fight at home could successfully call on the Castle Doctrine to argue self-defense. “It is now widely recognized that domestic violence attacks are often repeated over time, and escape from the home is rarely possible without the threat of great personal violence or death,” the court wrote.

What if we were talking about obligation to retreat in the context of one of the women who was in prison for murdering her abuser and finally pardoned by the Ohio governor? What if it was somebody faced with a bunch of armed Neo-Nazis stopping them on the street? What if Martin had been able to wrestle the gun away from Zimmerman and shoot him? Would you want the prosecutors to claim that he should have run away? We’re talking Florida here. The state would have killed Martin for sure.

Let’s not lose sight of the fact that it is how laws are selectively enforced that is at the root of the horrors that are our criminal (in)justice system.

One last thing.

Growing up in a very liberal, urban household, I was under the impression that it was only white supremacists stocking up for a race war that wanted guns. In the last fifteen years, I have met a whole lot of gun loving people who distrust/hate authority (especially cops) far more than they dislike people of other races and ethnicities.

I’m not saying that said people are free from racism. Racism is in the air and water in this country. I’m saying that I was often mistaken in what I imagined peoples primary motivations to be.  I was often mistaken about where their anger and rage was focused. Not always mistaken. But often enough.

Florida is an extremely libertarian state. Even the liberals lean libertarian. Focusing on a provision of the self defense law doesn’t only seem to help the defense. It also distracts attention from the massively corrupt and abusive authorities in the state (especially police and prosecutors). And it decreases any chance people in Florida might have to build the seemingly unlikely alliances that might actually have the power to change things.

Let me be clear that I do not think focusing on police abuse and corruption should be instead of focusing on racism. Racism needs to be front and center. But we also need to be focusing on classism, privilege, power, and the abuses of power that are epidemic in the criminal (in)justice system.

It would not be easy to make those alliances. And it is asking a lot of people to try. But what other way is there?

_____________

* If anyone has good data on the cases that have used “stand your ground” as part of the defense, send them along.

Am I a Rapist?

December 24, 2010 By: Mel Category: Sex

I don’t want to talk about the Assange rape charges. There are more than enough people doing that already. But I would like to talk about something that Jaclyn Friedman said during her debate with Naomi Wolf on Democracy Now. Friedman essentially said that a sleeping/unconscious person cannot consent to sex and therefore it is rape. Always.

I paused the video.  The bfriend and I looked at each other and said, huh? He’s woken me up like that before. I’ve woken him up like that before. We never discussed doing it.  Does that make me a rape victim? Does it make me a rapist?

Blanket statements, the kind where people give no gray area whatsoever, usually bother me, because few things in life are that clear. And this was a blanket statement that made me into a rapist. At first, I must admit, I was inclined to roll my eyes and dismiss her.

But I just kept thinking about it.

I do not believe that consenting to one thing means consenting to everything else. I don’t believe in implied consent. That’s like those asshats who think marital rape is impossible.  It’s possible and all too frequent.

Now, I could say that I just knew it would be o.k. The bfriend and I have been together for more than 14 years. There are some things that we don’t really have to talk about anymore.

But that would be a bullshit answer. It’s a bullshit answer because there were other times before the bfriend, where I wouldn’t be able to say that. It’s a bullshit answer because it brings us back to the marital rape issue.  And it’s a bullshit answer because, if I have learned anything over the years, it is that false assumptions often precede relationship misery.

Besides, how can we really be sure that our assumptions are based on knowledge of the individual and not some social norm or gender essentialism?  It must be o.k.  Guys always want to have sex, right?  I mean when a woman decides not to have sex because she doesn’t want to risk pregnancy or STDs or just doesn’t think she is ready, that’s expected.  But a guy who turns it down, he must be some kind of freak.  So I can just assume, right?

The truth is that we should have talked about it.  We should have talked about a lot of things, right from the beginning, that we didn’t.

Last month, I came across a couple checklists of sexual activities – one on Scarleteen and one on the Beautiful Kind.  Even just going through the Scarleteen one, you know the one meant for teens, the bfriend and I ended up talking about things that had never come up in fourteen years.  And that is just sad.

Most of us have this Hollywoodized idea of sex.  It is always heterosexual.  All sexual activities end with male to female penetration.  The hottest sex is spontaneous.  When it is right, the other person is just going to know (magically) what you want.  There is no need to talk about it.  Just kiss, blow, fuck, done.

That is why you get guys who think that there is some point of no return where a woman cannot say no anymore.  That is why you have scenarios like this.

Her account to police, which Assange disputes, stated that he began stroking her leg as they drank tea, before he pulled off her clothes and snapped a necklace that she was wearing. According to her statement she “tried to put on some articles of clothing as it was going too quickly and uncomfortably but Assange ripped them off again”. Miss A told police that she didn’t want to go any further “but that it was too late to stop Assange as she had gone along with it so far”, and so she allowed him to undress her.

Really?  He undressed you and therefore it was too late to stop?  You had to go to the end?  Where is the end exactly?  Does he now have carte blanche to hog tie you, ball gag you, and whip you until you bleed?  Cause, for some people, that is where that undressing is going.

For responsible people in the BDSM community, it is a no-brainer to discuss what is o.k. and not o.k. beforehand.  There are parameters set.  There are safe words decided upon.  But for most people, it is all based on assumptions.  And those assumptions lead not just to rape, but to really bad sex.

I so wish that I had those checklists twenty-two years ago when I started having sex.  That is not because I was doing things I didn’t want to do, but because I would have done a lot more shit a lot sooner.  And I could have avoided a lot of mediocre sex.

People make fun of the idea that you should get an o.k. every step of the way.  Can I touch you here? How about there?  This o.k.?  Let’s draw up a contract and have it notarized.  But it seems ridiculous mostly because we are so horrible at talking about sex and because we make so many assumptions about it.  We should talk to our partners, future partners, and our kids about sex.  And we should talk about the entire pantheon of activities, not just assume that everyone is a vanilla, heterosexual couple.

That said, even though I’m not rolling my eyes at Friedman’s statement anymore, am I a rapist?  I understand that hard and fast rules make it easier to prosecute crimes.  Even though I would like to see prisons go the way of the rack, I realize that we cannot just let people get away with committing that kind of violence.  But consistency is not justice.  In fact, it can often be the opposite of justice.

When I was sixteen, my boyfriend was twenty-two.  By Florida law, that was rape.  But I was a willing participant.  I was not victimized by my boyfriend.  Do you know what would have made me feel victimized?  It would have made me feel victimized if somebody had prosecuted my boyfriend for rape.

And it happens.  Because well intentioned people want to keep grown-ups from having sex with seven year olds, some poor seventeen year old kid in Georgia got a ten year prison sentence for getting a blow job at a party.   There are people who are permanently on sexual predator lists for statutory rape.  And let’s not even get into the general disaster that is mandatory minimum sentencing.  Consistency is not always a good thing.

We are all suffering from some serious societal sexual dysfunction.  And we should be calling it out.  But, as unpleasant as it may be, we still need to leave some room for ambiguities.  Because by Friedman’s definition, I’m a rapist.  But the bfriend has now given me explicit permission to view his morning wood as an open invitation.  And I don’t think the state should be able to prosecute me for that.

Car Contracts 101

March 22, 2010 By: Mel Category: Misc

A recent post over on Aretae got me thinking about the law.  Considering that I worked in it for ten years, it’s a bit odd that I don’t spend more time on it.  So let me dive in with a little 101 on my experiences with contract law.

For about four and a half years, I worked for a collection attorney.  Mostly, we collected money on car contracts, specifically on the balance left over after the car had been repossessed and sold.  Our biggest client was Ford Motor Credit Company.  We also did some work for Chrysler Credit and a few minor players.  Here’s what I learned while on the dark side.

Let’s say someone decides to buy a car.  They head off to the friendly Ford dealership.  The huckster salesperson up-sells them to a lovely vehicle that they can’t really afford.  Amazingly, even with crap credit and an $8 an hour job, they are approved by the finance company.  According to my old boss, quite a few dealerships had arrangements with Ford Motor Credit Company (a separate business from Ford Motor) wherein the credit company had to approve a certain percentage of submitted loan applications, no matter how bad the applicant’s credit was.

Faced with a contract written in legalese by a team of finance company lawyers, the buyer turns to the salesperson for clarification.  (That is assuming they can read the contract at all.  I never realized how many illiterate people there were in the U.S. until I worked in collections.)  The salesman explains things, but doesn’t really have any reason to be clear.  After all, he gets paid even if they buyer defaults.  There is no outside advice or witness to what is said by the dealership.

The dealer gets paid by the finance company.  The salesman makes their commission.  Meanwhile the car decreased in value the minute it was driven off the lot and the car contract is at 24% interest (uncommon, but not unheard of).  Escaping that interest is not an option as the contract most likely precludes paying the car off early to avoid interest payments.

If the buyer misses several payments, the finance company will repossess the car.  It will be sold at auction where the person who buys it at a bargain basement price might be with the repo company who took the car or with the used car side of the dealership where the car was purchased.

That money made at auction is applied to the total contract amount owed and the purchaser then owes the balance.  For an over simplified, made up, and slightly exaggerated calculation:

  • Car Cost   25,000 + Interest  @ 24%  6,000 = Total Contract 31,000
  • Less the Auction Price of 15,000
  • Balance owed for the car you don’t have 16,000

(Back in the early 90s, most of the files I worked on owed more like $5,000 – $7,000 on their contracts.)

The finance company tries to collect directly.  When that fails, they send the file to an attorney.  The attorney files a lawsuit and serves the purchaser.  If they do not answer within a certain amount of time, the attorney gets a default judgment for the entire amount.  That’s what happened to most people.

For those that did file a response, we submitted a motion for summary judgment and set it for a hearing.  Can’t get off work to go to a hearing?  No show meant automatic judgment.  Rarely did cases go to trial.  And I can’t recollect a single one that involved a jury.  I’m not even sure people could request a jury.

Coincidentally, I’m reading Howard Zinn’s A People’s History of the United States.  In it he talks about how the law was changed in the 30 years prior to the civil war in order to better suit capitalist development.  Specifically, he mentions that “judgments for damages against businessmen were taken out of the hands of juries, which were unpredictable, and given to judges.”  I suspect a little digging would find similar roots for contracts in general.

I should mention here that collections is a real paper mill.  The firm I worked for was working on file numbers in the forty thousand range for one client alone.  Everything is automated and automatic.  There is no way that the courts could handle the influx of cases if people actually started to respond to these things.  So the sheer volume of cases would surely make jury trials an impossibility.

Once a judgment is entered against you, it is recorded.  In Florida, it can be re-recorded for twenty years.  It will also accrue interest annually.  In the early 90s, in Florida, interest was about 12 percent per year.  A recorded judgment is a lien on your property.  It doesn’t have to be property that you owned when the judgment was put in place.  It is a lien on any property you have.

One poor shmuck was selling his house.  During the closing, a last minute lien check discovered an old car loan he had not paid off.  It had been sitting around collecting interest for 19 years.  He had to pay it off before he could sell his house.  Bet that took a chunk out of his earnings.

The finance company really cannot lose. In our previous example, they paid the dealership the price of the car 25,000.  They received 15,000 from the auction.  That leaves them at negative 10 grand.  (In reality, most people made a few payments before defaulting – sometimes years of payments.)  Even if you don’t pay, they get to write off the entire $16,000 as a loss.  That’s $16,000 of income somewhere else that they won’t have to pay taxes on.  And even after they write it off, there is still a good chance they will collect eventually (with the additional interest accumulated on a judgment).

Of course, this whole process starts before you actually decide to go to a car dealership.  It is next to impossible to live in many areas without a car.  And if you think that car companies didn’t use their influence to see roads built with your tax dollars, there is a lovely bridge in Brooklyn that I’d like you to see.  Every zoning ordinance and city project that promoted urban sprawl benefited car companies at the expense of public transit and (I would say) our quality of life.

There is so much wrong here, it is difficult to know where to begin.  In the interest of length, I’m going to stop here and post my thoughts on the problems and maybe even some solutions on Friday.