Category: Law

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The Oakland you didn't see on TV

by Fran Johns

[youtubevid id=”0MNcWUX5oU4″]You may have read the reports of how few of the vandals in Oakland CA last week came from Oakland. But what you may not have read about (or seen) were the peaceful folks who also gathered to encourage both protest and peace.

There was after-dark violence in Oakland, contained within a fairly small area, following the involuntary manslaughter verdict of transit officer Johannes Mehserle in the death of Oscar Grant, reported on TV news across the country. Oakland takes a lot of guff. There were rallies in support of Mehserle, and gatherings in remembrance of Grant, and worries because many wanted a murder conviction. Following the verdict, a crowd estimated at fewer than 1,000 gathered downtown for a peaceful demonstration of their dissatisfaction with the verdict. A small group of about 100, after the sun went down, turned to vandalism and looting. There were 78 arrests; three-quarters of those arrested were not from Oakland. It’s a sadly familiar story, especially in the way it was reported; what was reported was far from the whole story.

Interestingly, right in the middle of the troubled block is the headquarters of an organization called Not In Our Town (NIOT). “We thought it was important to set the record straight,” the NIOT folks said in an e-mail today, “by filming the encouraging community response taking place right outside our door. Here are the young people of Oakland expressing their love of this city, and their commitment to keeping the peace, no matter their reaction to the verdict.”

NIOT is a national movement that “encourages and connects people who are responding to hate and building more inclusive communities.” On their home page is a U.S. map featuring recent hate incidents (red dots) and recent anti-hate action (green dots.) The green dots outnumber the red dots, which is a heartening development to recognize, although the red dots tend to get better press.

This space is a certified member of NIOT. This space is regularly fingered as a Pollyanna. But the active (as opposed to the certified, who are often wimps) NIOT people are not Pollyannas, but courageous and simultaneously gentle souls. Check them out. You may want a NIOT in your town.

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Gay rights backers get some good news

by Fran Johns

Court actions over the past week have given gay rights advocates a few glimmers of hope, though no one is staging victory rallies yet. The long slog toward full rights for gays and lesbians in the military, at the altar and in the pulpit each saw small steps taken. But President Obama, who vowed to promote equality for all, remains caught in such Through the Looking Glass dilemmas as the Justice Department’s mandate to defend the indefensible Defense of Marriage Act, which Obama would like to see repealed. Same thing with “don’t ask, don’t tell.” Alice would certainly find a trapdoor for falling down the rabbit hole on almost any stage where gay rights battles are being fought today.

San Francisco Chronicle writer Bob Egelko summed up the latest on one stage:

The federal judge overseeing a challenge to the “don’t ask, don’t tell” law, scheduled for trial in Southern California next week, has ruled in favor of a gay rights group on a crucial issue – how much evidence the government needs to justify the ban on openly homosexual members of the armed forces.

Obama administration lawyers have argued that courts must let “don’t ask, don’t tell” stand if they find that Congress could have reasonably concluded that excluding gays and lesbians would make the military more effective – the standard most favorable to supporters of the 1993 law.

But U.S. District Judge Virginia Phillips of Riverside, in her final pretrial ruling, said Wednesday that higher court rulings in recent years have raised the bar for the government to justify laws that single out gays and lesbians for harsher treatment. Because “don’t ask, don’t tell” intrudes on “personal and private lives” and “implicates fundamental rights,” Phillips wrote, the Justice Department must show that the ban serves an important public purpose that the military could not achieve some other way.

That principle comes from the 2003 Supreme Court ruling overturning state laws against private homosexual conduct, and from a 2008 ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco allowing a lesbian officer to challenge her discharge from the Air Force, Phillips said.

Her ruling opens the door for plaintiffs in the case to put gay and lesbian former service members on the witness stand to testify about how being thrown out of the military because of “don’t ask, don’t tell” damaged them. The federal law requires that gays and lesbians who acknowledge their sexual orientation be discharged from the military. Superior officers are barred from asking service members about their orientation.

The plaintiffs, the Log Cabin Republicans gay organization, plan to present researchers who contend the policy harms the military by promoting concealment and divisiveness while excluding qualified personnel. (It is, of course, the Republicans who are threatening a Senate filibuster of a military appropriations bill that includes a repeal measure…)

The Obama administration tried to bar the testimony, arguing that it was irrelevant, and urged Phillips to postpone the trial while Congress considers the president’s proposal to repeal “don’t ask, don’t tell.” President Obama has called the law discriminatory but says he must defend it as long as it is on the books.

On the marriage front, which currently has seen some states legalizing same-sex unions, some banning them and in California a suit to overturn the voter-approved ban, more state/federal convolutions are underway. Associated Press legal affairs writer Denise Lavoie Friday summarized what’s been going on in Massachusetts:

A key part of a law denying married gay couples federal benefits has been thrown out the window in Massachusetts, the first state to legalize gay marriage. The ball now lies in the White House’s court, which must carefully calculate the next move by an administration that has faced accusations it has not vigorously defended the law of the land.

President Barack Obama has said repeatedly that he would like to see the federal Defense of Marriage Act, known as DOMA, repealed. But the Justice Department has defended the constitutionality of the law, which it is required to do.

The administration was silent Friday on whether it would appeal rulings by U.S. District Judge Joseph Tauro. Spokespeople for the White House and the Justice Department said officials are still reviewing the rulings.

DOMA defines marriage as between a man and a woman, prevents the federal government from recognizing gay marriages and allows states to deny recognition of same-sex unions performed elsewhere. Since the law passed in 1996, many states have instituted their own bans on gay marriage, and a handful have allowed the practice.

And over at the annual General Assembly of the Presbyterian Church USA, meeting in Minneapolis

…delegates again approved ordaining openly gay or lesbian clergy. The measure now goes to the presbyteries, or local jurisdictions, where previous General Assembly resolutions to ordain gays and lesbians have been rejected. The General Assembly also debated but did not pass a resolution that would have changed the definition of marriage from a union between a man and a woman to a union of two people.

This Presbyterian writer can tell you that getting individual presbyteries — that’s the regional groups — to approve what the General Assembly delegates just approved is no simple matter. There are plenty of Christians, not to mention less than tolerant folks of every creed and color, down the rabbit hole.

‘Don’t ask, don’t tell’ foes win legal victory.

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Supreme Court leaves 'Healthy San Francisco' program to its own success

by Fran Johns

Healthy San Francisco, the city’s healthcare-for-all program, remains firmly in place after the Supreme Court’s dismissal of a suit by the Golden Gate Restaurant Association last week. It may or may not be the model for everywhere else, but a lot of reassured folks here are happy with it. Many are also healthier in the bargain. PBS NewsHour correspondent Spencer Michels talked with several Healthy SF participants for last night’s report, while outlining how the program is working.

Until recently, San Francisco, a diverse city with a population of nearly 800,000, had more than 60,000 adult residents with no health insurance. They were not poor enough for Medicaid, nor old enough for Medicare.

While the nation struggled with reforming health care, this city began a program of its own that so far has enrolled more than three-quarters of its uninsured. It’s called Healthy San Francisco, and it is not, strictly speaking, health insurance. Rather, it’s a way to provide health care, but only within the city limits.

The plan was not particularly radical. It used mostly existing resources, like city clinics and nonprofit hospitals, to supply and coordinate care. Instead of flitting from one clinic or emergency room to another, enrollees choose a medical home, one of 30 public or private health centers in the city, where they go for low- or no-cost health care.

Once you choose your “medical home,” you can’t walk into another and get treatment. But the two Healthy San Francisco participants this writer asked (along with the patients and clinic directors Michel featured on the PBS show) indicate that customer satisfaction with the system — and with their one medical home — is high.

As to the costs, and who covers them, most San Franciscans other than the restaurant owners are fine with the plan. Restaurant-goers have gotten used to the friendly, small-print message at the bottom of the menu that lets them know an amount added to the tab goes to help pay for Healthy SF.

Each patient in Healthy San Francisco costs the city about $300 per month. That’s in line with insurance costs. It totals $126 million a year.

Depending on their income — and most are below the poverty level — enrollees pay nothing or from $20 a month up to about $200, plus co-payments. But that doesn’t pay for it all. The city has mandated that businesses with 20 to 100 employees spend at least $1.23 an hour per worker for health care, and that larger companies pay more.

That money can be used to reimburse employees for health care costs, to buy them health insurance, or it can go to Healthy San Francisco.

The Restaurant Association’s argument before the Supreme Court was not on Constitutional grounds, but rather that the city’s mandate that employers pay into the program violated federal law. The Court declined to deal with it all; the mandate stays. Susan Currin, CEO at San Francisco General, says emergency room use is slightly down. Director Hali Hammer of San Francisco General Hospital Family Health Center (one of the more popular medical homes) says they have hired new providers and expanded hours. The number of participants is growing at about 700 per week, and the Kaiser Family Foundation recently found that 94 percent of those participants are satisfied with the program. Paying that small extra amount for dinner out makes at least a few of us occasional diners-out feel a slight good-citizen glow. Something’s working.

San Francisco Ramps Up Care for City’s Uninsured | PBS NewsHour | Oct. 12, 2009 | PBS.

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Marriage = procreation, Prop 8 backers say

by Fran Johns

It’s all about procreation, the Proposition 8 lawyers said; marriage between a man and a woman who produce babies to be raised by their biological parents, and thus insure the survival of the human race. Those arguments were the closing of an historic case that went to a federal judge in San Francisco yesterday.

During more than two hours of intense and sometimes skeptical questioning by Chief U.S. District Judge Vaughn Walker, attorney Charles Cooper maintained that society is entitled to reserve its approval of marriage for those who can naturally conceive children.”The marital relationship is fundamental to the existence and survival of the race,” Cooper said in closing arguments before a packed San Francisco courtroom. The reason the state regulates marriage, he said, is to steer “procreative sexual relationships” into a stable family environment so that children can be raised by their biological parents.

It’s an argument that has worked before, but supporters of same-sex marriage hope this time might be different.

Walker, who presided over the nation’s first federal trial on the issue, sounded dubious. He noted that the state allows couples unable or unwilling to have children to marry, suggesting that the institution has a broader purpose that same-sex partners might equally fulfill.

“Marriage is a right which extends fundamentally to all persons, whether they’re capable of producing children, incarcerated or behind in their child-support payments,” Walker said, citing Supreme Court rulings that allow people in all those situations to marry.

People marry not to benefit the state, but because they believe that “I’m going to get a life partner, who I’m going to share my life with and maybe have children,” the judge said. “Why don’t those same values apply to gay couples and lesbian couples loving one another?”

Cooper replied that same-sex couples are incapable of “irresponsible procreation,” which he said marriage laws are designed to discourage.

He also said California has provided equal treatment for all couples in its domestic-partner laws. But even a discriminatory marriage law would be valid, Cooper said, because the U.S. Constitution offers no special protection to gays and lesbians and “we don’t have to submit evidence” to justify treating them differently.Theodore Olson, lawyer for two same-sex couples who sued for the right to marry, responded indignantly. Prop. 8, he said, “takes a group of people who have been victims of discrimination” historically and prevents them from “participating in the most fundamental relationship in life.”

Gays and lesbians, Olson said, seek to wed for the same reasons as everyone else, to be in a committed, socially accepted family relationship with the one they love. “Tell me how it helps the rest of the citizens of California to keep them out of the club,” he said.

Walker’s decision, in whichever direction, is certain to be appealed.

Prop. 8 backers: Marriage promotes procreation.

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Judge to rule on same-sex marriage

by Fran Johns

Can gay marriage be a fundamental right, when all legal protection has been denied until recently? In a state that treats domestic partners the same as spouses, “what purpose is served by differentiating – in name only – between same-sex and opposite-sex unions?”

These are two of the questions sent to opposing lawyers by U.S. District Judge Vaughn Walker, who will hear their closing arguments next Wednesday in the San Francisco case being watched for broader implications. Supporters of gay rights are seeking to overturn Proposition 8, California’s voter-approved ban on gay marriage.

The closing arguments won’t be watched by just anybody. Judge Walker ruled late this week that arguments may not be televised beyond the closed circuit of the courthouse. So you’ll have to be on site to follow the proceedings up close and personal. Media organizations had sought to have the session, which is expected to last all day, televised; proponents of Prop 8 argued against the idea.

The denial means “the public will again only hear about this case second-hand,” said Thomas Burke, the media groups’ lawyer.

Andrew Pugno, a lawyer for sponsors of the ballot measure that banned same-sex marriage, countered that “the purpose of the court is not to entertain or educate the public, but to protect the right to a fair and impartial trial.” The sponsors had opposed televising any trial proceedings.

Two same-sex couples and the city of San Francisco have sued to overturn Proposition 8, the November 2008 initiative that amended the California Constitution to define marriage as the union of a man and a woman.

Walker presided over the non-jury trial in January. He had proposed to televise the trial live to several federal courthouses around the nation and record the proceedings for a delayed Internet posting on YouTube.

The telecast, which would have been the first for a federal court in California, was blocked by the U.S. Supreme Court just before the trial started.

In a 5-4 ruling, the court said Walker hadn’t given the public enough time to comment on the proposed change in court rules. The court also cited claims by Prop. 8’s sponsors that showing the proceedings outside the courthouse might intimidate witnesses.

Media organizations asked Walker last month to approve televising the closing arguments. They said that airing a hearing that included only lawyers and the judge couldn’t affect witnesses or the fairness of the trial.

Prop 8 supporters argued, though, that cameras in the courtroom could prompt “grandstanding and avoidance of unpopular decisions or positions.” Whatever the judge’s decision, it is guaranteed to be widely unpopular.

No TV for closing arguments in Prop. 8 trial.

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Abortion foes are winning, folks

by Fran Johns
WASHINGTON - JANUARY 22: A pro-choice advocat...
Image by Getty Images via @daylife

Will women in the U.S. soon be unable to have a safe, legal abortion? That scary possibility becomes more likely every day. Does anyone really understand the pre-Roe v Wade horrors which abortion foes want to see returned? Not really. That’s because huge numbers of women who could have told the horror stories died at the hands of back-alley abortionists, and those of us who did survive are dying off fast, unheard.

This space welcomes writer John Leland’s front page article in today’s New York Times to the voices crying in the wilderness — just in case someone other than Nancy Keenan might care to listen.

At least 11 states have passed laws this year regulating or restricting abortion, giving opponents of abortion what partisans on both sides of the issue say is an unusually high number of victories. In four additional states, bills have passed at least one house of the legislature.

In a flurry of activity last week, Gov. Haley Barbour of Mississippi signed a bill barring insurers from covering abortion in the new insurance exchanges called for under the federal health care overhaul, and the Oklahoma Legislature overrode a veto by Gov. Brad Henry of a bill requiring doctors who perform abortions to answer 38 questions about each procedure, including the women’s reasons for ending their pregnancies.

It was the third abortion measure this session on which the Legislature overrode a veto by Mr. Henry.

At least 13 other states have introduced or passed similar legislation this year. The new laws range from an Arizona ban on coverage of abortion in the state employees’ health plan to a ban in Nebraska on all abortions after 20 weeks, on the grounds that the fetus at that stage can feel pain.

Fetal pain is a subject of debate in the medical community, and the United States Supreme Court has recognized the government’s right to ban abortions only after a fetus becomes viable, which is more than a month later.

“Fetal pain” is just one ploy; its determination can easily go from 20 weeks backward to ban the morning-after pill. Other ploys? Forcing a pregnant woman to look at ultrasound pictures, prohibiting a physician from discussing fetal abnormalities with his/her patient, and “in Utah, after a pregnant 17-year-old paid a man $150 to beat her in an effort to induce a miscarriage, legislators passed a law that would allow a woman in such circumstances to be charged with homicide.”

Unwanted pregnancies happen. When they do, the man involved can simply walk away, as countless millions have done and will continue to do. Why, then, should so many men purporting to have such omnipotent wisdom be empowered to eliminate a woman’s right to choose what happens to her body?

It’s going to get worse. Unless people — and that includes males of the species who still have brains and some concern for the future of womankind — start paying attention, and standing up to the fundamentalists of all stripes, the U.S. Conference of Catholic Bishops and the religious factions who claim authority over all women, it’s going to get worse than many people in today’s society can even begin to imagine.

Opponents of Abortion Advance Cause at State Level – NYTimes.com.

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Child predators & citizen cops: part two

by Fran Johns

Where are the limits to the rights of self-protection? Has the internet’s ability to make instant connections also created instant-cops who can go too far?

Earlier today I posted a story about a suspected predator in my local San Francisco park who turned out to be an innocent man — but only after his photo and suspicions of his being a predator had circulated widely on the internet and local TV, thanks to a campaign started by an anxious mom. She had spotted him near the playground, unaccompanied by a child.

Several readers have weighed in off-site to say I should have more sympathy for the mom, because she was only protecting her child and others. Maybe.

Years ago, when my own children were growing up in an urban area comparable in potential lurking dangers to San Francisco today, there was a man who appeared around elementary schools over a period of months, exposing himself to little girls. He became fairly famous among teachers, parents and children as “the man in the white car”, though he always managed to elude the police.

One afternoon when my then 7-year-old daughter was walking home alone (the school was about 3 blocks distant and the times were not quite so parentally protective) a white car pulled alongside her, stopped just ahead and the passenger-side door opened. But about a half block away was my 9-year-old son, lagging an appropriate distance behind.  He sped up, taking a pencil out of his pocket and calling his sister’s name, which was enough to cause the white car to scratch off — but not before they had written down his license number. Extraordinary children, of course, as they are mine, but to be truthful every kid in town had been so thoroughly trained in what to do it was practically a reflex reaction.

The man lived about a mile away. The police paid several calls on him. Because he had not been actually caught doing anything, and it had been over six months since the last episode, involving a child who couldn’t give any description, he was not accused of anything. But the police knew where he lived (as did I, since they drove my son by the house to reconfirm it was the car) and he knew they knew, and he knew his license number was in a file of some sort that could be easily found. That was the last episode involving the man in the white car and local schools.

Could he have gone on to frighten, and possibly molest, other children? Probably. Should we have painted a red “X” on his door, or taken his picture and put it up in the post office? I don’t think so. Plenty of phone calls flew back and forth, but there were no cellphone cameras or e-mails or internet sites at the time so the net was not cast quite as wide. And nobody called the TV station.

I am still pretty sure the man in the white car was a bad guy. We now know the man in the neighborhood park was not. In either case, there’s that business of being innocent until proven guilty. Trial by internet can mess with the system, which while imperfect is still the best we’ve got.

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When citizen cops turn bad

by Fran Johns

In my small, neighborhood park there is a regular assortment of runners and walkers, picnic groups, dog-walkers, grandfathers pushing strollers, homeless guys and tennis players. On any given day you can hear voices speaking Russian, Chinese, English or a lovely range of other languages. And always there are children — with moms, dads, nannies or other supervisors — stumbling around makeshift mini-baseball diamonds in the meadow or tumbling noisily around the playground. It is, in short, exactly what an ideal neighborhood park should be. Its neighborhood, within a few surrounding miles, is home to the low-ish income, middle income and affluent.

And apparently at least one over-anxious mom. Recently she spotted a man she perceived to be a potential threat. The incident was reported in a San Francisco Chronicle op ed piece by former editor and now columnist/blogger Phil Bronstein, who says he used to take his own son there. (Bronstein is not among the low-ish or middle incomes.)

A worried mom took (the man’s) photo with her phone and messaged it around with a detailed description and a warning. “He does not have children and pretends he does and is there to do pull-ups,” she wrote.

The e-mail, originally intended for a small pool of officials and families, went wide in an expanding spiral onto lots of electronic doorsteps. That’s the way it works on the Web.

“Hope someone goes Woodsman on him,” one commenter wrote.

“There were people who wanted to suspend the Constitution,” investigating police Capt. Rich Correia at the Richmond station told me about some lynch-mob sentiment. “It’s interesting how people feed off the Internet, how fast it gets around and how much people can amplify it. Folks made all sorts of assumptions about (things) they didn’t know.”

In this case, the mix of digital citizen vigilance, child safety concerns and viral networking caused a train wreck with a definite victim. And it wasn’t a kid.

San Francisco blog SFist ran the headline “Potential Child Predator” with the photo the mom took. KTVU-TV broadcast the guy’s easily identifiable portrait and kept it on the screen throughout its story. “Take a look at the picture of this man,” said the reporter. “There’s obviously concern he’s some kind of predator.”

Except he isn’t.

What he is, unfortunately, is a marked man. Tried and convicted in the courts of the internet and public communications. The cops identified him, went to his house, determined there was no danger (he was “unguarded, cooperative and surprised at being the subject of a police investigation”) and that the poor guy was doing nothing but exercises in the park. The blog and the TV people took down his photo, but you have to wonder if the original mom apologized, or if he will feel very welcome in the park now.

A somewhat different go-after-the-bad-guys story was reported today by New York Times writer Dan Frosch, this one about Justin Kurtz, a hapless Kalamazoo, Michigan college student whose properly parked car was towed from its parking lot and it cost him $118 to get it back. Anyone who’s ever had a car towed can identify with the rage that then prompted Kurtz to start a Facebook page called “Kalamazoo Residents against T&J Towing.” But after 800 people signed up in sympathetic outrage, T&J filed a defamation suit seeking $75,000 in damages. I’m rooting for Justin and his friends (having been towed under less-than-happy circumstances myself), but the whole business will likely end up costing another unnecessary load of pain and anguish — and possibly, more than $118.

The question is, how far are we ready to trust cyberspace? In the case of the Mountain Lake Park non-pervert, the hysteria continued despite fast action by the cops.

People trusted the social network far more than they did the seasoned and reputationally impressive police captain. “After 30 years on the force,” he says, “it’s hard to accept that people believe Internet chatter more than they do reaching me on the phone.”

In this case, social media was not a new and improved town crier. Instead, the hysterical tendencies that understandably surround kids’ security led to what Correia called “long e-mails of inference and innuendo like the opening act of ‘The Crucible,”’ Arthur Miller’s play about witch hunts.

As a friend of mine with kids who lives near Mountain Lake Park and got copies of the e-mail from multiple people noted, “It’s often easier to share than to deliberate. Were we deputized, or just weaponized?”

In the emerging world, you can think you’re a citizen journalist, but you’re really a citizen cop. And in the Mountain Lake Park case, people also became citizen prosecutor, judge and jury.

Viral campaigns are hard to undo, but maybe we should try. What if T&J were to return their ill-gotten $118, enabling Justin to create a new Facebook page about what a fine business they are? Their tarnished reputation could then be restored to its former glory, if towing companies have glory, for a pittance.

With the non-pervert, it’s not that simple. But maybe the over-zealous mom will take the trouble to contact him and apologize. It would be a start, although I’m not holding my breath. If I see him, however, I’m apt to be extra kind and pleasant, and then people will probably talk. As long as they don’t put us on Facebook.

‘Pervert’ in the park isn’t what he seems.

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