Thursday, August 28, 2014

Perhaps a Clue As Why Ferguson and Mo Police have Issues: An Unconstitutional State Law re Use of Deadly Force?

Last night, on CBS evening news a CBS reporter interviewed a state lawyer and police advocate and he tried to argue the case for the Officer involved in the shooting.  In doing so, this local police advocate attempted to demonstrate that according to Mo state law, there is a justification or legal standard written into Mo law that says in effect, " an officer can use deadly force where in situations it is reasonable and where deadly force is required to ....make an arrest..."    and it goes on.

       If this is the current status of Mo law, its plainly unconstitutional and directly in contravention of the US Supreme Court settled precedent on when and how deadly force may be used against a arrestee or fleeing felon.

      The Mo state law seems to justify the use of deadly force well beyond its legal limitations that are found in the US Supreme Court case of Gardner v. Tennesse which limited its use to instances of when an officers or others life is in "imminent danger of serious bodily harm or death".    This is the brightline standard.   There are no exceptions but it appears, Mo has tried and actually has placed an unconstitutional "line" or "clarification" into its state law on when an officer can use deadly force.

    Some may say its just  nuance.  In fact, it opens the flood gates to precisely the kind of wild shooting spree that happened involving unarmed youth Mike Brown and six year untrained Officer Wilson.

   Its apparent that if this interview is accurate and CBS did its homework, that this local state standad significantly and dangerously broadens the very legal limitation that the US Supreme Court in Gardner was itself facing and dealing with inside of a fleeing felony state or local law involving a black youth.

    The Supreme Court's standards are serious and yet flexible enough to allow for a lot of what is happening today by police involved shootings.   Yet, to broaden this already quite flexible standard into an arena where "its justified for making an arrest...."  as Mo state law seems to suggest and states, this then implicates the very definition of why the US Supreme Court had to make such a ruling and place limits on officer shooting citizens in our streets in the first instance.

    First, no state or local ordinance can trump the constitution.  This ought to be understood.  WE don't live inside a nation where there are fifty standards of when and how a car is allowed to crash into a crowd of people and one gets to walk away.  There are not fifty standards of when a person points gun at an innocent unarmed non violent person and gets to walk away.

    Likewise, when a government agent is acting on behalf of the state, this by presumption and its very implications, triggers a national ...i.e. constitutional citizenship review of such any state actor conduct, that would by law supersedes any local custom or state law.  Its basic fundamental human rights and constitutional law understanding.   

    Today, nowhere in America, in a public setting, can you bar African Americans or Chinese or Native American Indians from public accommodations, such as lunch counters.   This isn't capable of being done by local legal justification any more in this nation.  Its a recognized constitutional right today. [and frankly has been for over 150 years, we just didn't enforce it since the passage of the 14th Amendment so the 64 civil rights act was passed.]

     And so it is, when a state government actor uses his weapon or gun of any kind to aim and then shoot a citizen, especially an unarmed one, as this act implicates by it very nature, when a citizen is living inside a purported democracy, a constitutional question of the first order.

     If it doesn't, then we don't live in a national constitutional structure anymore.   There is no need to debate the issue; if there are fifty standards to be utilized when a state actor can take a citizens life, on the street without a court of law in a summary execution by his or her own determination of 'reasonableness' as I have heard many police talking heads say on national tv lately in the light of events in Ferguson, then, we may be able to do so, but then we are NOT living inside the same national citizenship as conceived by those who wrote the Constitution originally and certainly by the viewpoint of the person, who wrote the most important amendment arguably of our modern era.

    If it does raise however a constitutional question, then there can not be fifty standards or a thousand local standards of when a police officer can use deadly force, but rather, a single constitutional standard.   There is one nation.  There is one constitution and there is one national citizenship.   And so, there is one standard to be applied across the nation, as to when the state actor, locally specified can take your life without a jury trial.

    This is basic to the fact of living inside a nation which promises by its constitutional framework, a national citizenship.

     John Bingham's notion of national citizenship contained in the 14th Amendment requires this kind of understanding of what it means to live under a constitutional framework as a whole nation under God and law.

     If we don't wish to recognize this standard any longer, for whatever reason, i.e. fighting crime, "giving police the tools they need" or "national security" etc.etc...  {however you justify the same}    then you are no longer operating or thinking from within inside the circle of creating and talking about a constitutional democracy, at least the same kind of one of how our framers and its most  important amendments authors, conceived of it. 

   CBS  needs to go back and ask a few constitutional scholars and major lawyers about what this police apologist in Mo said on their national broadcast the other night.  It went totally unanswered.  It was seriously misleading and one sided.  I'm appalled and amazed CBS would not bring in the "second expert" view and counter this very serious misguided and seriously misinformed and misled police official from Mo.    and then, perhaps, now, we have discovered why Officer Wilson thought he could in fact shoot Brown in this manner, 'effecting an arrest'.     Perhaps, Wilson was just trained to do this contravention of national constitutional standards by those in superior positions to him.

    It would not be the first time, an officer on the beat was mis-informed and seriously misled by his training day officers and police defenders.

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