Comment Of The Day: “Comment Of The Day: ‘Catching Up: Professional Ethics And The Challenger Disaster’”
training
Comment Of The Day: “Unethical Quote Of The Month: Wisconsin Governor Tony Evers”
The current effort by a large segment of an entire political party to denigrate the character and motive of police is one of the most bizarre and self-destructive episodes of cultural madness I have ever seen or read about. I place it right below the Dutch tulip mania of the 17th Century. It makes as much sense as if a movement developed to eliminate the medical profession as a reaction to some egregious examples of medical malpractice. The Boston Red Sox, to name an example prominent in my consciousness, used to regularly host special “days” for law enforcement personnel. As recently as 2013, the team honored the Boston police for its response to the Boston Marathon Bombing. Now a giant banner is plastered across the empty bleachers in Fenway Park extolling “Black Lives Matter,” a direct and calculated attack on the integrity of law enforcement. I keep expecting to read that CBS has cancelled its long running hit drama “Blue Bloods” after the netwrork headquarters at 30 Rock was attacked by a mob. That show, anchored by conservative Tom Selleck, now appears to exist in some kind of weird parallel universe where police officers are respected and trusted.
In his timely Comment of the Day, James Hodgson begins,
It is my intent to comment on prior remarks that have been made concerning police use of force, including the “objective reasonableness” standard, police use of force training, the dangers of police work, the issue of whether a police officer’s life is “worth more” than the life of any other individual, and the speculation that police officers’ use of deadly force is treated less seriously than similar non-police uses of force.
What’s this? Someone who actually knows something about how the police operate? What a unique and exciting concept!
James Hodgson’s Comment of the Day on the post, “Unethical Quote Of The Month: Wisconsin Governor Tony Evers” continues…
During my career (1974 – 2014) I saw the use of force by police curtailed substantially. First, out of the civil rights era and the Vietnam War protest era, much-needed internal changes in police management and training produced officers better trained and more adept at handling themselves and others with greater skill to avoid the necessity of using force. In 1985, Garner v. Tennessee eliminated the “fleeing felon: rule and restricted the use of deadly force to cases where “”the officer has probable cause to believe that the subject “poses a significant threat of death or serious physical injury to the officer or others.” Although state law prior to Garner had permitted the use of deadly force to stop a fleeing felon if all other reasonable means of apprehension had failed, in practice very, very few fleeing felons were ever shot, either because agency policy forbade it, or because (in the absence of such policy) officers employed more personal poise and restraint in the execution of their duties.
The standard of objective reasonableness has been problematic since Graham v. Conner first applied this standard to police use of force. (The same standard had previously been applied in other areas of the law, like determining whether an attorney’s assistance of counsel was ineffective.) As courts and juries in excessive force cases began applying the standard, it quickly became evident that in determining whether a particular use of force was objectively reasonable, courts and juries across the country were arriving at widely varying results. So, rather than having a clarifying standard for when use of force was righteous, much ambiguity remained. (The Court itself had noted in Graham that the concept of objective reasonableness “is not capable of precise definition or mechanical application.”)
For the police trainer, this posed a new challenge. Agency administrators, reacting to Graham, began pressing us to provide training to ensure that officers’ use of force would be judged reasonable. Our collective response (mine, along with the training personnel with whom I worked and whom I supervised) was that the real use of force standard had already been set with Garner. The new task for trainers was to better teach not only the thought processes by which an officer determined that a subject “poses a significant threat of death or serious physical injury,” but also how to fully and articulately communicate the situational facts and circumstances that precipitated the officer’s decisions and actions. This begins with a thorough understanding of the law concerning assaultive offenses, self defense and use of force. Next requirement is a review of agency policy and procedure regarding use of force. (Agency policy may be and frequently is more restrictive than state law. Continue reading
Invasion Of The Body Snatchers: “Cult Programming In Seattle,” And the Duty To Confront
This—the George Floyd Freakout, the indoctrination in schools and colleges, the submissive endorsement of the irredeemably dishonest, racist and Marxist Black Lives Matter and its fellow travelers, the Red Scare-reminiscent punishing and shunning of dissenters, the political and partisan enforcement of laws as journalists remain silently complicit—you know, this, has begun to make me think I’m in another remake of “Invasion of the Body-Snatchers.” What never made any sense in any of the versions (the original, with Keven McCarthy and directed by Don Siegel of “Dirty Harry” fame was the best) is that aliens could take over the minds and bodies of millions of Americans across the country without anyone figuring it out, and without the news media warning the world with front page headlines and “how to stop the pod people” features. It also seemed absurd that only McCarthy and his friends (or in the much grosser but less creepy re-make, Donald Sutherland and his friends) were the only humans who appeared to have the will and the gumption to try to resist the invasion.
I also have found myself pondering the end of “Three Days of the Condor,” when Robert Redford tells a horrified CIA official that he has passed on evidence of the agency’s lawless and murderous ways to the New York Times. Who or what can be trusted today to blow the whistles when it is the increasingly totalitarian Left moving to take over minds and destroy democracy? Continue reading
Comment Of The Day: “Open Forum,” Training Thread
Well, that was humbling. Given the opportunity with this week’s open forum experiment to fly solo, the Ethics Alarms commentariat exceeded all reasonable expectations, producing multiple excellent topic threads and over a hundred comments (and counting) by 22 participants. It also generated several Comment of the Day quality posts, and I may end up posting all of them.
First up is this one, by Michael R, prompted by Steve’s jump-ball:
Now, a few years after women have been allowed to join the infantry, and hundreds have tried, only 30 percent pass compared to over 90 percent of males, but there are still only 24 women total in the Marine Corps Infantry.
Is it ethical to continue such an expensive and inefficient program?
Here is Michael R’s Comment of the Day on the training thread on the post, Open Forum Ethics:
Education is expensive. Should we accept people to training when we know that 70% of them will not be able to complete the training? We could be training people with a much better chance for success instead. A better question would be why don’t we have better screening for the female applicants? That would reduce the number in training, but increase the percentage that succeed
Better examples are probably the FAA’s air traffic control program and the military’s pilot programs. The FAA is facing a shortage of air traffic controllers. The new FAA biographical pre-screening for air traffic controllers is geared to select a ‘diverse’ force. They give more points for being unemployed than graduating from an FAA certified controller training program or having aviation experience in the military. The test gives more points for failing science than being good at science. People who do well on the Air Traffic Skills Assessment Test have no preference over people who haven’t taken it. This results in most graduates of the CTI (FAA collegiate training initiative) programs don’t ‘pass’ the new biographical screening. People who have CTI degrees pass the air traffic control training at a high rate. Those who haven’t, don’t. So, each class of air traffic control trainees now graduates fewer students. This new program has resulted in FEWER air traffic controllers being produced and the CTI programs are drying up because being prepared and educated hurts your chances of being selected. Continue reading
Is Continuing Legal Education A “Farce”?
Continuing legal education, or as it is fondly called, CLE, began being a staple of bar membership in most states by the 1980s. The theory is that the law is always changing and new developments in case law and practice resources are essential for lawyers to know about, so in order to keep practicing in good standing, lawyers should be required to take a set number of training hours to keep up with current techniques and information. The practice is also designed to emphasize the law’s position as a self-regulating profession with exemplary dedication to excellence.
AND the new system allows the bar associations to require the purchase of a product the associations themselves develop, provide, and most important of all, charge for.
Most lawyers, it is fair to say, loathe mandatory CLE requirements. They resent the time and expense, and generally feel that having to take the courses is an insult.
Yesterday a Virginia lawyer named Paul Sherman—he might even have attended some of my courses!–laid out on Twitter his brief that CLE course are a “farce that do nothing to protect the public and impose big social costs.: Right wing blogger and law prof Glenn Reynolds endorsed the screed, calling CLE a scam. I teach about 45 CLE seminars a year on legal ethics, and I’ve spoken on the subject to the CLE providers association, so this obviously piqued my interest.
Here is Sherman’s argument (and by the way, Twitter is a ridiculous platform for extended commentary):
Since I’ve just finished my last Continuing Legal Education class of the year, allow me to say that these requirements are a farce that do nothing to protect the public and impose big social costs. For those of you who aren’t lawyers (who know this already), allow me to explain.
To continue practicing law in the Commonwealth of Virginia, I am required each year to take 12 hours of continuing legal education (4 of which must be live) by Oct. 31. Collectively, Virginia lawyers lose more than 290,000 work hours to CLE every year. Almost every lawyer I know satisfies these requirements in the same way: by buying whatever CLE courses are cheapest, regardless of subject. This is not at all surprising, because competent lawyers already stay on top of developments in their practice areas.E.g., I exclusively practice constitutional law, but this year I took CLE courses in international taxation, asset protection planning, independent contractor compliance, etc. None of these have anything to do with my practice, and the VA Bar does not care!
Consider also the direct and indirect monetary costs. Let’s say CLE packages cost $100. According to the National Consumer Law Center, in 2015-2016, the average attorney in Virginia charged $358/hr. That means the cost of these requirements is almost $4,400 per attorney. The total cost for all Virginia lawyers is about $106 million. Yet, of that, only $2.4 million ends up in the pockets of CLE providers. The rest is just value that has been destroyed. Even if we assume (with extreme generosity) that lawyers would voluntarily pay for 6 hours of relevant CLE each year, you’re still losing $50 million in value per year (which is almost exactly Virginia spends on indigent defense annually). In short, we would all be better off if Virginia ended this farce, abolished mandatory CLE, and instead required every Virginia lawyer to send an extra $100 to the Bar and/or to set $100 on fire.
This seems to have touched a nerve, so let’s make this an actual thing. Contact your state bar (mine is @VAStateBar) and tell them to end the shakedown. #EndMCLE!
That Viral Google Diversity Memo
I’m going to vary a bit from typical Ethics Alarms practice, and ask for comments on the long, viral, controversial memo by a Google software engineer named James Demore regarding the company’s diversity initiatives before I do a thorough analysis of it. The author has been fired, of course. He had to know he would be.
The essay covers a lot more than diversity—gender stereotypes, the radioactive question on innate differences between men and women, ideology over reality, fairness, oppressive cultures, and much more. It is courageous; it’s also unethical. Ambushing an employer like this—it is fair to say that the essay has caused a PR crisis for Google—is never fair. He would argue, I suspect, that this was a form of whistleblowing, as well as taking a stand for other employees who feel as he does but who fear making their opinions known.
I have taught diversity seminars, often in conjunction with sexual harassment and bias training. The area is inherently dishonest. Of course all races, genders and creeds, ages and types should be welcome in a work environment. The claim that diversity is inherently valuable for its own sake, however, is nonsense, a phony “fact” declared to bootstrap other initiatives, such as affirmative action. The alleged innate value of diversity is cited to justify the and out-balance the inherent disadvantages and injustice of not hiring the best applicants for a job or position based on their demonstrated abilities and experience. This is a myth, and pretty obviously so. Diversity is not a virtue when it leads to incompetence, bias, resentment, and staffing that is less talented and effective than it might be. Diversity should never take priority over getting a job done as well as possible.
The bias in the news media’s coverage of the memo has been palpable, and would be very revealing regarding how ideological bias warps coverage, if so much evidence didn’t already exist. This particular biased reporting is likely to mislead more than it should, because the memo is long, and most readers will accept on faith (why? WHY???) the false characterizations of it. It is not a “screed” (The Atlantic), a “tirade” (TIME), or “sexist.” (Recode). The memo does not say that women are inferior, or “genetically unsuited” for tech jobs. (Washington Post). Nor does he write that women are “biologically unfit” for tech jobs. (CNN). The memo isn’t even “anti-diversity” (Vanity Fair, Forbes). This is how ideological propaganda works: slap labels on inconvenient arguments that will pre-bias an objective or open-minded readers.
You should read the whole thing, which is below. As you read it, think about the fact that Google has stated that the content of the memo violated aspects of Google’s Code of Conduct. I find that incredible, and a greater indictment of Google than the memo itself.
The highlights in blue are mine, and reserved for what I regard as ethically significant sections. Continue reading
Comment Of The Day : “Incident At Big Bowl”
John Billingsley has been participating here for less than two months, and this is his first Comment of the Day. He explores some of the broader labor, management and cultural issues behind the curtain in my rueful account of inept service at an airport fast food restaurant.
Here is John’s Comment of the Day on the post, “Incident at Big Bowl.”
I believe this is an issue that goes much deeper than it appears on the surface and Son of M and Tom M in their analyses have identified some of the issues at the root of the problem. Son of M said, “I don’t know that people at this level of employment have EVER cared or are ever going to.” There are some who care, and they can be identified when you are served by them, but I agree that most them appear not to. I think this is because our culture overall is not respectful of the people who do those jobs and so they have no reason to respect themselves as a person who performs that work.
I had the opportunity to live in Japan for about two years. That was over 40 years ago, and I still remember the complete professionalism of just about every service worker I encountered. Of course, it is a cultural thing. I wish people who provide services here could develop the attitude that it is not demeaning to be a service worker.
Tom asks, “Why is all of the blame on the employees?” Continue reading
Meltdown At Gate 43
As you probably have discerned, I am not having a good week on the road.
Today I am in Tucson, Arizona for less that 24 hours at a lovely resort that I will get to enjoy essentially not at all. Getting here, however, was the ethics adventure, or perhaps ethics breakdown is the better term.
My flight was supposed to start boarding at 4:30, but for some reason unclear to the assembled, did not. It was a real mob, a full flight, and as always at Reagan National , people were jockeying for position. They were also confused; a neighboring American gate was also boarding, and the announcements sounded like they were coming from our gate. Suddenly a gate attendant—is that what they are called?—came running up, and pushed through the crowd, sporting a big grin, why, I have no idea.
He grabbed the microphone and said, “All right, everybody, we’re ready to board American flight 2766 to Phoenix!” and nothing else. “I guess they’re boarding everyone!” someone said, and there was a mad rush for the lane. “No no no!” the new arrival said. “First class only!” ” Did he say ‘first class only’ before?” I asked the young women standing next to me. “No,” she said, confirming my belief, “but then I can’t tell what he’s saying anyway.” True enough: the guy mumbled and didn’t seem to know how to use a mic. Then the VERY CLEAR announcement from the adjoining gate boomed out: “Now boarding Group 2!”
Again a mob of my flight’s passengers rushed the gate, and the young man with the grin shouted “NO! Get back! Now we are boarding the Platinum, Gold, Silver, American Plus, Bronze Bonus, Flying Potato passengers only!” Or something like that. He was barely heard, and the announcement from the nearby gate washed over it. “Now boarding groups 1,2 and 3!” More confusion. Another American employee at the our gate took the mic, a young woman. “AH!” I thought. “She obviously knows how to do this.”
No, she didn’t. You know that woman in “Jaws” who sees the shark in the lagoon and shouts “Shark! A shark!” so weakly that I have never been able to figure out why Spielberg cast her? The American lady made THAT woman seem like Ethel Merman by comparison. Her mouth moved, but nothing came out. “What did she say?” “What was that?” Everybody was asking everyone else if they could figure out who was supposed to go next. Then the guy who arrived late started shouting at us!
“We have not called the priority levels or group 1 yet! You are blocking passengers from accessing the gate! Move out of the lane.” From next door: “NOW BOARDING ALL GROUPS!!”
More chaos and confusion. Eventually I moved through to the jetway; I have no idea if they called my group or not. There were four attendants at the gate, an older man checking the boarding passes, the mute, the jerk who shouted at us (Rule: if crowd gets out of control, it’s the crowd controllers who usually are at fault), and a women in a uniform who was standing to the side looking like this was funny to her and otherwise doing nothing. I assumed she was a supervisor…a bad one. So I went up to her, and said, not entirely pleasantly, “This is the most incompetent boarding process I have ever seen. It’s inexcusable.”
She looked at me indignantly and said, in some kind of Hispanic accent, “This is America, sir! If you want to make a complaint, contact management. I’m just an employee,”
Wait..WHAT? Now I have to deal with an arrogant Hispanic American with a chip on her shoulder? Is she going to lecture me on white privilege? “This is America”? What the hell does that have to do with anything? Continue reading
Observations On A Bad Police Stop
The ACLU of Colorado last week posted the above video of an Aurora, Colorado police encounter with two black citizens last February.
The sequence, drawn from one of the officers’ body camera, shows Darsean Kelley and another man being stopped by police after they had received a call about a man allegedly pointing a gun on a child, but with no description of the man. Kelley and his companion were standing on the sidewalk in the vicinity of the alleged incident. Police asked the men to sit down, which Kelley said was impossible to do because he had a groin injury. Officers then told both men to put their hands behind their heads and turn around. As his friend remained silent and apparently compliant, Kelley kept his hands raised and asked why he was being detained. Immediately after he said, “I know my rights!” one of the officers shot him in the back with a stun gun. He fell backwards into the street.
The police then arrested Kelley on a charge of disorderly conduct for failing to obey a lawful order. In his report, the officer wrote that he thought he might be reaching for a weapon. The ACLU of Colorado then filed a motion to dismiss the case arguing that Kelley was unlawfully detained and arrested without probable cause or reasonable suspicion.
Observations:
1. Kelley and the other man were unlawfully detained and arrested. Were they unlawfully stopped? No. The police could stop men in the vicinity of a complaint like the one they had received in order to investigate it. When people become belligerent or uncooperative during such legal stops, cops sometimes become suspicious, or decide to use their power to stick it to an individual who shows hostility when the officers feel they are just doing their jobs, or trying to. This is when such situations escalate.
I’m sure the officers regarded the “I can’t sit down” claim as suspicious and provocative. I would. Note that no harm befell the other man, who remained quiet and followed the officers’ instructions. This is the correct way to respond.
2. I’m sure Kelley felt that he was being “stopped for being black.” I would if I were him. How are police officers today supposed to allay this suspicion at the outset of a legitimate stop? (Or maybe they WERE stopped for being black…)
3. What is the policy for tasing? The typical hierarchy for the use of force in police departments used to be this:
| Table 1: Use-of-Force Continuum | |
|---|---|
| Suspect resistance | Officer use of force |
| 1. No resistance | 1. Officer presence |
| 2. Verbal noncompliance | 2. Verbal commands |
| 3. Passive resistance | 3. Hands-on tactics, chemical spray |
| 4. Active resistance | 4. Intermediate weapons: baton, Taser, strikes, nondeadly force |
| 5. Aggressive resistance | 5. Intermediate weapons, intensified techniques, nondeadly force |
| 6. Deadly-force resistance | 6. Deadly force |
| (Adapted from the Orlando, Florida Police Department’s Resistance and Response Continuum) |
|
…
After the introduction of more powerful electronic control devices, many departments changed their use-of-force directives for handling suspects who were only passively resisting the lawful orders of the officer, and increased the required level of resistance by suspects to warrant use of stun guns or tasers from passive resistance to active, physical resistance.
Table 2: Levels of Resistance Defined
| Passive Resistance | The subject fails to obey verbal direction, preventing the officer from taking lawful action. |
| Active Resistance | The subject’s actions are intended to facilitate an escape or prevent an arrest. The action is not likely to cause injury. |
| Aggressive Resistance | The subject has battered or is about to batter an officer, and the subject’s action is likely to cause injury. |
| Deadly-Force Resistance | The subject’s actions are likely to cause death or significant bodily harm to the officer or another person. |
| Adapted from the Orlando, Florida, Police Department’s Resistance and Response Continuum | |
I don’t know what the Aurora police policy is, but certainly under the kinder, gentler, saner revised standards above, stunning Kelley was excessive. Police brutality is not an unfair description of what he experienced. Continue reading
Stupid Cops Matter
Perfect match.
In a case where Hanlon’s Razor (“Never assume malice is the explanation if stupidity will suffice”) applies but one can’t really blame a mother for thinking otherwise, police in Newark inexplicably mistook an innocent pre-teen black boy for an adult robbery suspect and chased him through a Newark neighborhood with guns drawn. This is stupidity, not racism. Well, who knows: there could be racism mixed in there too, but what jumps out is the jaw-dropping incompetence.
Legend Preston, just ten years old, was fetching a basketball that had rolled into the street when he looked up and saw armed cops running towards him as if they meant business. So he ran.
“I was scared for my life,” Legend told reporters. “I was thinking that they were going to shoot me.” Good thinking, kid. If these cope were inept enough to get a ten-year-old confused with Casey Joseph Robinson, a 20-year-old, dreadlocks-sporting perp with facial hair (he was arrested in the next block), who knows what they might do?
Legend was quickly surrounded by neighbors who emphatically pointed out to the police that they were chasing a child, as the officers stammered that he “fit the description” of the criminal. Well, sort of. Okay, okay, now that we’re up close, we see that he’s under five feet tall, dressed like a kid, doesn’t have dreadlocks or facial hair, and looks nothing like the guy, except that he’s black, which means we also could also mistake him for Bill Cosby, Jesse Jackson, Morgan Freeman, or LeBron James. Continue reading
Ethics Alarms 
Matthew B. scored a Comment of the Day by raising an issue I had never thought about before: how the misapplication of PowerPoint leads to inadequate training and information dissemination within organizations and bureaucracies. He also references the reluctance of managers to know when to hand over decision-making to subordinates. That is something I have thought about, a great deal.
Two of my favorite movies illustrate how competent leaders and managers know when to delegate a crucial decision down. “Topsy-Turvy,” the superb 1999 film depicting the creation of “The Mikado” by Gilbert and Sullivan, accurately depicts the real incident when, after the final rehearsal, W.S. Gilbert told the “Mikado” cast that he was cutting “My Object All Sublime,” also known as “The Mikado’s Song.” Gilbert was a tyrannical director, and the cast was terrified of incurring his wrath. This time, however, they stood up to him. The cast as one told him that he was making a mistake. The soloist, Richard Temple, they told their shocked and steaming director who also had conceived of the song, should have the chance to perform it in front of an audience. His fellow cast members were certain it would be a hit. Gilbert, recognizing the certitude the cast must have had to risk his fury at being contradicted, decided that his performers might have a clearer understanding of the show even that he had, and relented. Temple would sing about letting “the punishment fit the crime” on opening night.
The song was an instant sensation, like “The Mikado” itself, and is still one of the most quoted of all G&S songs.
The other example is at the climax of “Hoosiers,” the great basketball film based on the true story of the miraculous Indiana state championship won by a tiny school from Milan, Ind. in 1954. During the last time-out before the team’s last chance to score, which would, if successful, give the team a one-point victory over their greatly favored competition in the championship game, the coach (Gene Hackman), who has led the ragtag group this far by emphasizing teamwork over individual achievement, lays out a play in which the team’s superstar, Jimmy Chitwood will be a decoy. He plans for another player to take the final shot, but the team doesn’t move. “What’s the matter with you?” he shouts as his players just stare, looking hesitant. “If I get the shot, I’ll make it,” Jimmy says, after a long pause. So the coach, who has insisted all season that his word was law, makes the same decision Gilbert did. When your subordinates are that sure, trust them. They know better than you.
Jimmy shoots and scores the winning basket as time runs out.
Here is Matthew B.’s Comment of the Day on “Comment Of The Day: ‘Catching Up: Professional Ethics And The Challenger Disaster’”:
Continue reading →