Spitzer’s Sorry, Silver’s Moving, Food Truck Drama

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1. Disgraced former Governor of the State of New York, Eliot Spitzer, famously began running for New York City Comptroller just a few days before nominating petitions were due. As one might expect, Spitzer’s attempt at a comeback is made difficult by his hypocritical whoring. Here is his “apology” commercial, which I think is rather effective. 

[youtube=http://www.youtube.com/watch?v=0TYfjg0dILo&w=640&h=360]

2. Alien wizard Nate Silver took his work analyzing baseball statistics into the political arena with his blog Five Thirty Eight, and got picked up by the New York Times. That contract expired, and former Buffalo News editor Margaret Sullivan – now the Times’ Public Editor – explained that Silver simply didn’t “fit in” to the Times’ “culture”, and that some of the Times’ writers simply didn’t like him. Sullivan explained that Silver was “disruptive”; i.e., he disrupted the old model of covering politics. 

In Buffalo, we’re all-too familiar with the way politics have been covered for the past few decades, and its lazy, unsubstantive focus on fundraising and the never-ending horserace. Now, admittedly, Silver’s specialty was the horserace, but the way in which he analyzed and wrote about it was based on mathematical and scientific probability informed by trends, polling, and past performance. Silver had a knack for taking some extremely complicated and convoluted data and making it digestible for average readers, and his record is really quite striking. But in Buffalo, we have political columnists who simply dismiss and ignore candidates who do not fit the 40 year-old mold of a credible machine candidate. We’re all worse off for it. 

3. The City of Tonawanda is contemplating a food truck ordinance to regulate how these mobile entrepreneurs might be able to do business within the municipal boundaries. Unlike Buffalo and Amherst, the CoT is poised to introduce fantastically restrictive regulations – so ridiculous that they effectively amount to a ban on food trucks. $1,000 for an initial license and application, and trucks are forbidden from setting up within 1,000 feet of an open kitchen – farther than three football fields away. (The Buffalo and Amherst rules require operation at least 100′ from any open kitchen). The exercise underscores how stupid it is that all these ultimately pointless municipal entities can regulate business to this extent, and how much better it would be if the trucks could just pay a single regional fee and operate throughout the county under uniform rules. Hell, that’s how the US and EU work, but we can’t (genuinely cannot) do that within Erie County. 

Donn Esmonde Looks at things Backwards

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“Donn Esmonde is an Ass” is the name of the series, and he seldom, if ever disappoints. In Friday’s column, he devoted about 550 words to talking about how lame Byron Brown is and how Bernie Tolbert sure is swell for trying.

Bernie Tolbert doesn’t need or want my sympathy. But I can’t help feeling sorry for the guy. Taking on Byron Brown is like trying to grab a puff of smoke or lasso a shadow. Nothing sticks to the Teflon Mayor.

On Brown’s two-term watch, Buffalo lost another 20,000 people. Schools went deeper into the dumpster, while he watched the charter school revolution from the sidelines. His anti-poverty “plan” for America’s third-poorest city was a lame, idea-absent rehash. Buffalo is basically a ward of the state, which covers a third of its budget and the bulk of its school costs.

The “charter school revolution” is city people suburbanizing city schools. Pull kids and money out of the traditional public schools, so your kids can have a Williamsville experience without moving to Williamsville. Esmonde has an especial hard-on for suburban schools, and has spent three or four columns advocating for the decimation of what had until recently been one of the best districts in the region. Esmonde’s concern-trolling about schools is utter nonsense, given his complete transformation into a tea party Sith lord.

Brown backed a proposed Bass Pro store that would have smothered the downtown waterfront, and a Seneca casino that experts say does us more harm than good. But mostly, he is mum – even on obvious causes such as expanding ECC’s downtown campus. Nearly two-thirds of respondents rated him no better than average in a Buffalo News leadership survey. He is vision-lite, cliche-heavy and largely uninspiring.

You would think that the man would be fighting for his political life. Instead, the mayor is livin’ easy.

2/3 of respondents in a poll rated Brown as “average”. The Siena Poll that the Buffalo News and Channel 2 commissioned, the cross-tabs for which have never been released.

Polls show him far ahead of Tolbert, who is barely known and fights a 6-to-1 dollar disadvantage. The Democratic primary in September decides the race, as city Republicans are an endangered species. My wish to see a progressive, idea-driven mayor in this lifetime may never be granted (in lieu of that, I’d settle for a Super Bowl). Pollster Steven Greenberg can’t explain Brown’s cushy lead, given abysmal marks on schools and job creation.

Esmonde uses the word “progressive”. It is to laugh. But while city Republicans may be an “endangered species”, you’d think that the underdog candidate, Sergio Rodriguez, might merit a mention. I mean, the guy has ideas, he’s saying a lot of what Esmonde is saying in this piece, and he has a name!

Which brings us to Brown’s political genius – he has mastered the art of low expectations. By keeping his head in the foxhole, by not championing big ideas and sweeping reforms, he has conditioned people not to expect much. So he can take credit for anything good that happens – even when, like the waterfront or downtown revival, it doesn’t have much to do with him – while avoiding blame for problems. It helps that Brown was preceded by three-term Mayor Tony Masiello, who, if possible, set an even lower bar.

At least Jimmy Griffin had an executive temperament, along with a temper.

A bolder, tougher, more visionary mayor would lobby for a regional planning board, to slow sprawl and funnel new business into the city. He would protect one of the city’s few resources – its stock of great old buildings – by data-basing historic properties and hammering negligent owners. He would push for mixed-income housing in the suburbs, to lighten the city’s heavy poverty load. He would embrace the choice of charter schools, while demanding accountability from traditional ones. And on and on.

How exactly does the mayor of the City of Buffalo “push for mixed-income housing in the suburbs”? Does he ask nicely, or is there some interjurisdictional power he has that I’m not aware of?

But Esmonde is partially right – to have Byron Brown record ads touting Geico, which is hiring way the fuck up in North Amherst somewhere, is an obscenity of the highest order. The city of Buffalo is precisely the place that Geico should have located its sprawling call center, but instead it went to North Bumfuck because it got a swell deal from whatever IDAs had handouts at the ready. It is the people who live in the city of Buffalo who are in desperate need of $30,000 entry-level white-collar cubicle jobs like the ones at Geico, because the manufacturing jobs are gone and working at McDonalds frankly sucks.

Byron Brown and Warren Buffett and the Buffalo News all think locating Geico up near Quebec was a swell idea.

A decent wage, a decent job, and some semblance of an opportunity are the very foundation on which you build a better future for young, underserved and underprivileged city residents. Not your “stock of great old buildings”.

Esmonde and his preservation-first cohorts have it backwards. Fixing up great old buildings doesn’t turn around the local economy, but turning around the local economy will help spur more fixing up of great old buildings. The focus on Buffalo’s hardware is well-managed by exquisitely touchy people who think that attracting “cultural tourists” to see the Darwin Martin house and other buildings is the antidote to a half-century of decline. Our town is replete with ultra-wealthy foundations sporting the names of the founders of businesses that long ago abandoned Buffalo, all of which seem to think that their deep pockets provide an avenue for them to tell everyone how they’re doing it wrong. Meanwhile, the best thing anything with the name “Oshei” in it could do is open a Goddamn windshield wiper factory in Buffalo.

Regular people will rehab your pretty old buildings when it makes economic sense to do so. People will do it when you don’t have to retain a preservation activist to help navigate your way to tax credits, and around demonstrations and litigation. People will preserve our “great old buildings” when they have money to do it. And how do you create wealth in a shit economy? You make sure you have a decent educational system, and that there are available jobs to help lift a generation out of poverty and into the economic mainstream.

Instead, we applaud the fact that Geico brings thousands of jobs to the sticks – just a few bus transfers and a commute that would make Long Islanders cringe! It’s appalling. It’s sickening. It’s a disgrace.

His city is on life support, yet Brown shows little passion and champions few causes. What, me worry?

Granted, the mayor has strengths. He is likable, projects concern and looks good – all political pluses. The streets get plowed, and the garbage is picked up. And his timing is good. He is in office while the waterfront is shaping up and downtown is repopulating. Albany and Washington dollars, not city money, stoke the waterfront, and downtown revival is traceable mainly to market forces and momentum. Still, the rising tide lifts his boat. As numerous insiders have told me, Brown stays out of the way and shows up for the ribbon-cuttings.

Brown stays out of the way? The stories of institutional, tolerated bribery and corruption within City Hall are legion.

In Buffalo, the city of low expectations, it goes a long way. A lot further, I think, than it should.

An irony here is that Esmonde does so much to keep those expectations low and stupid.

It’s A Fine Line Between Provocation And Self-Defense

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A Virginia man wearing a bizarre outfit approached a 12 year-old boy and his sibling, who were selling lemonade on a hot day, and threw a piss-filled balloon at them. He followed up by demanding that they go back to Africa, which sounds like a lot of the people in this Facebook comment thread. 

So, as far as I can understand, had the boy begun hitting his assailant – and then started to win the fight – piss-balloon man would have been justified under Florida law to “stand his ground” and shoot the boy dead.

Piss-balloon man would be the only one up on the stand, and he can just testify that he was all done with his assault and had retreated, so it was the boy’s own fault he got shot, and he never uttered a racial remark, and the kid may have had detention once and his sibling is fat and rolls his eyes on the stand. 

Let that sink in.

Rodriguez Reddit AMA, Tolbert Opens HQ

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BUFFALO NY

By PJBLAKE via Flickr

Republican candidate for Mayor Sergio Rodriguez will be holding a Reddit AMA (“ask me anything”) at 5pm today on Reddit.com – more specifically, the /r/Buffalo subreddit. 

Democratic candidate for Mayor Bernie Tolbert will be holding a ribbon-cutting party for his campaign HQ at 1375 Main Street from 5:30 – 7:30 today (intersection with Utica St, near Utica Metro station). 

By the way, they held a summit on violence and homicide in the city the other night, and neither the sitting mayor nor the current Buffalo police commissioner bothered to show up. Think about that. 

The Obamacare Trainwreck

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While freshman congressmen vote – yet again – to weaken or eliminate Obamacare, the news was actually quite good yesterday.

Good in a “it’s not Medicare-for-all, but it’s a vast improvement over the status quo” sort of way.

Yesterday, New York State revealed that rates for individual health insurance plans will plummet by over 50% next year, thanks to Obamacare. These are the “exchanges” you’ve been hearing about. If you can’t afford a plan, there will be a sliding scale of federal subsidies to help you pay for it. Why? Because it is far cheaper for the government to subsidize health insurance plans than to reimburse municipalities for unpaid bills resulting from uninsured people using the emergency room as a primary care facility. In the long run, prevention is cheaper than dealing with acute problems.

About 40 – 50 million Americans remain uninsured, and caring for their emergencies is something that we all subsidize. Our healthcare system is the most expensive in the world, and gets results that have plenty of room for improvement. For instance, Canada – with its socialized single-payer system – has lower maternal mortality than the US. Canada also spends a bit more than half on health care per capita than the US.

We’ll let Professor Krugman explain why this is going to work – and work spectacularly well.

To understand what’s happening in New York, you have to start with what almost everyone at least pretends to believe: Americans shouldn’t find it impossible to get health insurance because of pre-existing conditions that aren’t their fault. Two decades ago, New York tried to deal with this by imposing community rating: insurance is available to everyone, and the price doesn’t depend on your medical history.

The problem was that this created a death spiral: young, healthy people didn’t buy insurance, worsening the risk pool, driving up premiums, driving out more relatively healthy people, etc., until you were left with a rump of very ill people paying very high rates.

How do you deal with this? Well, ideally, Medicare for all. But since that wasn’t going to happen, you improve the risk pool by requiring everyone to buy insurance — the individual mandate. And since some people won’t be able to afford that, you also offer subsidies. Voila! ObamaRomneycare!

Where does the money for the subsidies come from? Partly by reducing corporate welfare: reducing overpayments for Medicare Advantage, reducing tax breaks for very generous insurance plans; partly with new taxes on the wealthy.

And while a few people will be hurt — young, healthy individuals too affluent to qualify for subsidies, wealthy taxpayers, etc. — a much larger number of people will be helped, some of them enormously.

Does this amount to “redistribution”? Well, yes — not as an end in itself, but yes, a lot of people will be made better off at the expense of an affluent few.

The reason why Obamacare will be popular? People who are happy will stay happy, while people who are uninsured will become happy with their new coverage.

Implementation won’t much affect the 78 percent of Americans currently covered through Medicaid, Medicare, or employer group health plans,” and among the remaining 22 percent, the predominant effect will be to get some subsidized health insurance.

Because the Obama administration decided to postpone the employer mandate for health insurance on businesses with over 50 full time (over 30 hrs/week) workers, congressional Republicans – who have a pathological, partisan, political vested interest in the failure of universal health insurance – voted yesterday to delay the implementation of the individual health insurance mandate, which is Obamacare’s quid for the insurers’ pro quo of guaranteed coverage for people with pre-existing conditions. That mandate is why rates are going down in New York next year.

Among the people voting to postpone affordable insurance for millions of Americans was Chris Collins (NY-27), who has taken it upon himself as a clout-free congressional freshman to demonize Obamacare at every step.

The failure of Obamacare is a particularly acute need for Collins because he believes that he defeated Kathy Hochul on that issue alone. If the people in the 27th district suddenly have access to cheap, subsidized, quality health insurance, and discover that Obamacare isn’t the Stalinist Kenyan train wreck Collins has sold, they may very well turn on him and demand to know what his problem is.

Collins constantly talks about all the people who write to him, explaining that they will lose their hours at work thanks to Obamcare’s employer mandate. So, if he’s so concerned about these people, why doesn’t he sponsor legislation to protect those workers from that sort of thing? Could you imagine? Chris Collins sponsoring a worker protection law? I know, it’s a ridiculous notion because Collins exists only to protect business owners and the very wealthy. The idea of individual people having the government meet a need that private industry can’t or won’t is anathema to Collins and his conservative cohorts.

So, you’ll see Collins and other congressional Republicans constantly refer to Obamacare as a “trainwreck”, a catchphrase likely forged by Frank Luntz in the fires of Mount Doom. When Obamacare is implemented, and people begin to benefit from it, the conservatives will be exposed for the lying frauds they are.

The best part about this is that Republicans are so short-sighted and beholden to political expediency that they don’t realize that their constant “trainwreck” language is lowering the public’s expectations of Obamacare. If they are made to think it’s a disaster, and it doesn’t become a disaster, they’ll all look like idiot chicken littles.

Medicare Part D and the Children’s Health Insurance Program … got through their rocky implementations in large part because benefits obtained with bureaucratic difficulty are better than no benefits at all. He’s right, and this is why conservatives are “magnanimously” offering to delay implementation of Obamacare. They realize that once people have guaranteed access to health coverage, they won’t want to give it up, even if there are implementation problems.

The political landscape is already dire for those who still hope to repeal Obamacare, and they’re actually making their position worse by talking constantly about what a nightmare implementation is going to be. This fall, as the exchanges come on line, tens of millions of people are going to find they can get health coverage they never could before. They are likely to be quite happy about that, especially if they’ve been hearing for months in advance that it will be a mess.

So, when Obamacare is implemented and people are happy about it, I hope the voters take Collins’ scare tactics and throw them back in his face.

As an aside, I have asked Collins and his people numerous times in various media whether he holds health insurance through the federal government for himself and his family. I will conclude from the deafening silence that he does, and that excellent, federally subsidized health insurance is something to which he and his family are entitled – but you and I are not.

Not only that, but he will work tirelessly to prevent you and me from being guaranteed quality health insurance. Who goes into public service to screw the public?

 

Chris Collins Polls NY-27

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Hey, I got mail from my Congresscritter, Chris Collins. I was very happy to receive it, because it made me feel important – like Collins really wanted my opinion!  Brad Riter and I discussed the letter in a podcast we recorded for Trending Buffalo: 

I Got a Letter from the Government

Anyone who has paid even casual attention to Chris Collins’ political career knows that he’s looking out for only one type of person – the taxpayer. He even started his own minor party line called “Taxpayers First”, and has carefully staked out a position whereby he is perceived to be the grand protector of the tax dollar. 

That’s why our Spaulding Lake millionaire congressional nobleman spent taxpayer money to mail this survey to me! He’s protecting my tax money by spending my tax money! It’s ingenious! 

The cover letter doubles down on the whole taxpayer theme – “Dear Taxpayer” isn’t just profoundly impersonal, it reduces my identity to a chore. “Dear Laundry-Folder”. “Dear Grocery Shopper”.  

Collins figured he eked out his defeat of incumbent Kathy Hochul by staking out a strong anti-Obamacare position. Indeed, the district isn’t one that’s thrilled with Obama or with health care reform, so there isn’t a breath that leaves Collins’ lungs without denigrating and calling for the complete repeal of Obamacare. He says he’s fought to reduce government regulations, but he’s also voted for massive farm subsidies in an effort to protect your “tax dollars”. 

So, he sent a survey along. Note the registration barcode – more on that below – it all looks so important and official. DO NOT DESTROY. OFFICIAL FEDERAL DOCUMENT. The only thing missing is the imprisonment threat you find on mattress tags. 

But what it really amounts to is a written push-poll. The questions are carefully crafted to mirror GOP talking points, so that Collins can lend himself a smidgen of extra legitimacy as he’s promoting the interests of the very wealthy at the expense of the middle class.  This is a document that represents true class warfare – the wealthy manipulating the aspirations of the poor and middle class to get them to support policies that are against their best interests. 

Is the country on the right or wrong track? Well, gosh, I like Obama, and he’s President, so I’ll put “right track”. But I can’t stand Republican obstructionist nihilism, so I think the country is also on the wrong track. What to do? Some questions were self-explanatory, but then you get to the “vouchers” question, and again – there’s nuance there. I think vouchers should be available to parents of children in failing schools. I do not, however, think that they should be standard for all public school districts. The Republicans are pushing vouchers because they do not believe in public education, and would just as soon pull money out of the system and into vouchers because it would have the joint effect of (a) destroying public education; and (b) busting teachers’ unions. After all, that’s what it’s all about for the millionaire party – making sure the working man and woman know their place and stay quiet; class warfare. 

Then you get to the questions about fundamental changes to Medicare and Social Security.  I’m under 55, and I’ve been paying into both programs towards my retirement since the mid-80s. How on Earth is it fair to anyone currently in the workforce to so fundamentally change a program that people have been paying into? Why is it ok to weaken Social Security and Medicare for someone 54 years old who has been paying into the system for almost 40 years?  

By the way – that important-looking barcode? I scanned it. It’s the barcode for the number 1. 

So, we turn to the second, perhaps stupider, page of this intern-drafted excreta. I don’t agree with private social security accounts because, among other things, I don’t want the government to be called upon to bail out people who do so when the happen to retire during a financial market meltdown such as the one that occurred in late 2008. Do I support Obama’s use of Executive Orders?  Only insofar as they are lawful, which they are. Do I think Congress should expand government, limit government, or keep everything the same? Well, because I’m not a cretin, I think that the issue is far more complicated than that, so I marked “unsure” and annotated my answer. 

Now, admittedly, I mis-read the “energy” question and marked two instead of one, but both of them are ones that I think the government should pursue, and no one’s really looking at this anything, they’re just harvesting email addresses. The United States is drilling more oil now than in 2005, and natural gas exploitation is booming thanks to hydrofracking. Fukushima and BP have shown us that off-shore drilling and nuclear power aren’t perhaps the best solutions to our energy needs, and while it’s important to exploit what we have, it’s also important to find alternatives and use less. 

I annotated another question by adding an answer.  In a question asking what the government should do to help stimulate the economy, there was only a simplistic binary choice – spend more, or reduce taxes on “private businesses and families” as opposed to what, public businesses and single people? So, I said – tax cuts on the middle class. Put more money in regular people’s pockets. 

There are two questions relating to non-scandal scandals. Benghazi and the IRS.  The 27th District is unaffected by either one of those things, and we live in a community with real problems that affect real people. These are partisan distractions by any measure, but to suggest in a push-poll that Congress should do more of that is just sad. 

On immigration, notice the wording – should illegals with no criminal history be allowed to “pay a fine and become a taxpayer?” I annotated that. Everyone on American soil – documented and undocumented – is a “taxpayer” in that they have a legal obligation to pay tax on income. Undocumented aliens are already “taxpayers” – the word he was hunting for was “citizen”. But in the very next question, he uses that term – asking whether undocumented aliens should be able to buy themselves a Green Card, but not citizenship. 

Should the government devote more attention to enforcing immigration law and securing borders? How do you say no to that? Yes, the government should do its job. Hurray. 

I enclosed a note.  

When your Congressman doesn’t have a care in the world, it must be difficult for him to manufacture empathy for people who do. His singular goal is to repeal Obamacare. I have asked him and his staff many times – on Twitter and elsewhere – two things: (a) does Chris Collins believe that every American should have access to affordable, quality health insurance; and (b) if Obamacare is not the good solution to the crisis of uninsurance and underinsurance in this country, what is his solution? What does CollinsCare look like? I have yet to receive an answer to either of these questions.

Furthermore, I don’t know whether Collins and his family are recipients of one of the federally subsidized health insurance plans that exist for the benefit of Congresspeople. I asked it on Twitter, but also placed a call to his Washington office July 11th at 9:38 and left a message for his press person to contact me. It’s now July 16th and I have not been granted the courtesy of a reply.

Is quality, federally subsidized health insurance something to which Collins and his family are entitled, but not us plebes? Does my Congressman think that people should have access to quality health care, and that the cost should be subsidized depending on ability to pay? Does he even think 50 million uninsured Americans who use the emergency room for primary care is a problem? 

Frankly, I don’t think Obamacare is the solution, either, but the status quo is worse. I now think Obamacare was a Democratic sellout to conservatives who turned their backs on their own idea in order to harm the Democratic President and, by extension, the country. Republican obstruction and attempts to kill Obamacare have served to condense my opinion into something different altogether. 

Health insurance in this country should not be tied to employment. Employers should be free from buying private insurance for their employees, and people should not have to choose employment based on whether or not they will receive health insurance. The solution is Medicare expansion to all Americans. Everyone joins, everyone pays. You want to use a private clinic and pay a private insurer for something extra? Knock yourself out – as long as every American has a guarantee of access to health care they need. 

I wish that my Congressman took his office seriously. It’s not just about protecting “taxpayers” from whatever he wants to demean as socialism. It’s about helping people who are in need or powerless. It’s about finding solutions to longstanding problems that the private sector can’t – or won’t – solve. I wish that I had a Congressman who thought that it was important for me and my family to have access to the same quality of healthcare as he. I wish that I had a Congressman who didn’t wage class warfare against the poor and middle class, instead holding onto an anachronistic and unproven “supply side” theory of trickle-down economics. I wish Batavia was as important to him as Benghazi. 

Thoughts on the George Zimmerman Verdict: You Got a Problem?

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A Florida jury found that the homicide of Trayvon Martin homicide was lawful and justifiable – that George Zimmerman had acted in self-defense and that his use of deadly force against Martin was reasonable. 

“Self-defense” is what we lawyers call an “affirmative defense”. Generally, the prosecution has the burden to prove guilt beyond a reasonable doubt. When the defendant raises self-defense, or some other legal justification for the crime of which he’s accused, the burden of proof shifts to him. That means that George Zimmerman’s defense team had the burden to prove that Zimmerman’s killing of Trayvon Martin was legally justified. 

In New York, self-defense is covered in the “Defense of Justification” article in the New York State Penal Law.  

Generally, 

Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when…

2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder…

More specifically,

The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances…

6. A person may, pursuant to the ensuing provisions of this article, use physical force upon another person in self-defense or defense of a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property,

Even more to the point,

1. A person may…use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:

(a) The latter’s conduct was provoked by the actor with intent to cause physical injury to another person; or

(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force…

…2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:

(i) in his or her dwelling and not the initial aggressor; or

(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter’s direction, acting pursuant to section 35.30; or

(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or

(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.

The emphases are mine. New York’s self-defense statute discourages deadly violence. The initial aggressor in a confrontation generally cannot assert the defense, but even in that case, the law gives the aggressor an opportunity to retreat from the encounter, in which case he is justified in defending himself from the original victim’s force. In order to use deadly force, a New Yorker must reasonably believe he is about to be killed and has attempted to, or has no way to, retreat. The only exception to that duty to retreat applies to a person in his own home who didn’t start a confrontation. The duty to retreat exists to avoid unnecessary violence and death. 

Florida is different. By weakening the duty to retreat, it opens the door to unnecessary, physically avoidable violence.

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013.

The section referenced above in subsection (2) is Florida’s castle doctrine statute – your home is inviolable and the law presumes that you are in fear of imminent bodily harm if you are home when burglarized. But it goes farther:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

In Florida, there is also statutory language requiring that the person asserting justification wasn’t the initial aggressor.

776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who…

…(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

George Zimmerman’s defense team didn’t emphasize the “stand your ground” portion of the statute. It didn’t have to – it’s built in to the overall self-defense statute and the jury was instructed on it. Frankly, the person who was entitled to use that provision was Trayvon Martin himself. The Zimmerman team’s theory of the case was that Martin was the initial aggressor when he turned and confronted Zimmerman. “Stand your ground” is what informed law enforcement’s decision to not bring charges until 6 weeks after the homicide. “Stand your ground” is what was cited for the public presumption that Zimmerman was justified in killing this young black man who was wearing a hoodie, of all things. 

In court, we heard Zimmerman’s side of the story via videotape of him leading investigators around the complex the morning after the homicide. He did not take the stand. The problem here? Every story has two sides, and we only heard one. We’ll never be able to learn Martin’s side of the story. Did he really know the gun was there? Did he really reach for it? Did he really even initiate the confrontation? Did he swing first? Did he threaten Zimmerman’s life? 

Let’s backtrack for a moment and look at a few undisputed facts of the case: Trayvon Martin was legally on the premises of the gated apartment community where George Zimmerman was on “neighborhood watch” patrol. He was minding his own business. He was not committing a crime of any sort. He was unarmed. He was walking from the store to a private residence, where he was going to watch TV. George Zimmerman was cruising the property in his vehicle. The complex had been subject to burglaries, and he wanted to protect his home and others’ homes. Zimmerman told the police dispatcher that he was watching Martin, whom he considered to be a “real suspicious guy”. 

That’s the set-up; what happened next was the heart of the trial just concluded. Zimmerman called the cops. The dispatcher told Zimmerman to stay in his car. Zimmerman didn’t stay in his car, but instead followed Martin. Martin was on the phone with his friend and explained to her that he was being followed by a “creepy ass cracker”. We’re not quite sure what happened next, or what the exact sequence of events was. Could be Trayvon Martin turned to ask Zimmerman if he had a problem.

The case and its result have resulted in a deep split in public opinion – one unsurprisingly following the right/left political cleave. I don’t understand why thinking Zimmerman is innocent is a right-wing thing and thinking the homicide of Martin was unnecessary or not justifiable is a left-wing thing. It oftentimes seems as if Zimmerman supporters consider that Martin got what was coming to him, and there is no sympathy for a kid who was just walking home from the store on a rainy February night. But I think the divergence comes down to this difference in opinion: do you think that the sequence of events was set in motion when Zimmerman exited his car to follow Martin, or when Martin asked Zimmerman what his problem was? Things went downhill from there, and one person ended up dead. 

You can see Zimmerman’s explanation here. “You got a problem?” “No, man.” “Well, you got a problem now!” Zimmerman claims Martin somehow saw his gun, went to reach for it and threatened to kill him.  At this point, Zimmerman grabbed his gun and shot Martin once through the heart. Martin wasn’t around to offer a rebuttal. 

To suggest – as the Florida State Attorney did late Saturday night – that race and profiling wasn’t part of this case is a joke. The entire case was replete with issues of race and profiling. Was it reasonable? Was it reasonable for Zimmerman to see a young black kid in a hoodie walking through his neighborhood and instantly conclude that he was “real suspicious”? Was it reasonable for Martin to remark to his friend that some “creepy ass cracker” was stalking him on his walk home? It was 7pm in February in Florida. There is no presumption in the law that a black youth is deemed “suspicious” for wearing a hooded sweatshirt under those conditions. The temperature was in the low 60s, and it was raining. Indeed, because Martin was minding his own business and not breaking any rule or law, it was also perfectly reasonable for him to be a little creeped out by the guy who was following him first in his vehicle, and now on foot. How would you react if someone was following you – watching your every move while you’re just walking through your neighborhood?

Martin could have run away, but was under no obligation to do so. 

People forget that it wasn’t until March 16th that we heard the 911 call with someone screaming “help!” in the background – screams that ended when the gunshot is heard; could be Zimmerman was out of peril – could be Martin was mortally wounded. Zimmerman’s 9mm handgun was in the small of his back. It wasn’t until March 20th that Florida even bothered to submit the case to a grand jury. The chief of the Sanford Police Department resigned on March 22nd because the case had been investigated from day one under a presumption that it was a justifiable homicide. On March 26th, the police released pictures showing that Zimmerman was bleeding from cuts the night he shot Trayvon Martin. 

It wasn’t until April 11th that Zimmerman was formally charged with 2nd degree murder and taken into custody. It took a full six weeks before Florida even recognized that a crime may have potentially been committed. The state didn’t take the case seriously until the federal government and public opinion forced its hand. 

Zimmerman didn’t take the stand – he didn’t have to. His story was out there on the videotape, and he didn’t have to subject himself to cross-examination about, e.g., why he got out of his car in the first place. If Zimmerman is correct that Martin initiated the confrontation, why didn’t he run away? Well, he didn’t have to. Florida doesn’t think much of avoidance of violence. Zimmerman was brave enough to follow this “real suspicious” teenager, but not to subject himself to cross-examination. 

Because Martin is dead, we don’t know his side of the story and the prosecution evidently did not adequately present an alternative version of events. When Martin’s friend, Rachel Jeantel testified, she explained that Martin was afraid of Zimmerman. But, you know, as a 19 year-old black girl, she behaved like a 19 year-old black girl. She had avoided being involved in the case and was caught in some inconsistencies. Her speech and mannerisms insulted public opinion, and she was mocked as being fat, sassy, and stupid. 

Zimmerman had a gun, and if you take his own story at face-value, it was when Martin saw the gun that the fistfight escalated to a threat on Zimmerman’s life. No gun, no shooting. Simple, isn’t it? Zimmerman had a conceal carry permit despite a history of violence, including interfering with an arrest and being the subject of a mutual restraining order with his ex-fiancee. Frankly, under normal circumstances, a person with a record of violence and harassment should not be allowed to carry a firearm. 

“An armed society is a polite society” goes the Heinlein quote. But in this case, no matter what you think of the fairness of the case against Zimmerman, that isn’t true. 

The law should not reward violence. The law should not excuse aggression. To maintain a civilized society, we ought to reward and excuse the avoidance of violence and aggression. Zimmerman should have stayed in his car. He never should have been in a position to confront – or be confronted by – Martin. This is why we have police, and this is why we entrust them with public safety. Zimmerman should have waited for the cops and let them do their jobs. They likely would have questioned him, canvassed the area for Martin, and asked him some questions. Martin would have lived to see his 18th birthday. 

This isn’t just about dumb gun laws or bad justification statutes – it’s about profiling. 

Zimmerman: Hey we’ve had some break-ins in my neighborhood, and there’s a real suspicious guy, uh, it’s Retreat View Circle, um, the best address I can give you is 111 Retreat View Circle. This guy looks like he’s up to no good, or he’s on drugs or something. It’s raining and he’s just walking around, looking about.

Dispatcher:  OK, and this guy is he white, black, or hispanic?

Zimmerman: He looks black.

Dispatcher: Did you see what he was wearing?

Zimmerman: Yeah. A dark hoodie, like a grey hoodie, and either jeans or sweatpants and white tennis shoes. He’s here now, he was just staring.

Dispatcher: OK, he’s just walking around the area…

Zimmerman: looking at all the houses.

Dispatcher: OK…

Zimmerman: Now he’s just staring at me.

Dispatcher: OK-you said it’s 1111 Retreat View? Or 111?

Zimmerman: That’s the clubhouse…

Dispatcher: That’s the clubhouse, do you know what the-he’s near the clubhouse right now?

Zimmerman: Yeah, now he’s coming towards me.

Dispatcher: OK.

Zimmerman: He’s got his hand in his waistband. And he’s a black male.

Dispatcher: How old would you say he looks?

Zimmerman: He’s got button on his shirt, late teens.

Dispatcher: Late teens. Ok.

Zimmerman: Somethings wrong with him. Yup, he’s coming to check me out, he’s got something in his hands, I don’t know what his deal is.

Dispatcher: Just let me know if he does anything, ok?

Zimmerman: (unclear) See if you can get an officer over here.

Dispatcher: Yeah we’ve got someone on the way, just let me know if this guy does anything else.

Zimmerman: Okay. These assholes they always get away. Yep. When you come to the clubhouse you come straight in and make a left. Actually you would go past the clubhouse.

Dispatcher: So it’s on the lefthand side from the clubhouse?

Zimmerman: No you go in straight through the entrance and then you make a left, uh, you go straight in, don’t turn, and make a left. Shit, he’s running.

Dispatcher: He’s running? Which way is he running?

Zimmerman: Down towards the other entrance to the neighborhood.

Dispatcher: Which entrance is that that he’s heading towards?

Zimmerman: The back entrance…(expletive)(unclear)

Dispatcher: Are you following him?

Zimmerman: Yeah.

Dispatcher: Ok, we don’t need you to do that.

Zimmerman: Ok.

Dispatcher: Alright sir what is your name?

Zimmerman: George…He ran.

Dispatcher: Alright George what’s your last name? A clicking or knocking sound can be heard here

Zimmerman: Zimmerman

Dispatcher: And George what’s the phone number you’re calling from? Clicking or knocking sound is heard again

Zimmerman: [phone number removed]

Dispatcher: Alright George we do have them on the way. Do you want to meet with the officer when they get out there?

Zimmerman: Yeah.

Dispatcher: Alright, where you going to meet with them at?

Zimmerman: Um, if they come in through the, uh, (knocking sound) gate, tell them to go straight past the club house, and uh, (knocking sound) straight past the club house and make a left, and then they go past the mailboxes, that’s my truck…[unintelligible]

Dispatcher: What address are you parked in front of?

Zimmerman: I don’t know, it’s a cut through so I don’t know the address.

Dispatcher: Okay do you live in the area?

Zimmerman: Yeah, I…[unintelligible]

Dispatcher: What’s your apartment number?

Zimmerman: It’s a home it’s [house number removed], (knocking sound) oh crap I don’t want to give it all out, I don’t know where this kid is.

Dispatcher: Okay do you want to just meet with them right near the mailboxes then?

Zimmerman: Yeah that’s fine.

Dispatcher: Alright George, I’ll let them know to meet you around there, okay?

Zimmerman: Actually could you have them, could you have them call me and I’ll tell them where I’m at?

Dispatcher: Okay, yeah that’s no problem.

Zimmerman: Should I give you my number or you got it?

Dispatcher: Yeah I got it [phone number removed]

Zimmerman: Yeah you got it.

Dispatcher: Okay no problem, I’ll let them know to call you when you’re in the area.

Zimmerman: Thanks.

Dispatcher: You’re welcome.

Black kid in a hoodie. Real suspicious. Hand in his waistband. Looking around. Runs when he sees Zimmerman. These assholes always get away.

Trayvon Martin ran away from the man watching him from his truck. The man got out of his truck to follow him. Trayvon ran away. 

Zimmerman made a snap decision about who Martin was. He had to be up to no good. He looked wrong – black kid with a hoodie. Hand in his waistband, holding onto his iced tea. These assholes always get away. These assholes. Real suspicious. We glorify violence and we excuse people for being afraid and suspicious of black teenagers. “You got a problem?” Martin asked Zimmerman.

Yes. Zimmerman did, in fact, have a problem. More than just one.

By the way, how were the riots? 

Szalkowski Drops Out, Mychajliw Pitches Fit

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Erie County Comptroller candidate Lynn Szalkowski dropped out yesterday, the day petitions were due. Her name appeared on Democratic nominating petitions that have been circulated throughout Erie County for the past several weeks because she was the candidate whom the party had recruited to run. As it turns out, she had second thoughts and effectively dropped out of the race weeks ago. That posed a problem for the party, because the only way to keep the ballot line alive for November would be to keep circulating her petitions and then let a committee replace her when she formally drops out. That’s what’s about to happen in the next week or so.

Just about every news story everywhere has made the point that Ms. Szalkowski has suffered some personal tragedies in recent weeks, and that she may also have some sort of personal health issue. While her Facebook page shows her doing fun things with friends and her kids, that doesn’t necessarily mean she isn’t also tackling some sort of health problem. People live with chronic pain and disease all the time yet are still able to go out and maintain some semblance of a normal life – it doesn’t mean they also have the energy or will to go out and attend every chicken BBQ and every fundraiser and every debate as part of a grueling, months-long campaign for a countywide office.

So, when she dropped out yesterday, her putative opponent, incumbent Stefan Mychajliw, took to Facebook to comment on the situation. Before becoming Comptroller, Mychajliw was the owner of a public relations firm. As a public relations professional, I would likely counsel a candidate to take the high road, and leave the backhanded smacks and insults for surrogates.

In other words, Mychajliw’s Facebook post or whatever other public statement he made should have read something like this:

I am disappointed to learn that Ms. Szalkowski has decided not to accept her party’s nomination to run for Erie County Comptroller on the Democratic line. I am proud of my accomplishments over the last several months, and looked forward to a lively campaign on the issues. I wish Ms. Szalkowski and her family well, and look forward to running a positive campaign against whomever the Democrats select as their candidate.

Because, honestly, Mychajliw shouldn’t necessarily care who runs against him, or what the internal Democratic party machinations and intrigue might be. He is running to win in November, and he’ll take all comers, right?

Well, instead of some sort of gracious send-off, Mychajliw inexplicably spat this venom at the Democratic committee:

I don’t quite understand why this makes Mr. Mychajliw so upset, and why he didn’t so much as wish Ms. Szalkowski well, whatever his feelings are about the legal process that results from a candidate dropping out of a race. The party committee recruited Szalkowski, and it will now have to recruit someone else. It’s really six of one, half-dozen of the other, and Mychajliw’s Facebook excreta seems utterly classless to me.

Maybe Mychajliw’s office could trick a custodian into letting them into the locked basement room in the Rath Building where the Democrats keep all the Comptroller candidates.

GripeO Survey

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GripeO is a Buffalo-based startup that is set to launch later this year, and it will let you turn your gripes about bad products and customer service into something positive – savings and discounts. It calls itself a “better way to complain”. 

Right now, GripeO wants to hear your WNY-based customer service horror stories. By completing this survey and liking GripeO’s Facebook page, you’ll be entered in a drawing to win a $100 gift certificate to the WNY business of your choice.  I’ll link to the results when they’re in. 

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