Mike Kueber's Blog

July 31, 2010

Demagoging the Ground Zero mosque

A Muslim group is planning to build a $100 million community center near Ground Zero in NYC.  Self-proclaimed patriots, including Sarah Palin and Newt Gingrich, consider the project to be an affront to American sensibilities and are attempting to block it.  It’s people like these that give the term “patriots” a bad name. 

An article in today’s NYTimes was headlined, “Debate Heating Up on Plans for Mosque Near Ground Zero.”     http://www.nytimes.com/2010/07/31/nyregion/31mosque.html?_r=1&hp.  The NYTimes doesn’t typically attempt to inflame issues, but its headline seems unnecessarily inflammatory.  Although this community center will have a prayer room, it will also have a performing arts center, pool, a restaurant, and much else spread over 13-15 floors.  In fact, it will be modeled after area YMCAs and Jewish Community Centers.  Thus, it would have been more accurate for the NYTimes headline to describe the building as a community center as opposed to a mosque, but that wouldn’t be as provocative.

Republican rabble-rousers, however, don’t need the NYTimes to stir up the troops.  Sarah Palin and Newt Gingrich are way out front on this issue.  Sarah Palin calls it the Muslim community center an “unnecessary provocation.”  Newt Gingrich says it “is clearly an aggressive act that is offensive.”  Instead of helping Americans to distinguish between mainstream Islam and the 9/11 terrorists, Sarah and Newt are sadly leading their followers to take a step backwards. 

The American Constitution guarantees the free exercise of religion.  Despite the heinous acts of some radical Muslims, we should all stand for the right of law-abiding Muslim-Americans to life, liberty, and the pursuit of happiness and for the right of Islam to grow and thrive in America.

July 29, 2010

Is France getting a bum rap? – part II

Filed under: Issues,Law/justice,Politics — Mike Kueber @ 6:30 pm
Tags: , , , , , ,

Earlier this week, I wrote a blog entry about an epiphany that I had in my estimation of France.  As I started writing the entry, I remembered that the epiphany was prompted by two incidents, but I could only remember one of them.  Surely, I thought, the second incident would come to mind as I wrote the article and did some additional research.  But it didn’t, and instead of holding the entry, I published it, as is my wont.  Today, I came across a re-hashing of the same incident in the NYTimes.  See http://opinionator.blogs.nytimes.com/2010/07/11/veiled-threats/

In a column titled “Veiled Threats,” Martha Nussbaum makes an argument against the proposed laws in Europe that prohibit the wearing of a burqa in public places.  A burqa is a loose fitting cover-garment worn by Muslim women that covers their entire body except for their eyes.  It is worn whenever they are out in public or in the presence of non-family members.

Nussbaum makes her argument by refuting all of the rationalizations for the prohibition and, thereby, proving illegal, discriminatory intent:

  1. Security concerns.  Why do we allow pedestrians in winter to cover up?
  2. Civil interaction.  See #1.
  3. Symbol of male domination and female objectification.  America is replete with examples of male domination and female objectification.
  4. Women are being coerced.  There is no evidence of this.
  5. It is unhealthy – i.e., hot and uncomfortable.  This is laughable, according to Nussbaum.

I haven’t given this issue a lot of thought, but in my opinion Nussbaum has not effectively refuted Arguments #1 or #2.  Just because people bundle-up in Chicago when walking in a snowstorm doesn’t mean that there are not legitimate, nondiscriminatory reasons for prohibiting that behavior on a regular basis. 

But that is not the point of this blog entry.  The point is that, once again, France has impressed me with its willingness to address tough issues.  France comes across as a confident, robust nation that is unafraid to think and act; whereas Obama’s Washington comes across as a politically correct, namby-pamby afraid to offend.

A jury of one’s peers and jury duty

Trial by jury is one of the fundamental rights guaranteed to all Americans by two amendments to the U.S. Constitution – the 6th Amendment concerns criminal prosecutions and the 7th Amendment concerns civil suits.  Although there is nothing in the Constitution about “a jury of one’s peers,” American courts have interpreted the right to a jury to mean that a jury must be selected from a diverse pool of citizens who live in the jurisdiction.  For reasons best understood by the U.S. Supreme Court, the 6th Amendment (criminal prosecutions) applies to both state and federal courts, while the 7th Amendment (civil suits) applies to only federal courts.  This means the states have great latitude in deciding the composition of juries for civil suits.

Historically, most courts drew their jury pools from their lists of registered voters, but in recent years, there has been a trend to expand the pool to include people with a driver’s license.  Texas made this change in 1993, at which time it required counties to draw their jury pools from a combined list of registered voters and licensed drivers in the county.  The reaction to this change was mixed – some preferred the broadened list because they felt it produced a “jury of one’s peers”; whereas others opposed the broadened list because it brought in potential jurors who didn’t even have enough civic responsibility to register to vote.

I think the danger of a broadened jury pool is being exposed by the crazy verdicts that are becoming commonplace.  By including in the jury pool non-voters who tend to be disgruntled and disillusioned, we are empowering people who lack the temperament and judgment to act wisely, responsibly, and judiciously.  In fact, I have known people who would refrain from registering to vote solely so they could avoid jury duty.  Why do we want them on a jury, deciding life & death or multi-million dollar lawsuits? 

I propose that the American system of justice would improve if we returned to drawing the jury pool from a list of registered voters.  Sure, it would be desirable to change the thinking of non-voters, but that has nothing to do with requiring non-voters to be in the jury pool.  Change their thinking first; then place them in a jury pool.

Truth, justice, and the American Way – San Antonio style

In the Declaration of Independence, Thomas Jefferson wrote that life, liberty, and the pursuit of happiness are unalienable rights of all men.  Many years later in Superman comic books, this concept evolved into “the American Way” (i.e., truth, justice, and the American Way).  Although I am not an anthropologist or a world traveler qualified to speak of other cultures, I believe that an overarching belief in justice is one of America’s enduring, singular values.  Whereas people in other countries seen willing to accept an unjust result or an unfair system, Americans often go to great lengths to correct an injustice as a matter of principle.  Part of that motivation comes from an optimistic belief that, although mistakes sometimes happen, they will be corrected if brought to the attention of our leaders. 

As a lawyer, I am an especially strong believer in truth, justice, and the American way because I have not seen a lot of injustice in our country that couldn’t be corrected with the help of a competent advocate.  A couple of years ago, however, my belief was shaken a bit by San Antonio’s finest.  

The San Antonio Police Department (SAPD) has been controversial since I moved to town in 1987.  The police union has a lot of political power, which has been used to win a series of expensive employment contracts with the city.  Although the education of the officers is relatively low, their pay is relatively high, especially for a low-income city like San Antonio.  According to a national survey of desirable police jobs, San Antonio is #2 in the county. 

That #2 status seemed like a stroke of good fortune for my oldest son, Bobby, who has always been interested in law enforcement.  After graduating from Clark HS, he obtained a criminal justice degree from UTSA and also became an Army Reserve officer through UTSA’s ROTC, with a Military Police specialty. 

After getting married, Bobby and his school-teacher wife decided to settle in San Antonio, so he applied to the SAPD.  At first, everything went fine – his education was exceptional, military service was a plus, and he passed the exam and physical test with ease.

Then there was a hiccup.  During an interview, Bobby was asked if he had every broken a drug law.  Because Bobby is scrupulously honest (and had been taught in Boy Scouts that alcohol was a drug), he thought carefully and recalled that a couple of years earlier, when he was 21 years old, he had purchased some beer for some younger friends on a few occasions.  Surely that wouldn’t be a problem.

After the interview, Bobby was informed that, because he admitted to committing a Class A or B misdemeanor within the past ten years, he was deemed unsuitable for the position and would not be eligible to reapply until the unsuitability factor was no longer applicable (eight more years).  That is like a death penalty – what college kid is going to wait around for eight years to start a career? 

At my encouragement, Bobby went through police channels to question the result.  The interviewer told Bobby that the problematic question wasn’t designed to elicit alcohol-related information, and Bobby would have been telling the truth if he had answered “no.”  But since he had answered the question “yes,’ the rules required that he be rejected.

I was nonplussed.  Surely some human being with authority would over-rule this bureaucratic absurdity.  So I went to work looking for a human being.  I wrote to the Mayor, the City Manager, my Councilperson, and the Chief of Police, but no one was interested in correcting this injustice.  A friend at Valero put me in touch with the previous police chief, Al Phillipus, and I had a lengthy discussion with him, but he said that he didn’t have the ability to influence the result. 

In the end, Bobby and I gave up.  One stupid, inflexible rule stymied Bobby’s career.  He considered applying at other police departments, but there is usually a question about whether you have previously been rejected by another police department.  His alternative was to seek a federal job, and he was just about to land a job with ICE when he decided to go full-time in the Texas Guard.

The silver lining is that Bobby is happy with his job serving our country and doesn’t look back on San Antonio’s refusal to let him serve the city.  But I’m afraid this incident has made me a bit cynical about San Antonio government and justice.

July 28, 2010

For the times they are a-changin’, but are they?

When Bob Dylan sang about the changing times in the 60s, he gave words of warning to a variety of people: 

  • Come writers and critics who prophesize with your pen; and keep your eyes wide the chance won’t come again; and don’t speak too soon for the wheel’s still in spin.
  • Come senators, congressmen please heed the call; don’t stand in the doorway don’t block up the hall; for he that gets hurt will be he who has stalled.
  • Come mothers and fathers throughout the land; and don’t criticize what you can’t understand; your sons and your daughters are beyond your command.

Dylan was prophesizing that the world was fundamentally going somewhere it had never been before and that traditional thinking was no longer relevant.  But was he right, or was his singing analogous to a Wall Street speculator inaccurately declaring that the economic cycle of booms and busts was no longer relevant?  I suggest that the answer can be found in my hometown mayor’s speech at the dedication of Aneta’s new city auditorium in 1927.  (Please be aware that Aneta was a small town in North Dakota with a few hundred people, and my parents, who were both born in Aneta a few months after this dedication, still rode horses to school.)

Mayor Henry Haroldson:

“….  We have felt the need for this building for a long time.  Man is a social being and our community will develop in proportion to the social standard that is adopted by the people of our community.  If we could learn and understand the things that are for our good and work in harmony to attain that goal, we would soon find that we are living in a real progressive community.

We are living in a most mechanical age.  In fact, so much so that we ourselves have become mechanical.  We even salute our friends with a mechanical ‘hello.’  Not that alone, but we have become a restless people, we want to travel far, much faster than our fathers did and yet we have less time to spare than they did.

I can remember in my childhood days when my transportation was by foot or lumber wagon.  We would get up on a Sunday morning, do our chores, and the entire family would go to church, be back home for dinner and in the afternoon visit friends, having a real social time, going back to work on Monday with a feeling of satisfaction.

Today it is so different, we think in distance.  We get up on a Sunday morning, grab a lunch and start for some lake or picnic a hundred miles away and if we don’t like the crowd we crank up the old jitney, and start for some other place fifty miles or more away, returning at night all tired out from the drive.  Then, if we think of a neighbor whom we should have visited, we go to our phone, call up the friend to ascertain how sick he is and how fast his pulse beats.

We somehow have lost the spirit of neighborly friendship that is needed to build a community and my hopes are that through the use of this community building we may be able to re-establish some of that friendly spirit, that we can meet here from time to time and learn to understand each other better.  Much trouble and many court cases would be avoided if people had a better understanding of each other.  How often don’t we make the expression that so and so is a good sort of fellow after we have learned to know him?  If we know more people better, we would know more good fellows.”


The auditorium is built – it is here, we have completed the easy part in connection therewith.  I know you think I am going to say that the hard part is going to be to pay for it.  I do not feel that this is our largest undertaking.  The hard task as I see it will be to put it into such use that it will serve the community in the purpose for which it is built.  This building is like life itself; you cannot get more out of it than you put into it.  It you expect it to bring a good return and render good service to the community, you must put into it good, honest efforts.

What I found striking about Mayor Haroldson’s speech was how, 80 years later, we still worry about the same things.  And I’m not talking about too many lawsuits and government debt.  I’m talking about people making social connections and living in harmony, all while making material advancements.  This is a never-ending struggle, and each generation, each person should attempt to learn from the past, not reject the past as irrelevant.

Is France getting a bum rap in America?

In recent years, France has been treated as a laughingstock in America.  Its reluctance to assist America in Iraq has been attributed to it being a nation of weak, effeminate people.  Its welfare state, with universal health insurance and month-long summer vacations, is considered to be an example of a socialistic economy.  I have probably been guiltier of this anti-France bias than most, but recently I experienced an epiphany. 

Last week, an article in the New York Times reported that the French were interested in increasing the opportunity for disadvantaged students getting into their finest universities.  See http://www.nytimes.com/2010/07/01/world/europe/01ecoles.html?pagewanted=1.  Although admission to these universities is based solely on testing merit, social critics complained about the absence of diversity and “a self-perpetuating elite of wealthy and white, who provide their own children the social skills, financial support and cultural knowledge to pass the entrance exams.” 

The French approach to diversity, however, is more sophisticated and nuanced than America’s.  Their fundamental ideal is a meritocracy that is blind to race, religion, and ethnicity.  In fact, the French constitution prohibits government from collecting data regarding ethnicity or race.  The French consider affirmative action to be antithetical to their meritocratic ideal, so as an alternative they have developed “a trial program aimed at helping smart children of the poor overcome the huge cultural disadvantages that have often spelled failure in the crucial school entrance exams.”  The program has nothing to do with race, religion, or ethnicity.  Instead the objective of the program is to increase the number of scholarship (poor) students from 10% to 30%.  They are assuming that “poorer citizens will be more diverse, containing a much larger percentage of Muslims, blacks, and second-generation immigrants.”  I remember when various American institutions considered this type of program, but consistently rejected it because it would help too many poor white Americans and not enough African-Americans or Mexican-Americans.  I have never understood why it was more important for Americans to help affluent minorities than poor whites.

With my new appreciation of French political philosophy, I revisited my stereotype of France as a weak, socialistic country.  On the military front, I was surprised to learn that France has the world’s third-largest nuclear-weapon stockpile and that it spends 2.5% of its GDP on national defense, more than any other country in Western Europe.  On the economic front, I was impressed to learn that this country of 60 million people (20th largest in the world) had the world’s 6th largest economy.  It is undeniable that France has a significant welfare state (extended vacations, universal health care, protections against layoffs), but their economy competes in the free market against us and other nations with different economic systems, and it does reasonably well.

America may not want to imitate France, but I don’t think we should automatically reject something just because they do it that way in France.  France and America helped invent liberty, and neither has a monopoly on good ideas.

July 27, 2010

Death knell for affirmative action?

The Republican Party of Texas has taken a lot of heat for some of the extreme positions it has taken in its 2010 platform, especially its position that homosexuality is deviant behavior that must not be recognized as an acceptable alternative lifestyle.  But their platform position on Affirmative Action is dead-on. 

  • Affirmative Action – Inasmuch as the Civil Rights Movement argued against using race as a factor in American life, affirmative action reintroduces race as a powerful force in American life. The Republican Party of Texas believes in equal opportunity for all American citizens without regard to race or gender. To that end, we oppose affirmative action because
    1. We believe it is simply racism disguised as a social value.
    2. We believe that policies that lower standards on the basis of race or gender create a disincentive to excellence and thereby encourage mediocrity.
    3. We believe that rights belong to people – not groups; therefore, we reject the notion of group-rights and policies that grant preferences based on race or gender. Policies of this type apply a blanket remedy before specific acts of discrimination are proven; thus, such policies compound one injustice with another.
    4. Affirmative action falsely casts those who advocate merit as racist.
    5. Affirmative action casts doubt on minority achievement making such achievement as seemingly unearned. We believe that true minority advancement will come from a demand for personal responsibility, accountability and competitive excellence.

Of course, the Republican Party position has been opposed by the liberal left because the left doesn’t think the playing field in America is level and they think a bit of government interference will make for more equal opportunity.

This debate has been going on for decades, ever since Kennedy and Johnson issued executive orders in the 60s requiring some forms of so-called affirmative action.  Conservative opponents called it reverse discrimination and have consistently challenged it on Equal Protection grounds.  In 1978, there was an important Supreme Court decision – Bd. of Regents v. Bakke – that approved affirmative action, but not quotas, in medical-school admissions.  Twenty-five years later, the Court looked at this matter again in Grutter v. Bollinger.  Although the Court in Grutter re-approved racial preferences, it felt such strong reservations about the concept that it stated the preferences must be limited in time and should not be around 25 years later.

Perhaps we won’t have to wait 25 years. 

This past Friday, there was an important op-ed piece in the Wall Street Journal written by Senator James Webb, D-VA, titled “Diversity and the Myth of White Privilege,” and subtitled “America still owes a debt to its black citizens, but government programs to help all ‘people of color’ are unfair. They should end.”  http://online.wsj.com/article/SB10001424052748703724104575379630952309408.html?mod=WSJ_article_related.  This is an important piece because Webb is a well-respected liberal Democrat and powerful African-American Congressman James Clyburn has said he agrees with Webb.    

Webb’s piece followed a similar NYTimes article that was published last month regarding diversity or affirmative action in France.  http://www.nytimes.com/2010/07/01/world/europe/01ecoles.html?pagewanted=1.  The article reported that the French are trying to create more diversity in their best schools, but, “There is a serious question about how to measure diversity in a country where every citizen is presumed equal and there are no official statistics based on race, religion or ethnicity….  A goal cannot be called a ‘quota,’ which has an odor of the United States and affirmative action….  But the effort is being met with concerns from the grandes écoles, who fear it could dilute standards, and is stirring anger among the French at large, who fear it runs counter to a French ideal of a meritocracy blind to race, religion and ethnicity.”

Thus, we appear to have liberal Democrats, the French government, and the Republican Party of Texas speaking with the same voice regarding affirmative action.  Amazing.

July 26, 2010

Thanks for the memories, Lance

Filed under: Sports — Mike Kueber @ 3:10 pm
Tags: , , ,

In this morning’s paper, the Associated Press reported that Lance Armstrong’s career came to an ignominious end yesterday.  That sounded a bit harsh, but first I needed to confirm what “ignominious” meant – humiliating, shameful, embarrassing, disgraceful.  I think it is disgraceful for the Associated Press’s Jamey Keaton to mischaracterize Lance Armstrong’s performance in the 2010 Tour de France. 

What did Lance do to deserve Keaton’s harsh assessment?  True, Lance finished in the 23rd position out of 190 riders, and this was a significant drop from his 3rd position the previous year.  But you can’t blame a guy for trying.  Last year’s 3rd-place finish was his first back after a three-year retirement, and it was not unreasonable for Lance to hope there might be some room for improvement this year before age started catching up with him.  In fact, that hope seemed justified when Lance took 4th place in the prologue while defeating last year’s time-trial champion, Alberto Contador, and last year’s runner-up, Andy Schleck.

But I would argue that bad luck caught up with Lance shortly before age did.  In the cobblestone 3rd stage, Lance suffered a flat tire at exactly the wrong time and lost two minutes to the leaders, which completely erased his great prologue result.  Then a few days later, in the eighth stage, Lance was involved in three crashes and lost twelve more minutes to the leaders.  Immediately after that stage, Lance calmly and dispassionately concluded that, “This Tour is finished for me.”

From that point on, Lance’s goals shifted to helping his team win the overall championship of the Tour, which they did, and for him to personally win a stage, which he gallantly, unsuccessfully attempted in Stage 16.

Yesterday, before the final, ceremonial stage, Lance said, “I wish I were younger, faster.  But there are lots of memories, too many memories, and a lot more good ones than bad ones.”  I agree.   Thanks for the memories, Lance.

July 24, 2010

One man, one vote in San Antonio?

Filed under: Issues,Law/justice,Politics — Mike Kueber @ 5:19 am
Tags: , , , ,

The concept of “one man, one vote” is a fundamental democratic principle in the United States, but when you look at recent City Council election returns in San Antonio, you might wonder whether the concept is being ignored. 

There are ten City Council districts in San Antonio.  Attached below are the election returns in the two most recent elections, plus the number of registered voters in each district:

      2009          2007                Registered

      votes          votes                voters            

  1. 6,670         5,534               56,337            
  2. 4,442         3,471               57,193
  3. 3,611         2,493               57,692
  4. 3,912         3,896               56,831
  5. 5,153         3,164               50,826
  6. 6,272         5,130               75,871
  7. 10,251       9,242               75,855
  8. 10,487       11,627             86,557
  9. 11,972       8,629               94,447
  10. 8,514         9,140               79,818

Obviously, the voters in Districts 7-10 have diluted votes because 40,000 voters elect four councilpersons whereas the voters in District 1-6 have steroid votes because 25,000 voters elect six councilpersons.  There are two factors that lead to this defective electoral process:

Ten-year interval between adjustments

The council districts are drawn every ten years, following the decennial census, to comply with the City Code, which requires the districts “shall be as nearly equal in population as practicable.” Because the growth in each district varies dramatically, the population in each district will vary significantly  by the end of the ten-year interval.  The last drawing of district boundaries occurred in 2002, following the 2000 census, and the population variations in that census were astounding: 

2000 Census Total Population
District   Total Population % of Total
1   97,161 9%
2   94,737 8%
3   97,630 9%
4   119,713 10%
5   85,600 7%
6   112,066 10%
7   110,888 10%
8   164,391 14%
9   137,201 12%
10   123,190 11%

Districts 7-9 had approximately the same number of people as did Districts 1-6, and District 8 had almost twice as many people as District 5.  Incredibly, the 2002 drawing of district boundaries did not completely correct the inequity.  Whereas each re-drawn district should have contained 115,000 people, re-drawn District 6-8 actually contained 120,000 people (+4% deviation) and Districts 2-5 contained 111,000 people (-4% deviation).  I am assuming that 4% is an acceptable deviation for most courts, but it doesn’t make sense in San Antonio for the plus-deviations to be assigned to the high-growth districts and minus-deviations to be assigned to the low- or negative-growth areas.  That only exacerbates the inequity.  When new district boundaries are drawn in 2012, based on the 2010 census, the minus-deviations should be assigned to the high-growth districts.    

Apportioning is based on number of people, not number of voters

If each vote is to have the same weight, apportioning should be based on the number of voters in a district, but historically it has been based on population.  This practice is becoming more problematic, not only because voter registration is dropping significantly in various parts of the country, but also because there are becoming huge numbers of illegal inhabitants in certain parts of the country. 

A sound basis for apportioning based on population can be found in the U.S. Constitution.  Article I provides – “Representatives … shall be apportioned among the several States … according to their respective Numbers….”  The Constitution goes on to require that Congress count “the whole number of persons in each State… in such manner as they by Law shall direct.”  Furthermore, key Supreme Court decisions usually refer to “population,” “people,” or “inhabitants,” even though courts have indicated in dicta the need for equity among voters: 

  • “And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted….  With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation regardless of where they live….”  Reynolds v. Sims, 377 U.S. 533(1964).
  • “Whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.”  Hadley v. Junior College Dist. of Metropolitan Kansas City, 397 U.S. 50 (1970).

In the short term, it makes sense for Congress to instruct the decennial census to distinguish between legal and illegal residents.  The Constitution appears to give the Congress such latitude, and there is no good reason for granting representation to people who are in this country illegally.

In the long term, I think it would be a good idea to amend the Constitution to apportion districts based on prior voting numbers.  This not only would most closely resemble the ideal of one-man, one vote, but would also encourage people to register and vote.

July 23, 2010

Julian Castro and San Antonio’s Not Ready for Primetime Players

On June 24, the San Antonio City Council met to consider Mayor Julian Castro’s resolution declaring the city’s opposition to Arizona’s new law against illegal immigration.  The four-hour discussion, primarily 3-minute speeches from about 50 local activists or politicians, can be viewed at the following website –

http://sanantonio.granicus.com/ViewPublisher.php?view_id=8.  Although the citizen input was remarkably banal and predictable, Mayor Castro and his merry henchmen, Chief McManus and City Attorney Michael Bernard, managed to stake out a position that is indefensible for the pre-eminent leaders of one of America’s so-called great cities.

Mayor Castro wandered into his indefensible position while attempting to assure the pro-Arizona people that he was no scofflaw.  He asserted that everyone agreed about enforcing America’s immigration law, but the question was the manner of enforcing it.  To help explain this concept, he provided two analogies:

  1. Red-light cameras.  San Antonio could put a camera at every intersection and routinely issue citations to every motorist who violated the light.
  2. 2 a.m. bar closings.  San Antonio could post a policeman near bars at 2 a.m. and then check the drivers’ blood-alcohol content because there would be a “reasonable suspicion” that they were drunk.

Although these measures would enable San Antonio to nab additional violators, Mayor Castro asserted that San Antonians didn’t want such heavy-handed enforcement.

Both analogies surprised me.  Regarding the red-light problem, I thought the city was declining to use the cameras because of their cost-effectiveness, not because they would be too effective.  I don’t know why the city wouldn’t want to cite every identified red-light violator. 

The bar-closing analogy is even harder to understand.  I have always assumed the city does everything possible to keep drunks off the road, but apparently it doesn’t.  Furthermore, I am shocked the mayor thinks that leaving a bar at 2 a.m. gives the police reasonable suspicion to stop a driver based on intoxication.  Does he think that everyone goes to a bar to get drunk?  Although Mayor Castro went to Harvard Law School, perhaps he learned his definition of “reasonable suspicion” from his city attorney, Michael Bernard.

Earlier in the meeting, Bernard was asked by Councilperson Clamp to describe “reasonable suspicion.”  Bernard said that there was a continuum between a hunch and a certainty and that reasonable suspicion was a little more than a hunch.  I suggest that simplistic description does a disservice to a significant legal concept.  The U.S. Supreme Court, which developed the concept, described it as “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”  Terry v. Ohio, 392 U.S. 1 (1968).  And I submit that leaving a bar at 2 a.m. does not, by itself, create reasonable suspicion of intoxication that would justify stopping a driver. 

Perhaps Chief McManus could have explained that practical application to Attorney Bernard and Attorney Castro, but the Chief was pre-occupied with trying to explain to Councilperson Clamp why San Antonio police enforced some federal laws (bank robberies and large drug violations), but not others.  According to McManus, the San Antonio police has a policy of never inquiring about immigration status and therefore would never have occasion to turn over an illegal immigrant to federal authorities.  This willful failure to enforce federal laws bothered Councilperson Clamp.  He declared that their oath of office required them to enforce federal laws.  According to the Texas Constitution, the oath taken by city officials must include the following:

  • I, xxxxxx, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of xxxxxx of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.

Does it sound like San Antonio is, to the best of its ability, preserving, protecting, and defending the laws of the United States?  More troubling, does it sound like San Antonio has the sort of seasoned experience and good judgment that it needs in the key positions of Mayor, City Attorney, and Chief of Police?  Sounds to me like these guys are not ready for primetime.

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