Monday, June 15, 2020

Part I

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The Fatal Shooting of Rayshard Brooks — Now, Even More Urgent Conversations About Law Enforcement in America

Here we are early in the summer of the year 2020 and already, just a few months into this year, we find ourselves discussing issues that would not have been imaginable just a matter of weeks ago. And I’m not just talking about the COVID-19 pandemic, I’m talking about the other issues of urgency. All of these have now come together in a great moment, a great season of national conversation, and the issues are urgently important. The issues are also insistent. I mean by saying that the issues are insistent that there is no way to avoid talking about them. They are a part of our national conversation, and Christians seeking to be faithful, seeking to think carefully, to think biblically during this time are going to have to address these issues.

The issues include the national conversation about racism in the United States, and about the terminology of systemic or systematic racism. We’re going to be looking at that. We’re going to be looking at the different claims that are made by groups such as Black Lives Matter. We’re going to be looking at the meaning of that movement and its history, going to try to understand from a biblical perspective what these things mean. We’re going to be looking at issues related to historical recognition. What does it mean to have a statue, to have a city name for an individual, to have an army post name for an individual? We’re going to be looking at that, not only as it has to do most urgently with this side of the Atlantic, but we’re going to look at the debate that is taking place on the other side of the Atlantic, particularly in Great Britain, connected with figures such as Winston Churchill.

It’s going to be a busy week. It’s going to be an important week. It’s going to be a week that demands that we all seek most urgently, to think most faithfully and biblically together.

But all of this as the week begins with another tragic headline and a headline that has issued in protests on the streets of a major American city. In this case, the city is Atlanta, and the protests have to do with the fact that a police officer killed a 27-year-old Black man, Rayshard Brooks, as he was running away from the police, but after police had sought to arrest him when he had fallen asleep in a drive-through line of a Wendy’s restaurant, and then was discovered, according to police authorities, to be under the influence of alcohol. When police sought to arrest him a scuffle ensued. And at one point, Rayshard Brooks evidently grabbed the taser of one of the officers and as he was running away, according to press reports and video evidence, he pointed the taser at one of the officers. One of the two officers on the scene discharged his weapon and Rayshard Brooks eventually died in an Atlanta hospital due to the wounds.

And, coming as it did in the midst of a national convulsion, and that’s not an overstatement right now, on issues related to race and policing and the use of force in the United States, this just added to the intensity and the fervor of the consternation. And this spilled over into protest on Saturday, and eventually on Sunday, Atlanta authorities indicated that the death of Rayshard Brooks had been declared a homicide. The police officer had been fired and on Saturday, Atlanta Mayor, Keisha Lance Bottoms, announced that the city’s police chief had voluntarily resigned. The now-former Police Chief of Atlanta, Erika Shields, indicated that she had resigned because she wanted to see the city of Atlanta and its police force heal, and she wanted the police force and the city to be able to move on.

According to press reports, she will continue as an employee of the city in some capacity. But, the point is this, once again, the entire national conversation is focused on the question about race and policing, the use of force, whether or not this was a justifiable use of force. The mayor of Atlanta indicated almost immediately that she did not believe that this was a legitimate use of force. Authorities related to police speaking to this issue have tended to raise two particular dimensions of the case as being most important. One is the fact that Rayshard Brooks was shot, and eventually we know fatally shot, as he was running away from police rather than facing them or advancing toward them. The second thing is that even though Rayshard Brooks had taken the taser away from a police officer in a scuffle and, apparently, had pointed it back at the officers, the taser was not considered a deadly weapon.

And thus, the question is whether or not it was legitimate to address the use of the taser with deadly force, especially when Brooks was running away from the officers, rather than running towards them. One key issue of determining what went on there in Atlanta was made clear when authorities ruled that the case is a homicide, that Rayshard Brooke’s death is to be classified as a homicide. As was with the case of George Floyd in Minneapolis, that is a crucial issue. That changes everything from being merely an argument about police procedure to being an argument about whether or not a crime has been committed. And, when you use the word homicide in this sense, you’re implying that it is of criminal importance.

Part II

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The Rule of Law and the Complexities of American Law Enforcement

One of the leaders in America, who I believe is making particularly good sense in the middle of this context, is United States Senator Tim Scott of the state of South Carolina, who is himself African American, and has been quite candid about what he sees as racial disparities in policing and his own experience, even as a United States Senator. And Senator Scott has taken up the assignment on behalf of the Republican majority in the Senate of crafting proposed legislation to bring about reform of policing in the United States.

Now, Senator Scott’s been very candid about this. For one thing, most policing in the United States is undertaken at the local level, not at the federal level. Now, this is a very important issue related to American history and the American political order. We speak quite ominously about the development of a police state. And it was actually very much a matter of pride for the United States for decades after its founding that the United States had no national police. The formation of the FBI or the Federal Bureau of Investigation early in the 20th century was actually extremely controversial. And it was even unsettled, back in the beginnings of the 20th century, as to whether or not the federal government had the authority to establish what would amount to federal law enforcement officers with arrest authority across the United States.

Prior to that, most federal law enforcement officers had had particular responsibilities for federal installations, for customs enforcement, or for other issues related to the national security. It was the rise of organized crime, especially in the second and third and fourth decades of the 20th century, that led to Americans allowing themselves the tolerance of a Federal Bureau of Investigation.

By the time you get to the end of the 20th century, you have an entire alphabet soup of federal law enforcement agencies, but the sensitivities have still been quite strong. Local law enforcement has control, jurisdictionally, when it comes to local police issues. And beyond the local authorities at the city and county level, you have the state that has its own law enforcement agencies. Again, in most States that was quite controversial in the beginning. And beyond that, you have federal law enforcement officials, including the United States Marshals who, by the way, during the second half of the 19th century and into the 20th century, often represented the only representation of federal law anywhere in the expanding American West.

Depending on how you count them, in the United States there are something between 13,000 and 18,000 fully certified law enforcement and police agencies in the nation. 13,000 and 18,000. The number 18,000 is considered the standard answer to how many police departments are there in the United States. In the state of New York, there are, in that one state alone, more than 500. Each of them has its own jurisdiction. And one of the issues that might surprise most Americans is that there are very few, if any, federal standards for policing.

Now, again, you might look at that and say, “That’s a failure of the federal government,” or you might look at that and say, “There’s evidence of federalism.” The fact that government starts at the local level in the United States, and especially when it comes to law enforcement, there are severe restrictions and intuitions in the United States against federalizing, that is taking up to the federal level, or nationalizing all policies. But right now, we’re involved in a national conversation that is going to strike at the root of many of these presuppositions concerning our law enforcement system, our justice system, the relationship between the federal government of the states, the states and municipalities. All of this is very much on the table.

Senator Scott, over the weekend, speaking about whether or not there could be or would be national standards, for example, on use of force, pointed out that it is not so easy as it might appear to be as a proposal. Senator Scott said to CNN on Sunday that he is not sure “We’re ever going to quantify in law a use of force standard.” Now, let’s think closely, let’s think carefully about this for just a moment: A federal use of force standard. It would sound at first like a really, really good idea. There are actually several different parts of that question. One is the federal, the other is use of force standard. At least those two would have to be identified. When it comes to a use of force standard, Senator Scott said, “There are millions of scenarios that play out. It’s one of the reasons why, what we have tried to achieve through the legislation, is finding the best practices of use of force around the country, and then provide that clarity and guidance for those departments who may need to have a better perspective on use of force.”

Senator Scott then said, “So we’re getting at it, but I’m not sure we’re ever going to codify in law a use of force standard.” Now, here’s where we have to understand the necessity of law, the precision of law, and the difficulty, sometimes, of saying even what we want to say in law. That is because law has to take the form of words that eventually have to take the form of statements and statutes. Laws and statutes, they have to be on the books in words. The problem is that words and human beings are not the same thing. Human beings use words, but no set of words, no statement, no sentence, no paragraph, no law, no statute can cover everything that might come under even the intended arena of human activity of a large statute, especially when it comes to the human equation, and especially where that equation gets most complicated.

That is to say, law enforcement is one of the most intense arenas of that complexity. Now, at the same time, the federal government, under these circumstances, doesn’t get to say, “We’re going to wash our hands of this. We are not going to attempt to come up with a national use of force standard.” But what Senator Scott said is that the federal government is more likely to come up with principles that are to guide local jurisdictions in applying what do have to be use of force standards. Related to the question of policing and forming legislation that could address the contemporary concerns, one of the things he raised is that at least some in the government-elected officials are extremely reluctant to allow police departments to remove officers against whom there are complaints. The chief issue here is the power of labor unions, police unions, and as Senator Scott and others have pointed out, the best way to understand this is to see the police unions as an analog to the teachers’ unions.

Both of these labor organizations have massive political power, and both of them use that power to try to prevent members of their union, that is to say, teachers or police officers, from being removed from the force. At the same time, Senator Scott pointed out that there are others who do not want to criminalize all bad police activity. There’s a common concern that many of these police actions are wrong, and a part of that is in the context of understanding that police are now assigned responsibilities that tend to go far outside what most Americans would even conceive of as being the actual process of law enforcement. The police, like the schools, there’s that analogy again, are now assigned all kinds of sociological responsibilities that are not traditionally a part of law enforcement. And yet, what we’re looking at here is the fact that you can never remove the political equation from an attempt to try to address these issues.

And a parable of that truth appears right now in Minneapolis. We’re going to be looking this week further at the unfolding of events in Minneapolis where a vast majority, something like 11 of 12 members of the city council have indicated that they want to defund or abolish the police. And that means in Minneapolis actually to restructure everything, as many of them have indicated, beginning with something of a blank slate and coming up with a new mechanism for public safety. But the problem is, just a matter of hours after making that assurance, there is no indication at all that political authorities in Minneapolis are going to be able to make good on that promise. And this is true also for political leaders and law enforcement issues, and for that matter, everyone involved in this process at every level in the United States. The policies eventually have to be part of a structure that will have to deal with issues.

And some of those realities will involve criminals and criminals will have to be arrested, and someone is going to have to define what is appropriate and inappropriate, and that will have to take the form of words, and sentences, and laws, and statutes. And, eventually, there will have to be something like the police, if not called the police, that will have many of the same responsibilities and, of course, will bear many of the same tasks, and will eventually also have to have a budget, and will have to have leadership, and will have to be part of the professionalization of law enforcement across the country. Which is to say, that the big issue right now is whether or not we can have a sane and honest conversation about this without everything turning into a red, blue, liberal, conservative, Republican, and Democratic debate. The answer to that, by the way, I’ll go ahead and say is no, but we’re going to have to work at it anyway.

And once again, we come to the good news, bad news reality of life in America in the 21st century. When it comes to dealing with concrete problems as represented by incidents, by occurrences, by this situation, or that situation, or by this particular local need, or another particular local controversy, there is often, actually, the ability for Americans of goodwill to make real progress in solving or resolving that incident, that controversy, righting that wrong, trying to fill that need. That’s the good news. The bad news is that as soon as you try to make any of that public policy, as soon as it enters into the realm of politics, then a lot of that goodwill simply disappears, and so does the moral clarity. But we have to work at that clarity, and of course, Christians are called beyond clarity to charity. That’s a very important New Testament word, charity.

That means expecting the best of one another, and extending grace to one another, seeking to love one another. Faith, hope, and charity says the King James, with charity there being a translation of love. That’s what we owe to one another. And love cannot be separated from truth, and truth and love cannot be separated from justice, much like the transcendentals of the good, the beautiful, and the true. Christianity understands that they are always unified, unified infinitely, and perfectly in God. But we, as Christians, have to work at all of our words, all of our conversations, all of our thoughts, and actions also representing that unity. We’re going to have to work hard at this. We’ll be seeking to look at these unfolding issues, especially in days ahead.

Part III

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A Reversal in Federal Health Care Policy That Points to a Fundamental Worldview Divide in America

But now I want to turn to another headline news story from over the weekend. The Washington Post reported the story this way, “Trump administration removes nondiscrimination protections for transgender people in healthcare.” Very interesting. The New York Times headline was “Trump administration erases transgender civil rights protections in healthcare.” What in the world’s going on here? Well, behind all of this is a set of rules now finalized by the Trump administration, through the Department of Health and Human Services, related to the implementation and meaning of the Affordable Care Act, otherwise known as Obamacare. And, of course, you’re talking about an issue that began in controversy and continues in controversy, but in this case, is the collision between the Affordable Care Act is in the beginning and the transgender revolution. By the time it left office, the Obama administration had structured federal policies through the Department of Health and Human Services to include transgender under the category of sex. Most importantly, the new rule now finalized and made public by the Trump administration defines sex. That is the word S-E-X, as in historic American statutory law and the Affordable Care Act, as meaning “male or female as determined by biology.”

Now, again, no debate here about the fact that that is how the word sex was used, not only when historic civil rights legislation was adopted in the United States in the 1960s and updated in the 1970s, but it was also the meaning of the word sex as it was applied even when the Obamacare legislation was adopted early in President Obama’s term. By the time it left office, the Obama administration was arguing for a definition of sex that was now consistent with the transgender revolution. But that was not the meaning of sex even when the same administration brought forward the legislation that passed, let’s just remember, without a single Republican vote.

Roger Severino, who is Director of the Office for Civil Rights at the Department of Health and Human Services, said that this rule simply means that the federal government and federal funding will be free from discrimination on the basis of sex and what was meant by that and is meant by that is “the plain meaning of the term,” which means male or female as determined by biology.

But there’s so much for us to consider here. The biggest issue is simply the fact that when you look at this development, the action by the Trump administration, when you look at the coverage, as illustrated in this case, by articles in the New York Times and the Washington Post, you basically see that great fundamental worldview divide in the United States made evident. That worldview divide comes down to this. We now live in a country in which it makes perfect sense to some people to define sex as related only to male and female as determined by biology. I happened to be one of those people. But we are also a nation in which a considerable number of persons and percentage of the population believes that it is not rational to consider sex or gender in those terms, but rather we are now to follow the logic of the transgender revolution with its nonbinary categorizations and its understanding of sex and gender as entirely socially constructed.

Now, let’s just note something else. As in the case of so many collisions between worldviews, there is little middle ground here that is even imaginable. You really can’t come up with a halfway position between those two worldviews and the inevitable logic associated with each. Either you believe that male and female have a basis fixed in biology or you don’t. If you don’t, then you believe that anyone who insists on a biological definition of male and female, or even the biological realities as male and female, is a threat to human dignity, and human flourishing, and human happiness, and human liberation. On the other hand, if you believe that sex as male and female, defined as male and female, actually is rooted in biology, then you consider someone who holds to the transgender ideology to be absolutely detached from any kind of objective reality, and serving nothing more than the ideology of an effort that is going to try to liberate human beings from the condition of being human.

But there’s something else to consider here. This is of lesser significance, but real significance. I mentioned the headline in the New York Times, “Trump administration erases transgender civil rights protections in healthcare.” The key issue there’s the verb erases. What does erase mean? It means it’s there but someone has now erased it. But, actually, the Trump administration is saying, “No, it was never there in the law. The word sex meant then, and means now, what male and female meant when the original legislation was adopted and now when the rule is clarified.” The word erased there is making an editorial judgment. About that, we should be very clear.

It’s also very interesting that in the coverage by Margot Sanger-Katz at the New York Times, one paragraph begins this way. Speaking of Roger Severino, who is Director of the Office for Civil Rights at the Department of Health and Human Services, the New York Times article states this, “Mr. Severino, who attained prominence as a social conservative before joining the Trump administration said that health providers were still free to adopt their own gender-identity policies, as were health insurers.” By the way, that last part’s really important. The new rule by the Trump administration actually puts no restrictions upon healthcare providers or health insurers. But the important thing I wanted to notice how Roger Severino’s identified here. He’s identified as someone “who attained prominence as a social conservative before joining the Trump administration.” Now, that fact isn’t untrue, indeed it’s uncontested. But, where in the history of the New York Times was there a similar article during the Obama administration that indicated that a member of that administration had attained prominence as a social liberal before joining the Obama administration.

I wouldn’t spend too much energy looking for those words in previous coverage. That tells you something of how the press works, and perhaps it’s not always even intentional. It just tells you something of how an elite newspaper like the New York Times looks at reality. The word erase is not an accident in the headline. But as this story comes to an end and The Briefing comes to an end today, this issue, of course, doesn’t come to an end because we’re talking about hotly contested issues that will shape the future of the United States. This isn’t the last word, and both sides in this controversy expect to engage the issue very quickly again in court. That’s how we do things in America these days. It’s a lamentable development. It’s a sad reality that most of these issues eventually end up being adjudicated by some federal court. And that just points, once again, to the importance of determining who is going to sit as judges and justices on those courts. But that’s an issue we’re going to have to continue to talk about later.