Monthly Archives: October 2020

Black Lives Matter – sort of (part III)

If you haven’t read parts I and II, you should. Click here.

Let me be clear: one’s race should have no bearing on the question of what “matters”. A black person’s life matters as much as a white or Asian, etc. person’s, everything else being equal. I do NOT subscribe to the notion that everyone’s life “matters” equally, however. The life of someone in the final days of cancer or any disease does not matter as much as the life of a healthy young person. The life of a criminal doesn’t matter as much as that of an honest person. The lives of those two black muggers did not matter as much as my life. Skin color or ethnicity should have nothing to do with it. But in my opinion it’s misleading to says that all lives matter. For that matter (no pun intended) that meme has been adopted by overt white supremacists to mean only white lives matter and in my opinion the phrase Black Lives Matter is also racist because by excluding other races it implies that only black lives matter.

Slogans and memes are not really the point. The key issue is racism (or not) by police toward blacks, especially black men. Is it real? Yes. I know of many racist police and even a few overtly racist FBI agents, although the vast majority are not based on my experience. Many, probably most, racist officers don’t even think they are racist. They just behave towards blacks differenetly and tell racist jokes that they don’t realize are racist. The stories I’ve heard from agents in the Midwest about local police, e.g. downstate Illinois and Indiana, are especially appalling. However, it’s also true that many of the shootings or other killings by white police of black men and women were legal and reasonable. It’s too simplistic to say that just because an officer killed an unarmed black person, it’s due to racism, or that it’s illegal. People have a knee-jerk reaction to every such killing, immediately leaping to the defense (or offense) of one side or the other.

The Michael Brown shooting in Ferguson, MO, for example, which started off the movement, was justified in my opinion. Brown was a strong-arm robber who refused commands by the officer and in fact reached into the squad car to try to take the weapon of the officer just as he had taken cigarillos from the store he had robbed. Brown weighed almost 300 pounds, about 80 pounds more than the officer and it’s reasonable to assume he would have killed the officer with his own gunĀ  had he succeeded. The officer managed to retain control of the gun and shot Brown in the hand during the struggle, then chased him outside the vehicle. Brown turned to face him and the officer shot him again, killing him when Brown refused to obey commands. He did not shoot him in the back as has been alleged by some. Although he was unarmed, he had tried to arm himself to attack the officer. Brown had attacked a police officer with deadly force and was trying to escape. A peace officer, unlike a civilian, has a duty to arrest criminals and protect the public, so allowing Brown to go would have been a dereliction of duty and Brown’s refusal to comply posed a real threat to him. I don’t believe race had anything to do with it. In my case with the muggers, I had no such affirmative duty since I was off-duty and robbery is not a federal crime within my jurisdiction as an FBI agent in any event, any more than giving out parking tickets would be, so I would not have been justified once they turned and left.

The George Floyd case was very different. I’ve tried to imagine any set of circumstances that would justify kneeling on his neck for eight or nine minutes while he was handcuffed and lying on the street. I cannot conceive of any. That was a clear case of murder in my view and likely racism played a big part. The carotid restraint cases are seldom cut and dried, but I can confirm that I was taught that method at the FBI Academy as a new agent. The Breonna Taylor case is also difficult to judge because of conflicting information and lack of access to all the facts. I think there was fault on all sides, including Breonna’s boyfriend and the officer who prepared the warrant. At the very least, officers should not be shooting blindly without knowing for sure who they are shooting at and having a clear view. The warrant shouldn’t have been served at night. It’s important to serve a warrant on an occupied dwelling when the residents can see that you are police. Uniforms or raid jackets should be worn. They also shouldn’t shoot unless they know there’s no innocent party (i.e. Breonna) who could get hit by their shots, even if they are being shot at. Those officers shot blindly and wildly all over the place, including into neighboring houses, as soon as gunfire erupted. That’s gross negligence and not proper police methodology, but it’s not murder and race probably had little or nothing to do with it.

Perhaps worst of all, the extremism on both sides of this issue has resulted in demonstrations that have turned violent and divided the nation. This only plays into the hands of the worst elements of our society. It was right-wing Boogaloo Boys who killed two officers and seriously wounded another during a BLM demonstration in Oakland, not pro-BLM marchers. Looters take advantage of the chaos to steal and vandalize. Police chiefs and good officers end up resigning or being fired while the bad street cops often retain their jobs. Other officers become convinced that demonstrators are anti-police and that sometimes justifies in their minds the very behavior the demonstrators are protesting against. BLM marches do more harm than good in my opinion. What is needed is a better system for holding police accountable. There should be no police unions. There should be an expert panel judging such cases of police misconduct and it should not consist of people who are dependent on police support, such as elected judges or arbitrators. I have no solutions to the race-police problem, but I can tell you that the BLM movement isn’t one. It’s harmful.

Black Lives Matter – sort of (part II)

If you haven’t read part I, you should; click here.

Clearly, the two men were intending to rob me, possibly physically attack me. You might expect that at this point I would be afraid. Surprisingly, I was not. This is partly due to the fact that I’m not a fearful person. I can’t remember any time in my life when I’ve felt strong fear. In particular, I’m not afraid of black people the way many white people are. When I was in law school I used to serve eviction notices on tenants in high-crime, all-black neighborhoods of Oakland. I was, in effect, threatening some pretty big, very hostile black people. It never bothered me. I’m generally careful and cautious because I don’t want to be injured or killed, but that’s simply a matter of good sense, not fear. But that night in New York, I also knew that I had a gun and knew how to shoot it. Those hours of practice on the shooting range paid off. I also didn’t think either of the men were armed, despite the one man putting his hand in his pocket. I simply didn’t feel I was in much danger.

So I pulled my gun from its holster and held it up for the men to see. I did not point it at them. I looked at them with a sort of “it’s your move” expression and waited. They looked at each other, turned around, went down the same stairs they’d come up in, and a few minutes later, came up the other stairwell and waited at the far end of the platform. In one sense, that’s the end of the story. But there’s a relevance in this incident to the current Black Lives Matter movement and the recent police shootings.

Consider for a moment what I could have done. I have no doubt that I could have shot both of them, or perhaps shot one and the other one would probably have run off. If I had killed one or both, I am certain there would have been no criminal charges filed or negative ramifications at my job. I would have been hailed as something of a hero if I had done so among my peers. I would have been viewed as a good agent, someone who protected himself and removed a dangerous threat from society. I could have told whatever story I wanted, such as that I saw what I thought was a gun and was in fear for my life, although the truth would have been sufficient to exonerate me. I would probably have gotten some type of performance bonus, maybe even a transfer to the office of my preference. So why didn’t I shoot?

That night on the subway platform I even had thoughts along those lines flash through my brain. I honestly believe I would have been doing the world a favor by removing those two muggers from the gene pool. That feeling wasn’t based on fear, racism, or hatred, just a logical assessment of the facts, although I’ll admit to a bit of anger at the muggers and all criminals. If you saw the Charles Bronson movie Death Wish, a very popular movie at the time, you know what I am referring to. Yet I never seriously considered shooting them. There was one practical reason (although it wasn’t the reason that motivated me): I couldn’t be sure of killing them. I had a revolver at that time. Revolvers have only six shots. I probably also had a speed loader with another six rounds, but reloading isn’t always all that fast and reliable when under pressure, even with a speed loader. In real life, unlike the movies, people don’t usually drop dead when the first shot hits them. If I had only wounded them, or missed entirely, they could have overpowered me, even taken my gun from me. Later on the FBI issued agents 9mm semi-automatic pistols holding 14 rounds, reloading not necessary. I did think about this at the time, but the only reason I didn’t shoot them was a simple one: it wasn’t legal.

Killing someone in self-defense is legal, but only under certain conditions. I’m a lawyer and in fact became an FBI Legal Instructor, teaching these very things to agents. One necessary condition is that you cannot escape. That applied to me, trapped at the end of the platform. Another is that you must reasonably be in fear of death or grievous bodily harm, either for yourself or for another. That’s really two conditions: fear and reasonableness. I believe it was reasonable to be in such fear, so the second part applies. But the first part didn’t. I wasn’t afraid. It may seem unlikely, but I actually thought about this legal formula, what lawyers call the elements of the defense, at the time. I thought about them as soon as I heard them coming up the stairs, even before I knew they were coming for me. I followed the law simply because it is the law, because we must have law or we have nothing. If people get to decide which laws to follow and which to ignore, we have only anarchy and chaos. I went into law enforcement for that very reason – reverence for the law.

That brings us to the subject of this post – Black Lives Matter and the recent shootings of black people, the ones that have gotten national attention in the news. The reporting on these shootings and on the demonstrations has been terrible. It sensationalizes everything and lacks the nuance necessary for reasoned judgment. Media have been going after eyeballs, trying to inflame people on both (all) sides. Liberals and conservatives are both getting things wrong. I will address this in my next (final) post.


Black Lives Matter – sort of (part I)

I’m going to post about an incident that happened to me years ago. This post may be controversial and will probably make a lot of people “on both sides” upsetĀ  (if there are two sides or any “sides” on this one). Two black men attempted to mug me on a New York subway platform in 1974. I was an FBI agent at the time and pulled out my gun. I could easily have shot both dead. I did not do so.

Here’s how it happened. A woman I knew from college was in New York doing research for her dissertation. She was staying at the home of her professor’s parents, whom she described as the “last Jewish family in the South Bronx.” For those unfamiliar with New York, that area is or was then mostly Puerto Rican with a lot of black residents, too. She was white. She said she’d been warned that the neighborhood was dangerous and so she only came out during daylight hours. She always returned well before sunset. Fortunately, the house was only one block from a subway station, so she didn’t have to be out for long. When I found out she was in town and “trapped” there, unable to enjoy New York nightlife on her first time there, I offered to take her to dinner and a Broadway play. She gladly accepted. We had a nice evening. After the play I did not think I could get a taxi to take us to that dodgy neighborhood, so we agreed to take the subway. I escorted her to her door with no problem and returned to the subway station.

I paid my fare and entered the station. At that point the train is actually elevated, not below ground. I went up the stairs to an empty platform. It was about 1:00AM by this point. I knew that the trains at that time were only four cars long and stopped in the middle of the large platform. There were benches there in the middle, but I did not want to sit between the two stairwells. Someone could come up behind me or trap me between them. So I walked to far end of the platform to a bench there, maybe fifty feet past where the train stops. I sat and started reading my Jane Austen pocketbook. I always kept one in my coat pocket for long subway rides. There was a good light over the bench. Since it was a work day, I was dressed in my suit and tie. I’m white and skinny.

Soon I heard two male voices coming up the nearest stairwell. From the accent I could tell they were black and not from an educated class. Their speech was filled with cursing and what would generally be regarded as ghetto slang. Think of that scene in the movie Airplane! where Barbara Billingsley translates “jive” into English. I looked over and saw their heads emerge. They were talking to each other and not paying any attention to me. I returned to my reading.

After thirty seconds or so, the talking stopped. I looked over again and saw that they were staring at me. They were at this point all the way up on the platform, still near the stairwell. If they had wanted to wait for the train, the logical thing would have been to go to the benches in the middle where the train stops, or if they were like me and wanted to avoid that area, go to the far end. I was occupying the only bench on my end, so there was no reason to come my direction. They looked at each other, nodded without speaking, and then started walking toward me.

I waited and watched, book in my left hand. The two men continued walking toward me. They were dressed in what I call flashy “gangster-style” clothes, something the bad guys in the blaxploitation movies of the 70’s (e.g. Super Fly) would wear: cheap suits with wide labels, lots of bling, open shirt collars unbuttoned down a long ways. When they passed the point where the front train stops and kept coming they were about thirty feet from me. They split apart, one walking along the near edge where the benches are, the other along the far edge where the trains stop. The one on the near edge put his hand in his suit pocket. They kept walking toward me.

This post is getting long, so I’m going to finish it in my next post.


Disloyal by Michael Cohen

Disloyal: The True Story of the Former Personal Attorney to President Donald J. TrumpDisloyal: The True Story of the Former Personal Attorney to President Donald J. Trump by Michael Cohen
My rating: 5 of 5 stars

Cohen writes surprisingly well, even entertainingly, but the five stars I give this book are for the importance of the content, not its style. The book delineates in excruciating detail what a dangerous and truly evil person Donald Trump is. I have no idea what his supporters see in him, how they can live with themselves. Cohen admitted to being fixated on him in a cult-like manner and being willing to do anything for him, no matter how illegal and unethical it was. Cohen is or at least was a slimeball himself, of course, but in my 26 years in the FBI I know all too well that it is the insiders of criminal organizations that have the most accurate information about the crimes and other criminals. Of all the books about Trump by people around him, this is the one to read. Just read the first page and you will realize that Trump was trying to get Hillary killed with his 2016 remark about “2nd Amendment people” “taking care” of her. But if you’re a Trump supporter, you will choose not to believe any of it and if you are sane, you already believe what Cohen has to say, so there is probably no point in further comment.

View all my reviews

Sea People by Christina Thompson

Sea People: The Puzzle of PolynesiaSea People: The Puzzle of Polynesia by Christina Thompson
My rating: 5 of 5 stars

This non-fiction history of Pacific Islanders and how we learned what we know about them is written with surprising elegance. It is also fascinating reading. I consider myself very well-read and with enough years on me that very little I read provides me with a real learning experience. It’s generally stuff I mostly know or have heard enough references to that it doesn’t surprise me when I read something getting into detail. This book is an exception. In short, I learned a great deal from this book, and that made it a delightful read.

Others may be interested in the people of the title, the Polynesians, Melanesians, and Micronesians (a distinction I didn’t even know of until I read the book). There is plenty of that sort of cultural, historical, and linguistic information in the book you will enjoy if you’re that sort. I’m not particularly concerned with the “who”, but I still found much of it interesting. What I enjoyed especially was the “how” in the book: how the sea people navigated, how radio carbon dating is done and how it’s been refined, how researchers overcame, or, more accurately, bypassed, cultural objections to DNA typing of ancestral bones. I learned about star line navigating and the importance of knowing bird species and habits at sea. This book is one of the highlights of the last several months.

View all my reviews

Google Ngram election news

I decided to play the Google Ngram game again. If you’re new to it, it’s played as follows. Enter a word or short phrase (no more than four words) followed by an asterisk into the Google Ngram Viewer and it will show you the words that most frequently follow what you entered in the corpus of books and articles it has scanned. Use that new word to continue the story until you make a complete (if ungrammatical) sentence, then start with a new word or phrase. Since the prediction is based solely on the last three or four words, Ngram loses track of the subject and often the verb, which can lead to some amusing results. The words I used to start these sentences are in italics. The rest is produced by Google. Note: ‘s is considered a separate word by Ngram.

Joe Biden and his wife were both naked.
Donald Trump‘s election as President of the United States of America by Oxford University Press in the UK and U.S. have been the most important thing.
Both candidates were elected to the House of Commons.
Pence‘s office and the police department budget is not a good idea.
Harris and the other man were still alive.
The election results were announced in the press that the United States was the only country in the world.

How companies shaft employees: stock options

If you’ve read my last post you know that corporate officials, i.e. “suits”, are out for their own financial benefit and not for the benefit of the company employees. Take stock options. SEC rules and various laws generally require companies to offer employee stock options equally to all employees.

So you’ve just graduated from college and get hired at Megacorp. During orientation, they tell you that you are entitled to employee stock options. What are those? They are the right to buy company stock at lower than market prices or at a fixed price. Great! you think. That’s a guaranteed profit; buy low then sell at market. Not so fast. You usually don’t get to exercise the options until they’ve “vested.” Typically that’s after you’ve been an employee for five years, although terms vary. SEC rules also prevent insiders, including you, from selling except during certain periods. Also, if the stock doesn’t do well, your option may be worthless, but it’s usually a freebie or low-risk purchase. Other rules apply and taxation varies depending on the type of options. It can be complicated and the topic in general is beyond the scope of this post.

I mainly want to focus on one aspect employers, i.e. the suits, use to game the system and benefit themselves at the expense of the employees. Since options hold the potential to sell at a profit, the suits don’t want a lot of other people selling their shares at the same time, which would depress the price and lower their profits. So how do they prevent it? Through layoffs or scheduled firing of employees before their options vest. People like you work for Megacorp (or a startup – they’re probably even worse) for four and half years and suddenly you get a pink slip. You were doing a good job, you think. Well, they don’t want you and everyone in your entry “class” to exercise their options. You end up abandoning them unexercised. Some state laws may give you some rights, but in general this sort of thing happens a lot.

It’s not just about stock options, though. The related issue is salary. People expect regular salary increases as they gain experience and seniority. In many industries it’s cheaper to hire and train new people constantly and let the senior ones go. It may seem cruel and unfair, but from a business perspective, it’s a valid business reason. They will probably keep the best workers, but they will cull the crop at about that time. Big law firms typically hire new associates every year, and by year five or maybe seven a few will make partner, but most will be shown the door if they haven’t made partner by then. Employers have always cherry-picked the best people, but most used to keep the rest on in lower-paid jobs until retirement. That’s less common now. The difference between the salary culling and stock option culling is that most employees know or expect that they will hit a ceiling on salary at some point but they do not realize that the stock option promise is a false one.

How companies shaft employees: Deferred Compensation Plans

Companies, or, more specifically, the “suits” at the top, take unfair advantage of their employees in a number of ways. This is the first in what I hope will be a series of posts about how this is done. The first method I want to discuss is deferred compensation plans. For most employees, this means your 401(k) plan. There are other plans under the Internal Revenue Code (IRC) that qualify, including 401(a), 403(b) and 457 plans, but the main corporate plans are 401(k) plans.

As you may expect, tax deferral is much more beneficial to the most highly compensated employees (HCE). The official IRS term for the rest of us plebes is NHCE, with a “non” at the beginning. I’m not going to get bogged down in the technicalities of who qualifies as an HCE. When deferred comp plans were designed, the potential for abuse was recognized, so the statutes and regulations required that the benefits of the plans be equally available to all employees, not just the HCE’s. Remember, one goal of such plans is to benefit the government by ensuring that most employees save up a nest egg for their retirement years and not become a burden on the state.

One way the law does this is to require the company to allow nearly all employees in. They prohibit the company from making an employee be employed for years before being allowed to participate. They also want to give an employee an incentive to start saving early, so the plans must require the employees to join up relatively quickly once they do become eligible. This is all well and good, and doesn’t hurt the employee. The real problem comes with the “top heavy” rule.

A company plan is “top heavy” if more than 60% of the deferral benefits go to HCE and key employees, basically, the “suits.” If it’s top heavy then the plan isn’t a “qualified plan” and the suits don’t get the deferral they want. The problem for them is that the low-paid employees don’t make enough money to be able to contribute heavily to the plan. They need their entire income just to live day-to-day. Many, if not most, don’t participate at all. One possible solution would be to pay the rank and file more. But no, that would cost too much and they don’t care about the rank-and-file. They take another route. They determine which employees contribute, and how much, and start laying people off. Generally, this is done by contracting out the lowest paid positions like receptionists, janitors, and security guards. This is not only tough on those workers who no longer get the company benefits but it also deprives the other employees of the higher-quality services they get from in-house employees. I’ve been a security director and believe me when I tell you that an in-house guard is much better quality and more loyal than one working for a security contractor. Even mid-level employees doing a good job are at risk of being laid off when times get tough if they don’t contribute to the 401(k) plan. That could be the deciding factor when the final cut is made and they probably wouldn’t even know that it is.