February 13, 2018 – Arsenal For Democracy Ep. 214

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Half-Episode: Discussing homelessness and housing policy from UK Labour, New Zealand Labour, Salt Lake City, and Boise. People: Bill, Rachel, Nate. Produced: Feb 10th, 2018.

Episode 214 (29 min):
AFD 214

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Music by friend of the show Stunt Bird.

Top Mormon officials call for LGBT protections in Utah

While it’s not entirely without precedent, there was a significant shift nonetheless by senior leaders of the LDS Church today, as they called for the Utah legislature to pass anti-discrimination legislation (a bill was recently proposed again) to protect LGBT residents. Additionally, they called for passage of similar Federal-level protections. Salt Lake Tribune:

Top leaders of The Church of Jesus Christ of Latter-day Saints called Tuesday for passage of laws granting statewide protections against housing and employment discrimination for gay and lesbian Utahns — as long as those measures safeguard religious freedom.
[…]
“We call on local, state and the federal government,” Oaks said in a news release, “to serve all of their people by passing legislation that protects vital religious freedoms for individuals, families, churches and other faith groups while also protecting the rights of our LGBT citizens in such areas as housing, employment and public accommodation in hotels, restaurants and transportation — protections which are not available in many parts of the country.”

 
Endorsement of same-sex civil marriage remained off the table, however, despite the U.S. Supreme Court’s de facto legalization of it in Utah back in July 2014.

Additionally, the Church did not appear to shift their overall doctrine that being gay is against the faith. They simply aligned themselves with the growing moderate wing of the state’s political sphere, which had called for basic legal protections against discrimination.

It remains to be seen if the more extreme side will yield to the new pronouncement.

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Utah’s homicide by police epidemic

Utah seems like a pretty safe state in general. The murder rate in 2013 was 1.7 per 100,000 people, compared to a national average of 4.7 per 100,000 — or 3.9 in Kansas and 5.4 in Arkansas, the states directly below and above Utah respectively in terms of population size.

However, of the relatively small number of murders that do happen in Utah, a heck of a lot of them occur at the hands of law enforcement officers, according to the Salt Lake Tribune:

In the past five years, more Utahns have been killed by police than by gang members. Or drug dealers. Or from child abuse.

Through October [2014], 45 people had been killed by law enforcement officers in Utah since 2010, accounting for 15 percent of all homicides during that period.

A Salt Lake Tribune review of nearly 300 homicides, using media reports, state crime statistics, medical-examiner records and court records, shows that use of force by police is the second-most common circumstance under which Utahns kill each other, surpassed only by intimate partner violence.
[…]
Nearly all of the fatal shootings by police have been deemed by county prosecutors to be justified. Only one — the 2012 shooting of Danielle Willard by West Valley City police — was deemed unjustified, and the subsequent criminal charge was thrown out last month by a judge.

 
For comparison on the other side of the equation — risk to officers — I looked through the FBI statistics that are available so far for 2010, 2011, 2012, and 2013. In that period, just 3 Utah law enforcement officers were killed feloniously in the line of duty (i.e. not in an accident). Again, the overall situation in Utah is much safer than many places. Nationally, in the same span, 203 officers (including the 3 from Utah) were killed feloniously in the line of duty.

Now it may be that in some or even many of the Utah deaths by police, it was in fact a dangerous situation and the use of deadly force was the right call. Maybe there were a lot of near-misses that could have killed the officers and did not. But 15% of all homicides in the state in a five year span being caused by police seems pretty darn high.

Additionally, recent cases indicate there are at least some pretty serious questions that need to be asked. For example:

Prosecutors in Utah have determined that two police officers were justified in the fatal shooting of 22-year-old Darrien Hunt.

The Saratoga Springs police officers — Cpl. Matt Schauerhamer and Officer Nicholas Judson – shot Hunt six times Sept. 10 after responding to two 911 calls about a man walking with a samurai-style sword along a commercial boulevard.

An autopsy revealed that Hunt, who was carrying a katana sword his family said was used for cosplay, had his back turned to the officers when all six shots were fired.

An attorney for Hunt’s family said they still don’t know how many shots were fired and in which direction, reported The Salt Lake Tribune, but he noted that Schauerhamer paused to reload his weapon during the shooting.

 
Darrien Hunt was 22, Black, and carrying a pretend katana for cosplay. That’s probably not a common sight in 93% white Saratoga Springs, Utah, but it certainly doesn’t seem to suggest justifiable homicide. (Side bar: I would also point people toward the town’s nearly eighteen-fold growth the decade following the year 2000, which was accompanied by a 2% drop in the White share of the population, as a possible additional troubling factor for why the officers might have reacted so aggressively in that case.)

Despite such incidents — along with the state’s oddly higher than proportional figures compared to the national occurrences — calling into question the high number of officer-involved shooting deaths, Utah police don’t seem to see the issue. In response to the statewide Salt Lake Tribune investigation, this was the official explanation given to the paper:

“Police are trained and expected to react to deadly threats. As many deadly threats emerge is the exact amount of times police will respond,” wrote Ian Adams, a West Jordan police officer and spokesman for the Utah Fraternal Order of Police. “The onus is on the person being arrested to stop trying to assault and kill police officers and the innocent public. … Why do some in society continue to insist the problem lies with police officers?”

 
Let’s temporarily side-step the absurd premise that every single case involved a deadly threat with not one single mistaken threat assessment. Let’s just focus on everything else he said, for now.
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Marriage equality comes to Utah (for now)

It’s been a good week for marriage equality. On Thursday, New Mexico’s state supreme court delivered a unanimous opinion in favor of marriage equality statewide — not a big surprise given that half the population was already living in counties issuing same-sex licenses due to the lack of a law one way or the other. Then, on Friday, neighboring Utah got a big surprise when a Federal district judge ruled that their 2004 State Constitutional Amendment against same-sex relationship recognition was unconstitutional.

This is the first Federal decision at any level on the issue since the Proposition 8 and DOMA rulings were handed down this year. You should read this excellent analysis of the judge’s very thorough case opinion. (It’s really too bad it’s a lower court opinion that can’t be applied anywhere else directly because it would be great material for a precedent decision higher up. Maybe it will get cited higher up.)

Over a hundred same-sex couples immediately rushed to get licenses on the first day (photos here), with more following in the days after. The state government sought emergency stays from the 10th circuit appeals court, which initially rejected it on the grounds that the initial ruling judge at the district level had to consider a stay first. So same-sex marriages continued in Utah throughout the weekend until he formally rejected the request for a stay.

In the absence of a compelling public interest against allowing marriages to proceed — unsurprising given that they are already in progress in nearby California, New Mexico, Washington and over a dozen other states — the Tenth Circuit followed the district’s lead and by Tuesday had denied a stay three times since Friday. For the state government, that means they’re running out of road fast on blocking this from going into effect during the lengthy appeals process.

The de facto result is that same-sex marriages will continue in Utah until either stayed by the U.S. Supreme Court or until the circuit court actually hears the appeal and then overturns the district court ruling, if that is how it rules.

So what are the chances of either of those happening? The former is pretty unlikely. Liberal Obama-appointee Justice Sotomayor has control over emergency stay requests coming from the 10th circuit. She might choose to refer it to the other justices to prevent a re-application to a different justice, which would inevitably follow a unilateral denial. But even if she does, a majority of the court would have to be persuaded that halting same-sex marriage during the appeals process is an emergency (which is probably unlikely, given that 5 justices didn’t find a reason to block it in the Prop 8 cases or DOMA cases earlier this year, even if they weren’t directly ruling on this broader issue).

As for the possibility of the 10th circuit reversing the lower court ruling after denying a stay, that’s harder to predict. I’m certainly not a court expert, but my guess is that the circuit court level ruling could go either way. I’m not sure of the 10th circuit‘s ideological composition, but I believe it leans conservative, even though half of the active seats were filled by Democratic Presidents due to institutional reasons that favor conservative nominees for Federal seats in states with conservative senators.

Plus, I think the way it works is that it’s a pool of potential judges and there’s no way to know whether the same people who denied a stay get pulled to hear the actual case. Thus, it’s entirely possible that the circuit court will find in favor of the state down the road — although existing marriages would likely remain valid. But that decision is probably a year or two away.

So from here, it gets pretty murky. Remember that it took over four and a half years to get a final decision from the Supreme Court on the legal standing of the Proposition 8 proponents, let alone its constitutionality (which they never actually ruled on). There are also other Federal court challenges pending in other states against their constitutional amendments and related laws. Already, on Monday, another Federal case resulted in a ruling that Ohio must accept valid same-sex marriages performed in other states. Nevertheless, this Utah decision is an important milestone, and there are probably a lot of very happy families right now getting the recognition they deserve. That now state of affairs seems likely to continue during the appeals process.