Are They Coming for Us?

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Brianne Altice Case

The Brianne Altice Case: On Age Distinctions in Law, Suing a “Deep Pocket,” and Potential for Disparate Treatment by the Legal System of One who is White, Beautiful, and Female

By Ken K. Gourdin

Here’s a link to a Deseret News story about Brianne Altice, a former Davis High (Utah) English teacher who is accused of having sex with three students (and admits to it in two of those cases): (last accessed April 26, 2015).

One commenter took issue with the fact that the juveniles against whom Ms. Altice perpetrated her crimes (she has admitted guilt in two cases) are approaching adulthood, and asked whether age distinctions made in cases such as this (a few months’ age difference may be the difference between a misdemeanor and a felony, or between criminal conduct and consensual conduct) are fair. I responded:

I understand your concern. We all know young people who are 18 going on 30, and we all know older people who are 40 going on 12. Often, age distinctions in law can seem rather arbitrary. But that’s what discretion in law enforcement and among prosecutors and judges is for. Conversely, it seems to me that your proposed solution, carried to its logical conclusion, would necessitate the abolishment, not only of most all age distinctions in law, but of the juvenile justice system in its entirety.

Another commenter questioned parents’ attempt in civil court to hold the school district liable for Ms. Altice’s conduct. I responded:

Like you, many say, “The only reason plaintiff is suing [x] is because [x] has deep pockets.” While the merits of individual cases are debatable, one aim of the criminal system is to deter and punish conduct like that Ms. Altice engaged in. That aim is accomplished by prosecuting her. Conversely, one aim of the civil system is to encourage involved entities to reform to prevent cases such as these from recurring. Often, that aim is accomplished in civil court.

I agree that when it comes to suing public entities, there’s no “they” and “them”: there’s only us – taxpayers. But while I cannot speak to Utah law specifically, in many cases, there is a “knew-or-should-have-known” standard. Even if school officials didn’t know, was such ignorace a case of willful blindness? Was it because school officials failed to take reasonable measures that would have apprised them of Ms. Altice’s conduct? These are reasonable questions.

Another commenter said that prosecuting Altice is a “[w]aste of taxpayers[‘] money,” and defended the seeming double-stardard that Ms. Altice would have received different treatment (justifiably so, in his view) if she were a man who had committed her crimes against juvenile girls. The system malfunctioned and would not allow me to post this comment. Had it not done so, I would have responded:

“Waste of taxpayers’ money.” I disagree. As to whether Ms. Altice is a threat, one need not use force or violence to perpetrate grave crimes and, in so doing, to constitute a serious threat. If Ms. Altice were a man, and/or if her victims were only slightly younger, and/or if their gender were different, many would rightly call her a possible pedophile. Just because most pedophiles aren’t violent doesn’t mean they don’t do serious harm. And you’re ignoring the fact that Ms. Altice occupied a position of special trust with respect to her victims.

And many people already are skeptical that how the criminal justice system treats people is based more on one’s race, gender, and class than on one’s actions. We need not perpetuate that skepticism by letting Ms. Altice off easy because she’s white, beautiful, and (compared to many) solidly middle-class, if not rich. And there’s ample reason to question whether Ms. Altice has learned her lesson in light of the fact that she sought to continue her relationship with one of her victims while out on bail. While it may be less a reality than an ideal, that’s no reason to discard the aspirational principle that all perpetrators, and all victims, should be equal before the law. The Constitution’s “Equal Protection” cuts both ways.

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More Burbank Commentary

More Burbank Commentary: Unreasonable? Thoughts on the Letter from Mayor Ralph Becker’s Chief of Staff, David Everitt, to Former Salt Lake Police Chief Burbank

By Ken K. Gourdin

The requirements in the 2014 letter from David Everitt, Salt Lake City Mayor Ralph Becker’s Chief of Staff, to then-Salt Lake City Police Chief Chris Burbank are as follows (the letter is available here, last accessed June 25, 2015:

  • Issuing a training bulletin reiterating a zero-tolerance policy for sexual harrassment
  • Developing a policy for the city’s Human Resources office to review and approve disciplinary actions in the police department
  • Developing a formal process for reviewing and approving retirements involving alleged misconduct and other personnel concerns
  • Designating a departmental point of contact for medically related personnel actions
  • Developing a policy regarding intradepartmental transfers that includes consultation with human resources and the attorney’s office
  • Review Internal Affairs functioning to ensure confidentiality is maintained
  • Promptly address, involving human resources and the attorney’s office, situations in which officers are on leave longer than sixty days.

While I might, if I were an administrator, be tempted to wonder how much confidence other municipal administrators and elected officials have in my ability to run my own department if I had received such a letter, none of those requirements seem unreasonable to me. And, as an administrator, the fact that I serve at the pleasure of the elected official who appointed me (or at the pleasure of his successors, or at the pleasure of the voters, if directly elected) would always be uppermost in my mind. But, as others have mentioned, it does seem curious that rather than holding Burbank’s feet to the fire to ensure that the letter’s requirements were met within a reasonable time after the letter was sent, the mayor’s office waited until now (an election year, shortly before the election) to take action.

The longer one’s tenure is as an appointed administrator (including law enforcement administrators) the more one might be tempted to think that he is invincible (or at least, off limits) as far as replacement is concerned. I saw this happen in the community in which I grew up (where my father served on the department for 30 years). The previous chief served for 21 years in that position before the then-newly-elected mayor informed him he would not be retained. His replacement has served for seventeen years since then himself. While I don’t know if Burbank perceived himself as invincible or irreplaceable, he had served in the position for nine years before his ouster. No appointee ever should forget that he serves at the pleasure of the authority that appoints him, and that he is accountable to that authority. Perhaps Burbank had forgotten this to a certain extent.

Deseret News senior editorial columnist Jay Evensen sums up the controversy between Mayor Becker and Chief Burbank nicely. (See the following address, last accessed June 25, 2015: He writes:

Once an internal review substantiated the claims [against former Deputy Chief Findlay] late in 2013, the city faced limited options. Findlay could retire safely in June 2014 with full benefits, regardless. The mayor wanted him demoted in the meantime, reducing his salary from about $106,000 per year to about $64,000 for six months, after which he could collect a retirement that would not be diminished one cent. The chief wanted him placed on administrative leave. That would allow him to collect a full salary for those six months, but it would remove him from the workplace, where he might be a disruption. It also would keep him from appealing the demotion, which could drag out the process.

The Chief’s inaction after placing Findlay on paid administrative leave rather than simply demoting him and returning him to duty also reduced or forestalled a couple of other possibilities Evensen doesn’t mention: (1) it reduced the likelihood that Findlay would sue the city separate from any appeal he might launch of his demotion, although he would probably have to exhaust administrative remedies before doing so; and (2) unless Burbank had demoted Findlay from deputy chief all the way down to a rank-and-file officer, returning Findlay to duty also would have meant that he still would have been responsible for overseeing others and potentially subjecting them to abuse, just as he had the three complainants in the lawsuit over his actions as an administrator.

I think Becker attempted to remove accusations that the decision was political by setting a timetable for the appointment of the new chief after the election. But there is the potential, however remote, to face a “better-the-devil-one-knows-than-the-devil-one-doesn’t” possibility, both with respect to the new mayor (if Becker doesn’t happen to win reelection—which seems a distinct possibility, if the apparent unpopularity of this decision among many of his constituents is a reliable barometer) and with respect to the new chief. On the other hand, it’s also a conceivable possibility (albeit also a remote one) that if Becker were to appoint a permanent replacement before the election and then lose, his replacement simply would, in turn, replace that short-tenured chief.

Burbank’s public comments following his ouster about his future in law enforcement seem to preclude this possibility, but if I were one of the mayor’s opponents, if I happened to win the election, and if I really wanted to put my money where my mouth is with respect to my disapproval of the mayor’s ouster of Burbank, I might be tempted to reappoint him. I was intrigued with the mayor’s selection of an interim chief of someone from Chief Burbank’s command staff, Deputy Chief Mike Brown. See the following address, last accessed June 25, 2015: I commented as follows:

While it’s true that the appointment of Brown is only on an interim basis, it seems odd that Mayor Becker would call a Burbank loyalist “the right man for the job” if Becker had so many serious problems with Burbank. It also seems to buttress Burbank’s contention that his resignation under threat of termination was more about politics than it was about anything else.

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Burbank Commentary

The Salt Lake Tribune Gets It Right: The Ouster of (alas, now Former) Salt Lake City Police Chief Chris Burbank

Ken K. Gourdin

Note: As promised, in the interest of even-handed fairness, while my previous entry was an analysis of why I believe the Tribune is mistaken in its editorial opinion regarding former West Valley City Detective Shaun Cowley, this one is an analysis of an instance in which I believe the Tribune got it right. I have read the letter from the mayor’s Chief of Staff to Chief Burbank, and I hope to have a separate response to that letter.

* * *

The Salt Lake Tribune recently editorialized against Mayor Ralph Becker’s forcing former Salt Lake City Police Department Chief Chris Burbank to resign, allegedly (at least in part) for Burbank’s handling of sexual harrassment complaints against former Deputy Chief Rick Findlay.1 The Tribune’s editorial notes:

Burbank could be accused of having a blind spot on women’s issues, including the sexual harassment charges and a perceived failure to aggressively pursue old rape cases. But the chief often distinguished himself, his department and the city with progressive policing that stresses peaceful resolutions and open relations with all segments of a community. He stood against the militarization of civil police forces and wanted no part of the irrational drive to turn local cops into immigration enforcers. . . .

Even if it was time for Burbank to go, he had earned better than being sacrificed in Ralph Becker’s Game of Thrones.

Whatever one thinks of Chief Burbank’s handling of the Findlay case (personally, a part of me can’t help but be disappointed at the possibility that he “slow-walked” his response to it to allow Findlay to retire with full benefits. While, in this instance, apparently, it was not the investigation itself that was protracted but, rather, Chief Burbank’s response, even officers accused of reprehensible conduct deserve rights, procedural protections, and due process, and that’s one reason why investigations of such incidents often are quite lengthy), I don’t believe anything Burbank did would have prevented the women victimized by Findlay from filing suit. Sexual harrassment in the police department, to say nothing of such harrassment in law enforcement in general, didn’t begin with Findlay, and the possibility of such harrassment recurring—even if measures are taken to ensure that it is greatly diminished—won’t end now simply because he’s gone.

Tribune columnist Paul Rolly also recently wrote in support of Burbank.2 Rolly calls Burbank “a cop’s cop who stood solidly behind his officers when he believed they deserved it. But he was a disciplinarian when he had to be and balked at legislative proposals to turn his officers into illegal-immigration enforcers.” Rolly also notes that Burbank, unlike several of his predecessors, had a good relationship with the media, and that there has been a relative lack of controversy in the Burbank administration as compared with that of several previous chiefs.

Rolly also lauds Burbank’s bridge-building and tension-easing efforts between his agency and the community. He writes:

Burbank’s personal involvement with angry protesters on more than one occasion calmed the standoffs and helped prevent them from turning violent. He had a simple charge for officers assigned near downtown’s Temple Square during the LDS Church’s twice-yearly General Conferences — when anti-Mormon ranters sometimes harassed and insulted Latter-day Saints: Treat everybody respectfully, protect everybody’s rights to freedom of speech and religion and maintain an environment where nobody has to be arrested. When I observed those confrontations, the police lived up to that command.

Of the harrassment complaints against Findlay, Rolly noted the interesting timing of the mayor’s action. He writes, “[T]hat all transpired a year ago, and Becker remained relatively silent about it until this summer, when the women notified the city of their intent to sue.” While acknowledging possible or probable lapses on Burbank’s part, Rolly also writes, “He was a cop’s cop and stood solidly behind his officers when he believed they deserved it. But he was a disciplinarian when he had to be and balked at legislative proposals to turn his officers into illegal-immigration enforcers.”

Whatever one thinks of Chief Burbank’s stance on immigration enforcement, I recently commented as follows in response to another poster who was critical of Burbank for that stance:

You may disagree, but there are reasons good and sound (or at least, a sound argument can be made) for why Chief Burbank refused to turn Salt Lake Police officers into immigration agents. Doing so would seriously have impacted the level of trust between the police and a large segment or subset of the community, potentially making the investigation and prosecution of all crimes more difficult and, by extension, making all citizens of the community less safe.3

In addition to his stance on (non-)enforcement of immigration laws by local law enforcement, Chief Burbank also caught heat from the public for his (alleged mis-)handling of the case of Officer Brett Olsen, who shot a dog while searching for a missing child. I commented on the case by drawing a parallel between it and the case of Destiny Norton, a young girl whom police tragically failed to find before her abductor killed her:

Officers seem “damned if they do, and damned if they don’t.” Salt Lake police were criticized for failing to find Destiny Norton before her terribly unfortunate demise. Had action such that which Olsen took been necessary to find Norton alive, critics, recognizing that no the life of no pet (however beloved) is worth a child’s life, would have demanded that officers take it.4

The Norton case, notwithstanding its tragic outcome, is another example of Chief Burbank’s leadership. Understandably, her family was devastated and frustrated. When a family member lashed out at Burbank during a press conference by spitting in his face, he was a textbook example of adherence to the Law Enforcement Code of Ethics. That Code invites its adherents and aspirants to “maintain . . . calm in the face of . . . scorn or ridicule” and to “develop self-restraint.” What did Burbank do when confronted with this serious slight? He didn’t miss a beat: he simply ignored it and kept . . . right . . . on . . . speaking.

Burbank also caught heat in heavily-Mormon Utah for suspending former Officer Eric Moutsos, who attempted to trade assignments with someone else after Moutsos was assigned to ride in the department’s motorcycle squad as it performed precision maneuvers in the city’s gay pride parade. While I’m not necessarily a Chief Burbank apologist in this instance, and while Moutsos’s subsequent resignation renders such issues moot in his particular case, to a certain extent, Burbank may have been caught between a rock and a hard place: take one action and risk sending the message that the police department and the community devalue gays and lesbians; take another action and risk violating his officers’ rights to conscience. I understand the need to maintain order and discipline in military and paramilitary organizations, as well as the reason why rank-and-file grunts overwhelmingly follow the orders given them by their superiors.

Whether Chief Burbank’s action in the Moutsos matter is proper depends, at least in part, on how much of a precedent there is for allowing officers to trade assignments in this and other circumstances. If there is such a precedent, then Burbank should have taken care to ensure that the opportunity to trade is not denied arbitrarily or capriciously. Moutsos says he simply requested a change in assignment that would have allowed him to fulfill a less visible role in the gay pride parade. Burbank says Moutsos was ordered to fulfill his original assignment. Moutsos says he would have complied with such an order if it had been given. Some have accused Burbank of mischaracterizing Moutsos’s actions and motives. But, while it’s possible that Moutsos simply didn’t have the stomach for such a fight, if someone had so mischaracterized my actions and motives, I would have fought as long and as hard as necessary to clear my name and to correct the public record.

I had a limited interaction with Burbank when he was the administrative lieutenant for a previous chief (I believe it was Rick Dinse). One of my former cotenants in the Salt Lake City apartment in which I was living at the time decided to punctuate his disagreement and displeasure with me by breaking a window out of my car. After an officer came and took a report of the incident (while I understand that it was relatively minor and would not have received high priority) I contacted the department to express concern over a response time that was over two hours. Notwithstanding the incident’s relatively minor nature, then-Lieutenant Burbank took my concern seriously. He struck me as wonkish, in the very best sense of that word. He conducted a statistical analysis comparing response times to similar incidents for, I believe, the previous year, and determined that the response time to my report was slightly longer than the average.

The bottom line about Burbank, I think, is this. Sometimes, the best barometer of whether someone in public service and who has been bestowed public trust is doing a good job is the number of people who are pleased with him: sometimes, he can be sure he’s doing a good job when, say, a third of those he serves are neutral, a third favor his actions, and a third oppose them; and sometimes, he can be sure he’s doing a good job when the favor-oppose split is roughly equal; but sometimes, depending on the principles involved and the reasons for opposition, he can be sure he’s doing a good job even when the majority of those he serves oppose him. Chief Burbank may have faced that last circumstance with respect to both his stance on immigration enforcement by local police and his handling of the Moutsos matter. In any event, whatever mistakes he made, with respect to his ouster, I think Burbank is right: essentially, he has been sacrificed on the altar of electoral politics. Salt Lake City, its police department, the state of Utah, and law enforcement in general are all the poorer for it. The Tribune got this one right.



Editorial (June 13, 2015), “Salt Lake City chief deserved better exit,” The Salt Lake Tribune, accessed on line at on June 15, 2015.


Paul Rolly (June 13, 2015), “Why Salt Lake City is going to miss Chief Burbank,” The Salt Lake Tribune, accessed on line at on June 15, 2015.


Id., in comments following Rolly’s piece.


Ken K. Gourdin (July 7, 2014) “Officer criticized for shooting dog: ‘Geist’ shooting should be kept in perspective” (Blog post), accessed on line at the following address on June 15, 2015:

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Cowley commentary

The Salt Lake Tribune Gets It Wrong: Former West Valley City Police Detective Shaun Cowley

By Ken K. Gourdin

Note: To anyone who might be prone, given the foregoing headline, to dismiss my opinion as mere to mindless criticism of what appears in the Tribune and as an out-of-hand dismissal ofwhat I read in its pages, my message is, “Don’t despair.” In the interest of even-handed fairness, this entry and the next will describe, respectively, an instance in which I believe the Tribune got it wrong and one in which I believe it got it right.

* * *

Given the recent resignation of former West Valley City Detective Shaun Cowley, these points may be moot (at least in his particular case). However, I take serious issue with a recent Salt Lake Tribune editorial about the case, available here and last accessed June 14, 2015:

My problems with this editorial begin in the lede. It begins, “Whatever it takes, however much it costs, West Valley City must make sure that Shaun Cowley never again prowls the streets of that community with a badge and a gun.” The word editorial writers chose to use to describe Cowley’s alleged actions was not patrol; it was not protect; it was not any other word normally used to describe usual police actions; it was prowl, thus putting Cowley in the same category as many of the people he arrested during his career. Nope! Nothing inflammatory there!

And whatever it takes to bring Cowley down—however long it takes, and no matter how much money or other resources are expended in doing so, and even though the criminal case against him was dismissed and the administrative action resulting in his firing was overturned? How many times has the Tribune editorialized against alleged “witch hunts” (my term) and against the alleged wasteful expenditure of money, time, and other resources in an effort to investigate, and to prosecute (or to persecute, depending on whose ox is being gored), other alleged wrongdoing that the Tribune decides is trivial, or against people whom the Tribune and other media outlets decline to prosecute or to convict in the court of public opinion?

“Public faith in the criminal justice system,” the Tribune tells us, “a system that cannot function without the people’s trust, depends” on barring people such as Cowley—people who have never been convicted of a crime, and against whom administrative action which has been attempted has not been allowed to stand—from law enforcement. Maybe I’m old fashioned, but even if these ideals are more aspirational than reflections of reality, I still believe in the old adages that it’s better for a hundred guilty men to go free than for one innocent man to be convicted, and that a man is innocent unless and until proven guilty. Thus, maintaining faith in the criminal justice system depends, not on convicting unpopular defendants in the court of public opinion when such attempts fail in a court of law, but, rather, on learning to live with verdicts that many of us may not like.

Maybe Shaun Cowley deserved to be fired—if not for his shooting of Willard, then for other misconduct in which he is alleged to have engaged. But too many people (including many who control the media’s bully pulpits and who, as a result, disproportionately affect public opinion) decide, a priori, who is “guilty,” proceding on the basis of the weight of a subject’s unpopularity and the unpopularity of what he’s accused of rather than on the weight of the evidence.

And absent a trial or other proceding intended to produce such a result, how do the Tribune, many other media outlets, and those in the public who rush to render judgment in the court of public opinion know who’s guilty or who’s deserving of administrative punishment and who’s not? Are such results, rather than being determined through established legal and administrative processes, instead, divinable through use of a crystal ball or a magic talisman, to which those of us who actually favor allowing such processes to play out before rendering our own verdicts lack access?

While, in practice, this may be more of an ideal to which our system of justice aspires than a goal it actually achieves, as much as possible, we should strive to ensure that rights, due process, and procedural protections are afforded to everyone. In their distrust of authority, too many people seem to want to say, “Rights, procedural protections, and due process for me, but not for thee—especially when thou art a law enforcement officer.” But we shouldn’t get to pick and choose who gets these benefits based on how unpopular a defendant, his alleged actions, and his profession might be. In fact, fairness and justice demand that these benefits be extended, insofar as possible, to everyone. And the more unpopular a defendant, the accusations against him, and his profession are, the more he needs those benefits.

Now, a word about Shaun Cowley’s actions. I’m not necessarily a Cowley apologist. In discussing his case with my father, a retired 43 year veteran of law enforcement, he asked me if—even with my limitations—I thought I could have gotten out of the way of Danielle Willard’s vehicle without shooting at her. (I have Cerebral Palsy, and I walk with a pair of forearm crutches—or with a pronounced limp without them.) I told him, limitations notwithstanding, that I thought I could have.

My assertion in the foregoing paragraph, however, comes with a caveat: imposing a duty to retreat on law enforcement in circumstances in which they now are allowed to use deadly force might introduce even more complications into a job that, too often, already is greatly complicated. It’s easy to second-guess split-second, life-or-death decisions in the illuminating glare of hindsight, and imposing such a duty might put law enforcement in a no-win situation, in which officers are criticized both for shooting when they shouldn’t and for not shooting when they should. That’s problematic, because officers have are allowed to use deadly force to protect not only themselves, but also everyone else in the communities they serve.

While this ideal is aspirational, and while it reflects reality to varying degrees in various cases and circumstances, wherever the weight of public opinion leans on a matter, as much as possible, charging decisions, preliminary hearing results, and administrative actions should not be based on such public sentiment. In my Deseret News Op-Ed regarding the case, I wrote:

In a court of law (unlike in the court of public opinion) it doesn’t matter what anybody “knows,” or how sympathetic a victim is: it only matters what they can prove. Whatever anyone’s opinion of the justness of a given case, rulings and verdicts should be based on the law and on the evidence.1

Now, about Salt Lake County District Attorney Sim Gill’s handling of the case. Had I been Gill, I would have approached the Cowley case the same way St. Louis County District Attorney Robert McCulloch approached the case of former Ferguson, Mo. police officer Darren Wilson, who fatally shot Michael Brown: I would have presented every scintilla of evidence I had to a grand jury and let it decide what charges, if any, should have been filed. A decision to not indict in the Cowley case would have been greeted with the same skepticism as was that decision in the Wilson case, but if a grand jury had made that decision, at least the onus would have been on members of the community rather than on a single prosecutor.

The Tribune notes that Salt Lake County District Attorney Sim “Gill also filed a criminal manslaughter charge against Cowley, but that case was dismissed by a state judge for insufficient evidence.” So . . . dismissing the criminal case against Cowley for lack of evidence was proper, but overturning, for essentially the same reason, the administrative action that resulted in Cowley’s firing was not? The Tribune doesn’t bother to explain the apparent inconsistency: it simply seems to want to have its cake, and to eat it, too.

The Tribune concludes, “[T]he lesson that this city, and every city, should take from this sad case is that they must all have firm and clear rules and procedures in place to make sure that, whenever a police officer deserves to be fired, he stays fired.” That seems suspiciously like an admission that such rules and procedures were not in place before Cowley’s firing, and an endorsement of responding to Cowley’s alleged misconduct by proceding as though they were.

That’s why the Tribune got this one wrong.

1. Ken K. Gourdin (October 15, 2014), “Justice system should be the same for everyone,” Deseret News, accessed on line at on June 15, 2015.
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On First Chances, Second Chances, and More

On First Chances, Second Chances, and More: Or, Am I Simply Throwing My Own Pity Party?  Probably

By Ken K. Gourdin

The Deseret News’s Doug Robinson has a fascinating feature story on Salt Lake market media personality and former BYU football player Alema Harrington, here (last accessed June 14, 2015):

My comment is too long for the on-line comments section, so I e-mailed it directly to Mr. Robinson:

Mr. Robinson:

I really enjoyed your feature on Alema Harrington. I’m keenly interested in human interest stories, stories that talk about what makes people “tick” and how they got where they are (and what they had to overcome to get there). I wish I could write my own story like that. I had the following comment. It’s too long for the on-line comments section, but I thought I’d pass it on to you directly. Please forgive the intrusion.

I’ve always liked Alema, and I respect how he’s been able to deal with his challenges. Before this article, I had no idea what was going on behind the scenes with him. I wouldn’t wish addiction on anyone. I’ve worked in a support (non-treatment) capacity in addiction recovery, and there is no “them.” The only difference between addicts, on the one hand, and you and me, on the other, is the choice of coping mechanism. That’s what abuse is: a maladaptive coping mechanism. I wish him well in his continuing sobriety and recovery, and continuing happiness. To anyone who’s relapsed, I say, you can’t relapse without having had some recovery first: make today the first day of a new period of sobriety.

All of that having been said, why does it seem as though the surest route to getting real help for problems is to become addicted to a substance and/or to commit one or more crimes? I’m not addicted to anything, and I’ve never committed any serious crimes. I’ve always tried to do the right things in the right way and to play by the rules, but it seems as though I’m destined forever to remain obscenely overeducated and underemployed, never advancing, bouncing from one dead-end job to another. (I have a law degree, that I’ll never use, that’s collecting dust in a nondescript closet in the corner of my nondescript room.) I don’t begrudge anyone a second chance (or as many chances as anyone will give them: that’s their business, and I hope they make the most of those chances, however many they get). But it does seem as though so many people get second chances, and more, on the one hand, while there are those of us who’ve never gotten (and probably will never get) a decent “first chance.”

Thanks for listening.

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Obama and Immigration

Thoughts on Obama’s Unilateral Immigration Action

By Ken K. Gourdin

A panel of the United States Court of Appeals for the Fifth Circuit recently issued a 2-1 decision delaying President Barack Obama’s recent executive orders on immigration. I speak passable Spanish (I minored in it in college), and I have spent a fair amount of time in Spanish-speaking countries (chiefly in Mexico, where I spent part of an academic quarter studying abroad). Many of the places I visited while there qualify as a part of the third world.

While I don’t think illegal immigration should be encouraged, and while I love the culture, customs, and people of many Spanish-speaking countries (especially those of Mexico), knowing the economic, health, and other conditions that prevail in much of Mexico, I can certainly understand why someone might risk emigrating from there, even if doing so illegally. I can understand easily why someone might conclude that he has nothing to lose (and, indeed, has much to gain) by doing so. Many immigrants, both legal and not, come here in search of a better life, and it doesn’t take much to improve on where they come from.1

And, as I have noted elsewhere on the blog, there is a difference between mala prohibita crime – action that is a crime because the law says it is, such as illegal immigration; and crime that is mala in se – inherently or morally wrong. Too many people who favor stricter enforcement of immigration laws fail to recognize that distinction.1

Before attempting action which, if fully implemented, would purport to confer legal status on potentially millions of people who entered the country illegally, President Obama said repeatedly that he did not have such power. Apparently, however, with respect to immigration (among other things) President Obama has concluded (his previous declarations to the contrary notwithstanding) that the recalcitrance of the Congress somehow automagically justifies his unilateral action in this case.

I’ve also written elsewhere that, other than elections, President Obama simply doesn’t “do” politics.2 He appears to consider such business unseemly, preferring, instead, to soar above the fray. Given the fact that he voted “present” 138 times during his tenure as an Illinois Senator, I hope I can be forgiven for describing him as “the Gentle Backbencher from Chicago”; likewise, given his short, apparently little-distinguished tenure in the United States Senate, I hope I can be forgiven for describing him as “the Gentle Backbencher from Illinois.”

It may be little wonder, given such a tenure, why President Obama seems so disdainful of congressional power (apparently, he doesn’t think it has any). I learned in middle and high school (not to mention law school) that the concept of separation of powers means, roughly, that the legislative branch makes the laws, the judiciary interprets them, and the executive branch enforces them. Sadly, too many people are (and have been) too disengaged civically and politically to care about the separation of powers, and about what failure to adhere to that separation means for our form of government.

Obama isn’t the first president (Republican or Democrat) to flout the separation of powers. But few (in fact, none, it seems) have done it so blatantly and so often, and it’s not just Republicans or conservatives, aka flaming right-wing wacko nut-jobs, who are saying so.3 In fact, at least with respect to Obama’s past attempts at unilateral action, even Obama appointees have said so.4



Ken K. Gourdin (March 9, 2013) “The Church of Jesus Christ of Latter-day Saints, Compassion, Immigration, and Law and Order” (Blog post),, last accessed May 30, 2015.


Ken K. Gourdin (November 22, 2013) “Obama the Anti-Politician” (Blog post), last accessed May 30, 2015.


Katie Pavlich (November 17, 2014) “Liberal Law Professor Jonathan Turley: Obama’s Executive Amnesty Threat ‘Tears at Very Fabric of The Constitution’,”, last accessed May 30, 2015.


See, e.g., Joel Gehrke (July 1, 2014) “Ted Cruz: Obama’s 20 nanimous Supreme Court Losses Outpace Bush and Clinton,”, last accessed May 30, 2015.

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