From There to Here

234-year-old faded parchment

Buffalo, New York’s mayor said: “It was very important they (the two officers who shoved and injured 75-year-old Martin Gugino) know they are getting due process.” Not to worry, Mayor Brown. To date they have more than extended their target and shall continue to do so. That’s our system at its best.

However, the president trumped himself advancing a discredited conspiracy theory about Gugino being an ANTIFA provocateur. Please, ignore his tweet. Instead, let’s delve into the underpinnings of our American constitutional fundamentals, something many lack knowledge about – clearly the president too.

We have a right to know what crime we may have committed or been charged with. Laws enacted by our elected representatives are published and available to be viewed and understood in statute form. That provides the ability to know what confronts us and to respond effectively.

Observing reasonable suspicion, a police officer may stop, detain, investigate and, if probable cause exists, make an arrest for a violation of the law. Generally speaking, this ends the officer’s “public safety” responsibilities.

The district attorney’s office is a separate agency. Prosecutors analyze the available evidence, and at times work with the arresting officers before presenting the facts of a likely felony to a grand jury and/or courts of appropriate jurisdiction to obtain a “beyond a reasonable doubt” conviction in a meritorious case.

A defendant is entitled to a Sixth Amendment fair, public trial with legal counsel. A defense may be presented, witnesses called to testify and/or one may testify on their own behalf. None of it is required or compelled.

If convicted, sentencing depends upon the severity of the offense and criminal history. Appeals often continue for years.

Due process can be frustratingly slow, but the point is restraint – NOT rushing to judgment when most prone to mistakes, as inflamed passions of the moment run wild. It also seeks to treat everyone the same. Real world problems with the model certainly exist, but that’s the due process and rule of law template.

Our Founding Fathers understood due process rule of law requires restraint. Yet, too many police have been observed acting as judge, jury and executioners.

Critical to know is:

1) “The punishment/consequences must fit the crime.”

2) The process is NOT concentrated in any one person or agency, minimizing acting illegally and/or inappropriately.

A profound appreciation of “due process” (or “fundamental fairness,” as my constitutional law professor defined the term), “rule of law” and “separation of powers” between the three branches of government is our Founding Fathers’ legacy. It was derived from their knowledge of history, human nature and disdain for British royalism’s “arbitrary, authoritarian despotism.”

As observed above, police have a public safety responsibility in our constitutional framework. Therefore, in light of our fundamental principles, ask: “What crime or crimes were committed by Martin Gugino or George Floyd wherein a statute listed the punishments meted-out?”

Dislike of another’s affiliations, race, religion, appearance or having a bad attitude that day is NOT “punishment fitting the crime.” Neither is corruption, intentional ignorance or being uninformed of constitutional limitations a ground. It is further aggravated by police reports differing from bystander videos.

Trump’s ignorant tweet? Let’s assume Mr. Gugino was ANTIFA, came from New York City, had a scanner or swore. It is immaterial, irrelevant muddying the water – conspiratorial hogwash.

Again, “What was the specific statutory crime and enumerated punishment? A knee to the throat for 8 minutes 46 seconds or Martin Gugino now brain damaged?” Hardly!

None of the above is a legal basis to produce those horrible results – but for failing to agree with, understand or abide by due process rule of law! And that’s simply unconscionable!

Where a public servant or official violated a citizen’s or person’s rights, our laws permit criminal prosecution. A separate legal track provides private civil recourse, often seeking financial compensation for an injury. Due process under rule of law is what those deemed responsible for Mr. Floyd’s death and Mr. Gugino’s injury will receive – even if denying it to others under the hubris-laden belief they had such power and authority.

Only a “good” loyalist supports discredited notions of British royalism’s “arbitrary, authoritarian despotism.” Have we become those we opposed with our revolution of 1776 or those dictatorial regimes where justice is not the object and rule of law but a foreign concept?

The fact of the matter is we’re prone to throwing our Bill of Rights under the bus in a heartbeat. Witness the Patriot Act after 9/11 and frequent spouting of “love it or leave it” to civil rights, anti-war and Black Lives Matter “Let Me Breathe” protesters. Is that harsh of me to say? Not if looking at some of the comments made by public servants who ought to know better and by private citizens in social media.

Few enough have a working understanding of our principles. It contributed to George Floyd and Martin Gugino becoming newsworthy against their will. It places you and me at risk of our freedoms. It’s already created unnecessary verbal skirmishes among family and friends. Much worse, it allows unscrupulous politicians to pander to the public’s ignorance – witness McCarthyism and Trumpism’s rants.

Isn’t American history and civics taught in our schools? It had better be.

Knowledge is power … the power to do things correctly under law! Due process rule of law is rooted upon a well-informed public or it will die from wilted, unattended vines.

The point is:

Mr. Posner: We got the law here, Billy Jack.

Billy Jack: When policemen break the law, then there isn’t any law – just a fight for survival.

Our 18th century Founding Fathers, faults notwithstanding, created a nation of laws restricting those in positions of authority from acting upon baser impulses. I have faith this blessed experiment in constitutional governance shall prevail. It does take constant reminders about something that’s much, much more significant than just words on a 234-year-old faded parchment.

Reverend Barry Zavah is an Alpine, TX resident. Born and raised in Buffalo, NY, he is a retired career prosecutor for the Erie County District Attorney’s Office and an ordained minister. He has written for the Sierra Club Big Bend Chapter, Border Hotline News, La Voz, Alpine Daily Planet, Alpine “o6” Cowboys and the Pecos League of Professional Baseball, and has had stories published in various journals and anthologies. He enjoys RV travels.