Monday, January 05, 2015

Marc Solomon Tells the Story of “Winning Marriage”

Queer Activist’s Account of Equality Struggle Mixes Idealism, Hard Work

by MARK GABRISH CONLAN

Copyright © 2015 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Marc Solomon

Genius, the great inventor Thomas A. Edison was fond of saying, is “two percent inspiration and 98 percent perspiration.” The same could be said of political and social activism. That’s the lesson vividly brought home in Marc Solomon’s new book Winning Marriage. A 20-year veteran of the struggle for marriage equality for same-sex couples and currently the national campaign director for Freedom to Marry, Solomon has seen such a rapid growth of support for the cause that people who used to tell him it was “impossible” are now convinced it’s “inevitable.” But, as Solomon explained both in his book and his December 5, 2014 appearance at the San Diego Lesbian, Gay, Bisexual, Transgender Community Center to promote it, “impossible” and “inevitable” are both dangerous words to use about a movement because they discourage people from doing the hard work needed to change a lost cause into a winning one.
“I wanted to show that campaign work — and civil rights work, ultimately — is hard work,” Solomon said at the Center. “It’s sort of a slog. We need visionaries, we need a big principle to be fighting for, but when it comes down to it it’s going out and talking to people whom you’d rather not be talking to. It’s having these difficult conversations with people. It’s not holding rallies in Hillcrest; it’s going out to Riverside and San Bernardino Counties and having tough conversations with voters and talking about why marriage is important to you. Here in California, it was picking up after the most devastating loss that we all felt” — the passage of Proposition 8 in November 2008, which canceled marriage equality in this state for nearly five years — “and people like Jacqueline Palmer with Equality California, who started organizing volunteers in San Diego to go out to those suburban and rural communities, and having those conversations, engaging people at the door and building ongoing popular support.”
Solomon divided his book into five major sections: the campaign to preserve the Massachusetts court decision for marriage equality, announced November 18, 2003, from four years’ worth of efforts by opponents to reverse it either in the legislature or at the ballot box; the effort to get the New York state legislature, including a Republican-dominated State Senate, to pass a marriage equality bill in 2011; the steady triumph of anti-marriage initiatives at the polls in 2004 and 2008 until hard work by activists in four states — Maine, Maryland, Minnesota and Washington — reversed the trend and won marriage rights at the polls; the lobbying campaign to get President Obama to “evolve” on the issue and support marriage equality; and the U.S. Supreme Court rulings in 2013 declaring part of the so-called “Defense of Marriage Act” unconstitutional and throwing out Proposition 8 on a technicality.
But the Massachusetts section is by far the longest, the most detailed and the most moving — largely because it was not only the campaign in which Solomon was most deeply and intensely involved but it’s the one on which he cut his teeth as a marriage activist and which taught him what worked and what didn’t. The Massachusetts Supreme Court ruled in 2003 that not allowing same-sex couples to marry violated the equal-protection clauses of their state’s constitution. But opponents were confident that they could amend the constitution to restore marriage inequality. They had two options: they could get the state legislature to pass an anti-marriage amendment in two successive sessions and thereby place it before voters; or they could circulate an initiative petition. But, unlike in California, the initiative would not go before the ballot unless at least 25 percent of the legislators in both houses approved it.
At first, it seemed like virtually a done deal that the constitutional amendment would be approved by the legislators and put before the voters. Just about every major elected official in Massachusetts from both major parties, including Republican Governor Mitt Romney and Democratic Senator (and 2004 Presidential nominee) John Kerry, were against the Massachusetts court decision. So was the Roman Catholic Church, a potent political force in the state that supplied the only Catholic President in U.S. history. The state’s Catholic hierarchy formed an unprecedented alliance with the Protestant-dominated radical religious Right to repeal the marriage decision — and they were strongly supported by African-American ministers who argued (as many later would in California during the Proposition 8 campaign) that the Queer community was “belittling” the African-American civil rights struggle by invoking it as a model.
Meanwhile, as Solomon recalled in his book, the grass-roots activist groups seeking to defend the decision were underfunded and split by long-standing antagonisms. Solomon said that when he first started going to meetings of MassEquality, the coalition formed to protect the court decision, “I was shocked at the level of acrimony between leaders who were all ostensibly working for the same thing.” Solomon demanded that MassEquality hire a paid coordinator and concentrate on lobbying the legislators. They got one lucky break; some legislators who opposed the marriage decision were willing to compromise and create a separate “civil union” status for Queer couples, while other opponents — including the Catholic church — weren’t willing to give same-sex couples any legal recognition.
But the biggest thing the Massachusetts activists did was to recruit same-sex couples themselves to meet with legislators and put a personal face on the marriage issues. If Solomon’s book has any true heroes — and it has several — the most heart-wrenching and moving ones are Deb Grzyb and Sharon Murphy, who lived in the rural town of Charlton. They’d been a couple for 24 years when they married almost immediately after the Massachusetts courts allowed them to, but according to Solomon, until then “they’d told next to no one they were Lesbians or a couple. In fact, a few days after they applied for their wedding license, they each raced around the state coming out to family members … because they’d learned the local paper was going to print the names of all those who had applied. They were glad there were activists who fought for equality for Gay people. But that just wasn’t who they were.”
That changed dramatically when officials from MassEquality realized that Gryzb and Murphy were just about the only married Lesbians or Gays in the district of state senator Steve Brewer, whose vote the group’s political strategists thought would be crucial. They got a meeting with a member of Brewer’s staff, which went well but didn’t give them any indication of how Brewer would vote. Then they were asked by MassEquality officials to set up a meeting with Brewer himself. Though they were terrified, Solomon said, “the middle-aged senator welcomed them into his office. He’d served in the Senate for 16 years …
“Sharon took the lead,” Solomon wrote. “She told the senator that the two of them were regular people who lived in Charlton, both working for one employer … for nearly their whole careers. They’d met in Boston 25 years before; it was love at first sight, and two months later Sharon had moved in with Deb at her home in Dudley, where they lived today. In a million years, they never expected to be able to get married. But now that they were married, Sharon explained, they recognized how important marriage was for their relationship.” Brewer listened patiently, occasionally interjected, told them he’d attended the wedding of a close friend to her same-sex partner, and finally told them that though he didn’t want them to release the information publicly, he was going to vote against amending the constitution to ban same-sex marriages.

The California Debacle

Though there were other decisive elements — including MassEquality’s hiring of Gay Republican organizer Patrick Guerriero to lobby GOP representatives on the issue and help build the three-quarters legislative majority that would keep the anti-marriage initiative off the Massachusetts ballot, and a largely successful electoral campaign to target the legislature’s most vehement marriage opponents and replace them with Queer or Queer-friendly candidates — Solomon came away from the Massachusetts campaign convinced that the best advocates for marriage equality for same-sex couples were same-sex couples themselves and their families. It was a lesson lost on the activists in California who tried to defeat Proposition 8 in 2008. Though Solomon didn’t come to California until the closing weeks of the Proposition 8 campaign, he viewed the No on 8 TV commercials from afar in Boston — and he didn’t like what he saw.
“Most of our side’s ads looked like typical political spots,” Solomon recalled. “Our side needed to make the most emotionally compelling case we could. However, that’s not what I thought we were doing. The arguments we were using in the ads appealed to the head: protecting the Constitution, highlighting the support of key elected [officials], and protecting fundamental rights in the abstract. They didn’t elicit emotions. Our opponents were masterful at conjuring up fears about what would happen to society, to the institution of marriage, and to the family if Gays were allowed to marry. The only antidote to fear was love, empathy, connection, and an appeal to people’s better angels. That required using real people talking poignantly about why marriage was important to their family — their parents, their children, and themselves. If we didn’t evoke those emotions in a powerful way, I felt, we’d be in serious trouble.”
Solomon said he tried to share some of these concerns with the people running No on 8, but he was circumspect about his advice. Having been successful at keeping the marriage issue off the ballot in Massachusetts, he’d never actually worked on an initiative campaign, while the No on 8 campaign’s consultants “had multiple victories on thorny social issues in California. … I was wary of ‘armchair quarterbacking’ — asserting based on my own different experiences that I knew what to do to win and that those in charge were getting it wrong.” Also, though both sides on Proposition 8 raised and spent about the same amount of money — $40 million each — according to Solomon, the No on 8 money didn’t really start coming in until the last two weeks of the campaign, once polls showed the original 15-point poll margin against it had disappeared and Queer and Queer-friendly activists and contributors in California realized they would quite possibly lose.
“Unpredictable last-minute money is difficult to put to good use,” Solomon warned. “Television buys need to be placed at least a few days in advance, ideally as part of a well thought-out sequencing plan. So the No on 8 campaign was scurrying to put in place last-minute paid phone-calling programs until the night before the vote, trying desperately to spend as much as they were taking in.” Solomon recalled that after Proposition 8 won — ironically, in the same election as Barack Obama’s election as President, in which California gave him the electoral-vote majority that put him over the top — “I was devastated and knew the spirit of the Gay community — in California and nationally — would be broken until Proposition 8 was lifted. That meant we had to figure out how to win at the ballot.”

Getting It Right

According to Solomon’s account, the turning point that showed marriage equality activists how to win at the polls was the involvement of one of his book’s most interesting characters: Thalia Zepatos, a straight ally from Portland, Oregon and an experienced community organizer who in 2010, at age 54, took on the task of figuring out a winning strategy. Hired by Freedom to Marry as director of public engagement, Zepatos “spent much of 2010 culling through literally hundreds of polls and focus group reports from multiple marriage campaigns. In her second-floor home office, Thalia had stacks of yellow legal pads with her notes, the pages folded back on the sheets that had the most interesting tidbits. ‘I know this sounds silly,’ a middle-aged woman in northern California had said, ‘but I never thought about it — that Gay people could get old!’ Another, a man from Oregon, said, ‘I just don’t get it — why would a Gay person want to get married?’”
Drawing from her experience not only with No on 8 but a similarly unsuccessful attempt to defeat an anti-marriage initiative in her native Oregon in 2004, Zepatos came to the conclusion that one reason marriage equality campaigners kept losing at the ballot box was they were making their motives seem too mercenary. According to Solomon, she recalled that in the 2004 Oregon campaign, organizers went door-to-door with a leaflet “listing the rights and benefits that came with marriage and arguing that it was wrong to deny same-sex couples those rights. The reports back from the organizers were that voters seemed really uninterested. Instead they wanted to talk about the Lesbian physician on the popular television show ER. The character’s partner — a firefighter — died in the line of duty, and the physician faced a painful custody battle with the deceased partner’s parents. To Thalia, it was as if the campaign and voters were speaking two different languages: one, a list of benefits; and the other, a powerful human story about a committed couple and their family.”
One striking result from a poll in Oregon convinced Zepatos that the marriage equality movement had to change its messaging. The poll had asked Oregon voters, “Why do people like me get married?” An overwhelming majority — 72 percent — replied, “For love and commitment.” Only 18 percent said, “For rights and benefits.” When the same poll asked why same-sex couples got married, 42 percent of the respondents said “rights and benefits,” 36 percent said “love and commitment,” and 22 percent said they didn’t know. “What a huge disconnect this was,” Solomon recalled. “Straight people thought Gay couples had completely different reasons for wanting to get married than they did.”
Zepatos’ analysis suggested that the Queer community had focused too much on the material benefits straight couples got from marriage and they didn’t, and not enough on the values committed straight and Queer couples shared: what Solomon called a “deep and abiding love and commitment and a desire to profess that love and commitment in front of their family and friends and have it respected by the state.” It also argued that the best spokespeople for marriage equality were straight people who were close to same-sex couples — “parents, grandparents, clergy and neighbors” — who could talk about their own struggles to overcome their traditional notions of what “marriage” meant and accept their Queer children, grandchildren, parishioners and neighbors as equally entitled to the freedom to marry.
“There was no higher priority for me when joining Freedom to Marry than reversing our streak of losses at the polls,” Solomon recalled in his book. “It was the one talking point our opponents had that we couldn’t rebut: that every time this issue went to a popular vote, our side lost. And after shuttering the California ballot effort” — an attempt to put an initiative to repeal Proposition 8 on the 2010 ballot, abandoned when a group unaffiliated with California’s Queer establishment filed a federal lawsuit challenging it instead — “I was doubly hungry to help bring about a win at the ballot.” Solomon personally worked on the initiative in Maine, where a previous marriage-equality ballot measure had failed in 2009 with a namby-pamby campaign similar to No on 8’s. In November 2012, aided not only by the new messaging strategy but the higher voter turnout in a Presidential election year, marriage equality won at the polls in Maine — and in Maryland, Minnesota and Washington.

The “Inevitability” Myth

Marc Solomon told his audience at the Center December 5 that he started thinking about a book on the marriage struggle right after the 2007 victory in Massachusetts, but as the community got more sophisticated on how to fight for marriage and public support grew, the story he had to tell also grew and changed. His final book included the struggle to get the New York legislature to pass a marriage equality bill — an often sordid tale of political egomania which can’t help but remind the reader of the old adage that laws are like sausages: you don’t want to watch either being made. It also includes the story of how an old friend of Michelle Obama’s became the key figure in lobbying her husband to “evolve” on the issue from opposing to supporting marriage equality.
“We’ve had so many victories over the course of the last five or six years,” Solomon told his audience at the Center. “A lot of people are now saying that we’re done. I want to caution against that notion. People say it’s ‘inevitable’ that we’re going to win. I think that in some ways it is inevitable, but the question of whether we’re going to win in 10 years or five years or two years or one year makes a big difference in the lives of same-sex couples in places like Texas, where it’s very difficult to adopt if you’re not married; or in Florida, where we’ve been working with a woman who got married in New York, moved back to Florida, and her partner passed away. She is now moving out of her house because of Social Security survivor’s benefits that don’t apply to married couples if you didn’t get married in the state where you reside. Then there are the human costs, including parents who are getting older and want to be able to go to their children’s weddings. There really is truth to the notion that justice delayed is justice denied.”
Solomon said he and a lot of other marriage-equality activists got “heartburn” when U.S. Supreme Court Justice Ruth Bader Ginsburg, who’s in her 80’s and who refused to retire despite calls for her to do so while the Democrats still controlled the Presidency and the Senate, got a heart attack and was hospitalized late last year. He reminded his audience that the Supreme Court’s 2013 Windsor decision invalidating the part of the 1996 Defense of Marriage Act that denied federal recognition of same-sex marriages was decided by a 5-4 vote — and if Ginsburg dies or retires while a Republican President is in office and the GOP controls the Senate, her replacement is likely to swing the next marriage equality decision 5-4 against us.
“When people talk about ‘inevitability,’ I think back to where we started about a decade ago when so many people said, ‘It’s impossible,’” Solomon said at the Center. “‘Impossible’ and ‘inevitable’ have a lot in common. They both allow you not to work. If something is ‘impossible,’ you don’t have to do anything because it’s impossible. And if something is ‘inevitable,’ then of course you don’t have to do anything because it’s going to happen anyway. The sweet spot of this movement, and the sweet spot of any real movement, is between ‘impossible’ and ‘inevitable,’ and doing the work to make what many people think of as ‘impossible’ happen and make it inevitable. So let’s not let up. We have great momentum, but we still have one-third of the country where same-sex couples can’t marry. Let’s finish the job, and then we can have a big party and celebrate the ‘inevitability’ of it being done. But we shouldn’t move on or rest and say, ‘It’s going to happen on its own,’ because even with powerful momentum, this stuff really doesn’t happen on its own.”

Monday, December 01, 2014

Thoughts on the Ferguson Demo

by MARK GABRISH CONLAN

Copyright © 2014 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Crowd at Opening

Injustice Becomes Law

Fuck the Police

Not One More Life

Demonized

Justice 4 the Black Community

Niggod

R.I.P. Michael Brown

No Justice, No Peace

On the March 1

Stop Police Brutality

On the March 2

On the Courthouse Steps

Crowd Photographing the Speakers

Human Speaker Pedestal

Our Lives Matter

Peace through Revolution

Film the Police

White Solidarity with Black Power

No Justice …

Resistance Becomes a Duty

Emmett & Amadou …

I’m not going to write a sober, “objective” news story about the situation in Ferguson, Missouri or the demonstration I witnessed in downtown San Diego November 25 protesting the decision of the grand jury in Ferguson not to indict police officer Darren Wilson for the fatal shooting of unarmed 18-year-old Black man Michael Brown last August. Frankly, I was saddened but not surprised that Wilson wasn’t indicted. What would have been the point? Not long ago, a Florida jury acquitted George Zimmerman for killing Trayvon Martin after a reluctant district attorney was pressured into prosecuting — and Zimmerman wasn’t even a sworn police officer but a neighborhood watch wanna-be.
Six days before the protest I’d been at a meeting co-sponsored by Activist San Diego (ASD) and its community radio station, KNSJ 89.1 FM, on whether the police are just doing their jobs or going too far. The panel consisted of three retired law-enforcement officers — all white males — and three police critics. But it was ASD executive director and board member Martin Eder who summed up the perception that underlay the events in Ferguson, both Darren Wilson’s actions and the Black community’s response to them. African-Americans and other U.S. people of color, Eder said, see the police as an occupying force with “the ethic of controlling the streets and shooting first and asking questions later. Racialized justice has been the norm, not the exception.”
This perception on the part of law enforcement seems to rule the day whenever police officers and people of color confront each other. From New York City’s thankfully abandoned official “stop-and-frisk” policy that basically regarded every young man of color on the city’s streets as a criminal with the affirmative duty to prove he wasn’t (a reversal of the “presumption of innocence” on which our criminal justice system is supposedly based) to the myriad anecdotes about people being stopped for “driving while Black” or “driving while brown,” to the bizarre arrest of Harvard professor, PBS show host and Presidential friend Henry Louis Gates, Jr. for breaking into his own house, it’s clear there’s an institutional bias in U.S. law enforcement that regards that “protect and serve” stuff as reserved to white people. For people of color, the police don’t protect and serve: they contain and control.
And this institutional bias remains no matter how many people of color get appointed or elected to office. The U.S. can elect an African-American President, and the police perception of themselves as occupiers in the communities of color continues. San Diego appointed a Latino police chief, David Bejarano, and the number of officer-involved shootings in the communities of color actually went up. (He’s since been replaced by a white man, who in turn was replaced by a white woman.) The U.S. police seem stuck in this social role — with the approval of the older, whiter portion of the American population that actually votes — regardless of how many paper advances are made in civil rights and human rights for marginalized populations.
So I wasn’t surprised that Darren Wilson got to “walk” after killing a young Black man. Indeed, Wilson’s self-justification that Brown “looked like a demon” when he shot him is one of the most chilling aspects of the case. So is the defense offered by Wilson’s attorney that he was just following standard police procedures when he brought down and summarily executed Michael Brown for the “crime” of walking on the street instead of the sidewalk. Wilson probably was following standard police procedures — and that’s precisely the problem.
I also wasn’t surprised that what passes for a Left in San Diego County wasn’t able to mount a powerful, unified demonstration against the grand jury’s cop-loving cop-out. While protesters in other cities trooped out to the streets the night of Monday, November 24 — the day the grand jury’s decision was announced — leading to some unintentionally funny coverage in the mainstream media where hundreds of people were visible on the footage but the commentators solemnly informed us there were only “dozens” of participants — the San Diego organizers decided to wait until the following day. What’s more, they announced two separate demonstrations, one in City Heights and one downtown, while UCSD students staged a third, unannounced one and actually briefly blocked Interstate 5.
I chose to go to the downtown protest, partly because it was easier to get to and partly because it seemed likely to be more interesting. I didn’t see the protest flyer and I got there about 20 minutes late, so I’m not sure who all the organizers were, but the main impetus seemed to come from the African People’s Socialist Party and a white subsidiary organization called the Uhuru Solidarity Movement (“uhuru” means “freedom” in Swahili), along with the Raza Educators’ Association. The speakers from these groups were heavy on rhetoric attacking President Obama, calling for revolution and denouncing the calls from everyone from Obama to Michael Brown’s parents asking that the demonstrations stay “nonviolent.”
But it wasn’t the sort of event you go to for the speakers. What impressed me most about it was the irrepressible energy of the crowd, the way they were willing to march on the sidewalks in a helter-skelter route around several downtown blocks. At times it seemed even the march leaders didn’t know where the march was going to go next, which was a good thing. What’s more, I was pleased to be at a march where there was virtually no one there I actually knew — and goodness knows, it’s easy enough to be depressed by the small size of the San Diego Left and wonder if we’re all just the same 12 people at each demonstration. I was impressed by the commitment, the energy and the power of this crowd.
On November 25 there was not much more that needed to be said about the events in Ferguson — but there was a need to say it anyway, especially in an action dominated by people of color saying they’re fed up with being contained and controlled by the police (and the corporate-dominated economic and political system of which the police and the U.S. military are the enforcement arms). What was said by the people with the bullhorns and the P.A. was less important than the statement the crowd made simply by being there and saying, “Enough Is Enough.” It was a powerful, energetic evening, and I was proud to be there and be a part of it.

Sunday, November 30, 2014

Police Call Their Uniforms “Babe Magnets”

Retired Officer Shocks Crowd at Public Debate Nov. 19

by MARK GABRISH CONLAN

Copyrigh © 2014 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Michael Maryland, Marjorie Cohn, Catherine Mendonça

Jack Bernanker, Bob Kundland, Thomas Streed

“Law enforcement officers are aware of the implications of a single man coming into contact with women in a patrol car,” Thomas Streed, 23-year veteran of the San Diego Sheriff’s Department, said at a public forum on police practices sponsored by the San Diego Debate Club and Activist San Diego’s public radio station KNSJ (89.1 FM) at the San Diego Repertory Theatre November 19. “One thing I was taught in the police academy is that the uniform is a ‘babe magnet.’ Officers are taught to be alert to this particular thing. Some officers have psychopathologies that drive them to victimize people.”
Though the forum was announced as being a debate over whether police in general are doing their jobs or going too far, the words “babe magnet” galvanized the audience and hung over the rest of the event like a cloud. Most of the attendees were skeptical of the police to begin with, and the words “babe magnet” seemed to summarize the whole attitude of law enforcement, especially towards women. It didn’t help that all three of the panelists defending the police were white men of retirement age — the other side included a white man, a white woman and a Latina — or that Streed’s comment was a response to the lead panelist on the other side, Catherine Mendonça of United Against Police Terror — San Diego, telling about how she was a victim of police abuse herself.
“I was sexually assaulted by a Los Angeles police officer a few years ago, and it opened my mind to what police can do with impunity,” Mendonça said. “Rates of sexual assault and domestic violence among police officers are higher than in the general population. I work in a domestic-violence shelter and many women there say they have called police when they’ve been endangered, and the police have done nothing.”
The other two panelists on the “police are going too far” side pointed to Streed’s “babe magnet” remark as evidence of the attitude women victims of sex crimes and domestic violence get from officers, and why such crimes are often not reported at all. “‘Babe magnet’ is quintessential ‘blame the victim’,” said Thomas Jefferson School of Law professor and former National Lawyers’ Guild president Marjorie Cohn. “Women don’t report rapes because they’re afraid the first thing they’ll be asked by the police is, ‘What did you do to deserve it?’”
“Words fail me to describe the nonsensicalness of that statement,” Streed replied. “To suggest that law enforcement officers are challenging women and blaming victims of sexual assault sickens me. In my 23 years in law enforcement I don’t recall anyone suggesting a woman brought sexual assault upon herself.” Streed also tried to explain his “babe magnet” remark, saying that back in his days at the police academy “one thing a training officer said is that in some cases that uniform can constitute a ‘babe magnet.’ Women may be attracted to the uniform.”
The third police skeptic on the panel, civil rights attorney Michael Maryland — who specializes in lawsuits against police departments and individual officers alleging abuse — mentioned the recent conviction of San Diego police officer Anthony Arevalos on six charges from an indictment alleging 21 cases in which Arevalos made improper advances or solicited bribes from women he stopped. The city has also agreed to nearly $9 million in settlements of civil suits brought by women Arevalos victimized. What’s more, allegations have surfaced that Arevalos was merely the tip of the iceberg, and that other officers assigned to the San Diego Police Department’s Sex Crimes Unit, which investigates rapes, routinely made disparaging remarks about women and hung posters in their precinct officers reflecting what women activists call “rape culture.”
Streed’s “babe magnet” comment “raises for me the stories we’ve had of sexual assaults by uniformed SDPD officers,” Maryland said. “The officers who did that felt they could get away with it, and supervisors and middle managers let them get away with it.”
“It’s important we not say ‘all women’ or ‘all police officers,’” said Bob Kundland, a panel member who worked for the SDPD, the Sheriff’s Department and the Marshal’s Department before retiring. He admitted that he didn’t have personal knowledge of “the issues regarding the chain of command” — Maryland’s allegation that SDPD officials let officers they were supposedly supervising get away with sexually harassing women — but said during his time at the SDPD three officers had observed a colleague behaving inappropriately, “and one of them reported it to me.”
“The problem is one of power,” said Maryland. “The police officer has enormous power, and certain people, given that power, will abuse it. The question is how we’re dealing with the small percentage of officers who abuse that power.”
Asked by the debate moderator, former San Diego city attorney Mike Aguirre, if the San Diego County Sheriff’s Department had had similar problems to the SDPD, Streed said, “Every police department has a problem with some police conduct. I provide expert testimony in court as a witness on that kind of behavior. I happen to be concerned with that.”
“There’s tons of evidence that the SDPD sex crimes unit has a number of victim-blaming posters on their walls,” said Mendonça. “Anthony Arevalos was able to get away with it for years.”
“One of the problems is the code of silence,” Maryland added. “Officers are afraid to blow the whistle on other officers. I have represented police officers who have been driven out of their departments for doing the right thing. The police culture makes it difficult for good officers to blow the whistle on their colleagues.”
“If there is a code of silence, it’s disgusting,” Streed replied. “It’s based on a fear of alienating someone who’s around and may not provide backup when it’s needed. But we recognize it and we have put mechanisms into place to address it.”
Aguirre also asked a question about the allegations over the last 30 years that the San Diego Police Department received reports of the murders of 20-plus prostitutes and did little or nothing about it.
“I was the lead investigator on that series, and I haven’t felt safe talking about it since 1983,” Streed said. “We found a lot of people who didn’t do it. There are a lot of questions. At one time we had 48 dead prostitutes. The head guy [on the investigation] said, ‘Get out front with the media,’ and one guy said [at a press conference], ‘Let me assure you. We don’t have a serial killer.’ I turned and looked at him, and one of the other reporters asked me, ‘Dr. Streed[1], do you agree with that?’ I said, ‘Yes, we have 28 dead bodies and 28 different people could be killing them exactly the same way and dumping them in the same place.’”
Marjorie Cohn reminded the audience that, despite Streed’s arguments with his colleagues, “these crimes were not properly investigated and solved.” She also said you can’t address the issue of police misconduct without talking about race, and in particular the tendency of police officers to treat people of color more harshly than whites in similar situations. “Even President Obama has been pulled over because of his color,” Cohn said. “When you’re Black or brown you’re much more likely to be arrested, convicted and sentenced to death.”
“I represented a police officer who was a victim of racial profiling by the U.S. Drug Enforcement Administration (DEA),” said Maryland. “It can happen to anyone, and we have to make sure law enforcement addresses it.”
“Those engaged in sex work are referred to by police as ‘NHI’ — ‘No Humans Involved,’” said Mendonça. This term, which was first publicized in San Diego in the early 1980’s about the prostitute murder cases, also includes homeless people and Transgender people. “Police have this view based on who they are, not what they do,” Mendonça alleged. Her argument was that by writing off certain classes of people as “not human,” police ensure that they’re more likely to be convicted of crimes and less likely to be protected against crimes in which they’re the victims.
An audience member named Erika asked why 97 out of 100 rapists never get punished at all. The source for her statistic was a recent report by the Rape, Abuse and Incest National Network (RAINN), available online at https://rainn.org/news-room/97-of-every-100-rapists-receive-no-punishment.
Retired San Diego County deputy sheriff Jack Bernanker, one of the pro-police panelists, replied, “First of all, if they’re unreported, we don’t even know that [these rapes] occurred.” The RAINN statistics say that 46 percent of rapes are reported to police, but only 12 percent of rapists are arrested, 9 percent are prosecuted, 5 percent are convicted of a felony but only 3 percent ever serve time.
Bernanker also said that when he was in law enforcement, “if there was a rape allegation, it was investigated and a special unit would write the case up and submit it to the D.A.’s office.”
“There is a systemic amount of violence in the U.S., especially against people of color and communities which are underserved,” said Activist San Diego executive director Martin Eder. “Two-thirds of Latinos feel they are likely to be discriminated against by police. The number of unarmed shootings of youth of color, especially Black people, speaks to a police force that has the ethic of controlling the streets and shooting first and asking questions later. Racialized justice has been the norm, not the exception.”
Eder’s comment was the first time anyone alluded to the killing of 18-year-old Michael Brown by police officer Darren Wilson in Ferguson, Missouri last August. The debate took place five days before the refusal of a Missouri grand jury to indict Wilson for killing Brown touched off demonstrations throughout the U.S., many of which ended in riots. One of the allegations against authorities in Ferguson is that their heavy-handed restrictions on street protests just escalated the situation and made violence more likely.
“Ferguson is just the tip of the iceberg,” said Cohn. “Young Black people are hassled and shot by police every day. [In Ferguson] they’re trying to keep people from protesting, planting officers to spy on protest leaders, making false arrests and staging raids on churches and homes, using acoustic devices and chemical and other weapons, and arresting reporters. When you read the press coverage, think about that.”
“You’re dealing with a lot of people in the community who are going to protest and let their voices be heard,” said Kundland. “What do you do when someone fires a gun, throws something or creates an issue? When does a peaceful protest become a mob and a riot?”


[1] — As Streed explained it while introducing himself at the event, while working as a San Diego County Sheriff’s Department homicide detective, he also went back to college and majored in psychology to learn more about why criminals behave the way they do. He earned a Masters’ and eventually a Ph.D.

Thursday, October 23, 2014

San Diego’s Crapid Transit

Mourning the Wanton Murder of the #15 Bus Line

by MARK GABRISH CONLAN

Copyright © 2014 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

On October 11, I said goodbye to my father. He had died two months earlier in the San Francisco Bay Area, and his widow (they had been married 53 years; he and my mom had broken up when I was 1 ½) had arranged what she called a “gravesite visit” and invited family members and friends for an informal memorial. That night, as I took the bus from the airport and then made a connection downtown to return me to my home in North Park, I said another goodbye — not to a person, but to a bus line. The #15, which started downtown and ran up the 163 freeway to Hillcrest, then turned onto El Cajon Boulevard and followed it to San Diego State University, was running for the last time before, in one of the many stupid and infuriating decisions made by the people running San Diego’s Metropolitan Transit System (MTS), it was shut down and replaced by a so-called “Rapid” #215.
I had been riding the #15 since I got to San Diego in 1980. At first my then-girlfriend Cat and I lived in Golden Hill and would walk down to Broadway and ride it either to the College area or all the way out to El Cajon — it ran longer in those days — mainly to buy LP records at stores like Off the Record and Blue Meannie Records. (Blue Meannie closed in 2008 — a victim of what in these pages I’ve called “the Interblob,” the way the Internet has largely taken over business after business and abolished the experience of in-person browsing — but Off the Record still exists, though it moved first to Hillcrest and then to North Park, where it holds out in a much smaller space and I still occasionally buy CD’s and used LP’s.) More recently, for the last year and a half I have been doing home care for clients who lived downtown, and I had used the #15 as my quickest and most reliable way to get to work.
But, beginning a little over a year ago, I was warned that the ill-informed idiots who ran MTS would not be letting me do that much longer. The key clue was when construction crews started building these elaborate metal objects on the sidewalk along El Cajon Boulevard and on other parts of the bus lines, including an island smack in the middle of Park Boulevard just north of University. The constructions got in the way of the existing bus stops, and frequently I would leave the house unsure of just where my beloved #15 was going to stop and how much farther than normal I’d have to walk to get there. Then the signs went up, announcing that a new “Rapid” bus line was going to be running along that route and these new, highly decorated bus stops were being built to accommodate it. It took a while to complete these projects — indeed, the morning service started on the “Rapid” #215 a crew was still hosing down the newly built stop where you were supposed to pick it up — but eventually the dark day came when the #15 would be no more and what I’ve come to call the “Crapid” would replace it.
I decided to be fair and give it a try. That lasted two days. On Monday, October 13 — the morning they were still hosing down the bus stop at El Cajon and Texas Street that “Crapid” riders were supposed to use to get on it — I wasn’t sure whether it was going to stop at the elaborate new stop they were hosing down or the old stop across the street. It stopped at the new stop and the sidewalk was still wet from the last-minute cleaning job as I boarded the “Crapid.” It took the “Crapid” just as long to make it down Park Boulevard as it did the old #7 bus, which (blessedly) still exists and which for years has run from Broadway up Park Boulevard, turned east on University Avenue and (depending on which one you get on) goes to 54th and University, College and University, or all the way to La Mesa. What’s more, while the #7 and the old #15 stopped at several locations on Broadway — including one just a block and a half away from my client lives — the “Crapid” only makes three downtown stops: the City College trolley station, Horton Plaza and the America Plaza trolley station. That means a longer walk once I get off the bus — and an irritated client who quite rightly wonders why it’s now so much harder for me to get to work on time.
The wanton destruction of the #15 and its replacement with the “Crapid” is just the latest in a series of bizarre moves by the people running the Metropolitan Transit System (the “Metropolitan Transit Sewer,” as I used to call it until a fellow bus rider sitting with me at a stop on Sunday evening said, “You’re being unfair to sewers — at least they run on Sundays”). For decades both the #7 and #15 ran all the way down to the end of Broadway — until the idiots running MTS decided to short-circuit the runs and end them at First, then shortened them again to end at Third, all of which makes it difficult to get to the Office Depot store at the end of Broadway where I shop often. What’s more, they’ve adopted a stupid plan that’s supposed to make the overall system faster and more efficient, but which anyone who actually rode San Diego’s buses regularly could have told them would be stupid and counterproductive.
It’s called “Limited Stops,” and it’s based on the dumb idea that the reason more San Diegans don’t use public transit is that the buses stop too often. I remember when the two trunk lines serving University Avenue, the #7 and the #10, both stopped at every stop along University. Now only the #7 does; the #10 (which starts at the Old Town Transit Center, snakes up Washington Street to Mission Hills and Hillcrest, and continues down University Avenue — except on weekends, when it abruptly stops at the 40th Street station on a bridge over the freeway) stops at just a few places along the route. The #15 was also subjected to a “limited stops” routine so that it made only one stop (at 33rd Street) on the long stretch of El Cajon Boulevard between 30th and 40th. When the “limited stops” nonsense was introduced at first even the bus drivers were confused — they no longer knew where they were still supposed to stop and where they weren’t, and sometimes they stopped where they weren’t supposed to (and thus made the system much easier on riders) until they learned which stops were still kosher and which were verboten.
A true express bus — one that bypasses surface streets and spends a lot of its route on the freeways, like a car — is considerably faster than one that stays on the surface streets and makes frequent stops. But a “Limited Stops” bus that runs on city streets isn’t any faster than a bus that makes all the stops. Why not? In two words: traffic lights. Any time the driver may be saving by not having to stop at all the indicated stops is going to be lost anyway by all the red lights he or she (and many of the best MTS drivers, both in terms of efficiency and friendliness to riders, are women) will have to stop at. This was a problem when the #10 was shifted to “Limited Stops” status — and it’s also why the #215 “Crapid” isn’t any faster than the #7. It still has to run down Park Boulevard, and even though part of the way it runs on a newly (and expensively) constructed dedicated lane, it still has to stop whenever there is a red light.
I mentioned this to a fellow rider at the #15 stop at Texas and El Cajon a few days before the #15 was killed and replaced with the “Crapid,” and he said that that wouldn’t be a problem because the new buses on the #215 would be equipped with radio signals that would broadcast to the traffic lights and cue them to turn green so the bus could pass. This seemed a bit dubious to me, but he swore that he’d seen this work in Cleveland. From years of bitter experience as a San Diegan, I replied, “There are plenty of things that work in other cities that get screwed up when they’re tried in San Diego.” After I decided to give up on the “Crapid” after two days and start taking the #7 to work, I mentioned this to a middle-aged woman bus driver who said those radio devices that are supposed to make the lights on Park Boulevard go green for the #215 to pass do indeed exist — but they’re not automatic. The bus drivers have to activate them as they approach each light, she said, and most of them aren’t bothering.
The “Limited Stops” nonsense and the wanton destruction of the #15 line to replace it with yet another slow, crappy bus that runs on city streets and gets delayed by red lights are just two examples of the thinly veiled contempt the people who run MTS have for the people who use it. A decade ago I interviewed San Diego environmental activist Carolyn Chase, and something she said in our interview has stayed with me ever since: “San Diego will never have a great public transit system as long as the people running it still think of it as a welfare program.” Genuinely cosmopolitan cities like London, Paris, New York or San Francisco see public transit as part of the urban experience; places like San Diego regard their transit systems as bones they throw to the people too old, too poor or too ignorant to drive.
Limiting the number of stops doesn’t make the buses any faster; it just means that transit users have to walk farther at both ends of their trips. Anyone who actually rode buses regularly would have been able to tell that to the majordomos at MTS, but no one did. Someone who’s seen the MTS offices at 12th and Imperial has told me about all the big, fancy cars in their parking lot, many of them chauffeur-driven, with which MTS’s decision-makers get their sorry carcasses to work so they can make decisions that make MTS slower, less efficient and harder to use. Replacing the #15 with the “Crapid” #215 is a doubling-down on the “Limited Stops” strategy that has actually made San Diego’s bus service worse, not better.
It’s long been a pet theory of mine — at least until I was told that a lot of MTS’s top staff people don’t actually drive themselves to work, but make enough money they can hire other people to do it — that everyone who works for MTS should be required to surrender their driver’s license for the duration of their employment there so they would have to use public transit and therefore experience the results of their decisions in the real world. The middle-aged woman driver I met on the #7 (who told me she’s retiring soon, which will be good for her but a loss for the system) had a similar but less drastic idea: everyone at MTS should spend two years driving a bus on the system before they get to be decision-makers. Either would ensure that the people making decisions for San Diego’s bus riders would be conversant with the people who use public transit, and would help keep them from coming up with cool-sounding ideas like “Limited Stops” and the “Crapid” that any bus rider could have told them wouldn’t work on the ground.
There are other problems with the “Crapid” #215, including the decision to set up a special stop for its eastbound run on Sixth and Broadway instead of having it use the same regular stops all other buses that run down Broadway use. This is yet another dumb MTS idea; by staggering the stops you make it impossible for passengers to play one bus line against another and get on the one that arrives soonest and will still get them where they’re going. No, if you want to get from downtown to North Park you have to decide in advance whether you’re going to take the #7 or the “Crapid” — and it’ll take you a long walk out of your way if you change your mind. It also doesn’t help that some of the stops are on dedicated lanes in the middle of the street — including the one outside the Grace Towers senior citizens’ building at Park and University — meaning that seniors and people with disabilities are going to have to make a potentially dangerous street crossing just to get to the bus stop instead of conveniently picking the bus up on the sidewalk in front of their building.
The “Crapid” was introduced with a major public-relations campaign that included a press conference at the Park and University stop and a cool logo with their advertising slogan, “One Sweet Ride.” It’s actually one more bitter pill shoved down the throats of San Diego’s public transit users by an insensitive and ignorant bureaucracy which knows little — and cares less — about the problems faced by people who actually depend on public transit to work and shop.

Wednesday, October 22, 2014

Proposal to Name School for Kehoe Runs Into Opposition

School Volunteers, Community Members Say They Were Blindsided

by MARK GABRISH CONLAN

Copyright © 2014 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Christine Kehoe (file photo)

Moises Aguirre

Nicole Murray Ramirez

Chris Ward

Kevin Beiser (file photo)

Richard Barrera

Jackie Bacon McGlish

Karen Holtzman

Nicole Blazie

Bruce Abrams

A proposal to rename Florence Elementary School, on First Avenue between University and Washington in Hillcrest, after Christine Kehoe, the first openly Queer person to win elective office in San Diego, ran into unexpected community opposition at a meeting at the school Wednesday, October 8. Ironically, the meeting began with a  presentation by Moises Aguirre, executive director of district relations for the San Diego Unified School District (SDUSD), that described a broadly inclusive process for renaming a public school — but that’s exactly what community members, including parents with children at Florence Elementary as well as adults who volunteer there, said wasn’t happening.
“We have a process when we receive a request for changing the name of a school, and we want to involve all the stakeholders,” Aguirre said at the beginning of the meeting. “The first step is receiving a proposal, not necessarily in writing. After that step, there are a number of stakeholder involvement steps, including gauging the interest of the school staff and the community. There will be other community meetings. We will need letters of support from the school principal and staff.”
The proposal originally came from a group calling itself the San Diego LGBT History Task Force, though it’s being strongly pushed by SDUSD board member Kevin Beiser. The presentation on behalf of the Task Force was made by city commissioner Nicole Murray Ramirez, a long-time San Diego Queer activist who ironically supported Kehoe’s straight opponent, Evonne Schulze, in Kehoe’s pioneering run for the San Diego City Council in 1993. Ramirez identified himself, Beiser, Chris Ward, Susan Jester and Lambda Archives of San Diego staff member Maureen Steiner as the members of the Task Force, and gave the opening presentation on its behalf.
Despite having opposed Kehoe in her initial election bid, Ramirez said “I have worked with her for years” and strongly supported the name change as a way of giving role models to young Queer San Diegans just coming to grips with their sexual identity. “When I was a child in the 1950’s and 1960’s no one on signs or stamps was anything like me,” he said. “You can imagine my joy when things were named for Martin Luther King, Jr., Rosa Parks, César Chávez, Dolores Huerta and Harvey Milk. Once being a woman or a person of color meant being invisible, but now we are recognizing diverse communities.” He called Kehoe “an historic San Diego citizen who has helped make this America’s finest city.”
Ward added that, though Kehoe’s reputation stems mainly from breaking the glass ceiling and becoming the first openly Queer person elected to office in San Diego, she was involved in other issues as well. “Many of you may not know Chris Kehoe’s achievements in education,” he said. “She spearheaded the schools for trees program and reached out to promote essay contests for local schools. She sponsored the 6 to 6 program as both a City Councilmember and a State Assemblymember. She was honored for her work in reducing class sizes and getting schools to teach the basics.”
Though Beiser and fellow SDUSD board member Richard Barrera were the only elected officials there in person, a long string of political staff members came to the microphone to read letters by their bosses supporting the name change. Jester read a letter from San Diego Mayor Kevin Faulconer backing it. Evan Ballinger represented San Diego County Supervisor Dave Roberts. Jessica Mayer spoke on behalf of Congressmember Susan Davis.
Kehoe’s two successors on the San Diego City Council, current Assembly Speaker Toni Atkins and current City Council President Todd Gloria, both chimed in through their staff members, Tori Dawn and Adriana Martinez, respectively. Gloria’s letter, read by Martinez, called Kehoe “San Diego’s Harvey Milk.” Atkins was so eager to express her support of renaming Florence after Kehoe, Atkins’ political mentor, that she hadn’t completed the letter but had Dawn read her draft from a smartphone.
Jen Morse, president of the Greater San Diego Business Association (GSDBA) — a group representing businesses either owned by Queers or marketing primarily to Queer customers — also supported the name change. Rebecca Holt, public policy director of the San Diego Lesbian, Gay, Bisexual, Transgender Community Center, read a letter from Center director Dr. Delores Jacobs backing it. Representatives of DOD FED GLOBE, an organization aimed at safeguarding the rights of Queer employees of the Department of Defense, and the Hillcrest Business Association also supported the name change.
The impressive list of supporters from both the public and private sectors left Florence Elementary’s own community — school staff members, volunteers and parents of children who attend it — feeling overwhelmed. Aguirre’s decision to call speakers representing elected officials and business groups before he heard from any parents or school volunteers just added insult to injury. They claimed that instead of the inclusive process Aguirre’s opening remarks had promised, supporters of the name change were blindsiding them and presenting it as a virtual fait accompli without giving them the hearing school district policy demands.
“I have been part of the Florence community,” said Jackie Bacon McGlish. “I had students here until 2013. My husband served on the school advisory committee. I’m a lifelong Democrat, but I have concerns about the name change because it’s been forced through without a plan to involve the volunteer community.” She compared the way the “Christine Kehoe Elementary School” name was being pushed with the recent long-term process to rename the school’s library after veteran educator and school staff member Robert Vaughan. McGlish also argued that if the district is going to name a school after Kehoe, it should be a middle or high school instead of an elementary school because discussions of the two key issues in which Kehoe was involved — Queer rights and the environment — would be more appropriate in schools that serve older students.
“I live in the neighborhood, I teach at UCSD, and my son goes to Florence,” said Karen Holtzman. “I’m sure Chris Kehoe is a lovely woman and deserves honors, but this process has not included community members at all. I hope the lip service being paid to involving the community comes to fruition.”
“I have volunteered at Florence Elementary for four years and lived on Dove Street [in Mission Hills, six blocks from the school] for 10 years,” said Nicole Blazie. “I apologize for not having a prepared speech because I didn’t know about this meeting until 2 p.m. today, when a friend of mine e-mailed me a link. I would feel a lot better if there had been an effort to involve the community.”
Blazie particularly bristled at SDUSD board member Barrera’s suggestion that as part of the name change, Florence adopt a new logo and replace its school mascot, the Falcons, with “The Trailblazers.” “Florence is a low-income school,” she said. “The kids wear uniforms and the kids cannot afford new T-shirts. You’re going about this all wrong. If you want the support of the community, you have to involve the community, get us on board, acknowledge that this school is low-income and the parents need help.”
The ferocity of the opposition from Florence’s parents and volunteers took supporters of the name change aback. “I’m an uncle, I’ve had three kids and I’ve had to support all these schools,” said community philanthropist and fundraiser Bruce Abrams. “We as a community would love to help you support the school and support the low income kids. I’ve known Chris Kehoe for 30 years, but it’s important that you know we want to help.”
“I want to apologize to the parents,” said Ramirez after he asked for — and got — special permission to speak at the close of the meeting. “I’m very disturbed because we were told you were involved and this was the beginning of the process. I think it is being pushed on you, and I’m so glad the parents have come forward. Our community and Task Force have been involved in Easter egg hunts for 700 students. We provide school supplies and scholarships. Chris Kehoe has met with your principal, and she had the same concerns. This process has to stop because you’ve been disrespected, and we’ve heard that loud and clear.”
“There’s still a lot of conversation that needs to happen,” said Aguirre as he brought the hour-long meeting to a close. “By no means is this the be-all and end-all of this process. We need to reach out to parents and also school staff, including classified [non-teaching] staff. We hear the community as a whole, and it is diverse. Hopefully as a community we can come forward and support the process. It’s about how do we handle the communities and build a real community.” He asked everyone in the audience who hadn’t put their names and e-mail addresses on the sign-in sheets at the start of the meeting to do so before they left “so we can keep in touch with all the stakeholders. That’s what we do in San Diego: we work as a community.”

Tuesday, October 14, 2014

Queer Democrats Stay Neutral on Prop. 46

by MARK GABRISH CONLAN

Copyright © 2014 by Mark Gabrish Conlan for Zenger’s Newsmagazine • Used by permission

For Prop. 46: Kathy Olsen

Against Prop. 46: Jay Hansen

Remember those episodes of the original 1960’s Star Trek in which the Enterprise crew members destroyed seemingly all-powerful computers by feeding them tons of inconsistent and illogical information? That’s pretty much what the predominantly Queer San Diego Democrats for Equality went through at their September 25 meeting when they tried — and failed — to come to a position on Proposition 46 on California’s November 4 election ballot.
Proposition 46’s official title, “Drug and Alcohol Testing of Doctors; Medical Negligence Lawsuits,” indicates that it’s a smorgasbord of provisions relating to health care in general and protecting people from medical malpractice in particular. The description of the proposition in the California voters’ guide has five bullet points, three of which relate to the measure’s requirement that all doctors with hospital admitting privileges must submit to drug and alcohol tests and, if they test positive, their medical licenses will be suspended pending an investigation. It also requires doctors suspecting other doctors of drug or alcohol abuse to report them to the state medical board.
The measure also requires that before they can prescribe certain controlled substances — mostly potentially addictive painkillers like morphine, Valium or Oxycontin — doctors will have to check a database called Controlled Substance Utilization Review and Evaluation System, or CURES for short. The idea is to prevent patients from abusing these drugs through so-called “doctor-shopping,” which means seeing several different doctors to obtain quantities of these drugs far larger than what they would need for legitimate medical uses. Under current law doctors can register to use CURES, but they don’t have to. If Prop. 46 passes, however, they will have to as of January 1, 2016 — though, according to the legislative analyst’s official ballot description, “providers will not be required to check the database prior to prescribing or dispensing drugs.”
But the nub of Proposition 46 is its proposed changes to the Medical Injury Compensation Reform Act (MICRA), passed by the California legislature in 1975. MICRA was passed in response to complaints from doctors and hospitals that they could no longer afford medical malpractice insurance because of lawsuits resulting in high jury awards to victims. So the bill set a $250,000 cap on so-called “non-economic damages” from medical malpractice, including losing limbs, sight, hearing, or the ability to walk. The bill did not index the cap to inflation, so it remains at $250,000 even though the buying power of that sum has dropped dramatically since 1975. Prop. 46 would raise the cap to $1.1 million and index it to inflation.
Supporters of Prop. 46 claim the cap is so low many medical malpractice victims — particularly children and retired people, who can’t prove economic damages because they weren’t part of the workforce when they were hurt — can’t sue at all because they can’t find attorneys willing to take their cases for just one-third of $250,000. Opponents say lifting the cap will lead to vastly increased health care costs, as exploitative trial lawyers look for big paydays for themselves and their clients and malpractice insurance premiums go through the roof again.
The people who spoke for Prop. 46 at the Democrats for Equality September 25, legislative staff member Chris Ward and patient advocate Kathy Olsen, started with a dramatic story aimed straight at the heartstrings. “I’m the mother of Stephen Olsen, who was two years old when he was injured,” Kathy Olsen said. “He suffered from catastrophic injuries, is totally blind and has had many surgeries. We were lucky enough to get an attorney to take his case to court. The defense did not want my son in court because they thought he was a minor and that might sway people. The jury said we were entitled to $7 million, but the defense invoked MICRA and it was reduced to $250,000, $4,000 for each year of my son’s life expectancy.”
Ms. Olsen said that, thanks to MICRA, medical malpractice is the only area of liability law where there’s an absolute cap on judgments. “It’s not doctors versus lawyers,” she said. “It’s patients against insurance companies. Insurance companies have spent so much money against this because they don’t want to have to pay. Medical errors are the third most common cause of death in the U.S., behind cancer and heart disease. Four hundred thousand people per year are affected by this.”
The case against Prop. 46 was presented by Jay Hansen, chief strategic officer for the California Medical Association. “If this measure were just about the MICRA cap, we’d be having a different conversation,” he said. “But the measure has a lot of things, including drug and alcohol testing for doctors and using the CURES database, which is not supposed to work in real time. The Service Employees’ International Union (SEIU), American Federation of State, County and Municipal Employees (AFSCME), the AFL-CIO, the NAACP and Planned Parenthood are all opposed. The Los Angeles County Democratic Party also voted to oppose it, as did the LGBT [Queer] Caucus of the California Democratic Party, because we’re concerned about the [lack of] privacy of the CURES database.”
Like the ubiquitous TV commercials against Prop. 46, Hansen portrayed the measure as an attempt by sinister trial lawyers to milk the system for scads of money by filing medical malpractice suits without the MICRA cap to restrain them. “The California School Boards Association estimated the cost to them would be $2 million per year,” he said. He also accused the proponents of eliminating a requirement in the first draft of their initiative that nurses would have to report doctors apparently under the influence of alcohol or drugs so the California Nurses’ Association would endorse the initiative. As it stands, he said, “the only people who are drug- or alcohol-tested are doctors who have hospital privileges, not all doctors.”
Hansen also said that changes to laws like MICRA should be made by state legislators and the governor, not at the ballot box through an initiative — which provoked angry comments from supporters to the effect that legislators are so dependent on campaign contributions from insurance companies they won’t even consider raising MICRA. This provoked Hansen to tell a story about how, when former Los Angeles Mayor Antonio Villaraigosa was speaker of the California Assembly, “the CMA agreed to raise [the MICRA cap] to $500,000, but the trial lawyers demanded $1 million.” He also said that current Assembly Speaker Toni Atkins was against Prop. 46.
That provoked former Democrats for Equality president Craig Roberts to text Atkins to see if she had really taken a position on the measure. She texted that she hadn’t, but later sent an e-mail to another club member stating that, though she had no official position on the rest of the proposition, her experience as former director of the now-defunct Womancare women’s health clinic and former board member of Planned Parenthood — both of which, she said, “couldn’t get malpractice insurance until MICRA” — had made her dead-set against raising the MICRA cap at all.
“You have a great deal of antipathy towards lawyers,” club member Kelli King said to Hansen. “Who’s on the other side? Insurance companies. There are scumbag lawyers, but there are also scumbag insurance companies. Lawyers at least potentially represent the little guys against the insurance companies.”
“This wouldn’t be in front of us if the trial lawyers hadn’t raised $8 million to put it on the ballot,” Hansen responded. “It’s important with any ballot measure to see who’s paying for it. All the money came from attorneys. I know the trial lawyers’ lobbyists and I work with them. I also know what their motives are.” Hansen added that while there were three insurance companies contributing to No on 46, “they aren’t health insurance companies,” and in answer to another audience question he said drug companies weren’t giving to No on 46 either.
“It is the insurance companies fronting the money” to defeat 46, said Karen Olson. “They have millions of dollars to fight this. The reason they’ve put so much money into [No on 46] is they get to keep 45 percent of all malpractice premium payments, the highest percentage of any type of insurance. The doctors should be on our side.”

The Other Provisions

While the MICRA cap received the lion’s share of attention from panelists and club members alike, the other provisions of Prop. 46 — the requirement that doctors be tested for alcohol and drugs and the mandate for doctors to register for the CURES database also came up in the discussion. The California branch of the American Civil Liberties Union (ACLU) opposes Prop. 46 because, according to its Web site (https://www.aclunc.org/article/no-proposition-46-medical-malpractice-lawsuits-cap-and-drug-testing-doctors-initiative), “The initiative would require physicians to submit to random, suspicionless drug testing, which is an unwarranted intrusion into their right to privacy protected by the Fourth Amendment and the California Constitution. Random, suspicionless drug testing fails to deter drug use and is unnecessarily intrusive, particularly given the less-intrusive alternative approach of testing individuals only when there is individualized suspicion of impairment or another particularized reason to do so.”
 The panelists also disagreed over whether the CURES database, on which the initiative relies to identify prescription drug abusers who are “doctor-shopping” for painkillers and other commonly abused drugs, is ready for prime time. Hansen’s argument that CURES is “not supposed to work in real time” referenced the fact that CURES was originally set up as an aid to long-term investigations and prosecutions of doctors who were enabling prescription drug abusers. It wasn’t, he said, supposed to work the way Prop. 46 wants to use it: to identify patients seeing more than one doctor for controlled substances and shut off their access to those drugs. He also questioned whether CURES would be safe from hackers and others out to steal confidential patient information.
“The legislature has been working really hard since 2009 to make sure CURES is working and will be secure,” said Chris Ward, who’s on the staff of State Senator Marty Block — though he was speaking for himself and not as Block’s representative. “We anticipate the database will be available on January 1, 2015. I believe the privacy concerns are unfounded. The encryption and security are the tightest available.”
“It’s a law enforcement database, not a medical database,” Hansen snapped back. “Initiatives become effective the day they are passed. The CMA supports making CURES operational, and it’s being paid for by a surcharge on doctors’ medical license fees, but it won’t be operational until July 2016.”
There was also a debate over whether Proposition 46 violated the single-subject rule — the provision of the California Constitution that says, “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” The California ACLU claimed that Prop. 46 does too many things to meet the single-subject requirement. “Here, voters may well support some parts of this initiative but oppose other parts of it,” the ACLU’s Web site stated. “Californians should be able to vote their conscience separately on each of these individual provisions.”
Proponents of Prop. 46 argue that their initiative does deal with just one subject: protecting California patients from medical abuses, whether caused by alcohol- or drug-using doctors, prescription drug abuse or medical malpractice. But several club members expressed precisely the sort of frustration the ACLU was complaining about; people who might be inclined to support the drug- and alcohol-testing requirements on physicians might oppose changing the MICRA cap, or vice versa.
Club member and attorney Bryan Wildenthal said Prop. 46 “packages together four separate things, including the invasion of privacy, MICRA and CURES.” He acknowledged the concern of Prop. 46’s supporters “that professionals don’t police themselves,” but questioned whether it was appropriate for an initiative to mandate that people use a particular database and said the smorgasbord of issues crammed into Prop. 46 was “liable to have us debating at cross-purposes.”
“I was actually inclined to vote for this until tonight’s forum,” said former club president Roberts in explaining why he was making a motion for the club to take no position on it. “I respect Toni’s opinion. I’ve known her 20 years and her heart is still in the right place.”
David Warmoth, current president of the Democrats for Equality, said he would vote against Roberts’ motion because “we have a legislature that on these particular issues is bombarded with lots of money and lots of competing lobbying that will prevent them from acting on any of these issues.” Eventually, however, the club passed Roberts’ “no position” motion by a voice vote; though no one asked for a roll call, the club seemed to be about 2-1 in favor of it.