Wednesday, April 1, 2020

Arbitrary and Capricious

This virus thing will be over in a few weeks, not because the virus peters out, but because people get tired of the restrictions and want to move on, even if the risks are higher.

Under the law, government officials, particularly judges or people in quasi-judicial positions (such as Patent Examiners!) have a standard of care they have to use in administering various governmental functions. So long as they can point to some underlying logical reason for what they're doing, they can pretty much get away with just about anything.

But, if one of their actions is deemed to be arbitrary and capricious, it is beyond the scope of their authority. Simply stated, this means that government officials can't just do things on a whim or be arbitrary in nature. Similarly, they can't be capricious, that is to say, just do whatever the heck they please:
Absence of a rational connection between the facts found and the choice made. Natural Resources. v. U.S., 966 F.2d 1292, 97, (9th Cir.'92). A clear error of judgment; an action not based upon consideration of relevant factors and so is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law or if it was taken without observance of procedure required by law. 5 USC. 706(2)(A) (1988).
Many governments around the world are invoking emergency powers to deal with this virus.  And for the most part, people are going along with this because no one wants to get sick or see their friends get sick and die. Sadly, some people are not only going along with this, but have decided that they need to enforce these regulations and rules themselves. I wrote before about restroom vigilantes and why that sort of thing is wrong. If you're supposed to stay home, stay home.  Running around and checking to make sure everybody else is, is not the answer.

But some of the proposed rules and regulations are kind of silly. For example, here on our island they've supposedly closed the beaches and put a huge sign out by the causeway advising people of this fact. There are still a few people going to the beach, and they have the entire place to themselves.  The authorities are not really forcing them to leave unless they're congregating in groups of 5 or 10 people - which has yet to happen.

That, of course, makes sense. There's nothing inherently dangerous in a beach. Grains of sand do not harbor the Corona Virus. Rather, the motivation for these beach bans stems from a video loop, played over and over again on Fox news, of spring breakers down in Florida frolicking on the beach. Someone needs to put a stop to this!  So they close the beaches, even though spring break is over, because no one wants to be the governor or mayor who "didn't so something!" and thus be shamed and damned on Facebook - or worse yet, not re-elected!

It is interesting, because there's a bit of generational warfare going on here in regard to that video clip.  When I talk to oldsters, I can quickly tell which ones to watch a lot of Fox News, as they decry the millennials who were all congregating on the beach and allegedly spreading the virus. And of course, the virus is much less of a threat to young people than it is to old people - so you can see where this generational warfare thing is coming from. Old folks are convinced the young people are spreading the virus intentionally in order to kill off Grandma and Grandpa and inherit their beach house - or something along those lines.

Of course, if you're old, you have all the more reason to remain in isolation and stay away from other folks.  And yet it's the old people I see down at the beach trying to monitor the situation or check on the restrooms. It makes no sense at all.

Some of these rules and regulations make sense. Others are just simply nonsense. And when more and more nonsense rules are enacted, people will start to chafe at these restrictions and start petitioning their representatives to put a stop to all of this.  Of course, the Gladys Kravitz's of the world will shout down anyone who challenges the logic of nonsense regulations.

In New York city, people are freaking out - there are millions of people living there, in close proximity to one another, entirely dependent on outside suppliers to keep the city from starving. They are in close proximity to major international airports, and city dwellers are more likely to be globe-trotters, hence NYC is a hot spot for the virus.

Away from the cities, life is going on closer to normal.  Some things seem to be uninterrupted, other things are closed down for apparently no reason.  They finished paving some roads here on the island, and the striping company did a great job of painting new strips on the asphalt.  Life goes on as before.  The recycling truck came by today, and the trash man, yesterday - and we still get our mail, although our postal carrier seems starved for someone to talk to - delivering mail to closed doors of oldsters.   For some reason though, the island authority decided that picking up yard waste should be suspended "for the duration" - although it is not clear how picking up yard waste is affected by the virus (unless those workers are incapacitated for some reason).  It seems somewhat arbitrary and no reason was given.

In the UK recently, there are signs of this as well.  They've already made it illegal to leave your home unless you're going to work, to the store, or exercising.  Of course, I'm not sure how they can enforce this rule, as if somebody's walking down the street they can claim to be exercising. In other words, it's a nonsense rule.

(It is sort of like the rule on antique license plates on your car, which I had on my 1974 BMW 2002.  You could use the car only to drive to the mechanic, for test driving, to go to car shows and parades, and for "occasional pleasure use."  A cop once pulled me over and harassed me for "commuting" with antique tags on my car.  I explained to him I worked from home, and my driving was "occasional pleasure use."  As it turns out, you can't give a ticket for this anyway, the best he could do was petition Richmond to have my tags revoked - good luck with that.   It may explain, in part, why our "beach ban" amounts to little more than signs posted, while a few hardy souls are still on the sands.  Other than to close the whole island, there isn't really a mechanism to enforced these rules - common sense should prevail in any case).

They've also made it illegal, in parts of the UK, to gather in groups of more than two. So a husband and wife and their two children who've been cooped up in their house for over a week, could face a fine if they go out for a walk together. Never mind the fact that they're living in close proximity with one another and if one gets the virus, chances are they all will. Going for a walk as a group isn't risking each other's lives or anybody else's. It's simply an arbitrary rule and makes no sense whatsoever.

Other rules are even more ridiculous.  Officials in at least one jurisdiction in the UK has enacted very arbitrary and ridiculous rules such as banning Easter eggs. I'm not quite sure why Easter eggs are spreading the Corona Virus. I guess they feel if they outlawed Easter eggs that no one will have Easter egg hunts and therefore not spread the virus. It's sort of the same logic behind closing the beaches. The real problem is people congregating together, not the beaches themselves. Blanket prohibitions make no sense at all.  But again, I guess people feel they need to be seen "doing something" - which is the same psychology behind hoarding toilet paper.

For God's sake, let the kids have their Easter eggs!  It makes no sense not to allow children to enjoy the holiday.  OK, so maybe no Easter egg "rolls" or hunts - but no eggs at all?  It makes no sense. Here in the States, people are putting teddy bears in their windows or on their front lawn and people are driving around with their children on treasure hunts trying to find the various stuffed animals. Of course, I guess that would be violating the law in the UK because there are more than two people in the car. But it illustrates that children need intellectual stimulation particularly in this time.  People need to maintain their mental health as well as physical health.

We are already seeing incidents - as I predicted - of violence surrounding this virus.  A crazy lady knocks down and kills an elderly woman because she didn't maintain "social distancing".  A man shoots someone at a convenience store because they coughed. A woman near Rochester, NY, is beaten and robbed because she was wearing a face mask and was accused of "spreading the virus". By the way, that area between Rochester and Buffalo is pretty weird - home of corrupt right-wing tea-party Republicans, the Jello museum, and "Scary Lucy".   That and the "Southern Tier" are really our own slice of Appalachia.  But I digress....

Emergency powers are awesome powers. When a government involves emergency powers, they have to be particularly careful to use them wisely. Making blanket prohibitions and arbitrary and capricious proclamations will backfire in a big way as people will rise up and overthrow their own government leaders.

Speaking of which, what is up with Trump?  At first he trivializes the virus, announcing that only a few people will be affected.  Now, he announces that in the next 30 days, 100,000 to 250,000 people in the United States alone will die from this - more than two to fives times that have died worldwide, to date!  Did he tell his friends in advance of this announcement so they could short-sale stocks?   It is getting to the point you don't know what to believe anymore.  Government either does too little, or too much.

By the way, even if the 250,000 number comes true, it would increase the death rate in the USA by 10% over normal.  Yes, over 2.8 million people die every year.  Yet for some reason, we are told the morgues are flooded with bodies and no place to put them.   Could this be the same as the stories told after Hurricane Katrina of "bodies stacked up in meat lockers under the Superdome"?   No one bothered to ask why there would be meat lockers under the Superdome - and yes, a lot of the stories surrounding that disaster turned out to be false, but ten years later, no one bothered to read the corrections.  We hang on every word from CNN or Fox News, conveniently forgetting that these same "news" channels breathlessly reported for hours about a "contrail" that might have been a rocket (but was just a jet airliner) or who showed a photo of an airliner parked at a gate while they speculated for hours whether something was going on or not (turns out, not).

I wrote about this before and a reader chimed in. After Hurricane Irma or any other major storm,  some local sheriff or other official gets all up in himself and decides to arbitrarily close entire neighborhoods because they are "unsafe" because there's no electrical power.  According to these guys, you can't live without electricity for more than five minutes.  Until the power is turned back on, its considered unsafe to go back to your home - and we're not talking downed power lines, either.  Some government officials apparently believe that electricity is like oxygen, and that people will smother without it.

Others argued that no one should be allowed to go back to their home to prevent looting and stealing. However it's not clear that people would loot and steal from their own homes. I can see excluding people who are not from that area, but residents? This worries us because if we had a hurricane here on the island would be very easy to clean it up right away if you could get to the house within a day or two. If you let things fester for a week or more, mold will take over your house and destroy everything, forcing you to tear down your home.

But again, this is what worries most people - arbitrary and capricious decisions by government officials during a time of emergency.  And during a time of emergency, government officials can often use the pretext of emergency to get away with bloody murder, sometimes literally.

Sadly, sometimes even police and firemen and government officials can turn into Emergency Mouse under the wrong circumstances.

We'll just have to wait and see what happens in the coming weeks. If the dire predictions of tens of thousands of people dead - or hundreds of thousands, as Trump is saying - don't occur, many people start to feel that maybe these restrictions are unnecessary.  Eventually, they'll reach a point where people realize they need a job and income and food - as well as their mental health intact. I think we'll see a transition in the coming days relaxing or at least rationalizing some of these restrictions, although people will still behave differently than before.  It may be a long time before we return to "normal" - whatever that is.

Sadly, I think we will learn little from this pandemic. The media has gone off the leash and will remain so - and people seem more likely than ever to believe Facebook rumors and click-bait headlines. Government officials and politicians are making points rather than getting things done.   Maybe a decade from now, we'll understand what happened - by then, of course, it will be too late to learn anything from it.

Again, this is not to trivialize this virus. There are "hot spots" where hospitals are indeed overwhelmed.   But we need to bear in mind the survival rate of this virus is well over 90% -97% by most accounts, sometimes higher.  A recent report online noted that of the 81,554 cases in China, there were 3,312 deaths, "a survival rate of almost 90%!" they exclaimed, apparently having flunked maths class (I'll save you the math, it is a survival rate of 96%).

Like I said, we'll just have to wait and see.  But my gut reaction is that the media and some government officials are over-reacting, and in some instances, just acting so as to be seen as "doing something" - which is not the same as actually accomplishing anything.

UPDATE:  An article on the BBC today says that there is outrage in Ecuador as bodies are being dumped in the streets. I click on this article and it jumps to a live press conference with President Trump. I searched the entire BBC site but cannot find this article. I searched online on Google and can find no mention of bodies being dumped in Ecuador. Is the BBC messing with us or what? It sounds like a rumor or a clickbait headline to me.

UPDATE:  I did find online, this article from the tabloid publication "The Sun" which states that 400 bodies have been "dumped" on the street, but then in the same breath says that only 93 people have died from the virus in Ecuador.  Which is it?  And is 93 or even 400 people enough to "overwhelm" mortuaries?   Something sounds fishy here.  I can't find any other article on the subject that is not from a sensationalist tabloid publication.

UPDATE:  Major media outlets are starting to pick this up (e.g., LA Times), but are basically barfing up the SUN article which features Reuters photos.   While the photos show one person covered in a sheet (where they collapsed and died), and two coffins in the road (one later photo shows one of these being loaded on a truck), there is no evidence of 400 bodies being "dumped" on the streets as alleged in the headline.   The press is taking basic facts and then amplifying and putting a spin on them, it seems.