Law, Lethality, And The Watchmen: A Problem Of Processes And Principles

“It is capricious to treat similar things differently.” – Associate Supreme Court Justice Potter Stewart.
“It is capricious to treat different things the same.” – Associate Supreme Court Justice Potter Stewart.

Now and then, it seems that only a complete outsider can bring order and rationality out of the chaos and emotion rampant in a set of publicly inflammatory incidents...or a pair of them.

These past few months we’ve watched the unfolding of two partly similar, partly dissimilar cases of civilians dying at police hands: that of Michael Brown of Ferguson, Missouri, and that of Eric Garner of New York City. The foofaurauw over those two cases has risen to deafening levels, such that quite a lot of persons are turning off their televisions rather than be bombarded by any more of it.

The cases are similar in that:

• A large black civilian died at a white policeman’s hands in each of them.
• In both cases, the police involved have been accused of an illegal use of deadly force.
• In both cases, black racialist mouthpieces have incited “protests” – i.e., riots – over the incidents.
• In both cases, a grand jury has returned a verdict of “no true bill:” i.e., it has declined to indict the cop(s).

The cases differ in that:

• Officer Darren Wilson had attempted to question Michael Brown in connection with an extremely recent petty theft involving the violent intimidation of a store clerk; Eric Garner’s arrest was over the sale of untaxed cigarettes on a Staten Island thoroughfare.
• In the Brown shooting, the evidence strongly demonstrates that decedent Brown physically attacked Officer Wilson, at one point trying to wrest Wilson’s gun from his hand; in the Garner case, four New York City policemen brought about Garner’s death with a chokehold in the course of arresting him.
• There is no video evidence of the Brown / Wilson confrontation; there is video evidence of the Garner arrest.
• Ferguson, Missouri is a predominantly black city; Staten Island is overwhelmingly white working-class, with a large population of New York City police and firemen.

It’s been said that a white cop will never be tried for killing a black man, particularly a black “youth.” It’s also been said that a Staten Island jury would never dare to indict or convict a New York City cop, regardless of the facts of the matter. Yet the matter goes beyond sentiment, including racially oriented sentiments and biases, into a realm only one commentator has even brushed against to this point:

[Garner’s] initial crime: Selling “looseys” — individual cigarettes — in violation of NYC tax law. When you pass a law, however trivial, you are providing an opportunity for police to use lethal force.

Ace’s brief analysis follows from that:

Did Eric Garner deserve to die? No. The crime that began all this was selling "Loosies," single cigarettes out of the pack, in defiance of the state tobacco tax laws and all the other nonsense laws they throw on people about only selling things in their original packaging. Minor shit. Nonsense.

And yet, he defied police orders when they attempted to arrest them. When they tried to cuff him, he defied them again, pulling his arms away. He decided, as a Jury of One, that the law was silly and he would not be being arrested today.

I can't entirely blame him for feeling that way, but I know that if the police attempt to arrest you for a law which you are in fact breaking, even if you think it's a minor harassing sort of law, you do not have the right to resist arrest.

What followed is what follows in all resisting-arrest cases: some escalating violence as the police attempt to physically impose their will on the noncompliant suspect.

Some number of such situations will result in the death of the suspect.

The initial problem – i.e., that the law in question defines an offense that many of us, perhaps even all of us, believe to be absurd, even fundamentally unjust – is beyond our reach except by recourse to a process that has proved capricious, intractable, and maddeningly frustrating. Once it’s in place, its very existence opens the door to violent police / civilian confrontations in the process of investigation and / or arrest. As Ace has noted, some percent of those confrontations will result in serious, perhaps fatal harm to someone.

The next problem is that of principle: the principle of proportionality.

It’s the case, de facto if not de jure, that a near to indefeasible presumption of “lawful action in the performance of public duty” is conferred upon a policeman accused of an unreasonable or disproportionate use of force. It takes irrefutable evidence, multiply confirmed, to get that presumption set aside. Granted that the “blue wall of silence” is often a factor in such cases, an accused cop can always claim that in the situation he faced as it unfolded, the only way he could see to discharge his duty was the approach he took, and that any other cop placed in that situation would have reacted in the same fashion. Yet when the offense in question appears trivial and non-violent, onlookers will want to know why deadly force is permitted in the enforcement of such a law.

However, the law makes no distinctions among varieties of penal offenses. All arrests occur under the presumption that the arrestee is legally required to submit to the justice system without resistance. Moreover, if the law were to attempt a categorical distinction – say, between misdemeanors and felonies, or between non-violent and violent crimes, such that potentially lethal force may only be employed in an arrest for the latter sort of crime – it would result in the perpetrators of the former sort being legally permitted (and often effectively able) to resist arrest, perhaps by killing the arresting officer. Think about it.

Glenn Reynolds’s take on this problem:

That’s why I favor fewer laws, not more.

...is my own...yet as long as there is government, there will be laws that criminalize non-violent offenses such as tax evasion and entering the U.S. illegally. Absent the total privatization of all judicial and penal processes – i.e., anarchism – there isn’t much that can be done about it.

What we are left with is an inherently imperfect and imperfectible arrangement in which Juvenal’s question Quis custodiet ipsos custodes? is ultimately unanswerable. Trust the police unquestioningly? Unacceptable. Hold them accountable for never injuring a civilian who hasn’t yet been convicted of a violent crime? Unworkable. No position between those poles can be defined to a degree of specificity that would eliminate all possibility that someone, uniformed or otherwise, will get away with murder.

Life as fallible men trapped under the veil of time is like that.

(Cross-posted at League of Outlaw Bloggers.)