By Andrew C. McCarthy
Saturday, December 27, 2014
A week ago, New York City police officers Wenjian Liu and
Rafael Ramos were murdered in an act of premeditated assassination by a man who
was patently inspired by — indeed, was a documented participant in — a radical
movement that has brazenly called for cops to be murdered.
To be sure, not every radical in the movement is down for
the cop killing, no more than every Islamist thinks jihadist terror is the best
route to imposing sharia. But cop killing is undeniably an aim of a not
insignificant part of the movement’s hard core, and a good many more members
applaud it even if they would not carry it out themselves. Cop killing is thus
a foreseeable, if not inexorable, consequence of tolerating the movement as a
well-intentioned display of our commitment to free speech.
Thoughtful commentators, including several at National
Review, have been quick to assert that responsibility for the murders lies
solely with the triggerman. As a narrow proposition, and in a strictly legal
sense, that is true.
I cannot agree with it, however, if it is a statement,
more broadly, that no culpability should be laid at the feet of the movement
and those involved in it: (a) organizers like Al Sharpton; (b) members,
especially those who’ve committed violent acts short of murder against police,
and those who’ve paraded through Manhattan shouting, “What do we want? Dead
cops! When do we want them? Now!”; (c) government enablers like President
Barack Obama, Attorney General Eric Holder, Mayor Bill de Blasio, and other
public officials who, even after its violent rhetoric ignited violent actions,
have encouraged the movement and chosen not to take steps that could have
contained it; and (d) media cheerleaders who have helped perpetuate the slander
that fuels the movement, namely: the claim that racism caused the recent deaths
of Michael Brown and Eric Garner, who met their demise when police, in
Ferguson, Mo., and New York City, respectively, used force because the two men
resisted efforts to effect lawful arrests.
On most public issues, the debate is over-lawyered. This
one is different. This one rages with hot-blooded slanders and cold-blooded
killings. The law can help us maintain a sense of proportion. This writer, at
least, finds it easier to come at this situation not as a journalist but as a
lawyer who has prosecuted people for murder, lesser forms of homicide, murder
conspiracies, aiding and abetting murder, violent racketeering, and incitement
to commit acts of violence.
Unlike most of the public, including journalists,
prosecutors inhabit a world where dealing with brutality is a commonplace. They
must resist getting swept up in passion and making sweeping conclusions that,
as my friend Charles C. W. Cooke puts it, “collectivize guilt.” No matter how
atrocious the act, cases rise or fall based on what can be proved. So,
instinctively, my first question in these situations is not who is morally
responsible but who is legally responsible — and for what? That is not to say
moral responsibility is insignificant; in the greater scheme of things it is
the most significant matter. But sorting out the legal helps me form a view on
the moral since the law is a reflection of society’s moral sense.
I emphasize the “for what?” question because it is the
one most apt to get lost in the public debate. Pressing the question “for
what?” ensures that we apportion, rather than collectivize, guilt.
Take the death of Eric Garner. The anti-cop movement
screamed that he was murdered by a banned chokehold applied by a racist cop.
Police sympathizers countered that the cops were blameless because the
take-down tactic used was not the banned chokehold, even the “banned” chokehold
is not illegal (i.e., using it violates police regulations not statutory law),
and Garner was in any event resisting arrest, justifying the use of force.
While these competing positions dominated the public
debate, they were both wrong. Garner was not murdered. There was no
premeditation or malice in the actions of the police. Plus, there seems to be a
real question of causation: Garner was not in good health and appears to have
died of a heart attack; even if one can confidently say the stress of the
arrest triggered the heart attack, the arrest was lawful.
On the other hand, as I contended in a column suggesting
the grand jury’s decision not to indict may have been wrong, the conclusion
that Garner was not murdered does not foreclose the possibility that a less
severe homicide offense — e.g., manslaughter or negligent homicide — occurred.
Nor is the fact that Garner was lawfully arrested the end of the matter. By
law, police use of force has to be reasonable. There are gradations of
resisting arrest just like there are gradations of police use of force. We can
all agree (I hope) that if a suspect resisting arrest is not assaulting or
threatening officers — i.e., he is technically resisting, but merely by
pleading not to be arrested and waving his arms in a way that makes cuffing him
difficult — the officers would not be justified in shooting the suspect or
clubbing him over the head with a nightstick. A cop’s escalation of force has
to be reasonable under the circumstances.
Bearing in mind that a grand jury has to find only
probable cause of a crime, I thought there was a serious question about whether
the manner in which NYPD officer Daniel Pantaleo took Garner down was
reasonable. That doesn’t make Pantaleo guilty; probable cause just means there
is enough evidence to warrant having a trial.
Now, I happen to think Pantaleo would have been acquitted
at trial. If there was a major question about causation, and if there is no
doubt that some use of force was appropriate, it is highly unlikely that a jury
would find proof beyond a reasonable doubt of, say, manslaughter. In light of
that, and because we cannot be secure if police are afraid to use force when
necessary, it might have been better for the prosecutor not to bring the case
to the grand jury in the first place.
The criminal law is not the only judicial vehicle for
apportioning responsibility, and it is a poor vehicle for gray-area cases. A
reasonable prosecutor might have concluded that the Garner family could use the
civil law: Sue Pantaleo and New York City for negligence under the lower burden
of proof required in civil cases. Such lawsuits are often filed when police conduct
is arguably unreasonable but not so egregious that the cop should be prosecuted
and imprisoned. When a city settles such a case, or the plaintiff otherwise
prevails, that is justice. It is a way of saying, “Yes, a wrong has been
committed and the police bear a measure of responsibility,” without inflating
the wrong into something it wasn’t — such as murder.
Still, if the prosecutor does decide to bring the case to
the grand jury, the grand jury’s duty is to indict if there is probable cause
of some crime. It is not for the grand jury to predict the outcome of the
eventual trial or weigh the policy equities. That is why I think the failure to
indict may have been a mistake. But if so, it was a mistake about negligence.
To call what happened murder and to erect out of it a myth about collective
police racism is recklessly defamatory — and would be even if the NYPD were not
a fitting reflection of the diverse population it protects and serves.
I try to analyze the killing of the two police officers
the same way. Only Ismaaiyl Abdullah Brinsley is guilty of murder, but that is
not the end of the culpability inquiry.
Incitement is not as serious an offense as the murder and
mayhem it can result in, but it is still a serious wrong. As a matter of law,
incitement to violence is so serious that we criminalize it — meaning the
violence called for need not even happen for the inciter to be prosecuted.
Consequently, when murder and mayhem do follow from incitement, of course we
should regard the inciters as partially responsible.
What about free speech? The First Amendment does not
guarantee “freedom of speech”; as Ed Whelan has sagely pointed out to me, it
forbids Congress from “abridging the freedom of speech.” The definite article
makes a difference. The freedom of speech has always been a finite carapace,
not an open-ended license. As the late Judge Robert Bork argued, bolstered by
such precedents as the Supreme Court’s 1942 Chaplinsky v. New Hampshire ruling,
there have always been well-known exclusions from it, including speech that is
slanderous, obscene, or profane; or speech intended to instigate lawlessness,
particularly “fighting words” meant to provoke violence.
I prosecuted the Blind Sheikh for soliciting terror
attacks against American military installations. When a mafia don in a café
tells his button man, “Whack that guy,” he has no First Amendment defense to a
murder charge when the guy predictably gets whacked. Naturally, our law has developed
principles for judging the intent of the speaker and the likelihood of
violence: We ensure that the fan who vacantly yells, “Kill the umpire!” is not
treated as if he really wants the umpire killed, and that someone who is merely
teaching students about a violent doctrine is not treated as if he were
advocating violence. But the bottom line is that speech calling for lawlessness
is worthy of little, if any, protection. Speech calling for violent lawlessness
can be legally actionable and should be deemed morally culpable.
The freedom of speech is principally about creating a
wide berth for political discourse. And despite being the most deserving of
protection, even political speech has always been limited by time, place, and
manner restrictions.
The “Hands up, don’t shoot!” slogan is a fraudulent
rendition of the Michael Brown shooting, but it is clearly political speech
presumably intended, however wrongheadedly, to advance policy arguments about
institutional racism and police brutality. It may not be forbidden. The state
does, however, have the power to forbid it from being yelled outside my bedroom
window at 2 o’clock in the morning. And it has a duty to forbid it from
morphing into calls for killing police and a license to shut down major thoroughfares
— such that police, fire-fighters, and ambulances cannot respond to
emergencies, people cannot get to their jobs and homes, and merchants cannot
operate their businesses.
People who organize mobs knowing full well that eruptions
of violence are foreseeable are culpable when violence erupts. You want to say
they are not guilty of murder? Fine, but that should not absolve their
contributory responsibility for the loss of life that predictably occurs. The
same goes for others who incite the mob: those who call for the killing of
cops. They are not equally as culpable as the murderer. That’s why our law
punishes murder more harshly than it does incitement. But those who incite are
proportionately responsible — and when what they are inciting is atrocious,
they should be regarded as atrocious, too.
Public officials also bear responsibility because they
have special duties. They are keepers of the order that must be assured if
liberty is to thrive. They are not like the average 21-year-old anthropology
major bemoaning the police because “black lives matter” — notwithstanding that
the cops protect millions of black lives while the nitwit student protects
none. When public officials signal to the mob that its anger is so justified
that its criminal behavior, even if not exactly condoned, will be rationalized,
minimized, or ignored, they are facilitating criminality. So of course they
should be deemed contributorily culpable when the criminality happens.
To say that the mayor, the attorney general, and the president
are not guilty of last weekend’s murders of two police officers is not to say
they are blameless. To distinguish them from the murderer is not to pronounce
them suitable for the weighty public trusts they hold. There is guilt here to
be apportioned. Apportioning it is not collectivizing it — it is not engaging
in the same convoluted demagoguery that blamed Sarah Palin’s electioneering for
a mass-murder in Tucson by a man with a history of mental illness, or that
blamed bourgeois America for the killing of John F. Kennedy by a Communist.
A radical movement has openly called for the killing of
cops. The officials responsible for keeping order abdicated their duties, and
cops predictably started being assaulted and killed. We should not tar all the
culpable actors with the same brush, but we should absolutely hold them
accountable for what they have done.
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