Category Archives: Crime and Punishment

The Unknown Reason for the Vegas Shooting

Like everybody else, I’ve been trying to make sense of the Las Vegas shooting, in which a 64-year-old guy named Stephen Paddock apparently opened fire on a crowd of 22,000 country music festival attendees from his 32nd-floor room in the Mandalay Bay hotel, killing 59 people and injuring hundreds more.

One of the confusing things about this horrible incident is that from what we know about him so far, Paddock doesn’t seem like the kind of person who would do something like this. He went through a lot of trouble to kill as many people as he did, so you’d think he must have done something else on a smaller scale first to think this would be worth the effort, and yet according to reports he had no criminal record, no extremist political views, no trouble with his neighbors, and no obvious prior signs of mental illness. That’s strange because you don’t go from being a normal person to being a mass murderer overnight without a period of transition. The idea that people “just snap” is more myth than reality. It takes time to become the kind of person who would commit this kind of atrocity. So why weren’t there any signs?

I suppose one possible explanation is that Stephen Paddock was not the shooter: The real shooter lured him (and his guns) to the hotel, shot him, and then opened fire on the crowd, escaping before the police arrived to find a “convenient” murder-suicide scenario. I don’t actually believe this is what happened. It’s a movie plot, not real life, and unless the perpetrator is a Moriarty-level criminal mastermind, it would also leave a ton of evidence that would be easy for the police to discover. It’s even less likely than just snapping.

(Also, recent reporting about the incident rules it out.)

Another possibility is that Paddock had a brain tumor that caused a sudden, violent change of behavior. No doubt this crossed my mind because I’m familiar with the case of Charles Whitman, who similarly shot at a crowd from a high perch, at the University of Texas (Austin) in 1966, and was discovered at autopsy to have a brain tumor which some neurologists have speculated may have contributed to his behavior. Paddock’s behavior could also be explained by some other form of brain damage, perhaps from a stroke or a traumatic head injury or some other cause.

The truth is, the most likely explanation for the conflict between Paddock’s normal life and its violent end is probably much more prosaic. It’s most likely the same explanation as for every other murderer who is described by acquaintances as “quiet”: We’ve only heard from people who didn’t know him very well.

When something like this happens, it’s easy for the press to find the killer’s neighbors and colleagues, but few of them are likely to know anything relevant. As with most of us, a lot of people may have known him, but few people knew him really well. The media, and maybe the police, just haven’t found people who know, if they even exist.

The Dominatrix and the Sheriff

I’ve been watching the reaction on Twitter to President Trump’s pardoning of former Maricopa County Sheriff Joe Arpaio. Arpaio is a despicable authoritarian bigot, who I’ve written about several times previously. He is famous, and famously proud, of how tough he was on the prisoners in his custody. He liked seeing them mistreated and humiliated, often in very unpleasant ways. I don’t know if he actually enjoyed it when his prisoners died, but a bunch of them have died, often under questionable circumstances, and Arpaio has never shown an ounce of human sorrow.

I was most struck by the reaction from Mistress Matisse:

Now, this next part is probably the sort of thing that only seems profound at 3:00 in the morning (when I started writing this), but bear with me… What really got me thinking is that Mistress Matisse and Joe Arpaio have something in common: They both like to hurt people.

As you might have guessed from the name, Mistress Matisse is a professional dominatrix. She literally hurts people for a living. And if you follow her Twitter feed (@mistressmatisse), you’ll see she enjoys her work. Oh, I’m sure there are days where she’s like “Oh God, I can’t wait to veg out in front of the TV once I finish sticking needles into this guy’s penis…”, but for the most part, she seems to have found satisfying employment. She hurts people, and she’s good at it.

Nevertheless, Mistress Matisse is pissed about Joe Arpaio, because of course, the difference between Mistress Matisse hurting people and Joe Arpaio hurting people is consent. And consent makes all the difference in the world.

Mistress Matisse posts descriptions and photos of the some of the things she does to her clients and, honestly, I couldn’t take that. If she tried to do some of those things to me without my consent, I would resist, violently if necessary. But her clients not only give their consent, they actually pay her to do those things.

Yet if I’m ever in Seattle and I happen to run into Mistress Matisse, I wouldn’t be the least bit concerned about her pain-causing skills. I don’t pretend to know or understand her very well, but I’ve read enough of her writings to know that she thinks very carefully about issues of consent. She doesn’t want to hurt people against their will.

Sheriff Joe Arpaio, on the other hand, doesn’t give a shit about consent. He’s a thug, and he had an army of deputy thugs working for him. I would be very nervous running into him in a situation he controlled. If he could find a way, he wouldn’t hesitate to have a critic like me thrown in a cage in the 110 degree heat of the Arizona sun.

I don’t have any profound point here. And I certainly hope this is not coming across as “Joe Arpaio is even worse person than a professional dominatrix,” because that would be insulting to the pro dom community. The juxtaposition between Mistress Matisse and Joe Arpaio just struck me as a stark illustration of the importance of consent.

As a someone who leans libertarian, I place a lot of importance in the concept of consent. And I regard the absence of consent as a defining requirement for legitimately designating something as a crime: Sex without consent is rape, commerce without consent is theft, and inflicting pain without consent is torture.

Lack of consent alone is not enough to make something a crime, but if there is full consent, then it should never be a crime. As far as I’m concerned, Mistress Matisse is a successful and valued practitioner of an unusual art. Nothing to worry about.

Joe Arpaio, on the other hand, hurt a lot of people without their consent. Obviously, detaining and punishing criminals without their consent is a necessary part of criminal justice, but the lack of consent also makes it especially important that the criminal justice system is subject to strict requirements and oversight. Arpaio had little of that, and he and his deputies went way beyond what was necessary to keep the peace.

It’s particularly relevant to the contrast with Mistress Matisse that Arpaio jailed consensual sex workers and subjected them to harsh conditions, including one particularly gruesome case in which his guards tortured and killed a sex worker. Yet that’s just one of many deaths and many more prisoners subject to torturous conditions. Arpaio was one of the most monstrous figures in modern American law enforcement.

There’s something very wrong, some kind of complete inversion of the meaning of consent, when we have governments that want to throw people like Mistress Matisse in jails that are run by people like Joe Arpaio.

Possession Is Such a Strange Crime

A hypothetical question for my criminal law readers (or anyone else who has ideas): What should I do if I inadvertently come into possession of contraband?

To make it more concrete, suppose I’m walking down the street, minding my own business, when a stranger confronts me, thrusts a duffle bag into my hands, and runs away. When I open a duffle bag, I find a tightly wrapped kilo of cocaine, a pile of child pornography, and a MAC-10 submachinegun. As I look up, I notice several police officers coming down the street, obviously searching for someone or something. They haven’t noticed me yet. What should I do next?

As a good citizen who has come across evidence of a crime, it seems like I should probably turn all of this in to the police. But if I walk up to one of the cops and show him the bag, I’m essentially confessing to possession of the contraband items and proving it with physical evidence. My possession was unintentional, and that might make for a winning defense at trial, but I’m not so sure it would keep me from being arrested. This seems like a risky choice.

If I had a lot of time to decide what to do, I could contact a criminal defense lawyer to help me. I imagine he could probably make a deal where I don’t get arrested for turning over useful evidence of a crime. Or maybe there’s some other solution.

On the other hand, if I didn’t have the time to talk to a lawyer, I think the safest move would be tossing the duffle bag into the nearest dumpster and hoping that nobody saw me with it. That seems like the simplest way to get out of a sticky situation, but is it? Do I have a legal obligation to report the contents of the duffle bag to the police? After all, I saw the other guy possess it, so I’m a witness to a crime, and I’m also in possession of physical evidence. If I throw away the duffle bag, am I concealing a crime?

My reason for asking this is because of a New York Times opinion piece in which Doctor Sandeep Jauhar describes an incident in which he feels he protected doctor-patient confidentiality:

I once took care of a business executive in the emergency room who had hired call girls during a weekend drug binge. When he saw a police officer outside his room, he quietly handed me an envelope containing a large amount of white powder. I wasn’t sure what to do with it, so I discarded it. For the next several hours the patient eyed me suspiciously, probably wondering whether I had ratted him out. But it never occurred to me to do so.

Professor Steven Lubet from the Pritzker School of Law at Northwestern takes issue:

Hiding evidence of a crime isn’t confidentiality; it’s obstruction of justice. There is nothing about one’s status as a physician — or a lawyer, for that matter — that requires or excuses the possession or concealment of contraband.

Jack Marshall also disagrees:

Confidentiality is one thing, assisting in a crime is another. The Hippocratic Oath says “What I may see or hear in the course of treatment, I will keep to myself.” That only means, however, that doctors who learn about criminal activity a patient may be involved in is bound not to report it (lawyers have the same obligation). Jauhar did more than not report criminal activity; he participated in it. He crossed the line by disposing of contraband.

There’s a side issue here, because an unidentified white powder in an envelope doesn’t prove anything. To this day, Dr. Jauhar has no idea what was really in that envelope. And it doesn’t matter that a cop might have arrested the patient upon seeing that powder without any proof that it was an illegal substance. Nor does it matter that a judge might have held him in jail for weeks before getting a lab report identifying the powder as an illicit substance. The epistemological failings of the criminal justice system have little relevance to medical ethics.

The main question here is what should Doctor Jauhar have done? Marshall says he “crossed the line by disposing of contraband” but then doesn’t explain what he would have done if he had been in Jauhar’s place. Lubet also fails to describe what the doctor should have done. He mentions the problem, but he doesn’t seem to recognize it: “There is nothing about one’s status as a physician — or a lawyer, for that matter — that requires or excuses the possession or concealment of contraband.” When it is illegal to both possess and cease to possess something, that doesn’t seem like very good lawmaking.

Are Lubet and Marshall saying that if they had been in the doctor’s place that they would have walked over to the nearest cop and said, “I just got this from a patient and I thought you should see it,” and then handed him the envelope full of (probably) cocaine, taking it on faith that he wouldn’t get arrested?

It doesn’t work to say they wouldn’t have taken the envelope in the first place, because how could they know what was in it until they looked inside? And please don’t say that the doctor should have handed the envelope back to the patient once he saw what was in it, no unless you want to explain why giving illegal drugs to a patient is more ethical than discarding them.

You might think it’s crazy to believe the police would arrest a doctor for turning over drugs that he found on a patient, but just because the police might not arrest him for it doesn’t mean it’s not a crime. And if it is a crime, they might arrest him for it. It wouldn’t be the first time police decided to arrest someone now and sort out the details later.

I admit that I haven’t heard of any doctors being charged in situations like this, but it does happen to other people. I have read news reports of security guards at music venues taking illegal drugs off concertgoers and then getting arrested for possessing illegal drugs. So unless there’s an explicit exception in the law for doctors in this situation, it seems to me that Dr. Jauhar was in danger of getting arrested, and disposing of the envelope was the prudent thing to do. (This is not legal advice, but it’s very, very practical advice.)

The basic problem I’m having with this whole scenario is that mere possession of contraband is inherently a victimless crime that harms no one. That’s not just my opinion, it’s physics. Granted, there are some substances which can actively endanger innocent people if not contained properly — radioactive materials, unstable explosives, poisonous gases, biosafety level 4 pathogens — but a big pile of cocaine or child pornography or guns does not hurt innocent people merely by existing. And possessing that pile of contraband doesn’t mean you’re hurting people either.

Further proof that crimes of possession are not based on reality comes from the fact that members of the criminal justice system routinely do the same thing as the people they are arresting and prosecuting. If a cop finds a baggie of cocaine in your pocket, he’ll arrest you for possession and then take the baggie of cocaine. That means he’s now in possession of a controlled substance, and yet somehow that’s not a problem. Depending on the nature of the contraband and the standard practices of each court system, the contraband could also end up in the hands of the prosecutor, the defense lawyer, the judge, and even the jury. And apparently none of those people are committing a crime.

(Actually, that might not be the case. Legislatures are notorious for not including exceptions for law enforcement activities in the criminal statutes, meaning that in some states things like police sting operations, SWAT raids, and even death penalty executions are technically crimes. Another way to put that is that police and prosecutors sometimes break the law in the course of their jobs, but nobody charges them with crimes.)

We criminalize the harmless possession of contraband because it’s a useful proxy for other crimes that are more difficult to police. It’s a lot harder to catch somebody smoking pot in their own home than it is to catch them with pot in their pocket as they walk home. It’s a lot harder to catch an armed robber than it is to catch someone in possession of an illegal gun. It’s a lot harder to catch graffiti artists tagging a building than it is to catch them buying spay paint. All other things being equal, police and prosecutors prefer to go after crimes that are easier to prove.

Unfortunately, we also criminalized possession of various contraband goods out of a desire to “send a message” that some related behavior is bad, or because the people enforcing the laws are confused enough to believe that there really is something harmful about possession of contraband.

And so our criminal justice system keeps doing stupid things like arresting people for child pornography images on computers that they possess on behalf of someone else, or arresting people for “residue,” or intercepting packages of drugs in the mail, delivering them to the recipient on the label, and then arresting that person for possessing the drugs that they just gave him.

Possession is often kind of a stupid crime, stupidly enforced. And don’t get me started on crimes based on constructive possession…

The Crime You Dare Not Stop

I’ve always thought that “possession” was an odd type of crime. Legal possession is such a passive concept. It doesn’t seem right to even call it a behavior. I’m pretty sure you can be guilty of possessing contraband even when you are literally asleep in bed. That just doesn’t sound harmful enough to justify punishment.

And consider what happens if the police bust you for possession of marijuana: The police will confiscate your stash. At that point they are the ones who are in possession of marijuana, aren’t they? Why is it that it was illegal when you did it, but it’s legal when they do it?

Because the law says so, I guess, but why? Cops can’t legally break into someone’s house and steal their jewelry or force women into having sex with them, so why is possession different? What’s the principle here? Clearly, since cops are allowed to do it, possession of marijuana doesn’t actually cause whatever social harm the law is seeking to prevent. So why is possession still illegal?

I think the answer has to be that possession is a proxy for the behavior that causes actual harm. In the case of marijuana, that would be the harm caused by smoking marijuana. (As a libertarian, I don’t see any net social harm from smoking marijuana, but let’s ignore that for the sake of argument.)

The problem — for the drug warriors, anyway — is that it’s hard to catch people smoking marijuana because it only takes a few minutes and they can do it in hiding. So the legislatures have moved backwards on the causal chain to criminalize a precursor act that is easier to detect: People generally possess marijuana for a lot longer than they smoke it, and they often do so in relatively public places where police can observe them, question them, and search them. Thus criminalizing the possession of marijuana serves as an imperfect way to attack the problem of smoking marijuana, at the cost of criminalizing behavior that is not really harmful.

This explains why it’s not a crime for cops to possess marijuana after a bust: They aren’t going to smoke it later.

Other crimes of possession can also be justified by their relation to harmful acts: We criminalize felons possessing guns because we don’t want them murdering people, we criminalize young people possessing cans of spray paint because we don’t want them vandalizing buildings with graffiti, and we criminalize possessing open containers of booze in cars because we don’t want drivers to drink.

The exact conditions under which it’s okay to punish people for harmless behavior in the name of stopping a related harmful act is a moral and ethical question worthy of exploration, but for now I’d like to look at a more practical problem. Because the behavior that is illegal is distinct from the behavior that is harmful, scenarios can arise where the law doesn’t really make sense.

For example, it’s illegal to possess child pornography. Clearly, mere possession is harmless, as proven by the fact that police and prosecutors can possess child pornography in the process of sending people to jail for it. Possession of child porn is nevertheless illegal because we don’t want people to look at it.

Houston criminal defense lawyer Mark Bennett gives an example of how this can lead to a bizarre dilemma:

Suppose that a client comes to you with a problem: he has a computer hard drive full of child pornography, and he wants to know what to do with it. What do you tell him?

It’s illegal for him to continue possessing the images. So you can’t advise him to do nothing (and keep breaking the law).

The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).

But tampering with evidence is illegal under both Texas and federal law.

This is not just a hypothetical situation. At least one lawyer has been prosecuted for destroying child pornography on a client’s computer.

Lawyers wouldn’t be facing this kind of conundrum if it weren’t for the crime/harm separation that is inherent in possession laws. If possession of child pornography wasn’t a crime, then deleting it from the hard drive wouldn’t be destruction of evidence of a crime. It would arguably even be crime prevention, since deleting it prevents people from looking at it, just as flushing marijuana down the toilet prevents people from smoking it.

(I’ve never heard of someone being charged with destroying evidence of pot possession by smoking it, but people do get charged with tampering with evidence for eating drugs when the cops pull them over.)

On the other hand if the crime and harm of possessing child pornography were linked, if mere possession somehow did cause actual harm, then deleting the pornography from the drive would be stopping a crime in progress. The lawyer would be a crime fighter.

If you have trouble thinking about possession being harmful in that way, try imagining it this way: The lawyer visits the client’s house, but instead of learning that the client has child pornography, he discovers that the client has an actual child, locked in a cage in the basement. Alarmed, the lawyer frees the child, who immediately runs off. The child is confused, however, and is never able to identify his captor or the location he was held. By releasing the child, the lawyer has in a sense obstructed the ability of the police to charge his client for kidnapping, yet no sane person would argue that he shouldn’t have done it.

I’m not going so far as to say that possession should never be a crime, but the fact that possession crimes don’t work that way is a sign that possession is a strange kind of crime, one where stopping the crime is also a crime. I’m not sure how to fix this, but I’m pretty sure it’s broken.

Thinking About Lethal Force – Part 3

This is my third post in a series of ruminations about lethal force. Part 1 discussed the basics of what might or might not be self defense, and in Part 2 I discussed how participants and witnesses report and distort what happens, and in this part, I’ll be exploring how the news gets out, and what we do with it.


In most cases of lethal force, not only do we not know what happened, we don’t even have access to anyone who knows what happened. All we get are accounts passed to us by news reporters, editorial writers, bloggers, and acquaintances. As I’ve tried to show, these incidents can get very complicated once you take into account the ethics of lethal force, subjective perceptions, and the possibility that people are lying. Meanwhile, news stories necessarily have to economize on detail, because there’s limited space and limited time to write. Therefore it’s highly unlikely that any of our sources of information will pass along every detail we need to know.

Furthermore, the people telling the story are also subject to all the same distorting influences as the witnesses: They could make mistakes interpreting witness accounts, they could misremember witness accounts, or they could spin the story (or outright lie) to serve their own agenda. Even if they try to keep everything straight, they’re bound to make mistakes, and they’re bound to distort the account based on their own interpretation.

The same thing will happen all over again when people read these stories and pass them on, comment on them, or write blog posts about them (and don’t even get me started on Twitter). It ends up being like a game of telephone, except that instead of passing the message along in a line, from one person to the next, it’s more like something happens to people in the center and information about it radiates outward along multiple interweaving paths. Each person in the information flow receives different stories from different people at different times.

Further, as they receive each piece, they can either adjust their mental model of what happened to accommodate the new information, or they can reject the new information because it seems unlikely to be true, based on the model they have so far. In this way, everybody comes to believe a different version of the story, and they will interpret new information based on the framework established by that story.


That we all have different ideas of what really happened is a big problem when we start to argue about what it means. It’s hard to have a discussion about right and wrong, crime and punishment, when we don’t agree on the facts. It’s doubly hard when we don’t realize that we’re all working from different mental models of the main incident.

I first noticed this several decades ago, back before the internet was everyone’s source of news, as I watched the story of one such incident dribble out in a series of small revelations. I can’t remember enough details to look it up, so I’m certainly misremembering it, but I’m offering it as an example of a phenomenon, not to discuss the specifics of the incident. The series of revelations, in the order I encountered them, went something like this:

  • A drunk guy visiting a friend late at night accidentally went to the wrong house and was yelling and pounding on the back door when the homeowner shot and killed him. To me, it was hard to see how the homeowner could possibly be in reasonable fear for his life, so this sounded like some kind of murder.
  • The homeowner said he thought the guy was trying to break in. Burglary is not a reason to kill someone, but a guy breaking into the house while you’re there might justify lethal force. However, it was difficult to agree with the homeowner’s perception, since pounding and yelling aren’t really a break-in.
  • Before pounding and yelling on the back door, the guy had rung the front doorbell. Presumably he thought his friend was asleep, so after the doorbell didn’t work, he went around back to try to get his attention. Some people argued that burglars never do that, but I had heard that ringing the doorbell was a great way to find out if a house is unoccupied without doing anything clearly illegal. If the homeowner answers, just say you must have the wrong address and walk away. Or if you’re the violent type, ringing the bell gets the homeowner to open the door for you, so you don’t have to risk attracting attention by breaking in. This information seemed to cut either way in terms of fault.
  • The most damning detail to come out was that the homeowner shot the guy through the back door. This seems indefensible. You’re never supposed to shoot without identifying your target, and you have no idea what’s on the other side of the door — what if a neighbor came over to investigate the noise and was standing behind the guy? What if the guy knocking had a child with him? You just don’t know. Shooting through the door was terribly reckless and made it seem more like a murder of some kind.
  • At least until it came out that the back door was a screen door. The homeowner heard noises from the back of the house and went to investigate. He didn’t just find someone pounding and kicking the door. He found someone punching and kicking through the screen into the house, while he was standing there with the gun in his hand. No wonder he shot.

This was actually a fairly simple story, and yet many of the people discussing this story, including the news media, weren’t used to thinking about the issues involved in lethal force, and they had missed a bunch of important points, including the final detail that changed everything. And as these points came out, arguments kept erupting over the incident, often between people working from different versions of what happened.

Laura hears that Alice shot Bob after he broke into her house in the middle of the night, and based on that, Laura concludes that Alice justifiably shot Bob in self-defense and should not be charged with a crime. Natalie hears that Alice shot Bob after inviting him over, and based on that, Natalie concludes that Alice murdered Bob and deserves to go to jail. They have both reached reasonable yet incompatible conclusions based on what they know.

It seems like a simple misunderstanding that could be cleared up with a little discussion, but it’s simple human nature that once we have staked out our positions, we become resistant to considering alternatives, even if the evidence for them is pretty good. Confirmation bias and other phenomenon make us resistant to changing out minds and accepting new evidence, even if the evidence from which we formed our initial opinion is proving increasingly shaky. Further, the strength of our belief makes it difficult to consider that other people may have reasonably interpreted the situation very differently.

When these people get into arguments with each other over the incident, the difference in conclusions is simple and obvious, but people’s internal mental models of what happened are hidden, so folks on each side have trouble understanding how people on the other side could reach a different conclusion, and they often misattribute those conclusions to ignorance, prejudice, or anti-social values rather than recognizing that different assumptions are in play.

If Laura and Natalie hear each other’s conclusions without hearing the reasons for them, they’ll conclude bad things about each other. Laura will be appalled that Natalie wants Alice to go to jail for shooting a home invader — she may accuse Natalie of coddling criminals or believing men should be able to attack women without consequences. Natalie, on the other hand, will be appalled that Laura believes that murderers like Alice should go free — she may accuse Laura of coddling criminals or believing that women should be able to gun down men without consequences.

We’ve seen this sort of thing happen in Ferguson, with the shooting of Mike Brown by Darren Wilson. Some people see an unarmed black kid gunned down by a white policeman and conclude that anyone who doesn’t think the cop belongs in jail must be a black-hating racist who thinks it’s okay for cops to gun down black people in the streets. They want justice for Mike Brown.

While there are certainly some racists who feel that way, I think it’s safe to say that many of Wilson’s supporters simply don’t believe that narrative about the encounter. They think Mike Brown viciously attacked Darren Wilson and tried to grab his gun, presumably to kill him, and then when Darren Wilson tried to arrest him, Brown attacked again and Wilson shot to defend himself. They think Brown’s supporters are just white-hating racists making excuses for black violence, or attention-seekers trying to drum up trouble out of ulterior motives. And while there are certainly some people doing just that, I think it’s safe to say that many of Brown’s supporters simply don’t think he attacked Officer Wilson.

It’s hard to understand other people’s arguments when you don’t realize you’re not arguing about the same thing.

Interlude: The Police

Shootings by police officers have been in the news a lot lately, and they’ve touched off a lot of controversy, especially when the police shoot unarmed black males. For the most part, I think we should analyze police shootings the same as any other, but there are a few special considerations.

For one thing, police get a lot of training in how to handle potentially violent encounters, and this training affects their perceptions and the conditions under which they fear for their lives. For example, a police officer may have been trained that an assailant with a knife who is within 20 feet can stab him faster than he can draw a gun, so he’s likely to regard someone 15 feet away with a knife as a deadly threat, and he can likely point to his training as the reason he was in fear for his life.

Also, police follow a departmental use-of-force policy, which specifies when and how officers can use different degrees of force, up to and including deadly force. So officers may escalate their level of violence according to training or departmental policy rather than according to what a reasonable non-police-officer would do.

In addition, we expect police to actively fight crime. This means that we expect them to look for trouble, and when they find it, we expect them to stand their ground rather than try to run away. That would be suspicious or troublesome in an ordinary citizen, but for a police officer, that’s the job. We actually expect police to make arrests. This necessarily involves laying hands on people. It’s a violent act that would be called battery and kidnapping if anyone else did it. As a society, we want police to do this violence to protect us from bad people who would harm us, so acts that would cause other people to lose their right of self defense are often acceptable when done by a police officer.

On the other hand, just because police are carrying out a public service mission in accordance with their societal role, training, and departmental policy doesn’t magically eliminate the social costs of what they do. Having people with guns who are looking for trouble, standing their ground, and grabbing people off the street to lock them up in cages is still a form of harm to the people they are doing it to, even if they are criminals.

When police officers hurt people according to departmental guidelines, that doesn’t mean that it’s okay. It just changes the discussion from a question of personal ethics to a question of public policy. Instead of asking if the cops are bad people, we need to ask if the cops are following bad policies.

Just because the cops were doing what they were told doesn’t mean the policy, the mission, and the training aren’t wrongheaded, unethical, or downright evil. Just because police departments theoretically serve the needs of the society they’re embedded in doesn’t mean they aren’t up to no good. Like all institutions, they will serve their own needs, which may conflict with the public good.

For example, police conduct tens of thousands of drug raids every year, and on some of those raids the officers mistakenly kill an innocent person. The mistakes may be honest mistakes — the police thought they saw a gun, or they thought they were taking fire — so we might conclude that the officer did nothing deserving punishment, nothing that we’d call evil. At the same time, we might also conclude that staging a series of drug raids that carry the risk of killing innocent people is a policy that does more harm than good.

I’m almost done with this subject, but I think I have one more post in me.

Believing Victims

In the Washington Post, Zerlina Maxwell insists that, despite the way the UVA fraternity gang rape story seems to be falling apart, when it comes to accusations of rape:

In important ways, this is wrong. We should believe, as a matter of default, what an accuser says. Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist.

Scott Greenfield (amoung others, one supposes) has already responded to some of Maxwell’s argument, and he had more about the UVA rape story in an earlier post. (Note that Maxwell’s article was edited to soften it a bit after some of the early responses.) I’d just like to add a few comments.

The accused would have a rough period. He might be suspended from his job; friends might defriend him on Facebook. In the case of Bill Cosby, we might have to stop watching his shows, consuming his books or buying tickets to his traveling stand-up routine. But false accusations are exceedingly rare, and errors can be undone by an investigation that clears the accused, especially if it is done quickly.

The earlier version of Maxwell’s article post seemed to imply that we should abandon the legal presumption of innocence. This more recent version leans more toward a discussion of the moral and procedural issues of campus rape investigations. Nevertheless, as people have been pointing out, we have a presumption of innocence for a reason.

Maxwell seems to be understating the consequences of a rape accusation, at least when the accused isn’t a celebrity or the archetypical rich frat boy of college rape stories. And although some colleges are bastions of progressiveness, I suspect most of them will share the foibles of the society they serve, meaning that a disproportionate number of accusations will be aimed at blacks, Hispanics, and low income students.

And Maxwell’s assumption that if the accusation is ruled false everyone will cheerfully accept the decision of the investigating body seems naive when the news is filled with stories of protests against grand jury decisions not to indict two cops accused of murdering unarmed black men. Grand juries have an even lower standard of proof than college investigations, yet regardless of how you feel about the case, it’s obvious Darren Wilson’s life will not be returning to normal.

In fact (despite various popular myths), the FBI reports that only 2-8 percent of rape allegations turn out to be false, a number that is smaller than the number (10 percent) who lie about car theft.

Yeah, but that’s now. That’s under the system that Zerlina Maxwell wants to change. (And I’m not saying that some change isn’t necessary.)

It comes down to contingent probability. Imagine you’re a woman walking home down a somewhat deserted street when a man you’ve never seen before pulls up next to you and offers to give you a ride. Do you get in? Only a small fraction of men would rape a woman just because she got in their car, so statistically you should be safe, right?

Of course not, because the small percentage of men who are violent rapists are always on the lookout for a chance to get a woman into a position where they can rape her, so they are much more likely than most men to offer to give a woman a ride. Consequently, the group all men has a small percentage of rapists, but because rapists are much more likely to try to get a woman into their car, the group all men who stop to offer a woman a ride has a much higher percentage of rapists. (Or their more common variant, creepers.)

Similarly, only a small percentage of women are likely to make false accusations of rape, and as long as investigators take rape investigation seriously, they won’t be able to make very many of them. But if institutions adopt an always-believe-the-victim methodology, it gives the kind of women who make false accusations a much greater incentive to do so: They will be able to cause a world of hurt for anyone they don’t like. So if we stop protecting the process against false accusations, we can expect to get a lot more of them.

Everything works this way. Most of us have never robbed a bank, but banks still have security to protect against the small percentage who try. Most of us have never tried to enter a stranger’s home at night, but we all lock our doors to protect against the few who do. And most of us would never make a false rape accusation, but it’s still wise to guard against the few who would. Bad actors make things hard for everyone.

Even if Jackie fabricated her account, U-Va. should have taken her word for it during the period while they endeavored to prove or disprove the accusation.

That seems incoherent. If  U-Va is trying to prove or disprove her accusation, how can they take her word for it? Could she mean that U-Va staff should have pretended to take her word for it while investigating behind the scenes?

That actually makes sense, in a way, if you think in terms of different roles people assume in responding to a rape accusation. If a friend tells you she’s been raped, your should help her and support her, which pretty much requires you to believe her. Same thing if you’re a crisis counselor or psychologist: You’re there to help, and accusing the victim of lying or attempting to cross-examine her and check her story is not going to help. If she does turn out to be lying, all that’s happened is that you’ve wasted your time with someone looking for attention.

On the other hand, if your role in responding to the rape accusation is to punish the alleged rapist, the consequences of believing a lie are more severe: You could end up harming an innocent person. Wouldn’t it be best to approach the situation carefully and investigate with an open mind? After all, the falsely accused are victims too. They deserve some belief as well.

Thinking About Lethal Force – Part 2

This is my second post in a series that explores how we can think about news stories about people using lethal force in an act of claimed self defense. Part 1 discussed the basics of what might or might not be self defense, and this part expands the discussion to cover witness reliability.

I want to emphasize again that my discussion is neither legal advice nor self defense instruction, because I’m not qualified to give either, so if you read any of this as a how-to guide, you’re making a serious mistake.


So far in my discussion of the ethics of lethal force, I’ve discussed the basic ethics of self defense and the importance of considering what the participants thought was going on. But unless we are involved in the incident ourselves, we have no direct knowledge of either of those things. We have to rely on what the participants and other witnesses tell us, and that can get tricky.

Human perception is unreliable. We may think we experience the world in continuous high-definition full-motion real-time 3D Technicolor with stereo sound, but decades of research into the physiological and neurological function of our senses tells us that the raw sensory inputs are filled with noise and gaps, and our brains pick bits here and there that seem important, and fill the gaps with plausible guesses (based on our genetics and past experience), presenting the result to our conscious minds so we can react. If we’re under a lot of stress, this process gets streamlined to make it even faster, sacrificing accuracy in favor of quick responses to the most likely threats. We can miss important observations, misidentify objects, confabulate details, and even get confused about the order of events.

This problem appeared in Part 1 as the problem of mistaken beliefs: If Alice is expecting Bob to draw a weapon, and Bob reaches into his pants pocket to withdraw a mobile phone, Alice’s brain may catch the first glimpse of something dark and shiny and her brain may take an urgent shortcut to “Gun!”

If she then shoots Bob, is it fair to say she was careless for shooting before identifying the weapon? Or was it an excusable mistake because she was up against the limits of her sensory system? Does it matter that she could have done more to train her brain to make better decisions? Does it matter if someone trained her incorrectly? Does it matter if she incorrectly believes that people of Bob’s race are more likely to pull a gun?

Whatever we believe about the legitimacy of Alice’s perceptions, the same issues arise again when considering her account of events because what she remembers depends on what she thinks she saw — garbage in, garbage out — so we have to take into consideration the errors in her perception.

Making things worse, not only are people fooled by their perception of reality, but their memory of their perceptions changes over time. Our brains process our memories the same way we process reality, making mistakes and filling in the gaps along the way. We also integrate information from other sources into our memories, believing things we heard from other people, even if they aren’t true: If Dave saw Bob pull out a mobile phone but Alice says she shot him because she saw him draw a gun, Dave may come to believe Alice’s version and remember seeing a gun too.

We try to create a consistent picture of the world, but sometimes that means we replace real memories with invented ones, instead of the other way around. Sometimes the more we think about an event we remember, the more we contaminate our memory with errors and lies.

Interlude: Standing Your Ground, Lying in Wait, and Looking For Trouble

George Zimmerman’s shooting of Trayvon Martin brought a lot of attention to the issue of standing your ground. This enters our analysis in the form of asking whether it’s a moral failure to use lethal force to end a life-threatening situation when the threat could have been averted by some other means. If Alice is sitting in her car, and Bob approaches on foot, wielding a knife and screaming “I’m going to kill you!”, can Alice simply drive away? And if she could, does that mean that shooting him instead is unnecessary and therefore wrong?

What if Alice is walking instead of driving, is she still obligated to try to run? What if she’s trapped in a dead-end alley and can’t run away? What if the alley has a gangway between buildings that she could escape through, but Alice doesn’t see it? How hard should she be required to look for an alternative before shooting?

The details can be confusing. What if Bob is wearing running shoes and Alice is wearing high heels? Is she still obligated to try to escape? If Bob does chase her, how close should she let him get before she stops running and starts shooting? Fifty feet? Ten feet? When he grabs her? Whenever she reasonably believes escape is impossible? Whatever distance her shooting instructor taught her?

What if Alice is in her own home? Is she required to flee her home if she can? If she’s trapped in a room, and the assailant is blocking the exit, is she obligated to try to get out the window? What if she’s on the second floor? What if she’s on the fourth floor? What if she can flee safely, but her child is still in the home somewhere? It’s hard to know where to draw the lines.

Another issue I thought was raised by the Zimmerman case (although it was rarely mentioned) is the problem of someone who’s looking for trouble.

Suppose Alice stops in a rough bar to have a drink, and when she pays, she flashes a large wad of cash in her purse. As she leaves the bar, Bob follows her out into the dark street, pulls a knife, and demands “Your money or your life!” Alice draws her gun and shoots him dead.

That sounds like a pretty clear case of shooting in self defense, but suppose we find out that Alice has been flashing cash in rough bars three times a week for the last six months? Suppose Alice was intentionally trying to draw someone like Bob into attacking her, thus creating a situation in which she would be justified in shooting and killing him?

On the one hand, Bob brought the problem on himself by committing a violent assault. On the other hand, Alice pretty clearly had a premeditated plan to kill someone, which is usually called murder. So while Bob is certainly not innocent, Alice is arguably not innocent either.

Another example might be if Bob breaks into Alice’s place of business after hours, intending to rob the safe, but it turns out Alice is still there, and she confronts Bob and kills him in self defense. If Alice was lying in wait in the store in hope of confronting and killing a burglar, she might not be as innocent as if she had been working late to balance the books.

Standing your ground, lying in wait, looking for trouble — these are murky issue where reasonable people will disagree. I think it ultimately comes down to a conflict of values between Alice’s right to protect herself and society’s preference for reducing violence. We want Alice to be able to shoot to defend her life, but we also want to discourage Alice from entering into situations, deliberately or not, where she is likely to have to do so.


Up until now, I’ve been discussing the natural difficulties that arise when trying to analyze the morality of a lethal force incident. But now it’s time to address an unnatural difficulty: In addition to the honest perceptual problems that can contaminate witness accounts, we also have to allow for the possibility that witnesses are deliberately lying to hide the truth. In our attempt to understand what happened, we may have opponents who want to fool us.

Until now, we were able to confine our analysis to the particulars of the incident — who was where, what they did, and why they did it — but when we have to consider the possibility that some of the witnesses are lying, it means we have to check their story and evaluate their credibility, and so our analysis becomes explosively complex, consuming everything in the world.

For every single witness, whether they were involved or not, we have to consider the possibility that their story is a lie. We need to check it for internal inconsistencies, and we need to check it against our mental model of how the world works.

If Alice says Bob broke in to her house by smashing the second story window into her bedroom, does that seem like something that really could have happened? Is climbing up to smash a second-story window a common way for attackers to enter a house? Is it a sensible way to enter this house? Or would some other point of entry have been simpler? Does it make sense that Bob could have climbed up there? If he’d need a ladder to make the climb, did police find a ladder somewhere nearby? Is there any way to rule out the possibility that Alice placed the ladder there after shooting Bob? Does the spray of smashed glass comport with Alice’s story of what happened?

We should also consider the motivations of the witnesses. People directly involved have the strongest motivation to lie because they could face punishment for crimes. Alice might shoot Bob in cold blood out of pure malice, and then try to keep herself out of jail (and civil court) by saying she had to defend herself against Bob’s attack. Alternatively, Bob might attack Alice and get shot by her in a legitimate act of self defense, only to try to stay out of jail by claiming from his hospital bed that she shot him without provocation.

We also have to consider how each witness’s story is supported or contradicted by the accounts of the other witnesses. If Alice says Bob broke in, but her neighbor Emily claims to have seen Alice let Bob in the front door, how do we decide whether to believe Alice or Emily? We could analyze each of their stories in detail and try to pick it apart. How did Emily happen to be looking at Alice’s house? Could she see it from where she says she was? How does she know it was Bob? How does she know it was Alice who let him in?

If Carl steps forward as a witness and claims Alice shot in self defense, it’s possible that he is lying for reasons of his own. Perhaps he backs Alice’s story out of a sense of loyalty, even though he saw nothing at all, or perhaps he saw her murder Bob, but he backs her story because he fears her retribution. Perhaps he just hated Bob and doesn’t want to see Alice punished for something he wanted to do himself.

Alternatively, maybe Dave steps forward and says he saw Alice murder Bob. It’s possible that Dave hates Alice and wants to make her life miserable. Or maybe he didn’t actually see anything, but he doesn’t believe Bob would have attacked Alice, so he feels justified in lying to ensure that Alice is punished for the unprovoked murder of Bob. Or maybe Bob was Dave’s best friend, and even though he knows Bob attacked Alice first, he’s still angry enough at Alice to want her to suffer. Or perhaps Bob and Dave both attacked Alice, and now that Alice has won the fight, Dave wishes to blame her for murder to deflect attention away from his own crimes and get vengeance for the death of his friend.

It’s not just the specifics of the incident that matter. It’s also quite reasonable to examine witness stories for peripheral details that turn out not to be true. If Fred says he saw the whole thing while driving home from work, but the location of the incident is not on his route home, then maybe he’s lying about seeing the incident as well. Or maybe the incident is on his route home, but we have reason to believe he was somewhere other than his job that day, so he wouldn’t have been on that route. If he’s lying about the little things, maybe it’s because he’s lying about the big things.

Looking even further afield in our attempt to evaluate the credibility of witness stories, it pays to investigate whether the alleged behavior of the participants in this incident is consistent with their past behavior. Has Bob ever attacked someone before? If Gloria reports being attacked by Bob, it tends to support Alice’s story. On the other hand, if Bob has no history of violence, we might ask whether it’s more likely that Bob did something uncharacteristically violent, or that Alice is making it up.

That in turn might lead us to look into Alice’s past, to see if she has a history of shooting people. We might also then investigate whether Alice has a history of telling lies. If Alice has previously made false accusations that Harold attacked her, it casts doubt on her story that Bob attacked her.

Of course, when we hear either of these stories about the past — Bob’s previous attack on Gloria, Alice’s previous lies about Harold — it opens up two more incidents to analyze. Did Bob really attack Gloria, or is Gloria lying? Did Alice really falsely accuse Harold of attacking her, or is Harold lying? If there are additional witnesses to those incidents, the investigation proceeds to analyze their credibility as well.

The pattern repeats as all kinds of things get pulled in. What kind of person is Bob? Was Bob coming home from church at the time of the incident? Or was he coming home from heavy drinking at a rough bar? Did he get in a fight at the bar? Did he start the fight? Is Bob prejudiced against people like Alice? Is Alice prejudiced against people like Bob? What are the prejudices of every single witness? Do Bob and Alice know each other? Were they coworkers? Did either of them hate the other? Was one of them stalking the other? Were they lovers? Former lovers? Who dumped who, and why?

All of the answers to all of these questions require evidence, and that evidence comes in the form of accounts from other witnesses, all of whom must also be evaluated for plausibility and truthfulness, because people may lie to help their friends and hurt their enemies, or for personal reasons. We have to keep asking, how do we know? And who says? And are they telling the truth?

So now it begins to matter that Alice’s story is backed by Ivan, but maybe Ivan is lying because Jeff thinks Ivan has a thing for Alice because he saw Ivan give her flowers, but Kate says she got flowers from Ivan too, so maybe Ivan just likes giving women flowers, and now Larry is telling us that Jeff is lying about Ivan’s attachment to Alice because he hates her, and, and, and…

We’ve gone from the simple case of Alice shooting Bob to the vagaries of whether Jeff is lying about why Ivan is giving flowers to women. It all seems like a distraction, but there’s also a point about the credibility of a key witness to a shooting, so we can’t ignore it, but we shouldn’t make too much of it either, and so maybe we should get a little more information…

Multiply that by ten, or a hundred, and you can see why discussions of these incidents go so far afield. This is why it may be important that Treyvon Martin had Skittles, or that Michael Brown stole some cigars. This is why it may be important that Brown was going to college, or that officer Wilson had worked for a troubled police department before transferring to Ferguson. These facts aren’t part of the shooting incident, but they may matter because they’re part of how we judge the truthfulness of witnesses.

That’s it for now. In the third and (I think) final chapter, I’ll talk about how we hear about all this, and how we respond to it.

Update: Part 3 is up.

The Special Case of Darren Wilson

In response to my earlier post about the grand jury in the Michael Brown case, Jack Marshall posted a lengthy comment. Events have somewhat overtaken that post, but I wanted to address a few points Jack makes. (He wrote his comment before the grand jury decision came out.)

I don’t find the fact that a prosecutor could get an indictment probative of whether he should get one, not at all. The special prosecutor in Florida, for example, indicted Zimmerman with nothing that would support a conviction. That’s not serving justice.

Funny you should mention Zimmerman, because prosecutor Angela Corey only charged Zimmerman with a crime after caving in to public pressure to do so. Initially, prosecutors chose not to charge Zimmerman at all. If Bob McCulloch thought Darren Wilson’s shooting of Mike Brown was justified, there was no need to present anything to the grand jury.

If there were conflicting witnesses, it would be lousy practice to merely put on Johnson, about as biased a witness as one could find.

After Darren Wilson. But point taken.

The fact that there were six shots fired isn’t indicative of anything. Police are trained to fire until a subject is down.

I agree with Jack’s point about police tactics. Some time ago, police departments noticed there had been a number of incidents in which an officer fired a shot at an attacker which either missed completely or didn’t stop him quickly enough to prevent him from injuring or killing the officer. So modern police training tends to emphasize shooting until the attacker goes down.

This means that the number of shots fired is not necessarily indicative of maliciousness, anger, or race hatred. It’s just training. However, the number of shots is indicative of intent. One shot could be an accident. Six shots are on purpose.

Or to look at it another way, instead of a white cop shooting an unarmed black teen, imagine that it was just two white dudes from Missouri, Vern and Earl, who ran into each other on the streets one day. Somehow Vern ended up drawing his gun and shooting Earl to death, and it turns out Earl was unarmed, and some of the witnesses describe Vern shooting him in cold blood. In that case, don’t you think the prosecutor would make sure the grand jury heard that Vern shot Earl six times?

Why would a prosecutor want to indict a police officer if the evidence showed that he was in legitimate fear of his life and fired in self defense?

If that’s what the prosecutor thought the evidence showed, why would he present evidence to the grand jury at all?

Why would you assume that if the prosecutor is presenting the evidence fairly, he doesn’t want an indictment?

Because that’s not what prosecutors do when they want an indictment. The grand jury process isn’t “fair” in the same sense that a trial is, and it’s not intended to be. There’s no presumption of innocence, no way for the defense to contest the admission of evidence, no way to impeach a witness. It’s not even an adversarial process.

I will presume, until I see evidence to the contrary, that if the officer isn’t indicted, then there was not sufficient evidence to bring a legitimate indictment. Sure, prosecutors often get grand juries to indict on insufficient evidence. Are you really advocating that? Why? Because the protesters and civil rights groups want it to be a racist cop shooting an unarmed kid, rather than a scared cop shooting a charging thug with more than a 100 pounds on him who already tried to get his gun?

Jack is right that the process Darren Wilson went through is not inherently unjust. And going back to my hypothetical shooting in which Vern killed Earl, I think it’s entirely possible that citizen Vern would receive the same three months of investigation, and the same weighing of evidence, that Officer Wilson did.

The difference is that Vern would be indicted by the grand jury the first day (or just charged directly), and the rest of the process would take place while Vern sat in jail, unless he was able to make whatever really high bail the judge gave him. Also, some of the investigation would probably be done by the defense rather than the prosecutor, and if the prosecutor wasn’t convinced, Vern would have to go to trial or take a plea to a lesser crime.

To illustrate why Darren Wilson’s wonderful treatment by the prosecutor makes people angry, let’s change the hypothetical a bit: Let’s suppose it turns out that Vern is actually a second cousin to former President Bill Clinton. Then suppose the media begins finding witnesses who say that Earl had his hands up when Vern shot him. Now imagine that without interviewing some of those witnesses, and before the forensics are in, the chief of police makes statements of support for the Clinton relative and says he won’t be charged.

However, Earl’s family and friends drum up public criticism, so the county prosecutor — who has family members that work for the Clintons — announces that he will present the case to the grand jury. Unlike most presentations to a grand jury, in which a few witnesses are presented over a couple of days, this case drags on three months and includes 60 witnesses. Unlike most presentations to a grand jury, Vern testifies and tells his side of the story. Unlike most presentations to a grand jury, the prosecutor does not explicitly ask the grand jury for a particular criminal charge. And in the end, unlike most presentations to a grand jury, there’s no true bill, and Clinton’s cousin walks away a free man.

And so my question to Jack: Given your low opinion of Bill Clinton’s ethics, if you found out that a relative of his had been no-billed by a grand jury proceeding unlike any other, run by a prosecutor with close ties to the Clinton family, wouldn’t you be damned suspicious? Wouldn’t that set off your ethics alarms?

Now if you replace Vern with Darren Wilson, Earl with Mike Brown, and “Clinton family” with “police,” that suspicious scenario is pretty close to how the Ferguson grand jury decision feels to a lot of us: A killer with ties to a politically influential group benefited greatly from a one-of-a-kind grand jury proceeding.

Ultimately, the decision may in fact be the right one, but that kind of privilege and special treatment is astoundingly unfair.

(Caveat: I wrote my original post and parts of this one before the grand jury decision was released to the public. I haven’t read the full document release, nor do I plan to — I’ll wait for analysis from some of the web’s smart legal minds. It’s certainly possible that some of the issues I previously viewed as suspicious will turn out to have reasonable explanations once I catch up, but I maintain that I was right to be suspicious at the time.)