If the option is kill or be killed, the choice is clear. But the option is rarely so clear. The probability of surviving an encounter with police is vastly improved by complying with their orders, no matter how wrong, confused, conflicting or distasteful they may be. No, no innocent, law-abiding person wants to be forced to lie in the dirt, and any cop who fails to grasp this is an idiot. But better to have to wash your clothes than have your loved ones lay out clothing for a funeral.
And before anyone else points out the obvious, no, compliance doesn’t guarantee survival or even that you make it through the encounter without physical injury. But it still greatly enhances the likelihood you will, and that’s about the best we can do until we come up with a better way to all survive.
This view, I learned from a public defender, is immoral. Not wrong. Not mistaken. Not ineffective or impractical. Immoral.
But the appropriate moral response to this sort of thing is not to give helpful tips on how you might reduce the odds that armed agents of the state will murder you with impunity. It is to demand justice
Priests and philosophers do morality. Lawyers do law. At least that’s how it used to work before passionate lawyers decided that they were the new priests of morality. Morality, like its first cousin vagaries, justice, decency, dignity, respect, and now its second cousins, racism, sexism and the various phobias du jour, have a benefit that pragmatics do not. It can be hurled with abandon and is never wrong since it has no parameters beyond its most extreme fringes.
Is it moral to tell people publicly to engage in conduct likely to cause them pain, suffering and even death? What kind of twisted person advises others to die for their feelings? A person who wraps himself up in the mantle of morality, obviously. After all, as long as you and those who like you agree that the moral thing to do is what you want them to do, how can it be anything other than moral? And if some poor asshole is put in a cast, or a hole, because he listened to you, well, that’s the price of morality. Your morality.
Of course, it’s certainly possible for someone whose passion exceeds their humility to argue that one should simultaneously “demand justice,” whatever that means, while not getting killed or maimed in the process. Dying for the cause is good for producing martyrs, but is a particularly poor way to enjoy the fruits of one’s passions. Then again, playing the voice of morality on social media doesn’t evoke much personal physical risk. That poor schmuck in the street who resists, who makes demands, who follows a lawyer who tells him that’s what he should do if he’s moral, takes a very real risk. It’s always easier to be tough and bold when it’s someone else’s body that will endure the pain of your morality.
I’m neither priest nor philosopher. I’m just a trench lawyer. I have a moral compass, but it’s mine and there’s no reason why my view of morality is any better or more valid than yours. I can tell you what the law states, but I will not tell you my fevered dreams of what a more “moral” law would demand because that might get you killed. Misleading you into perdition or harm is not what I consider moral, but that’s just me.
Who are you to use your cred as a lawyer to tell others what morality requires? Who are you to tell other people to risk their lives for your morality revolution? How dare you tell other people to put their lives at risk as if you are the voice of morality? Over the past few years, I’ve watched as young lawyers, filled with narcissistic entitlement, deliberately lie to people in furtherance of their personal dreams of Utopia. You tell stories that ignore the facts. You explain the law as you believe it should be instead of how it is. You implore people who don’t know any better but share your feelings to take wild risks and put their lives on the line, and you call it morality.
Maybe I’m out of touch. Maybe I’m wrong. But my morality is to tell the truth, to fight for what I believe to be good law and good policy, but not at the expense of other people’s lives. As for your claim to be the voice of morality, if you’re a lawyer telling other people to engage in conduct that enhances the probability that they’re going to be beaten or killed, you’re in the wrong business. As lawyers, we do what we can to keep people alive. If you want them to kill themselves for your personal version of morality, join the priesthood.
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It’s the new flavor of the “don’t blame the victim” idiocy. And in both cases, it’s right as far as it goes–we shouldn’t have to artificially restrict what we legally do for fear that a cop will beat us or worse (though as a straight white male I apparently have nothing to fear), just as a woman shouldn’t have to limit where she goes or what she wears for fear of being raped.
But it falls down in two critical places. The first, and most obvious, is that it assumes a false dichotomy–if we’re telling people how not to get beat up, we can’t be doing anything to reduce the incidence of beatings, which is manifestly false. The second, and more fundamental, is that it denies the truth that we live in a fallen world. There will always be bad cops–and if we get rid of the cops, there will be other cop-like people (as we saw in CHAZ over the summer, to name only one example). There will always be rapists. We (i.e., society at large, not necessarily lawyers in particular) can, and should, take steps to reduce them, deter them, punish them, remove them from society, and otherwise limit the harm they can cause, but they will never be eliminated without eliminating humanity itself. And while the social Marxism espoused by the woke, if taken to its conclusion, will achieve that result, none of them will say that’s what they want.
Your comparison has merit, but I take issue with the notion that when people are stopped by police, there is any “solution” where we only have to comply when we agree with or approve of their actions. When people demand to know why they’re stopped, it could be informational or it could be to engage in a debate over whether they did what the cop believes they did. No matter how good cops are, this scenario will never work, where people feel entitled to resist if they dispute the cop’s position. Argue in court, not on the street.
Damn woke idiots and their meaningless catchphrases.
What does “demand justice” even mean in the context of the moment when you’re in the control of a potentially out of control cop? Demand it right then? Sure, if you want to increase the risk and magnitude of violence. Demand it later? Fine, but that doesn’t help when figuring out how to respond to the cop in the moment.
The lawyer is just spouting dogma with no real relevance to anything.
“Demand it right then?” Demand what? Appeal immediately?
I think it was the sage, urban philosopher Bob Dylan who observed, “You don’t count the dead when God’s on your side.” As evidenced by the children of Portlandia, it is the moral duty of every non-heretic to provoke the police to lethal violence whenever possible, in order to prove how horrible the police are. Because “justice” apparently requires anarchy, and police might impair that glorious state of nature, and so, we shouldn’t have them.
“Urban” is a dog whistle. Or so I’m told.
Here lies the body of William Jay, who died maintaining his right of way. He was right, dead right, as he sped along, but he’s just as dead as if he were wrong. — Dale Carnegie
Maybe we need to send some of our colleagues to a Dale Carnegie course. . .
Is it unfair to ask where this public defender and others that think similarly learn this?
Not unfair, but probably unnecessary.
FWIW, it has always been clear to me that you disapprove of rogue LEOs while also sharing the law. Perhaps this PD is not sufficiently familiar with the SJ corpus?
You have no idea how much that means to me.
As a non-lawyer, I often find myself caught in the distinction between actual law and subjective normative law. I remind myself I don’t have formal training in how to think as a lawyer and try to remember to focus. It’s really strange to see this from an actual lawyer though, who has the training, or should, and knows better, or should. It seems like sloppy thinking at best.
There’s a lot of this out there, particularly in writing by non-practicing lawyer pundits who have made a cottage industry over the past few years. To lawyers, their punditry has been fairly obvious, directed at pushing an agenda at the expense of outrageously false assertions about law. The difference here is that there is a cohort of lawyers who practice law (and thus have a certain amount of putative trench cred) and still intentionally misstate law. This isn’t just sloppy, but dangerous. They know better and don’t give a damn that they will get people hurt.
Seems like a bit of a strawman here. Unless there’s more to the link tweet, he doesn’t seem to suggest that folks should just wantonly ignore cops to their own peril in the name of his morality. He’s not even giving a false dilemma of “demand justice” vs “tell folks how to be less likely to get killed.” His words are pretty empty, but they don’t seem to say what you are portraying and then bloviating about.
I saw the same “morality” cries in many twits, but that one struck me because it was an attack against someone who admonished people not to risk their lives by resisting. It wasn’t just a vapid call for justice, but a condemnation of the advice to survive first. You’re entitled to see it differently, but even if you disagree, your calling my post “bloviating,” an assholish word choice, suggests you’re inability to see the problem is more about you than anything else.
Someone like Jay, who is the perpetual asshole here, serves a useful purpose as a juxtaposition to rational thought. I would expect Jay to call Scott’s post “bloviating” because that’s what he does. I would expect better of you unless you want to join Jay in the “this is what an asshole says” column. You should think about it.
And by the way, you’re wrong, but you’re allowed to be wrong. Just not an asshole.