The Freddie Gray Ethics Train Wreck: If Protesters Really Want Justice, Then They Have To Stop Making Justice Impossible

Maybe it's all the same train wreck after all....

Maybe it’s all the same train wreck after all….

Yes, the mysterious death of Freddie Gray from injuries he sustained while in the custody of the Baltimore police has now become a certified Ethics Alarms Ethics Train Wreck. That honor was guaranteed once Baltimore’s mayor started stumbling over her words and meaning and then blaming others; when looters and rioters began burning down stores and a seniors home; when the finger-pointing began and when shameless Republicans started politicizing the riots, notably Texas Congressman Bill Flores (R-TX) who somehow reasoned that the Baltimore riots prove the dangers of gay marriage.

Most of all, a train wreck rating was guaranteed once the African-American activist response to Gray’s murder, inflamed by incompetent handling of the incident by the Baltimore police department, exactly followed the script of the Ferguson Ethics Train Wreck. Gray’s death was pronounced a murder and the police response a racist cover-up before all the facts were known or even knowable. Never mind: “Black Lives Matter” signs were paraded on the streets, and columnists and news reporters began telling the story as if Gray was—not might have been, not probably was, but was—just another in the long line of young black men murdered by the police. After all, we had the recent Walter Scott shooting, captured on video, to justify a presumption of racism and murder.

But a presumption of racism and murder, absent proof, is never justified. It isn’t allowed in court, and it isn’t ethical out of court. Never mind: that’s where we now are with Freddie Gray and Baltimore. Maybe this isn’t a new Ethics Train Wreck. Maybe it’s just the Ferguson Ethics Train Wreck, just rolling on.

As with Mike Brown (and Trayvon Martin’s death) , the underlying narrative of the protests over Freddie Gray’s death appears to be less certain than it originally appeared. The Washington Post reports that a prisoner who was in the police van with Freddie Gray says he could hear Gray “banging against the walls” of the vehicle, suggesting that Gray  “was intentionally trying to injure himself.” The prisoner’s statement is contained in an affidavit that’s part of an application by the police for search warrant seeking the seizure of the uniform worn by one of the officers involved in Gray’s arrest. If that account has any credibility at all, it could result in a prosecutor’s legitimate refusal to indict any officers.

Already, the report has sparked new alleged  eye-witness accounts asserting that Gray was injured during the arrest. The family disputes the Post’s account, although the family has no more information about what Gray did or didn’t do than you or I do.  Commenters on websites and some pundits are pronouncing the account in the Post ridiculous….you know, like it was ridiculous to believe that “gentle giant” Mike Brown would charge an officer.  The account may be untrue, but it’s not ridiculous. Trying to injure oneself may not be smart,  but it’s not ridiculous to think Gray might believe it was a good idea.  After what has been in the news the since Brown’s death, anyone, especially a young black man, arrested by the police would see the advantage of being able to claim police abuse. Gray was angry, he had been manhandled, and he had filed a dubious laws suit in the past.  He was not, to say the least, the most honest of citizens, and he may have been brain-damaged. He could have tried to hurt himself, or aggravate an injury he sustained in the arrest. He might even have inflicted fatal injuries while doing so.

That doesn’t mean he did injure himself or even that he even tried. It does mean that at this moment, nobody knows for certain whether or not the cops killed Freddie Gray, and whether, if they did, it was racially motivated, accidental, intentional, or negligent. That would normally be for the justice system to decide, but for political, social, racial and cynical reasons, there is no way, no way at all, for this tragedy to be resolved justly or peacefully now. The protests and riots ensured that. Because the community, assisted by an irresponsible news media, has already made the decision that the cops were sufficiently guilty to demand indictment and trial, because the mob has delivered a verdict, only a few scenarios are possible, and none of them are good:

1. The Trayvon Martin scenario. Even though evidence is too weak and ambiguous to convict the officers of anything, charges are brought by a cowardly, politicized, unethical prosecutor. The officers, who may have been innocent, are widely tarred as racist killers. Their lives and careers are ruined. A fair jury assesses the evidence and acquits them, or a biased jury convicts them despite the lack of sufficient evidence. If there is an acquittal, it is attributed to racism, and anyone who argues that the decision was just under the law will be called a racist. There will be calls in high places for weakening the “innocent until proven guilty” standard.

2. The Ferguson Scenario. A courageous and as a result much-maligned and smeared district attorney decides that the protests and publicity have biased the process. He will not treat the accused officers as “ham sandwiches.” He is neutral before a grand jury, which assesses the contradictory  evidence and witness reports. It chooses not to indict, sparking more urban unrest. The Justice Department, after official and unofficial comments impugning the city and its justice system, “investigates” for political advantage and to satisfy Al Sharpton, saying it is considering a civil rights charge—which the ACLU, and I, and many others, believe is double jeopardy.

3. The Rodney King Scenario. An indictment is brought in an atmosphere of fear of mob violence, and a trial finds the officers not guilty, causing riots, or a Justice Department indictment for civil rights violations is tried with jurors knowing that a not guilty verdict will burn their city to the ground. Either an appeals court overturns the resulting guilty verdict based on the fact that a fair trial was impossible once the mob had spoken, or the result stands as an example of how mob justice can warp justice.

I can imagine other variations, but the underlying truth in all of them is this: the justice system doesn’t work, can’t work and will never work in the current atmosphere of presumed guilt any time a black citizen is arrested and perishes in the process. Activists are creating a system of strict liability, which will make, and I think may be intended to make,law enforcement too risky to attempt when African-Americans are involved.

Whatever their intentions, the protesters and activists are not furthering the interests of justice by making measured, fair, unbiased investigation impossible. They are undermining justice, and advancing the interests of criminals.  Nobody, including the worst killer, racist cops imagination could conceive, should be charged, tried or sent to prison because a mob pronounced them guilty beyond a reasonable doubt based on what other police officers have done to other victims.

The only way this terrible trend will cease is if a credible, trusted, courageous national African-American leader states what I just did in clear and compelling terms, and stops it.


Pointer: Memeorandum

Facts: Washington Post, Power Line, Daily Kos





31 thoughts on “The Freddie Gray Ethics Train Wreck: If Protesters Really Want Justice, Then They Have To Stop Making Justice Impossible

  1. It is the same train. It just continues to travel through the country, making stops along the way and renaming itself with each incident. This is just the African-Americans and the Law Train Wreck, Latest Stop: Baltimore. It’ll be another city in a couple of two or three months.

  2. The individual involved with Trayvon Marti, George Zimmerman, was not a police officer; also, he was hispanic. But never let the facts stand in the way of an excuse to loot.

    • You do know that’s not germane to my point, right?

      The TMGZETW was noted because an individual was pre-convicted by a PR efforts aided and abetted by misleading media accounts, tarred a s racist, while the victim was painted as totally passive in the events leading to his death. Once everyone INCLUDING THE PRESIDENT had presumed “profiling” racism and murder, a special prosecutor ignored that lack of real evidence of any of those things, and indicted Zimmerman anyway. None of this changes if the presumed racist killer is a cop.

      • Absolutely. The facts don’t matter. Everybody knows The White Man is out to kill young black men simply because they are young black men and because we live in a totally racist society and rioting and looting is the only recourse available. Or something like that.

  3. You forgot to add the Tamir Rice version of the “train wreck.” And the Eric Garner version. And the Walter Scott version.

    This obsession with the micro-characteristics of each case – pretending that “justice” is served thereby – is part of the problem. It intentionally ignores the social conditions under which these things tend to happen.

    It’s no accident that these generally don’t happen on the Upper East Side, or in Cleveland Heights, or in Westwood. They happen in neighborhoods that are disproportionately poor, under-employed, over-incarcerated, and – OMG what a coincidence – black.

    It’s perfectly true that every case deserves the microscopic view to determine where justice lies, and it’s unfair to those accused to treat them otherwise.

    But to assert that’s the sum total of “justice” is absurd. Justice deserves some kind of macro view as well, that deals with the ‘justness’ of a socieyt.

    Yet the clear implication of “if protesters want justice, they have to stop making justice impossible” is all about the micro.

    Really: It’s a quid pro quo? An if-then statement? First the people must behave like civilized folks, and THEN they can have justice? Do you not think there’s two-way causality going on here? Don’t we need to look at both perspectives.

    To generalize this to all “train wrecks” is to claim that the most important causes of these shootings are the victims (or their culture, or their failed family structure, or the liberal press). Why do we not hear about the ethics violations of police culture, or of inequitable lending, or of racially-distinct incarceration policies, or of patterns of industrial development?

    This reminds me of Justice Roberts’ statement that “the way to end discrimination is to stop discriminating.” Translation: “The way to end discrimination is to pretend it’s not happening – we can think our way out of it.”

    Let me translate both those statements: “The beatings will continue until morale improves.” That’s the message that comes with just focusing on the micro-side of the picture. Where’s the macro?

    • ‘Micro-characteristics’ like whether not they actually happened? or why they happened?or which lies were told before any facts were known?

      who cares about the facts when you’ve got an agenda to push, right?

    • “There’s a difference between making a calculated bet about collateral damage vs. intentionally granting legitimacy to rioters. No way a reasonable person could claim she intended the latter.”

      What’s the difference? This is Clintonism. The riots want to destroy stuff. She decided to let them. How is that not officially allowing them to destroy? What BET? There are hoodlums running wild. There have been race riots since the Sixties, and the results are in. What does she think “Burn, Baby, Burn!” means? “What??? The rioters are burning stuff? Who could have predicted THAT?”

      She made an irresponsible political bet that the public would tolerate rioters burning businesses to the ground and smashing police cars more than they would tolerate injuries to rampaging kids when a police officer miscalculated or over-reacted.

      She chose the welfare of the lawbreakers over the property rights of the lawful citizens, and is spinning to muddle the import of that choice. Why you are assisting her mystifies me.

      • Simple. I agree with her choice–of property damage over personal injury. She simply didn’t change her bet soon enough when it went south.
        Furthermore, I bet you agree too–in principle. Suppose you have a choice between police over-reacting and killing six people, and a CVS being burned down. If you KNEW that were the choice, wouldn’t you choose life over property?

        We can debate whether she assessed the odds correctly, or whether she changed her bet fast enough when facts on the ground changed, but do you really want to argue death over property–in all cases? What about for littering? Graffiti painting?

        To make it more real, how about Kent State? Did the National Guard make the right decision to kill students rather than let them destroy public property? That’s a case where I think most people would have accepted property damage.

        • I think looters should be shot, Charles. If they take that threat seriously, they won’t loot. The Mayor’s choice is chaos over order, lawlessness over lawful citizenry. Curfew, martial law, looters and arsonists shot on site. Get a nice picture of them in the process. The threat of riots has too much power if leaders empower them. In LA, the store owners were armed and shot looters. They shouldn’t have to do that.

          • “Looters should be shot on sight.”

            Well, we finally got to bedrock on where we differ.

            This is a great opportunity to suggest we all read Jonathan Haidt’s excellent book “The Righteous Mind: Why Good People Are Divided by Politics and Religion.”

            • Except my position on looting has nothing to do with religion OR politics. It has to do with common sense, and right and wrong. If government allows people to break laws and destroy the property of others, endangering lives as well, then the government is encouraging disorder rather than preventing it. And that’s wrong. It cannot be right to allow others to do wrong when you have the power to prevent it. It’s a breach of duty. Frankly, it offends the hell out of me. Righteousness has nothing to do with it. Would you stand back and allow a mob destroy your family’s home? Would you not pick up a gun and say, “Back off, or I’ll shoot, assholes!” If you wouldn’t, then you would not meet your responsibilities to your own family, which is deplorable. Or, if you would do it, or deny that right to every other homeowner, what does that say?

              A Mayor is responsible for protecting the entire city, as if it was her own home. Would I be comfortable saying to looters: try to harm me, my family, or my property, and prepare to be dead? Absolutely. You wouldn’t?

              The abstract liberal mindset objects to consequences, even when it knows intellectually that they are necessary. It puts kindness and compassion to wrongdoers above fairness and justice to productive, law abiding citizens. It’s the ick factor again…nobody likes hurting people, but people who are burning and looting require force to stop them. It is also the duty of governments 1) not to shy away from applying that force, and 2) to apply it.

              • Jack – please – read the book.

                It does NOT try to prove me right and you wrong, I promise. It offers a very grounded, common-sense-plus-well-researched way of looking at morals that puts you and me (even TexAgg) on the same side of the table. It is not a gotcha piece at all; I promise it’s worth your professional ethicist time. If you want a quick look, here’s a link to his site:


              • It has to do with your sense of right and wrong: I get that. I accept that. What’s interesting is that MY sense of right and wrong is different, and I doubt any amount of argument will bridge that gap between us.

                But talking about it does help sharpen our thinking: so, let me ask you this. As a lawyer, how do you countenance the apparent contradiction between allowing a policeman to shoot on sight a looter who, had he done the deed at night and been discovered later, could never be charged with a capital crime in a court of law? How can the death penalty be permitted by a cop for a crime which a court would never grant. Aren’t there some due process issues there? Not to mention equal sentencing? Maybe there’s an answer, but you sure don’t run across a lot of cases adjudicating it, do you?

                I happen to agree with you by the way about protecting one’s home; I’d shoot the bastard too. But protecting one’s home is NOT legally the same as protecting one’s city. As far as I know, the last time “shoot looters on sight” was tolerated was in Hurricane Katrina, and even then there was a lot of argument about whether it should have been issued as an order. (Here’s a Canadian criminologist’s take on the issue).

                • Martial law suspends certain rights. It’s not the same crime under martial law. Looting becomes more than theft, provided there is a statute that says so. I don’t know that Maryland has such a law. Without one, then you are right. With one, shooting a looter becomes justifiable homicide, on the theory that a mob of looters is materially different from one thief. When I say that looters should be shot, I mean that the law should permit police to do that. It it doesn’t, then I don’t advocate it.

                    • Jack. To answer your question, if Charles’s house were attacked by black looters, yes, he’d let them proceed. Looting would be their right as victims of slavery and institutional racism and his duty as a product of nothing more than white privilege. Next question.

        • First, you’re drawing a false dichotomy. There were a few options available to the mayor besides simply ‘let it burn’ and ‘shoot them’ Second, even should the rioters have been harmed, they were the ones with primary agency in the chain of events -should anything unfortunate happen to then while they are kicking up fights with the cops, that’s entirely on them.

          When streets erupt in flames – both literal and figurative -it is the policeman’s job to restore order, by force if necessary. The mayor has openly sided with the scofflaws, criminals, and barbaric elements against the police force she’s supposed to be in charge of. she’s proven that she is not on the side of civilization or order – which is her job. .

    • “You forgot to add the Tamir Rice version of the “train wreck.” And the Eric Garner version. And the Walter Scott version.”

      No! Those aren’t part of this at all, because we have proof of what happened in all three cases. The mob didn’t dictate the course of the investigation or the results in those cases. They aren’t ethics train wrecks. Lumping them together is part of the fallacy and supports the bias. What happened to Walter Scott proves nothing about what happened in Baltimore.

    • “It’s no accident that these generally don’t happen on the Upper East Side, or in Cleveland Heights, or in Westwood. They happen in neighborhoods that are disproportionately poor, under-employed, over-incarcerated, and – OMG what a coincidence – black.”

      Reality check.

      “These” happen in the suburbs, to white people, often. And also to white people in the ghetto and in trailer parks. And also in the suburbs, to black people. All the time. You’re just ignoring all of the incidents that don’t fit the dumb-assed narrative.

      Have you heard of the Kelly Thomas incident here in California? White mentally ill man beaten to death on video by police, while crying out for his dad and surrendering- and all the cops were found not guilty. If that man had been black, we’d have had mobs led by Al Sharpton with “Dad, dad!” t-shirts on, running out of burnt-down In-N-Outs with armloads of beef patties. And Obama crying on TV, “I had a dad, too.”

      It’s not a nationwide racist conspiracy that cops are angry, violent, and bad at their jobs sometimes. It’s exactly what you’d expect. I know that reason and level-headedness aren’t good at exploiting for politics, but without any data proving any kind of trend, you sound like a useful idiot trying to create a conspiracy where there isn’t a hint of one.

      People who break the law don’t get along with cops? Gasp.
      Some cops are good, some are bad, and some are outright crooked and racist? Amazing. It’s like cops are the same as people or something.
      There’s more crime and trouble with the police in poor areas? Ya think?
      Black and Hispanic people are disproportionately poor? Damn. Maybe we should check what political party has been entrenched in power in Baltimore and Detroit for decades…I bet you’d find some shocking exploitation and corruption going on. Or, you know, just keep doing things the same way. That always works.

      A massive, unionized, government bureaucracy protects its own and makes it hard to weed out the bad cops? No surprise to me. If that outrages you, maybe you should make a donation to Scott Walker’s campaign.

    • Extend that. Should I only defend my next-door best-friend neighbor’s house? What about the guy I wave to occasionally who lives three doors down? My ‘neighbor’ in the township I live in? Do I have to do this defending alone, or is it OK if I leverage my defending in a volunteer group of armed neighbors who roam the neighborhood guarding against intruders?

      Should the guy in the barrio who lives above his own store be able to defend it (I say yes)? But should the night manager at CVS defend his store? What if he doens’t want to but is ordered to do so by “corporate?” Should only the CEO of CVS have that right? The largest shareholder?

      I can see defending my own home; I get real leery trying to extend the line.

      • Everyone has that right, individually — to defend themselves, their families, their possessions, and their livelihoods with deadly force if they judge it necessary.

        What you’re obligated to do or ordered to do could be a very different story. Obligations, for the most part, can be refused.

        Legally, the police can’t be held accountable for failing to protect any given person, place, or thing. In the eyes of the law, they have the right to shoot rioters if life could be at risk, maybe also to prevent potentially deadly acts like arson.

        In a situation like the Baltimore or Ferguson riots, everyone has to assume that they’re on their own. The police probably can’t protect you, and very likely won’t even try. Strange as it seems, they have no legal obligation to do so (but ethically…that’s another matter).

        As an aside, the laws in Maryland make it very unlikely that the guy in the barrio or the store manager would be able to defend themselves or their livelihoods in a riot like this one. To do that, you need guns, and Maryland (and especially Baltimore) don’t think ordinary people should have those icky things.

  4. “Activists are creating a system of strict liability, which will make, and I think may be intended to make, law enforcement too risky to attempt when African-Americans are involved.”

    Care to speculate on what happens next? Here’s my scenario in a nutshell. Well-armed citizens start protecting themselve3s and their property, with multiple black bodies being stacked outside their businesses. Blacks retaliate in kind, a race war starts, blacks lose and the country as we know it ceases to exist. We become a military dictatorship, constantly in a state of revolution, because of all the weapons out there, China offers assistance and lands several million troops. The military stands down and China takes over the country.

      • Sadly, yes, I am. Comes from seeing what happens when people who want “to do good works, show compassion” get in charge.

    • And millions of the occupiers die, one or two at a time, until eventually it’s not worth holding on anymore. 100 million-plus gun owners with 300 million-plus guns, finally united (even if imperfectly and temporarily) against a foreign interloper…imagine the bloodbath.

      The “gun behind every blade of grass” quote falsely attributed to Yamamoto comes to mind. A hostile foreign occupation of the U.S. would make Napoleon’s problems in Spain and Russia look like a friendly little picnic by comparison

      Unless the progressive leftists have their way first — then Lenin’s revolution would look like a picnic in comparison.

      Ah, gloom and doom. I love it.

      • Ing, as much as I like and agree with your opinions on most things, you’re wrong on this one. My guess is that not a single finger would be raised. After all, it’s the ‘gubmints’ job to keep us safe.

        • It wouldn’t take anywhere near 100 million. If only .5% of the people who currently have the ability to shoot back decided to do it, that’d still be about 500k. Nothing to sniff at.

          But you could very well be right. Give the state/media machine a couple more generations to work its magic, and there might be too few people who dare to make their own decisions to make a difference. At the rate things are going, Mexico is our 50-years-from-now template.

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