There are circumstances in which all ethical options have been eliminated by poor choices and bad luck. Henceforth Ethics Alarms will refer to this dilemma as ethics zugzwang, zugzwang being a chess term for the situation where a player must make a move, and any move will worsen his position.
By the time the killing of Tamir Rice got to the grand jury, it was ethics zugzwang. The grand jury’s decision not to charge the two officers involved is troubling, and a decision to charge would have also been troubling. To get anything out of this utter and fatal fiasco, a lot has to change, and we have to recognize what in order to make those changes occur. It won’t be easy. I think it may be impossible.
There is no way that the justice system can do its job objectively and well when every police shooting involving a black victim is instantly labelled racist and murder by vocal activists, pundits and and social media, with the implied threat of civil unrest. If an indictment is handed down as in theFreddie Gray matter in Baltimore, it appears as if mob passions are manipulating the system, and, in the Gray case, it was. Such a result, in turn, makes it more difficult for the next accused cop to get justice. It estranges the police force from the government entity it serves, and makes police wary and less likely to assume the risks associated with their vital and inherently dangerous job.
These considerations create their own impetus making a failure to indict more likely. A city cannot afford to be seen as not supporting the police, even when they make a deadly mistake in judgment. District attorneys are on the same team as police, and automatically share their perspective; it is important that the police recognize that. The police receive the benefit of every doubt, and the deserve that. Yet a failure to indict, especially now that police shootings have become high profile matters that every blogger and pundit prejudges according to their own biases and agendas, will inevitably be used to indict the system instead.
Rice’s death was the result of random and unfortunate factors that produced the worst possible scenario in the wake of Ferguson. The victim was an African American child who committed no crime, and his shooter and his partner were white. The boy was gunned down by Officer Timothy Loehmann within two seconds of his police cruiser stopping near the boy. Loehmann and Officer Frank Garmback, were responding to a botched relay of a 911 call. They were wrongly told about a man brandishing a gun, not a child waving a toy that looked like a gun. The harmless pellet gun was missing its telltale orange tip. Loehman was an incompetent, jumpy, trigger-happy police officer who should never have been hired. He and his partner did not follow responsible police procedure. Rice, who was not aware of his peril, did not know how to preserve his safety.
Could the District Attorney have legitimately persuaded the grand jury to deliver a criminal charge? No doubt: the crimes of reckless homicide and negligent homicide were available. It is unclear, however, to what extent these crimes do or should apply to police officers, because of the nature of their jobs, which forces them to become involved in situations where the involvement of a civilian would be inherently reckless. Those who argue that the same standards should apply to police as to everyone else are being neither fair nor realistic.
Despite the manner in which the story has been reported, despite the gut reactions everyone (including me) had when first hearing or reading about it, and despite the undeniable fact that a youth is dead who should not be and the police are at fault, the question of whether there was probable cause to charge either officer with a crime is a close one. Subodh Chandra, an attorney for the family, said yesterday that “This is apparently how long it takes to engineer denying justice to a family when the video of the incident clearly illustrates probable cause to charge the officer.” I know he’s representing the family’s interests, but that’s an irresponsible statement that serves no one’s interests. It does nothing but increase tensions and misunderstanding, and it is typical of the atmosphere all of these tragedies now take place in. The result is that any chance of unconflicted handling of them by the justice system evaporates.
Public opinion, pundit rants and media coverage make the situation worse still. It is apparently impossible to report the story without misrepresenting it. Here’s the first paragraph of the Los Angeles Times story today:
“A grand jury Monday declined to indict a white rookie police officer in the killing of Tamir Rice, a 12-year-old black boy who was shot while playing with what turned out to be a pellet gun.”
This is accurate, but inherently taints an objective view of the event. There is no evidence that the races of the officers and the boy were relevant or a factor in the shooting, except that African American activists and progressives are presuming racism.. (But media reports on the mob of unruly teens that descended on a Kentucky mall over the weekend and forced it to close didn’t mention the predominant race of the kids involved. ) The officer had no way of knowing that Tamir was 12, or a boy, or playing. ThinkProgress, a left wing blog, says that the officer “gunned down” the child, who was “carrying a toy gun.” Jezebel falsely takes this to the next step, writing that “twelve-year-old Rice was shot to death by Tim Loehmann on the playground after Loehmann and fellow officer Frank Garmback saw him playing with a toy weapon.” No, they didn’t know he was playing with a toy, so it is misleading to say they saw him doing it. What they saw was a man waiving a gun around. What they saw is what matters in determining whether they committed a crime or not.
Twitter accurately describes the negative public reaction to the no-charge decision, with race-baiting New York Times columnist Charles Blow and BlackLivesMatters members leading the tumult. Essentially every angry tweet shows either a presumption of racism, a misunderstanding of the justice system (the D.A. is not supposed to be an advocate for the victim: his client is the public), an emotional response rather than a reasoned one, or a reliance on irrelevant facts.
This tweet is typical of the mindset and bias:
The tweeter seems to think this constitutes an argument. It doesn’t. It is a collection of unjustified assumptions. Michael Brown, the facts showed, was shot in self defense. There was no intent to kill Eric Garner. The police officer whose trial ended in a hung jury in the Freddie Gray prosecution was one of six charged, he will be retried, and had the weakest of the cases against him, which accounts for the jury deadlock. Sandra Bland committed suicide, and there is still a possibility of charges regarding her arrest. In none of the cases has racial bias been shown, indicated, or proven. This is the Texas Sharpshooter fallacy, at best. The cases have no relationship to each other, and collectively have no lessons to teach.
Personally, I would have liked to see the officers charged with negligent homicide. However, I offer these questions and answers:
Q—Should the fact that Rice was a child matter in determining whether there was a crime committed?
A–No. The police had no way of knowing he was a child, since the 911 operator miscommunicated what had been called in, a likely child waving around a probable toy.
Q—Is the fact that the gun wasn’t a real gun relevant?
A—No. It looked exactly like a gun (see above), and in determining whether the officer had a reasonable fear when the child appeared to be taking it out of his pants, that is all that should matter.
Q—Is the fact that Rice was black and the police were white relevant to the commission of a crime?
Q—If, after the shooting, it had turned out that Rice was an 5’7″ adult carrying a loaded gun, would there be the same uproar and accusations?
A—No. Yet the difference between this hypothetical and what actually occurred is moral luck, and completely outside the control of the officers.
Q—Would the officers’ breach of proper police practice resulting in the fatal shooting be greater or lesser if it had been a real gun?
A—It would be exactly the same.
Q—If Tamir Rice were white, would this be a national story?
Q—-If he were white, would there have been an indictment?
A—Good question. Maybe so, because the justice system would not have been operating under the threat of protests, conflicted, and facing damaging consequences no matter what it determined was the right course.
That is, in ethics zugzwang.