Monday Morning Ethics Warm-Up, 8/23/2021: Farewell Everly Brothers And Other Problems

Don Everly has died, and that’s the end of the Everly Brothers (Phil died years ago), one of the most influential and perhaps the most harmonious singing group of all time. The unique sympathetic vibrations that only sibling singers seem to be able to achieve is a marvelous metaphor for the ethical benefits of teamwork and trust.

This date also marks the demise of another famous duo: despite worldwide demonstrations in support of their alleged innocence, Italian-born anarchists Nicola Sacco and Bartolomeo Vanzetti were executed for murder in Massachusetts in 1921 .On April 15, 1920, a paymaster for a shoe company in South Braintree was shot and killed along with his guard. The murderers, who escaped with more than $15,000, were described by witnesses as two “swarthy Italian men.” Sacco and Vanzetti were arrested and charged with the crime. The men carried guns and lied to the police, but neither had a previous criminal record, and they definitely didn’t get a fair trial by modern standards. Prejudice against Italian-Americans was strong, and suspicion of anarchists was stronger. The pair was convicted on July 14, 1921, and sent to the electric chair on August 23.

A TV dramatization of their case, written by Reginald Rose (who authored “Twelve Angry Men”) made a huge impression on me as a child, and sparked the first stirrings of my interest in the law. In 1961, a test of Sacco’s gun using modern forensic techniques proved that it was his gun that killed the guard; he, at least, was guilty, but there was little evidence to implicate Vanzetti in the killing. To make this ethics train wreck complete, Massachusetts Governor Michael Dukakis ignored the evidence of Sacco’s guilt and issued a proclamation exonerating both Sacco and Vanzetti and proclaiming that no stigma should be associated with their names.

Typical of Dukakis.

1. Accountability? What accountability? “Sources”—and I stipulate that un-named “sources” are untrustworthy—tell various news outlets that “President Biden isn’t inclined to fire any senior national security officials over the chaos in Kabul unless the situation drastically deteriorates or there’s significant loss of American life.” That sounds as likely as it is depressing. The reluctance of American Presidents to fire subordinates for gross incompetence has become the norm rather than the exception, and the trend ensures that our government, whoever is the President and whatever party is power, will continue to decline in competence and trustworthiness. Consider President Bush’s refusal to fire any of those responsible for the botched intelligence regarding Iraq’s WMDs, and later Abu Ghraib, or my personal favorite, Barack Obama’s refusal to acknowledge the gross incompetence of Kathleen Sebelius, his Secretary of Health, after her inexcusable reliance on a flawed website to launch the Affordable Care Act.

Dumber still is the qualification “unless the situation drastically deteriorates or there’s significant loss of American life.” Morons. Morons! Whether the situation gets worse or not is pure moral luck; it doesn’t change the utter incompetence of the Afghanistan abandonment. Imagine a babysitter who gives a toddler knives to play with, and a parent whose reaction is, “Well, the kid wasn’t hurt, so there’s no reason to fire her.” That is literally what the reasoning at the White House is…if “sources” are accurate.

2. The inexplicable NCAA ruling on Baylor. Baylor University has seen its athletes engage in multiple rapes and sexual assaults, and its general approach has been to let the attackers get away with it. Earlier this month the NCAA announced the results of a years-long investigation into allegations that “Baylor shielded football student-athletes from the school’s disciplinary processes and did not report allegations of misconduct by football student-athletes.” The investigation ruled the university’s “failings” to be “egregious,” but in keeping with its pattern of ethics rot, the NCAA only punished Baylor mildly, with a tiny fine and four years of probation. 

Curmie is blogging again, and I’m going to send you over to his place for a typically astute, well written, typo-free analysis of this fiasco. Curmie generously shares his insights on Ethics Alarms, and I’d like to see his blog get the attention it deserves.

3. From the outrageous hindsight bias files. Nauseatingly, some pundits are saying that the mess in Afghanistan proves the wisdom of Barbara Lee, the House California Democrat who was the only member of Congress to vote against attacking the Taliban in 2001. The word “wisdom” (or “ethics,’ for that matter) and “Rep. Barbara Lee” should never be used in the same sentence except as satire, and her vote regarding Afghanistan proved it. Any nation, but especially a superpower, that allows a nation to engage in a cowardly sneak attack on its citizens without responding with overwhelming force is placing all of its citizens in dire peril. Approximately as many Americans died on 9-11 as were killed by the Japanese at Pearl Harbor, but most of the deaths in 1941 were military personnel, making the 2001 ambush, if possible, worse. But Lee doesn’t believe in war, or the use of military power, or, obviously, history, logic, and human nature. It is far from the worst result of Biden’s Folly, but giving an empowered fool like Lee a chance to say “I told you so!” is providing credibility to an incompetent who is certain to abuse it.

4. More suicide ethics and police persecution. Huntsville, Alabama., police officer William Darby, 28, fatally shot Jeffrey Parker, a suicidal man holding a gun to his own head, 11 seconds after entering Parker’s house and telling him to drop the weapon. Darby was sentenced last week to 25 years in prison for murder. Another officer had arrived on the scene first and was trying to talk Parker into putting down his gun. The Huntsville Police Department review board cleared Darby of wrongdoing in May 2018. However, the Madison County District Attorney’s office brought the case to a grand jury anyway, and Darby was indicted for murder.

Dewayne McCarver, the Huntsville police captain and head of the Huntsville Police Department’s training unit, testified during the trial that Darby acted appropriately under the circumstances. Never mind: the jury convicted Darby anyway. Needless to say, I hope, 25 years is a cruelly excessive sentence for a police officer who shoots a man who refused to put down his gun, regardless of where it was pointed. I think this is clearly a result dictated by the anti-police propaganda that has poisoned community relations with law enforcement. It is also one more episode that will, and should, send potential police recruits into another line of work.

5. And now for the GOOD news! Judge Stephanos Bibas ruled in federal court that students at the University of Delaware could proceed with their lawsuit claiming that the school “unjustly enriched itself” during the pandemic by collecting full tuition for what was a less-than-full college experience. The judge found the students’ demand for partial refunds “plausible,” citing the basic contracts principle that “if someone ‘renders performance under the contract, but the contract is then excused because of a ‘change of circumstances,’ he still “has a claim in restitution … as necessary to prevent unjust enrichment.”

Judge Bibas added, “Similarly, the students insist, being on campus is a core part of the educational deal: it is “so basic to the bargain” between students and an in-person university. They may be right.”

They are right. Ethics Alarms has discussed the refusal of colleges and universities to refund tuition fees for what the pandemic turned into a minimized educational experience. Legal or not, the refusal is unethical. Perhaps this ruling will prompt other schools to do the right thing.


16 thoughts on “Monday Morning Ethics Warm-Up, 8/23/2021: Farewell Everly Brothers And Other Problems

  1. For No.4 I will never understand how you can be the second officer on the scene when someone else already has the situation and determine in less than 11 seconds that you need to be 1) in charge 2) issue the demand 3) make a choice to end a life. That’s a lot to accomplish in 11 seconds. 25 years may be excessive, but just based on the situation as described without further detail, I’d start with the presumption that the conviction is proper.

    With the 25 years sentence, I think that’s harsh for someone who is unlikely to be a repeat offender once they are stripped of their law enforcement authority. Maybe we need to have the discussion on excessive punishments again, but I’m of the opinion that the US is over incarcerated, and the number of years calculation is almost always excessive. The whole system needs an overhaul, but there isn’t leadership to accomplish anything. Probably because campaigns are financed by special interests to promote the weakest among us so nothing ever gets changed. (Opinion.)

    • 11 seconds is still enough for a perp with a gun to turn and shoot an officer or someone else. The sequence went “put down your gun”, “no,” BANG, and the police testified that was procedure.

      The over-incarceration issue is a good one, but boy, this seems like a terrible place for it. I’d charge the suicidal guy with felony murder…of himself.

      • I think this shows a lack of familiarity with firearms and deadly force law.

        “…in Graham v. Connor, the court said deciding whether an officer used excessive force “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”

        Firstly suicide isn’t illegal so at first glance it fails the severity of the crime criteria. There is no textual basis to say that suicide is illegal federally or in Alabama. Indeed in many states suicide is so not illegal that having someone else kill you with your consent (suicide via euthanasia) is explicitly legal. Second, it fails the immediate criteria as well. Pointing a gun in the air, at the ground, at your own hand or leg, is not an immediate threat to officers or others. It’s a potential threat, it’s not immediate until you do something that would reasonably imply that you’re about to point it at someone. Sudden movements, rapid draws, etc. Finally it fails the third test, non-compliance isn’t active resistance. The dude literally just sat there in a chair holding his gun in a manner that could not have possibly harmed the officers without further movement.

        Another common framework is the “ability, opportunity, and intent” framework. If you have a gun around an officer then yeah sure, the first two are clearly hit – the gun gives you the ability and proximity to an officer gives you the opportunity. Suicide though plainly fails the intent criteria. How you can you say that his intent was to kill the officer if his intent was obviously to kill himself – and intent doesn’t get much more obvious then pointing the gun at your own head.

        I suspect you’ll probably hand wave all that away and say holding a gun around an officer is enough but it really isn’t. That interpretation would mean that simple possession and non-compliance is enough to be executed by an officer regardless of the circumstances. Police raid the wrong house in the middle of night and you in your sleepy hazy state get lit up for not dropping your gun when these strange men pile into your house? Good shot (it’s law enforcement slang for a legal and justified shooting). Or maybe your’e caught shooting pest animals in your garden after a jumpy neighbor calls the police? God hep you if you freeze up in surprise or terror because you’ve got 11 seconds to live even if your rifle is pointed in the air at the European Starlings in your tree. Clearly intent and where the gun is pointing matter a great deal.

        • “The dude literally just sat there in a chair holding his gun in a manner that could not have possibly harmed the officers without further movement.”
          Well, the “dude” “just sat there” while also refusing repeated (lawful) demands that he drop his weapon. I do have some expertise on firearms and the use of deadly force (or at least so said a couple of courts in my jurisdiction) and I can assure you that the procedure as explained by the Captain in this case is identical to that of most agencies with which I am familiar.
          Straw men to the contrary notwithstanding, in the real world, an armed subject can ACT (pointing the gun AND shooting it) much more quickly than the officers can REACT (perceiving and processing the subject’s movement, then returning fire). The danger to officers increases the longer these incidents draw out, because it is human nature to gradually let down one’s guard the longer that “nothing happens.” I taught the “action-reaction” process for years as a part of a “Dynamic Response to Lethal Threats” course, and had to prove to officers time and time again that I could, while seated, draw and fire a concealed airsoft handgun and shoot them faster than they could react to my movements and shoot me, even when they were standing beside me with their airsoft guns in their hands. This happens in about .001 O-shit of a second. (I believe the Force Science Institute still has an instructional video on this issue on their website.) ANYONE who is visibly armed (gun in hand, or a knife /other edged weapon / impact weapon in hand at close distance) and refuses police commands to drop their weapon IMMEDIATELY should expect to get shot. (Usually they are shot by the first officer on the scene, not the guy who shows up after the subject has been refusing to drop his weapon for several minutes.)
          As a young officer working plainclothes assignments, I was taught way back in 1974 that we should immediately obey any police commands to drop our weapons, no matter what, and explain afterward how we were the good guys. I now instruct retired officers who carry under the authority of the Law Enforcement Officer Safety Act, and that’s one of the things I always emphasize in their training. I know our local handgun carry permit instructors also explain this to their classes.
          Fortunately for all concerned, most people do comply immediately, as did everyone I ever ordered to drop a weapon. These types of situations are uncommon but not unheard of, and I have never heard of an officer being charged in a shooting of this type.

          • So I disagree with the idea that simply holding a weapon around an officer is a threat by virtue of point and shoot times (see my response to Jack below), but for the sake of argument, lets assume that youre right and every perp can draw aim and shoot before an officer can simply pull a trigger. You still need to address legality and intent. What was crime was the victim committing that allowed the officer to legally order the suspect to drop his weapon. Certainly an officer can’t just willy nilly tell law abiding citizens to drop their guns literally whenever he wants. There must be reasonable suspicion of a crime, and last time I checked pointing a gun at your own head isn’t a crime… And, not to be too dry, but equally certainly holding the gun to your own head while saying you want to kill yourself is about as clear as intent gets, and it’s not the kind of intent that lets the officer claim his life was threatened.

            Victim: “I want to die!” *Holds gun to his own head*
            Officer: “Oh no he wants to shoot me!”

            How absurd.

          • Nope Jim has it wrong and you agree with me. Your most recent feature about Jonathan Turley and the shooting of Ashli Babbitt touches on the legal standpoint here. To qoute:

            “While the Supreme Court, in cases such as Graham v. Connor, has said that courts must consider “the facts and circumstances of each particular case,” it has emphasized that lethal force must be used only against someone who is “an immediate threat to the safety of the officers or others, and … is actively resisting arrest or attempting to evade arrest by flight.” Particularly with armed assailants, the standard governing “imminent harm” recognizes that these decisions must often be made in the most chaotic and brief encounters. Under these standards, police officers should not shoot unarmed suspects or rioters without a clear threat to themselves or fellow officers. That even applies to armed suspects who fail to obey orders….”

            That last line is especially apropos – I’d bold and underline it if I could. And to directly refute Jim’s point, unless every perp is Jerry Miculek (and only Jerry Miculek is Jerry Miculek) there is no way an alert officer who has a gun pointed at the suspect can be beaten to the hammer by a suspect who is not actively pointing his weapon at the officer. The time is takes to pull a trigger is objectly less than the time it takes to draw, point, and pull the trigger, or even to point and pull the trigger. Maybe the danger increases if the officer relaxes, but the officer’s relaxation or lack of alertness is not the legal or ethical equivalent of the suspect threatening your life. You don’t get to execute someone who is not actively resisting because youre worried that you’ll relax.

        • I share Jim’s experience (starting in 1971) and have seen many demonstrations of the response time problem. At best and officer has a 0,75 second perception-response lag. It is easily demonstrated by having having a “bad guy” holding a pistol down at the side of his leg, pointing at the ground, and the officer facing him with his gun drawn and pointing at the subject. The bad guy wil raise his gun and get off a shot before the officer can shoot. It takes that 0.75 second for the officer to see what is happening and respond with a shot… the subject has already made all the decisions he needs to make before he first moves.

          I join our host in affirming Jim’s analysis.

          For Mr LeVier”s future consideration, in situations as described in the post, 11 seconds is an eternity to those directly involved.

  2. So many great Everly Brothers songs. Bird Dog is probably my favorite. A little on the Jerry Lee Lewis side.

    Still going in 2004.

    They must have taken good care of their voices. Funny how Taylor Swift has made gazillions off the same teen angst shtick.

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