A week ago, New York City police officers Wenjian Liu and Rafael Ramos were murdered in an act of premeditated assassination by a man who was patently inspired by — indeed, was a documented participant in — a radical movement that has brazenly called for cops to be murdered.
To be sure, not every radical in the movement is down for the cop killing, no more than every Islamist thinks jihadist terror is the best route to imposing sharia. But cop killing is undeniably an aim of a not insignificant part of the movement’s hard core, and a good many more members applaud it even if they would not carry it out themselves. Cop killing is thus a foreseeable, if not inexorable, consequence of tolerating the movement as a well-intentioned display of our commitment to free speech.
I cannot agree with it, however, if it is a statement, more broadly, that no culpability should be laid at the feet of the movement and those involved in it: (a) organizers like Al Sharpton; (b) members, especially those who’ve committed violent acts short of murder against police, and those who’ve paraded through Manhattan shouting, “What do we want? Dead cops! When do we want them? Now!”; (c) government enablers like President Barack Obama, Attorney General Eric Holder, Mayor Bill de Blasio, and other public officials who, even after its violent rhetoric ignited violent actions, have encouraged the movement and chosen not to take steps that could have contained it; and (d) media cheerleaders who have helped perpetuate the slander that fuels the movement, namely: the claim that racism caused the recent deaths of Michael Brown and Eric Garner, who met their demise when police, in Ferguson, Mo., and New York City, respectively, used force because the two men resisted efforts to effect lawful arrests.
On most public issues, the debate is over-lawyered. This one is different. This one rages with hot-blooded slanders and cold-blooded killings. The law can help us maintain a sense of proportion. This writer, at least, finds it easier to come at this situation not as a journalist but as a lawyer who has prosecuted people for murder, lesser forms of homicide, murder conspiracies, aiding and abetting murder, violent racketeering, and incitement to commit acts of violence.
I emphasize the “for what?” question because it is the one most apt to get lost in the public debate. Pressing the question “for what?” ensures that we apportion, rather than collectivize, guilt.
Take the death of Eric Garner. The anti-cop movement screamed that he was murdered by a banned chokehold applied by a racist cop. Police sympathizers countered that the cops were blameless because the take-down tactic used was not the banned chokehold, even the “banned” chokehold is not illegal (i.e., using it violates police regulations not statutory law), and Garner was in any event resisting arrest, justifying the use of force.
While these competing positions dominated the public debate, they were both wrong. Garner was not murdered. There was no premeditation or malice in the actions of the police. Plus, there seems to be a real question of causation: Garner was not in good health and appears to have died of a heart attack; even if one can confidently say the stress of the arrest triggered the heart attack, the arrest was lawful.
On the other hand, as I contended in a column suggesting the grand jury’s decision not to indict may have been wrong, the conclusion that Garner was not murdered does not foreclose the possibility that a less severe homicide offense — e.g., manslaughter or negligent homicide — occurred. Nor is the fact that Garner was lawfully arrested the end of the matter. By law, police use of force has to be reasonable. There are gradations of resisting arrest just like there are gradations of police use of force. We can all agree (I hope) that if a suspect resisting arrest is not assaulting or threatening officers — i.e., he is technically resisting, but merely by pleading not to be arrested and waving his arms in a way that makes cuffing him difficult — the officers would not be justified in shooting the suspect or clubbing him over the head with a nightstick. A cop’s escalation of force has to be reasonable under the circumstances.
Bearing in mind that a grand jury has to find only probable cause of a crime, I thought there was a serious question about whether the manner in which NYPD officer Daniel Pantaleo took Garner down was reasonable. That doesn’t make Pantaleo guilty; probable cause just means there is enough evidence to warrant having a trial.
Now, I happen to think Pantaleo would have been acquitted at trial. If there was a major question about causation, and if there is no doubt that some use of force was appropriate, it is highly unlikely that a jury would find proof beyond a reasonable doubt of, say, manslaughter. In light of that, and because we cannot be secure if police are afraid to use force when necessary, it might have been better for the prosecutor not to bring the case to the grand jury in the first place.
The criminal law is not the only judicial vehicle for apportioning responsibility, and it is a poor vehicle for gray-area cases. A reasonable prosecutor might have concluded that the Garner family could use the civil law: Sue Pantaleo and New York City for negligence under the lower burden of proof required in civil cases. Such lawsuits are often filed when police conduct is arguably unreasonable but not so egregious that the cop should be prosecuted and imprisoned. When a city settles such a case, or the plaintiff otherwise prevails, that is justice. It is a way of saying, “Yes, a wrong has been committed and the police bear a measure of responsibility,” without inflating the wrong into something it wasn’t — such as murder.
Still, if the prosecutor does decide to bring the case to the grand jury, the grand jury’s duty is to indict if there is probable cause of some crime. It is not for the grand jury to predict the outcome of the eventual trial or weigh the policy equities. That is why I think the failure to indict may have been a mistake. But if so, it was a mistake about negligence. To call what happened murder and to erect out of it a myth about collective police racism is recklessly defamatory — and would be even if the NYPD were not a fitting reflection of the diverse population it protects and serves.
I try to analyze the killing of the two police officers the same way. Only Ismaaiyl Abdullah Brinsley is guilty of murder, but that is not the end of the culpability inquiry.
Incitement is not as serious an offense as the murder and mayhem it can result in, but it is still a serious wrong. As a matter of law, incitement to violence is so serious that we criminalize it — meaning the violence called for need not even happen for the inciter to be prosecuted. Consequently, when murder and mayhem do follow from incitement, of course we should regard the inciters as partially responsible.
What about free speech? The First Amendment does not guarantee “freedom of speech”; as Ed Whelan has sagely pointed out to me, it forbids Congress from “abridging the freedom of speech.” The definite article makes a difference. The freedom of speech has always been a finite carapace, not an open-ended license. As the late Judge Robert Bork argued, bolstered by such precedents as the Supreme Court’s 1942 Chaplinsky v. New Hampshire ruling, there have always been well-known exclusions from it, including speech that is slanderous, obscene, or profane; or speech intended to instigate lawlessness, particularly “fighting words” meant to provoke violence.
I prosecuted the Blind Sheikh for soliciting terror attacks against American military installations. When a mafia don in a café tells his button man, “Whack that guy,” he has no First Amendment defense to a murder charge when the guy predictably gets whacked. Naturally, our law has developed principles for judging the intent of the speaker and the likelihood of violence: We ensure that the fan who vacantly yells, “Kill the umpire!” is not treated as if he really wants the umpire killed, and that someone who is merely teaching students about a violent doctrine is not treated as if he were advocating violence. But the bottom line is that speech calling for lawlessness is worthy of little, if any, protection. Speech calling for violent lawlessness can be legally actionable and should be deemed morally culpable.
The freedom of speech is principally about creating a wide berth for political discourse. And despite being the most deserving of protection, even political speech has always been limited by time, place, and manner restrictions.
The “Hands up, don’t shoot!” slogan is a fraudulent rendition of the Michael Brown shooting, but it is clearly political speech presumably intended, however wrongheadedly, to advance policy arguments about institutional racism and police brutality. It may not be forbidden. The state does, however, have the power to forbid it from being yelled outside my bedroom window at 2 o’clock in the morning. And it has a duty to forbid it from morphing into calls for killing police and a license to shut down major thoroughfares — such that police, fire-fighters, and ambulances cannot respond to emergencies, people cannot get to their jobs and homes, and merchants cannot operate their businesses.
People who organize mobs knowing full well that eruptions of violence are foreseeable are culpable when violence erupts. You want to say they are not guilty of murder? Fine, but that should not absolve their contributory responsibility for the loss of life that predictably occurs. The same goes for others who incite the mob: those who call for the killing of cops. They are not equally as culpable as the murderer. That’s why our law punishes murder more harshly than it does incitement. But those who incite are proportionately responsible — and when what they are inciting is atrocious, they should be regarded as atrocious, too.
Public officials also bear responsibility because they have special duties. They are keepers of the order that must be assured if liberty is to thrive. They are not like the average 21-year-old anthropology major bemoaning the police because “black lives matter” — notwithstanding that the cops protect millions of black lives while the nitwit student protects none. When public officials signal to the mob that its anger is so justified that its criminal behavior, even if not exactly condoned, will be rationalized, minimized, or ignored, they are facilitating criminality. So of course they should be deemed contributorily culpable when the criminality happens.
To say that the mayor, the attorney general, and the president are not guilty of last weekend’s murders of two police officers is not to say they are blameless. To distinguish them from the murderer is not to pronounce them suitable for the weighty public trusts they hold. There is guilt here to be apportioned. Apportioning it is not collectivizing it — it is not engaging in the same convoluted demagoguery that blamed Sarah Palin’s electioneering for a mass-murder in Tucson by a man with a history of mental illness, or that blamed bourgeois America for the killing of John F. Kennedy by a Communist.
A radical movement has openly called for the killing of cops. The officials responsible for keeping order abdicated their duties, and cops predictably started being assaulted and killed. We should not tar all the culpable actors with the same brush, but we should absolutely hold them accountable for what they have done.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.