Gaming the Law of Self Defense

Apropos of nothing, I see that my recent traffic from Russia is double that from the U.S.  I'm not sure that's a good thing.

Anyway, there was a police shooting in Chicago:

The deceased, 17-year-old Laquan McDonald, is described as high on PCP, non-compliant, and armed with a knife with which he had attempted to slash the tires of police cars that had responded to reports of Laquan attempting to break into nearby trucks.

The case raises an important question: how should the police be required to engage an armed, non-compliant subject when probable cause exists but when the subject is not directly threatening them? My preference would be: wait for the taser. But then I would equivocate: it may depend on other circumstances. Does waiting put someone else in danger? But "it may depend" may be bad instructions to police in need of clear guidance.

But . . . this?

Let me begin my criticism by acknowledging that Andrew Branca has taught me most of what I pretend to know about self defense law, to wit: deadly force is authorized against a person who has put you in reasonable fear of imminent death or serious injury. Plus you must be innocent in the confrontation, plus (in the handful of duty-to-retreat states, you must not have a safe avenue of escape.

I expect every police officer in the country has been taught a defensive doctrine called the Tueller Drill. The Tueller Drill was developed by Salt Lake City Police Officer Dennis Tueller, who among other things was a firearms instructor for his department.

Dennis trained uniformed police officers who were armed with pistols and who regularly encountered violent suspects armed with impact weapons, particularly knives.

. . . .

Dennis knew a pretty good time for an officer to clear his weapon from his holster and strike a target with two center-mass rounds was about 1.5 seconds. Once that time is known, the question of interest becomes how great a distance an attacker armed with an impact weapon can cross in that same 1.5 seconds. Whatever that distance, the aggressor became an imminent threat for self-defense purposes once he crossed that threshold.

After running a great many empirical tests, Dennis found that the distance that an impact-weapon armed attacker could cross from a standing start in 1.5 seconds was not just 5 feet, or 10 feet, or 15 feet. Rather, such an aggressor could consistently cross a distance of 21 feet, a full 7 yards, in the 1.5 seconds it would take the typical officer to draw his holster and engage that aggressor with aimed fire.

That suggested that an aggressor armed with an impact weapon becomes an imminent deadly threat even when he was as far away as 21 feet–a distance that astonished even many experienced law enforcement officers.

I have multiple problems with where this is headed.

First, those 1.5 seconds = 21 feet numbers assume a holstered weapon, yet we see from the video that the police have their weapons already drawn and beaded on the subject. That reduces an officer's minimum response time from 1.5 second to a few tenths of a second at most, and damned near instantaneous in this case, as we shall see.

Second, I don't like rules, or rather an application of the rules, that can be gamed this easily. The officer is approaching the subject, gun drawn, he himself crossing the 21-foot threshold as the subject angles away from him. What, exactly, are the officer's intentions? I'm prepared to take seriously arguments that deadly force is authorized under the conditions I stated above, but if that is off the table, then I want to know what the officer plans to accomplish by getting that close. The subject is obviously not dropping the knife in response to the officer's instructions. Meanwhile, the officer obviously can't engage the subject with non-deadly force with his hands full with his own pistol. I'm open to alternative interpretations here, but I can think of only two choices: the officer doesn't actually have a plan, in which case he's a badly-trained fool; or he's trying to contrive a situation where deadly force is authorized, which ought to violate the innocence condition that Mr. Branca teaches.

But sure enough, gaming the rules is exactly what Mr. Branca allows:

(1) McDonald was brandishing a knife in his right hand as he walked down the middle of the street while facing numerous police officers. It must be assumed that he was being non-compliant with lawful orders to drop the knife, get on the ground, and the usual law enforcement protocols for such circumstances. Note that the police have a legal duty to enforce public safety, and cannot simply allow a knife-wielding PCP addict to wander up and down the public streets. Only one person was making a free choice that evening, and that was McDonald. He chose, as they say, poorly.

So stipulated.

(2) McDonald does not walk directly away from the officers, but rather angles no more than necessary to keep a distance of 10-12 feet (typical width of a car lane) between the officers and himself. This is well within the 21 foot distance that these officers would have been taught as part of their Tueller Drill training. At a distance of 10-12 feet the knife armed McDonald could be on the officers stabbing them with his knife in well under a second. Officer Van Dyke would be well aware of both this fact and the grievous injuries that a knife can cause.

Could be, yes. But a "reasonable threat" requires, or ought to require, some demonstrated intent to cause harm. Trayvon Martin and Michael Brown clearly demonstrated such intent, indeed, by actually causing harm. John Crawford and Tamir Rice just as clearly demonstrated no threat at all. And Laquan McDonald?

(3) The moment before the first shot appears to be fired McDonald is walking down the dashed-white line of the road, thus parallel to the officers, and he suddenly blades his upper body towards the officers. This movement would be consistent with an intent to charge at the officers with his knife. It is quite possibly this threatening movement, knife still in McDonald’s hand, that induced Van Dyke to begin firing.

I'm not sure how seriously to take this. It could be that Mr. Branca is floating the arguments that Van Dyke's lawyer could be expected to try, given the evidence at hand. But if I were on the jury, and "blades his upper body" were all he had to demonstrate an "imminent threat"? Van Dyke would be cooked.

But the gaming doesn't stop there:

(4) Officers are taught to continue firing at a deadly threat until the threat has been neutralized. Even after McDonald fell to the ground he was still in control of his movements and he still possessed the knife, thus he was still an imminent threat of death or grave bodily harm to any officer who got close enough.

I feel just a little dirty having to spell this out, but a person who falls to the ground in a hail of bullets is definitionally not in control of his own movements. And somebody lying face down in a pool of his own blood doesn't meet my definition of an imminent threat of anything to anyone standing over him. "Close enough" in this instance would seem to require someone to be lying under the prostrate Laquan.

But Mr. Branca is a good lawyer and I will readily concede this: the argument he makes, when and only when it is applied to police officers, succeeds often enough to not discount it's possible success. I've seen too many videos of police officers pumping bullets into prone and probably dying subjects on the grounds that, "Hey, they're still moving! They're an imminent threat!" And for this reason I'm actually not that eager to convict Van Dyke of first degree murder for doing what he wsa trained to do. It's the training that needs to change, and prosecuting police officers in politically and racially motivated trials is too blunt an instrument for effecting the change I want. But at the end of the day, the law requires reasonableness, and in this case neither Officer Van Dyke nor Mr. Branca isn't showing much.

Diversity Shakedown

Form the “Campaign Quarterly” of the Georgia Tech Office of Development:

Georgia Tech, Intel partner to diversify workforce

Intel is investing $5 million in Georgia Tech over the next five years to build a pipeline of underrepresented engineers and computer scientists.

Five million dollars!

(It never gets old.)

The Intel Diversity Scholars Program will recruit and retain underrepresented minority students to STEM (science, technology, engineering, and mathematics) majors and prepare them for

. . . working at Intel?

graduate school.

Oh.

The effort is anticipated to benefit roughly 1,000 high school and undergraduate students over five years through scholarships, mentoring, and professional development workshops. 

I would like to know, when the money is spent, how much of it went to scholarships and how much of it went to create make-work at Georgia Tech for people who also aren’t doing engineering for Intel.

Earlier this year, Intel announced a new goal: to achieve full representation of underrepresented minorities and women by the year 2020 in its U.S. workforce,

Is there a way to track the size of Intel’s “U.S. workforce over the next fifteen years?  Especially compared to its, you know, non-U.S. workforce?  And is Intel on the record how it counts H1B workers?

along with a $300 million Diversity in Technology Initiative to help build a workforce pipeline.

Intel has a market cap north of $160 billion.  With a “b”.

Rosalind Hudnell:  not an engineer.

“Filling the tech industry pipeline with diverse students is critical to increasing the number of diverse engineers and computer scientists in the field,” said Rosalind Hudnell, vice president of human resources and chief diversity officer at Intel. “The goal of this program is to inspire and support more women and underrepresented minorities to earn technical degrees so we can hire them down the road – we want to foster those future tech innovators.”

On the Death of Christendom

From Michel Houellebecq’s Submission:

[Rediger] called it tragic that their irrational hostility to Islam should blind them to the obvious:  on every question that really mattered, the nativists and the Muslims were in perfect agreement.  When it came to rejecting atheism and humanism, or the necessary submission of women, or the return of patriarchy, they were fighting exactly the same fight.  And today this fight, to establish a new organic phase of civilization, could no longer be waged in the name of Christianity.  Islam, its sister faith, was newer, simpler, and more true . . . which is why Islam had taken up the torch.  Thanks to the simpering seductions and the lewd enticements of the progressives, the Church had lost its ability to oppose moral decadence, to renounce homosexual marriage, abortion rights, and women in the workplace.  The facts were plain:  Europe had reached a point of such putrid decomposition that it could no longer save itself, any more that fifth-century Rome could have done.  This wave of new immigrants, with their traditional culture – of natural hierarchies, the submission of women, and respect for elders – offered a historic opportunity for the moral and familial rearmament of Europe.  These immigrants held out the hope of a new golden age for the old continent.  Some were Christian; but there was no denying that the vast majority were Muslim.

He, Rediger, was the first to admit the greatness of medieval Christendom, whose artistic achievements would live forever in human memory; but little by little it had given way, it had ben forced to compromise with rationalism, it had renounced its temporal powers, and so had sealed its own doom – and why?  In the end, it was a mystery; God had ordained it so.

Is This Movie Pro-Castro?

On the recommendation of Ace-of-Spades (IIRC), I saw the movie Before Night Falls about the gay Cuban dissident Reinaldo Arenas and based on his autobiography of the same name. Arenas was imprisoned by the Castro regime for a couple of years in the '70s, fled to America during the Mariel boatlift in 1980, and, dying of AIDS, committed suicide in New York in 1990.

Arenas was a poet and novelist. Although Arenas was ostensibly imprisoned for publishing outside of Cuba without a permit, the movie portrays, apparently accurately, the source of his antagonism towards the regime as being its policies discouraging homosexuality. Arenas doesn't seem to have had much of a problem with dictatorship as such, only to his own persecution by it.

But in the movie, the Cuban campaign against homosexuals wasn't especially brutal as persecutions go. For instance, Arenas' first arrest was in response to an accusation of molestation. This was false, but nonetheless properly a crime. Homosexuals were subject to roundups, but not massacres; on the contrary, the homosexuals being arrested didn't even look especially intimidated. Cuban prisons were cramped, ugly places, as Third-world prisons tend to be, but neither Arenas nor any other prisoner is shown being tortured.

What was portrayed graphically was the homosexual activity. In this respect, the atmosphere of the movie reminded me of nothing so much as Midnight Cowboy, whose gross sexual content initially earned an MPAA "X" rating. From what I recall of its retrospectives, Midnight Cowboy set out to portray the grizzly brutality and misery of that kind of life, and succeeded brilliantly; the filmmakers acknowleged that the film could never made under today's orthodoxies.

But, what was the intention behind Before Night Falls? I don't know. I don't think I'm alone among straight men in being viscerally put-off by depictions of male homosexual activity, but its entirely possible that the filmmakers counted on straight audiences being conditioned (or intimidated) into bearing this with approval. But it's also possible that the movie set out, in the guise of a pro-gay polemic, to subtly imply that, yeah, this kind of behavior needed some discouragement. For the record, I'm against Castro's particular methods of discouragement . .. unless the alternative is what we actually have now: dissidents from homosexuality suffering our own persecution.

So Few Democrats

I have a strong recollection of the Democrat primary candidates of 2008.  It was the first presidential election in which I voted, though why the Democrats would stand out in my memory, I have no idea.

But since 1992, it seems like the Democrat field has never been as crowded.  Of the three elections since then in which the Democrats haven’t run an incumbent, the number of candidates with non-trivial delegate counts  or vote totals have been:

2000:  2 (Gore, Bradley)

2004:  4 (Kerry, Edwards, Dean, and Clark (barely))

2008:  2 (Obama and Hillary)

The Republicans, in contrast, run more candidates:

1996:  5 (Dole, Buchanan, Forbes, Alexander, and Keyes

2000:  3 (Bush McCain, Keyes))

2008:  4 (McCain, Romney, Huckabee, and Paul)

2012:  4 (Romney, Santorum, Gingrich, Paul)

Which brings us to 2016.  The Democrats have two declared candidates (Clinton and Sanders), one undeclared candidate (O’Malley), and one rumored to be testing the waters (Biden).  Meanwhile, the Republicans have some 15 candidates serious enough to participate in one of the Fox debates.

Granted, Clinton’s candidacy makes 2016 something of an outlier even in the context of the trend I’m describing:  she has the Wall Street money, the Democrat core is generally happy with her and the party’s brand of cultural Marxism, and other politicians seem afraid of her.  Indeed, it’s hard to imagine Biden even considering a challenge but for the scandal of her ongoing criminality.

Likewise, Trump has exaggerated something of the opposite effect on the Republican side.  As any number of commentators have pointed out, there is deep dissatisfaction among the Republican base with what the party has become, and while Trump has successfully appealed to that dissatisfaction, a lot of his rivals are counting on his candidacy to collapse under the weight of his own . . . Trumpishness.

But the trend was already established, and I don’t fully understand why this should be so.  Is there anything structural about the nominating procedures that encourage competition on the Republican side while discouraging it on the Democrat side?  Or is it just a function of the Clinton syndicate?

So, Female Adultery is Okay Now?

Although I never actually watched the movie, I have the impression that the release of the movie Bridges of Madison County was attended with some controversy, and it required strenuous efforts on the part of the intelligentsia to assure us how empowering (or something) adultery was for women.  But I strain to recall having seen or heard about subsequent movies whose female protagonist cheated on her husband and that the movie celebrated this.  The movies I can think of – Unfaithful, Chloe – with unfaithful wives uniformly carried the message that adultery was, you know, bad; those two in particular carried the message that it was dangerous, much in the way Fatal Attraction presented the dangers of male adultery.

Has the zeitgeist shifted more decisively in favor of adulterous wives?  It may be coincidence, but I happened to have caught two movies in the last couple of months that celebrated adulterous heroines:  This Is Where I Leave You, with Tina Fey cheating on her workaholic husband with the high school boyfriend she broke up with when he was brain damaged in a car accident; and The Best of Me, with Michelle Monaghan cheating on her workaholic husband with the high school boyfriend she broke up with when he went to prison.  I note that in neither movie was the wife intending to divorce her husband (although both movies make the eventual outcome ambiguous).  She just wanted a little extra-marital action.

Neither of these movies are very good.  TIWILY presents its progressive family as the cliché I identified back in this post, and it strains unsuccessfully to reconcile its approval of Fey’s adultery with Justin Bateman’s character being the victim of his wife’s adultery.  TBoM, meanwhile, avails itself of almost every movie cliché every invented, and it’s kind of distracting when you can see the plot lines coming a mile away.  But the point is that the movie presented this kind of behavior as okay if it makes women happy.*

Neither of these movies generated even the least bit of controversy that I heard about, and this strikes me as something new.  Mrs. Φ said she is surprised that I’m surprised at the moral degeneration of popular culture.  But I see enough of it to know when it ratchets downward.

* Popular culture – or at any rate its purveyors – doesn’t seem to extend this indulgence to men.  I can’t even think of a recent movie celebrating the adultery of a married man.  Relatedly, I have the vague impression that media opinion was really on the fence about the Ashley Madison hack until Gizmodo revealed that virtually all of its distaff accounts were zombies. Ashley Madison was only cool when it was “empowering” women; now that it’s a hangout for desperate men, it suffers the obloquy of being a late-nite punchline.

Wrong Hermeneutic

Leon Wolf (via Ace) writes:

As a conservative . . .

Really? I've never even heard this guy's name before, but let's see what he has to say:

. . . who has advocated for criminal justice reform, I have a lot of admiration for the #BlackLivesMatter movement, which has been remarkably effective at raising awareness of the myriad ways that black Americans are treated differently — or, put more bluntly, treated worse — by law enforcement.

So, already we're off the rails. I say this as a conservative who has himself been critical of the police: their methods are characterized by excess aggression, poor accountability, and insufficient regard for the Constitutional rights of American citizens. But I have no sympathy at all for criticisms centered around "disparate impact" analysis, and for two very good reasons: (1) it's factually wrong; and (2) it doesn't contribute to my well-being.

As the experience of, most prominently, Martin O'Malley at the Nut-Roots convention demonstrate, the #BlackLivesMatter movement isn't motivated by the desire to improve police behavior in a disinterested way. It is motivated by the desire to socially and politically validate black racial grievance, and his claims to conservatism notwithstanding, Wolf buys into this motivation.* His analysis may be more sophisticated than the crude slogan -- "Po-po b' raciss'!" of the street, but his column is about the structural racism of "Big Government". Nowhere does this "conservative" mention the easily observed and incontrovertible reality of disproportionate black criminality and anti-social behavior. I don't have a firm fixed opinion about whether "loosies" should be sold legally by street peddlers in NYC, whether parking and traffic laws are in all cases constructive or the fines for their offenses onerous, or whether the drug laws and their associated sentences are socially optimum. Indeed, I can understand the arguments on both sides of these questions. But I am sure, by common experience, that blacks run afoul of these laws in the numbers they do, not by some conscious or unconscious discrimination on the part of the police or in the structure of the law, but rather by the inability or unwillingness on the part of black Americans to observe the standards of behavior expected by their fellow citizens.

Believing otherwise is unlikely to end well. We already see what disparate impact analysis did in the Wells Fargo lending prosecution: Wells Fargo allowed its loan officers to charge not-smart borrowers above-market interest rates, but the government didn't bring a case on behalf of not-smart borrowers. It brought the case only on behalf of not-smart black borrowers, and only the black borrowers received redress in the eventual settlement. The white not-smart borrowers? The government sent them away empty-handed.

I'm not interested in these kinds of settlements. I'm not interested in a world where the police continue the violate with impunity our rights under the First, Second, Third, Fourth, and Fifth Amendments, where we have no right of self-defense against those violations, where the legal system itself refuses to vindicate those rights, and where vindication, even when possible, is lengthy, expensive and uncertain . . . BUT where the police structure their violations such that blacks and whites are victimized in equal proportion to their percentages of the population. Because THAT is the likely outcome of admiration for #BlackLivesMatter.

* Wolf links to a Ken Cuccinelli column that considers the effects of drug sentencing reform, mostly in Texas. The column is too vague for me to understand what trade-offs might have been involved, but to be fair to Wolf, it's apparently an example of the kind of changes he has in mind.