Don’t Get Caught up in the Emotional Fervor: This is about Law and Order

By: Pete Zubof

In his defense of the accused perpetrators of the Boston Massacre, John Adams took a fairly unique legal approach for the era.  Rather than appealing to the emotions of an enraged courtroom crowd, hoping to sway the jury, Adams appealed to the concept that few things were more integral to civil society than the Rule of Law.  The law, Adams argued, was blind to the emotions of the masses; it was enforced based solely on facts, which he described as “stubborn things.”  While Adams would have lamented the loss of life in the events in Ferguson and Staten Island, I believe that he would have been appalled by the public’s reaction to the lack of indictments in these cases.

To be sure, deaths at the hands of our law enforcement personnel are always tragic.  Except in the most extreme cases, they are nearly always seen as “preventable.”  At a base level, we expect nothing less than perfection out of our police officers.  After all, one wrong judgment call can lead to tragedy.  Yet our police officers are both enforcers of and beholden to the law, and it’s only by that law and by those “stubborn” facts that they can be judged.

Although unpopular in the media and the court of public opinion, the facts were on the side of the police in both Ferguson and Staten Island.  While the emphatic testimony of claimed eyewitnesses in the Michael Brown case suggested he was peaceful and surrendering at the time of his shooting, the facts suggest otherwise.  The facts support the assertion that Michael Brown had been involved in both criminal activity (shoplifting) and violence (the altercation with Officer Wilson) in the moments leading up to his shooting.  Similarly, indisputable facts in the Eric Garner case show that he was a career criminal (arrested 30 times for assault and resisting arrest, among other charges) who was in the process of being lawfully apprehended for another criminal violation at the time of his death.

The naysayer may dismiss these facts as immaterial to the lethal actions that followed, but that falls afoul of the Rule of Law.  The law, as applied to these situations, is still firmly on the side of the police officers.  First, the officers were both lawful in their initial engagements of the suspects in the performance of their duties. (As mentioned, both were committing criminal acts.)  Second, both officers were able to demonstrate to a grand jury that they feared for their safety (note that the law says their safety, not their lives), at least in the heat of the moment.  By doing so, they met the legal standard of “objective reasonableness.”

The “objective reasonableness” standard of the Fourth Amendment was set by the Supreme Court in two separate cases (Graham v. Connor and Tennessee v. Garner).  It states that a police officer can only be judged on the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene and not with the 20/20 vision of hindsight.   When a police officer is involved in an arrest that is otherwise lawful, as in these two cases, proving that said officer did not meet the “objective reasonableness” standard is fairly difficult.  It requires proof that the suspect was no threat to the officer and that that officer still chose to use excessive force.  While that standard may be difficult for some of us to stomach, it was deliberately put in place by the courts to allow police officers to function effectively.

As Jews, we have a special sensitivity towards cases that smack of repression or hatred.  Yet we must resist the urge to let our base emotions react unchecked.   While we may not like the outcome of a particular legal decision, our obligation as moral citizens is to analyze the lawfulness of the decision, not our emotional bias towards or against it.  Public sentiment (fueled by media response) desperately wants these cases to be about discrimination, but the facts simply do not support that.  I certainly don’t mean to suggest that such cases do not exist, but these cases do not factually represent what our emotions hope (or fear) that they do.

The Rule of Law is both fundamental to social order and critical to our success as a Jewish minority.  In historical cases where emotion was allowed to drive law, things have not gone well for Jews or any minority social, religious, or ethnic group.  Whereas law provides stability, emotion historically fuels violence.   John Adams discussed this point in his Boston Massacre defense:

The law, in all vicissitudes of government, fluctuations of the passions, or flights of enthusiasm, will preserve a steady undeviating course; it will not bend to the uncertain wishes, imaginations, and wanton tempers of men…. Tis void of desire and fear, lust and anger…. Tis mens sine affectu; written reason; retaining some measure of the divine perfection…it is inexorable to the cries and lamentations of the prisoners; on the other it is deaf, deaf as an adder to the clamors of the populace.

There are, of course, ways to change the laws in our society if we find them unjust.  Again, I would argue that these cases are not the basis for such change.  Unfortunate as both of these situations were, I reiterate the fact that they were, at least initially, a result of police officers exercising their lawful duties, which unfortunately took a tragic turn.

We rely on the police to keep law and order.  As a society we may want to exercise additional oversight of law enforcement agencies in the future, but I argue that we do not want to put ourselves in a situation where our police officers are afraid to react and stand up for themselves or our citizenry.   After all, while the deaths in these cases are tragic, we have to remember that at least 115 police officers lost their lives in the line of duty last year, including two gunned down in New York as an “emotional” response to the grand jury acquittals.

I certainly don’t pretend that our country is devoid of racism and discrimination…. That’s certainly not the case.  Yet their presence should not serve as justification to disregard the Rule of Law.  So I close by asking for my readers to take a deep breath and examine these cases and those in the future based on the facts.  Do not let yourself be swayed by the pre-judgments of a sensationalist media or your own emotional biases.  The fair application of the law must be preserved for all, even if we are occasionally left emotionally unsatisfied with the results.

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