By Stephen Krason, Crisis, July 3, 2019
Recent news stories make one wonder if our legal system is abandoning our traditional Anglo-American principles of justice and instead becoming increasingly unreasonable, unprincipled, and allowing itself to become a tool for furthering political bias, revenge-seeking, and “making examples.”
If the courts open the door to defamation and other actions simply because of falsehood and inaccuracy—no matter how outrageous the claims—there is no doubt that it will have the proverbial “chilling effect” on expression. One can easily envision intolerant activist organizations (especially on the political left) running into court to accuse writers or book publishers they disagree with of purveying false information about some event or person.
We can start off with the spectacle of the two-year-long investigation of the 2016 Trump presidential campaign for something that is not even a crime: collusion (supposedly with Russia to influence the election). The spectacle of various people being charged with questionable “process crimes”—such as lying to investigators—and the procuring of convictions via plea bargains as a result of threats and pressure tactics gave the appearance of prosecutors looking to nail someone to justify their existence. This is aside from how the entire investigation from the start smelled of a politically-motivated fishing expedition, especially since many in the Mueller investigating team were partisan Democrats.
One of those investigated, one-time Trump campaign manager Paul Manafort, was brought up on both federal and state charges mostly concerning financial irregularities. Cyrus Vance, Jr., the Manhattan district attorney and scion of a long-prominent Democratic family, was able to maneuver to get Manafort into state custody and, shamefully, ordered him put in solitary confinement pending legal proceedings at the infamous Rikers Island Prison. It is heavily populated by violent gang members and hardened criminals and has a long reputation for both poor treatment of inmates and inmate assaults on prison staff. This is why it is slated for eventual closure. It is hard to believe that Vance’s action was not the result of political calculation. Even the likes of U.S. Representative Alexandria Ocasio-Cortes criticized Vance’s decision as subjecting Manafort to torture. Ultimately, the U.S. Justice Department intervened to override Vance’s action.
One of the most dramatic legal developments recently was the indictment for culpable negligence, child neglect, and perjury of the former Florida deputy who was stationed at Douglas High School in Parkland, Florida, when a gunman entered the grounds and murdered seventeen students and teachers. Such a criminal indictment of a law enforcement official is virtually unprecedented and adds up to 100 years in prison. It almost seems as if the law is treating him as if he were the mass murderer. The indictment looked like an appeal to the mob to “make sure someone pays” besides the killer and the result of a political calculation to deflect public criticism about how the tragedy was handled.
Normally, a civil suit is the remedy provided by the law in such cases. This seems to be a striking example of shifting matters from the realm of tort law into the arena of criminal law. Are people now supposed to be subject to criminal prosecution for cowardice? Or, perhaps more likely in this case, for miscalculation about how to respond to a situation, or for following an established police protocol? Is the deputy being singled out for prosecution when local police authorities are also to blame for shaping policies regarding mass shootings? By contrast, Broward County Sheriff Scott Israel was merely suspended from office by the Florida governor in January.
The fact that one of the charges is child neglect underscores the outrageous fact that the law for some time has been in the business of charging people with offenses that are nowhere defined. The usual people charged with child neglect—mostly under quasi-civil provisions that can lead to children being put in state control—are innocent parents who are investigated by the child protective system for reasons due to poverty or for child-rearing decisions opposed by someone. Such practices run counter to our legal tradition and sound ethics which dictate that state law must spell out precisely what behaviors are prohibited or expected of persons before they can be punished for them.
Two cases in the news highlighted how the law is undercutting the right of people to defend themselves. In New York, a man in his mid-sixties was charged at by two people—both convicted felons, one of whom was on parole for a weapons violation—who had broken into his home. Fearing for his life, he grabbed a handgun that had been left in the house by his late father, who had lived with him. He had no idea if the intruders were armed (they were not), but fearing for his life he fired and killed them. Afterwards, he—the victim of threatening criminal intruders—was charged with felony possession of an unregistered firearm.
It seems as if the authorities are more interested in gun control than supporting citizens who defend themselves and their property against violent criminals. So much for the common law’s basic principle that “a man’s home is his castle” worthy of defense with lethal force. We have seen this principle whittled away for some time in American law. In some jurisdictions, despite the 2008 Heller decision, it is not taken for granted that a home dweller has the right to defend himself as more obstacles are erected in law to make it difficult to acquire a firearm.
In a Florida case, right after a divorce proceeding, a woman’s car was rear-ended by her ex-husband as he tried to run her off the road (this was after she had obtained several restraining orders against him). He was jailed for this. Fearing that after his release he might come after her and try to harm or even kill her, she went to his apartment and searched for and found his gun which she then brought to the police (thinking that she was both protecting herself and avoiding a possible crime). At the police station, she was arrested for “armed burglary”—even though she didn’t have a gun when she entered his apartment—and from his jail cell her ex-husband was allowed to press charges.
Such literalism about the law is shocking and has the effect of undermining the rule of law and that of justice itself. One might understand the officers perhaps explaining the potential legal issue to the woman, but not arresting her. Clearly, police departments need to provide their officers with better training. Beyond knowledge of the law, officers should be expected to exercise good judgment and common sense. Also, one wonders if the local legal authorities weren’t negligent by not requiring the husband to relinquish his gun after issuing the protection orders.
In a case involving free speech, families of the child victims of the terrible school massacre at Sandy Hook have taken legal action to shut down disinformation about the shooting spread by conspiracy theorists. Some conspiracies even claimed that the whole thing never happened and was an Obama administration ruse to promote gun control. Some of these legal actions have validity, such as the recent decision by a Wisconsin judge against one conspiracy theorist and his publisher for defaming a parent for allegedly faking his son’s death certificate. Still, legal actions to shut down or hold as libelous written publications because of misinformation—even if they are by fanatical conspiracy theorists—have serious implications for freedom of the press and speech.
If the courts open the door to defamation and other actions simply because of falsehood and inaccuracy—no matter how outrageous the claims—there is no doubt that it will have the proverbial “chilling effect” on expression. One can easily envision intolerant activist organizations (especially on the political left) running into court to accuse writers or book publishers they disagree with of purveying false information about some event or person. Even if these organizations would not be likely to ultimately succeed, concern regarding the considerable expense and emotional stress of fighting them in court would cause people to self-censor.
There are doubtless many more cases such as these that arise each month. Just as our culture is in turmoil, so is our law. When commitment to the natural law is discarded along with the solid moral formation of individuals, expediency drives the law. We desperately need a renewed commitment to our traditional common law principles (which were based on the natural law) and better people, oriented to justice and exhibiting good judgment, in police departments, prosecutorial offices, and the judiciary. We also need a restoration of a sense of fairness and mutual respect that seems to have almost vanished in this era of unmitigated socio-political conflict and division. This is certainly a tall order, but maybe we can effect some small movement in this direction by just and civic-minded citizens learning about what’s going on and speaking up about it whenever they can.
Article first appeared at: https://www.crisismagazine.com/2019/is-american-law-still-concerned-with-justice