Shadow Vigilantes

by Paul H. Robinson

  BREACHING THE SOCIAL CONTRACT

  What is she supposed to do? Clearly, the criminal justice system is failing Deanna Cook. The threats and continuing danger to her and her children are being willfully ignored by authorities. This young mother depends upon the government for protection and justice but gets neither. Her stalker is bigger and stronger—she can hardly overpower him. Maybe she should get a gun and go shoot him? Criminal law says no; she must wait until the moment when her stalker chooses to attack. If she is able to anticipate his attack and get the drop on him, the law says she still may not shoot but must let him run away to pick another, better time to attack her next. Given the government's failure to protect her, is she relieved of her moral obligation to abide by the government's rules?

  A string of philosophers—Thomas Hobbes, John Locke, Jean-Jacques Rousseau, and others—have thought about this situation a citizen may face. They believed that people are born with certain unalienable rights, including the right to use force to protect themselves and to do justice, but people give up many of those natural rights to their government in exchange for the government's promise to do justice and provide protection.8 In this case, the government has breached what the philosophers would call “the social contract.” The government, having taken over the monopoly of power from its citizens, is now welching on its promises, despite Deanna Cook's repeated pleas.

  The social contract is fundamental to our vision of government. Perhaps more than any other country in the world, the United States was created with the social contract at its core. As the US Declaration of Independence announces at its start, we are born with certain rights: “All men…are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” and it is “to secure these rights [that] Governments are instituted among Men.”

  But when the government breaches its promise under that social contract, what recourse does the private citizen have? How can Deanna Cook find safety? The Declaration of Independence might hint at an answer: “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” That is, the violent creation of the United States was itself an act of vigilantism: people took the law into their own hands as a response to the British government's breach of the social contract.

  If the point of the government is “to establish Justice [and] insure domestic Tranquility,” as the preamble to the US Constitution proclaims, then the government's miserable failure at providing justice and protection to Deanna Cook must alter her moral obligation to that government. Deanna Cook is hardly in a position to “throw off such Government,” but we may wonder what moral obligation she has to continue restraining herself in the exercise of her “unalienable rights” to life and liberty.

  Before Deanna Cook could find a way to force the government to protect her unalienable rights, her life and liberty were taken.

  THE KILLING OF DEANNA COOK

  On August 12, 2012, Patrick breaks into Cook's house. She frantically calls 911. Operator Tonyita Hopkins answers, but Hopkins only hears her screams and pleadings. The phone connection remains open, and Operator Hopkins quickly ascertains the general location of Cook's cell phone but needs to do more work to uncover her exact address. Hopkins notifies the patrol dispatcher that the call is an emergency domestic violence situation and gives the dispatcher the street name.

  Hopkins stays with the call. Cook begs for her life: “Why are you doing this to me? Please, Red [Patrick's nickname] I didn't do nothing! I am nice. I am nice. Please!”9 Seven minutes into the call, Patrick is screaming, “I'll kill you. I'll kill you. I'll kill you.”10 The operator hears sounds of a struggle, and then the human sounds are gone and only the sound of a barking dog can be heard.

  It takes police officers Julia Menchaca and Amy Wilburn an additional twenty-six minutes to start heading toward Deanna Cook's house. They stop at a 7-Eleven to buy water. At 11:45 a.m. they arrive at Cook's house and knock at her door. Five minutes later, when nobody answers, they leave.11

  Two days after the call, Cook's family becomes worried when she does not arrive at church. Her mother and sister, with her children in tow, go to Cook's house to investigate.12 Getting no response when they knock at the door, they kick it in. Cook is floating in her bathtub, where she has been drowned.

  Patrick is arrested and charged with murder.13

  A TERRORIZING BULLY RUNS LOOSE

  The government's breach of the social contract can affect not just an individual but an entire neighborhood. And sometimes the system's failure will provoke a violent response.

  Dictionary Hill is a quiet neighborhood of homes built on the side of a hill, with beautiful views of the San Diego Valley and the ocean beyond. It is a neighborhood favored by retired couples seeking to spend their later years enjoying the sun, the views, and their gardens.14

  In 1992 John Harper Jr., the adult son of a neighborhood couple, moves in with his parents. Harper is an auto body mechanic devoted to muscle cars, methamphetamine, and his silver El Camino. The quiet neighborhood becomes his personal NASCAR track. In an early encounter, a resident is driving home when, at an S-curve on Helix Street, he sees Harper's El Camino approaching from the opposite direction. Harper steers into the other lane. The resident is unable to get out of Harper's way. When the two cars are within twenty feet of each other, Harper swerves back into his own lane.

  A couple is returning from dinner in town when Harper drives up behind them, revving his engine. He tailgates them, swerves erratically, and uses his high beams, all of which scares them. The couple pulls to the shoulder to allow the El Camino to pass; Harper pulls up and begins yelling obscenities: “Don't fuck with me, I know where you live!”15

  In another typical encounter, a neighbor has just turned down Highview Lane, headed home, when Harper's El Camino appears out of nowhere and races toward him, only to screech to a halt just inches from his bumper. This is repeated two more times, leaving the neighbor frightened and shaking.16

  It is also common for Harper to attack neighbors who drive by his home. One driver has a rock thrown at her windshield. The police are called repeatedly, but Harper is always let off.

  The encounters with Harper grow more frightening as he escalates the aggression. In another incident, Steve Hendrickson, who is just passing through town, gets Harper's treatment when he is run off the road into a telephone pole. Hendrickson relates what happened and gives a physical description of the car and Harper. The neighbors call the police, who arrive and take a statement from Hendrickson. When the police interview Harper, he denies being involved, and the police decline to do anything because, as they explain, it is just Hendrickson's word against Harper's.17

  The neighborhood decides that the community will make a record of every past, present, and future incident involving Harper. As of that date, they record over 150 incidents against forty-two neighbors. When a neighbor tries to take a picture of Harper's El Camino for their report, Harper advances toward him, yelling, “I'm going to fuck you up!”18

  When members of the neighborhood group try to present their plight to the police, they get the usual runaround: “We'd call the Sheriff's Department and they'd refer us to Highway Patrol. We'd call Highway Patrol and they'd say, ‘Call the Sheriff's Department.’ That's about all the help we got.” After an incident in which Harper terrorizes a neighborhood child, a neighbor explains, “I called the sheriffs. They went down there and came back and said, ‘Well, he wasn't home, and we will check in with him some other time.’ And it just kind of dropped.”19

  The group drafts a nine-page letter threatening to sue Harper's father for harboring a public nuisance, but that tactic also fails. Efforts to get help from the California Department of Motor Vehicles and the federal Drug Enforcement Administration also produce no results.
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  When the wife of a San Diego police detective happens to be driving through Dictionary Hill with her nine-year-old daughter, Harper's El Camino appears in their rearview mirror and accelerates as if to ram their car but swerves at the last moment. He continues to follow them, honking, swerving, accelerating, and ramming their rear bumper, almost forcing them off the road—in other words, doing what Harper has been regularly doing to the entire neighborhood for several years. Suddenly, the police are paying attention.

  Harper is arrested but released on bail. A police detective overhears Harper saying, “I know the neighbors had this done to me. If they think it was bad before, just wait till they see me now.”20 Harper is scheduled for trial in November, four months away, on charges of felony assault with a deadly object. When the trial date finally arrives, very few neighbors are willing to testify against Harper in open court. Harper knows their children, and the law has done nothing to protect them in the past. Would it be wise to assume that suddenly they are going to get the protection they have been seeking? At the end of the trial, the jury is hung, eight to four, in favor of conviction. Rather than a retrial, Harper is offered a plea deal to a lesser offense and walks out of the courtroom with a sentence of probation and a five-hundred-dollar fine. Harper is allowed to get back into his weapon of choice and motor off to his hunting grounds. Even before he returns home, he gets high on meth and is again racing up and down the streets.21

  A TOLERABLE FAILURE OF JUSTICE?

  Given the government's repeated failures to provide protection and justice to this neighborhood, are the neighbors nonetheless still bound by the government's limitations on their use of defensive force? Having breached its promises under the social contract, can the government still demand that the citizens nonetheless keep their promise—to continue on as helpless victims waiting for the next violation? Or are they now morally entitled to take back their unalienable rights to justice and protection and to deal with the threat in whatever way they can to stop Harper's terrorizing ways?

  The law sometimes allows a citizen to use force in protection of a person or property. Everyone knows about the right of self-defense. But even here, criminal law has a strong preference to have the state deal with a problem and to keep its near monopoly on the use of force. For example, as a private citizen, you may not use force that risks serious bodily injury to a thief in order to protect your property.22 The law says that it is better to let the thief have your goods—in the hope that the police and courts can deal with the thief later—rather than inflict serious harm on another. Similarly, in many states, you may not use lethal force against an attacker intent on killing you, if you can retreat in safety.23 You must give in to the unlawful attack and run away rather than use defensive force that risks serious injury to the attacker. Nor can you ever act in anticipation of an attack, even one that you are certain is coming. You, like Deanna Cook, must wait until your attacker elects to attack, even if doing so compromises your ability to defend yourself.24 In other words, the law commonly obliges a victim to sacrifice her own interests to protect the interests of the lawbreaker.

  Some victims will be unhappy with the sacrifices required of them, but the rules can be defended from a societal perspective that takes account of all parties’ interests, even those of the lawbreaker, and reduces the overall risk of escalation even if it means sacrificing the victim's interests.25 It is better to defer to the courts, it is argued.

  But what if the system fails to uphold its end of the social contract in serious ways? What if these policies and practices allow crime to become a serious problem in the lives of citizens and the system does not respond to their requests for help? What if the system lets crime become a serious problem for some members of society but not others? What if, having gotten its near monopoly on the use of force, the system simply becomes indifferent to citizens’ beliefs that dispensing justice and fighting crime are important? Obviously, doing anything beyond the strict rules of justification defenses will be illegal, but will it be so clearly immoral?

  A NEIGHBOR TAKES ON THE BULLY

  On the morning that Harper walks free with his government-issued plea deal, Danny Palm, a neighbor who had elected to testify, receives a phone call from another neighbor, warning him that Harper is driving toward Palm's house. Palm's wife then yells, “He's out front!”26 Palm, a retired navy commander of twenty-nine years, is in his shorts and socks, but he grabs his .45-caliber pistol and ammunition and runs out the side door, hiding while trying to get a look at Harper in his driveway.

  Harper then eases his car out of the driveway and slowly moves up the street. Palm sees Harper as escalating his aggression to a new level. Perhaps he is now headed off to intimidate the few others who dared to testify against him. The law has again shown itself to be useless in providing protection and justice. Palm feels that he must do something.

  Still in his shorts and socks, Palm gets in his car and begins to follow Harper, but Harper immediately pulls over to the side of the road and waves Palm forward. Pulling up next to Harper, Palm shows him that he has a gun, hoping that this will be enough to scare him away from further attacks. Harper yells, “You and your family are as good as dead!”27 Palm then shoots at Harper thirteen times; nine shots hit him. Palm returns to his house and awaits the police, who appear three hours later to arrest him and charge him with murder.

  The neighborhood quickly raises $54,000 to help Palm post bail. The case gathers media attention. Eighty percent of a local radio show's callers say that Palm “should get a medal.”28 The neighbors describe Harper as “an unstoppable drug-crazed terrorist.” Many people, while not necessarily supporting the killing, say that if they were on the jury, Palm would get off. Melody Hurt, a Harper victim who had been in court just the week before for the case that involved Harper ramming her car, claims that Palm is her savior and that he most likely has saved many lives by the sacrifice he made. The Spring Valley County supervisor states, “I think what Danny Palm did is exactly what you want somebody to step forward and do in the community that had…basically a terrorist running around threatening people.”29 Another community member explains, “Danny Palm did not abandon the legal system. It is clear that the problem was ignored by law enforcement and the neighborhood was ultimately abandoned by a twisted and polluted legal system.”30

  Fig. 1.2. John Harper drove a silver El Camino, which is towed after the killing, 1995.

  On June 5, 1996, Palm is sentenced to eighteen to twenty years in prison after being convicted of second-degree murder.31

  THE VIGILANTE ECHO

  Clearly, what Palm did was illegal. On the other hand, we can understand his frustration and that of the entire neighborhood after apparently being abandoned by the criminal justice system. Did he do the right thing? Probably not. He acted in anger, fear, and frustration. But the fact that we can so easily understand the source of that frustration and to some extent sympathize with it suggests that it is an injustice to treat him like any other murderer. There are compelling mitigating factors at work that make him less blameworthy than a person who intentionally kills with no claim to self-defense or defense of others.

  Part of the problem with failures of justice, then, is their tendency to provoke a vigilante response that not only breaks the law but also creates the potential for injustice in judging those who overreact when trapped under relentless lawlessness. But one may argue that this is a relatively easy problem to solve: the law can punish vigilantes but give them some mitigation, perhaps convicting a Danny Palm of the lesser offense of manslaughter.

  The more serious problem, for which there is no easy fix, is the effect that justice failures have on the larger society and citizens’ faith in the effectiveness and credibility of the system. The residents of Dictionary Hill will now think differently about the criminal justice system, and that may lead them to act differently toward it in a variety of often disturbing ways. Their eroded belief in the justness of the system may inevitably create distorti
ng effects in their interactions with it and in how they help shape it through political reform.

  Tragically, many of these distorting effects cause injustice. Will the people in the neighborhood be increasingly inclined to support Draconian legislation that does injustice in order to more effectively fight crime? Will these distortions create their own backlash as residents in other neighborhoods are hurt by the new distortions? More on this in part IV of the book.

  This is the vigilante echo. Once the government's failures of justice are serious enough or regular enough to undermine the credibility of the criminal justice system in the community it governs, the citizens’ cries for justice, sometimes in the form of angry and cynical reactions, can create further dysfunction, further aggravating the system's credibility problem in an endless downward spiral. This book illustrates and explores this tragic dynamic and examines what causes it and what can fix it.

  Vigilantes have a bad name. As one prosecutor put it upon convicting a vigilante, “There is no room for vigilantism. There is no room for what he has done. And no one in authority will ever tolerate vigilantism.”1 Robert Kennedy condemned vigilantism in broader terms: “Whenever men take the law into their own hands, the loser is the law…and, when the law loses, freedom languishes.”2