Shadow Vigilantes

by Paul H. Robinson

  Broshears has a history of helping the gay community in San Francisco. He organized San Francisco's first Gay Pride Parade and operates a local gay newspaper, the Gay Crusader. But as it becomes clear that the assaults will continue and that law enforcement will do nothing to stop them, he decides that his vocal advocacy approach is insufficient. Seeing the rise of the Black Panthers with their message of self-reliance in nearby Oakland, Broshears decides in July 1973 to form his own group to provide protection and deal out justice, a group he names the Lavender Panthers.

  The Lavender Panthers train in various martial arts and often arm themselves. During one press conference, Broshears, holding his shotgun and flanked by two fellow Lavender Panthers who are lipsticked, rouged, and armed, urges “all homosexuals in San Francisco to arm themselves in their homes and places of business.”45 As the police refuse to provide protection, Broshears argues that the Lavender Panthers have no alternative. Even if the assailants are caught, he claims, the police often advise the offender to “say that [a] queer made an advance towards you.”46 The gay basher is then freed, and the victim is arrested.

  Initially, the group numbers twenty-one members with two women included. Usually armed with chains, red spray paint (a substitute for the then outlawed Mace), billy clubs, pool cues, and whistles, the members hold training sessions in which they teach defensive skills to other members of the homosexual community.

  The Lavender Panthers patrol areas known for a high incidence of violence against homosexuals. They also appear at trouble spots as they arise, such as outside gay bars where groups of gay bashers often gather to harass patrons. When the Lavender Panthers appear on the scene, however, the old pattern of intimidation and beatings changes.

  In one typical incident, a group of gay bashers is shoving patrons as they leave the Naked Grape, a well-known gay bar. Lavender Panther members pull up in their trademark gray Volkswagen bus and confront the troublemakers with swinging pool cues. The bashers flee. In this particular incident, however, would-be bashers make a tactical error and leave their car keys behind. Needing their car to get home, the bashers are obliged to return later in the evening to negotiate for their return.47

  Within a year, the right of gays to live openly in the Bay Area has progressed significantly. The incidents of harassment have been reduced to such an extent that the Lavender Panthers determine that they are no longer needed, and they voluntarily disband. The Panthers’ success came not just from the protection and justice they provided but also from their ability to embarrass the San Francisco police into taking the ongoing threat to homosexuals more seriously.48

  The Lavender Panthers had probably never heard of the original San Francisco Vigilance Committee, but the group was born of the same belief that such failures of justice simply could not be tolerated and that it was sometimes both necessary and moral for people to take the law into their own hands. If the government breached its social contract with its citizens, the 1973 Lavender Panthers, like the 1851 Vigilance Committee before them, had little choice but to take up their natural right to protect themselves and to do justice when the official system had forsaken them.

  It is easy to think of moral vigilantism as a thing of the past. But the truth is it exists today and will continue to exist as long as the government breaches its social contract with its citizens. The unfortunate truth is that such breaches are a part of modern life.

  INDIA'S PINK GANG

  In 2006 Sampat Pal Devi, a forty-eight-year-old Indian woman, watches as her alcoholic brother-in-law beats her sister and drags her by the hair around a courtyard and finally out into the streets of Banda.49 Unfortunately, this is not an unusual occurrence in Banda, which is in Uttar Pradesh, India's most populous and impoverished state. The region is well-known for its repressive treatment of women, including child marriage practices. Devi's family sold her into marriage when she was nine years old.50 By age thirteen she was a mother.

  The domestic and sexual abuse of women is an everyday occurrence in the region, especially for poor women. When spouses walk together on the street, the wife is expected to walk a few paces behind her husband in order to acknowledge his “superior, God-like status.” The social acceptance of the oppression of women means that local authorities simply do not intervene when a violent man is beating a woman, especially a poor woman. As Devi puts it, “Nobody comes to our help in these parts. The officials and the police are corrupt and antipoor.”51

  But faced with the public beating of her sister, Devi concludes that she will no longer stand by and do nothing. She rounds up a group of neighborhood women, who arm themselves with whatever they can find—iron rods, sticks, and cricket bats—and chase the abusive brother-in-law into a sugarcane field, where they beat him. The realization among the women that they are not helpless against the abuse emboldens them to form a vigilante group that will stop attacks when possible and will punish oppressive men when justified. The Gulabi Gang, or Pink Gang, as the women call themselves, trains women and arms them with police batons, bamboo rods, and axes. As Devi explains, “None of the men here pay any attention to us. The only way to get them to listen is to scare them. I am not scared of any of them. But to make sure we have the upper hand, we always go with sticks and axes to deal with someone.”52

  Fig. 2.4. The Pink Gang has continued to grow, 2012. (Photo by McKay Savage, 2012)

  The Pink Gang and its unorthodox methods bring much-needed attention to the mistreatment of women, and its membership expands. The organization quickly gains two hundred members in Banda and within a few years spreads to many other cities. Membership numbers are now reportedly over forty thousand women (and some men), with ten district commanders operating in a thirty-six-thousand-square-mile area. The small center that Devi opened in her hometown where women are able to come and seek help is replicated in towns throughout the organization's territory.53

  As the group expands, so does its agenda, broadening to include not just the oppression of women generally but also the mistreatment of the poor. In one incident, Pink Gang members storm a police station, demanding that officials stop selectively enforcing laws according to the victim's caste. In another raid on a police station, the women chastise officials for stealing and reselling subsidized grain intended for the city's poor.54

  The success and influence of the Pink Gang grows, and its agenda broadens such that by 2011 it has become an active political party with twenty-one Pink Gang members elected in municipality-level elections.55 While the newfound political power enables the group to promote a more expansive array of projects, including repairing and constructing local roads, providing clean drinking water, and developing sustainable agricultural projects, the group's main focus remains the improvement of conditions for Indian women in a male-dominated, largely feudalistic society.

  The lesson to be learned from these cases and many others in this book is that vigilantism is not itself an evil. Indeed, it may be a moral response to an otherwise impossible situation. Vigilantism is like war: while it is never desirable, it is sometimes just. However, as a closer examination in the chapters ahead will reveal, vigilantism in almost any form has societal costs that are not always immediately evident.

  We traditionally think of vigilantes as people frustrated by what they see as the criminal justice system's failures of justice, and who are thereby provoked to go into the streets—taking the law into their own hands. As the previous two chapters make clear, such classic vigilantism can be inspired in a wide variety of situations and some cases can be entirely morally justified.

  What is generally not understood is that the same frustration with the system's failures of justice can inspire a reaction of lawlessness short of the physical confrontation of classic vigilante action. “Shadow vigilantism,” as it might be called, occurs when ordinary people, instead of taking the law into their own hands by going into the street, seek to manipulate the operation of the criminal justice system in order to force from it the justice that it seem
s so reluctant to do on its own. While shadow vigilantism may be less confrontational, as will become apparent, it is ultimately more pervasive and more damaging.

  Shadow vigilantes can be ordinary people who seek to influence the operation of the criminal justice system whenever they have contact with it, as witnesses, as jurors, or even as voters shaping the system. But shadow vigilantism is also common among the official participants in the system who essentially conspire to undermine those rules and practices that they see as regularly frustrating justice. Thus, shadow vigilantes can be police officers, prosecutors, judges, and others.

  Here are two examples of the shadow vigilante dynamic in action, one by ordinary citizens and one by police officers.

  JURY NULLIFICATION

  New York City in the 1980s is far from the safest place in America. In fact, as depicted by films such as Escape from New York and The Warriors, New York may be one of the most dangerous cities in the world. Between 1966 and 1981 violent crime rates in the city had more than tripled, from 325 violent crimes per 100,000 to approximately 1,100 crimes per 100,000 people.1 The crime rate reaches an all-time high in the early 1980s, especially for violent crimes such as murder, rape, and robbery.2 In 1980, on average, nearly six New Yorkers are murdered each and every day. The city's reported crime statistics are more than 70 percent higher than the rest of the country.

  The subway in particular is an incredibly dangerous place for any New Yorker. Subway cars are nearly unrecognizable, since almost every car is spray-painted with overlapping rainbows of gang graffiti. The train cars are heavily occupied by muggers, druggies, panhandlers, and the homeless. The sense of danger on the subway is more than just hysteria; the numbers tell the story. On average, thirty-eight felonies are committed on the subway every day.3 Between the summers of 1979 and 1980, crime on the subway rises a staggering 70 percent.4 In comparison, in Paris, where angry citizens have been asking the army to help quell the gangs working the subway, there is only one-eighth of New York's subway crime rate.5

  By 1982 safety on the subway has deteriorated to the level that Metropolitan Transportation Authority chairman Richard Ravitch tells members of the Association for a Better New York that even he will not allow his teenage sons to ride the subway at night. As an adult with intimate knowledge of the system and with influence among the workers, he himself is quite nervous about riding the trains.6 That October, New York sees the lowest ridership on its subways since 1917, largely because of crime fears.

  In November 1982 a gang robs and pistol-whips five people in three subway stations within a half hour. That same year sees a 60 percent increase in transit crime.7 In the decade from 1975 to 1985, forty-four million fewer people ride the New York subway, primarily because they are afraid to.8

  On Saturday, December 22, 1984, four African American teenagers—Troy Canty, nineteen; Darrell Cabey, nineteen; James Ramseur, eighteen; and Barry Allen, nineteen—prepare to ride an Interborough Rapid Transit Company subway train from the Bronx toward Lower Manhattan.9 Two of the men, Cabey and Ramseur, have screwdrivers hidden in their coat pockets.

  Bernhard Goetz, a thirty-seven-year-old white man, joins the four young men on the train platform; there are approximately fifteen to twenty other passengers at the Fourteenth Street station stop. Three years prior, Goetz had been mugged during a robbery at the Canal Street subway station and sustained permanent physical damage to his chest and knee from the encounter. Although the perpetrators were apprehended, they spent less time at the police station than Goetz spent giving his statement. He now feels the need to carry his unlicensed .38-caliber pistol, loaded with five rounds of ammunition. (He had applied for a permit but was denied due to insufficient need.

  Upon boarding the train, Goetz takes a seat on the long bench right by the entrance to the car. The young men approach him. Canty asks Goetz, “How are you?” to which Goetz responds, “Fine.” The four men then exchange signals with one another and shift their bodies, positioning themselves so as to isolate Goetz from the rest of the passengers. Once the young men are in position, Canty steps closer to Goetz, with Allen at his side, and firmly says, “Give me five dollars.” Goetz then sees one of the men reach into his coat pocket; the pocket appears to be “bulging out.” Understanding that he is now facing a robbery attempt, Goetz asks, “What did you say?”10

  Goetz then stands up and fires four bullets, moving from left to right, aiming for the center of each man's body. The men scatter. The first shot penetrates Canty's chest; the second enters Allen's back; the third bullet passes through Ramseur's arm and into the left side of his body; and the fourth barely misses Cabey. After missing Cabey, Goetz takes a few seconds, surveying the scene, and then walks over to Cabey, who is now sitting on a seat. According to Goetz's videotaped account, he says something like, “You seem to be all right, here's another.”11 The final bullet severs Cabey's spinal cord. Three of the men, although initially listed in critical condition, fully recover; Cabey, however, is paralyzed and has brain damage, leaving him with the mental capacity of a third grader as a result of the shooting.

  Nine days after the shooting, Goetz voluntarily surrenders to the police in Concord, New Hampshire, making two lengthy tape-recorded statements. He tells police that he interpreted Canty's demand for five dollars to mean that the young men wanted to “play” with him and rob him. Based on his prior experiences in New York City, Goetz was fearful of being seriously “maimed.” He also reports that he intended in that moment to “murder, to hurt them, to make them suffer as much as possible.” In regard to his more controlled shooting of Cabey, Goetz adds, “If I was a little more under self-control…I would have put the barrel against his forehead and fired,” and “if I had more [bullets], I would have shot them again, and again, and again.”12

  Americans across the nation from Hawaii to Chicago voice their support for Goetz's “heroic” actions. Out of their own frustration and anger about unchecked crime in their own cities, they are excited that someone has taken a stand against the criminals. “This case hit a real raw nerve,” said Dave Walker, former cohost of CNN's Take Two. “There is a broad sense of frustration and anger over the state of the criminal justice system, and right now people don't seem to care about the facts or whether or not Goetz used appropriate force. They have found themselves a hero.”13 In Boston, radio listeners not only voice their support for Goetz but even pledge money to pay for his defense.

  The state of New York seeks an indictment against Goetz in January 1985 for attempted murder, assault, reckless endangerment, and criminal possession of a weapon. But the first grand jury refuses to indict Goetz for anything except the gun possession charge. However, a few weeks later, armed with newly available evidence, including additional witness testimony from some of the victims and others, the prosecutors try again. This time, an indictment for the attempted murder charges is returned. However, in January 1986 Judge Stephen Crane grants the defense's motion to dismiss the new indictment because of errors in the prosecutor's jury instructions regarding Goetz's defense of justification for the use of deadly force.

  Fig. 3.1. Bernhard Goetz turns himself in, 1984. (Photo by Mel Finkelstein)

  Six months later, the New York Court of Appeals reverses Judge Crane's decision.14 Judge Sol Wachtler affirms the prosecutor's original jury instructions, that a defendant's subjective belief that he is in imminent danger does not by itself justify deadly force. Instead, Wachtler holds that one's beliefs must be objectively reasonable. The court reinstates the dismissed counts of the indictment and sends the polarizing case to a jury.

  The Goetz trial begins on December 12, 1986, and lasts more than seven weeks. A jury comprised of four women and eight men (six of whom had been mugging victims themselves) listens to ten thousand pages of testimony and both of the two-hour videotapes of Goetz's interviews.15 After thirty-five separate votes over a four-day period, the jury concludes that Goetz, the man who intentionally fired a bullet into Cabey, severing his spinal cord, is cl
eared of twelve of the thirteen charges against him, including ten major felonies.16 The jury convicts Goetz only of criminal possession of a weapon in the third degree (carrying a loaded unlicensed weapon in a public place).

  Legal commentators argue that the Goetz jury partook in jury nullification—acquitting a defendant although the law would say he is guilty. Alan Dershowitz, professor of law at Harvard Law School, believes that the jury nullified the self-defense standards set by the law, even though by definition Goetz's actions clearly violated New York and almost every other state law. Burt Neuborne, a professor at NYU Law School, says, “The jurors had so little faith in the criminal justice system, both to protect us and to bring the guilty to justice, that they were willing to tolerate a degree of vigilante behavior that I think rationally cannot be justified.”17 New Yorkers, who, like members of the jury, are concerned about safety in the city, overwhelmingly supported the verdict. A Gallup poll taken shortly after the decision showed that 83 percent of non-Hispanic whites and 78 percent of Hispanics supported the verdict.18

  While it seems difficult to see how a jury could conclude that Goetz “reasonably believed” his second shot at Cabey was necessary to protect himself, as the self-defense statute requires, the jury acquitted Goetz of all assault charges. The law has its rules, but shadow vigilantes, armed with the power of jury nullification, have their own.

  Frustration with failures of justice and the shadow vigilante impulse that it provokes is found not only among civilians but also among criminal justice professionals. And police, prosecutors, judges, and others have an even greater opportunity than civilians to subvert or manipulate the criminal justice process in an effort to force justice from it.

  For example, it is not unusual for some police officers to circumvent technical search and seizure requirements by lying in court about the circumstances of the search or seizure—what the police call “testilying.” Shadow vigilantism by prosecutors is shown in a disinclination to charge civilians or police who make culpable mistakes in confrontations with wrongdoers. It is also shown in prosecutorial overcharging of an offender—charging a host of overlapping offences for a single criminal act—to compensate for past offenses that went unpunished. And it is clear that judges tolerate much of the above and might even add in a few manipulations of their own. These players take the system's repeated failures of justice as their moral justification for subverting and manipulating it to force from it the justice to which it often seems indifferent.