3. DON'T ACT UNLESS THERE IS NO LAWFUL WAY TO SOLVE THE PROBLEM
The law often allows citizens to use force in defense of unlawful aggression against themselves, others, or property. Individuals should stay strictly within the requirements of this legally authorized force if that response will provide the needed protection against lawlessness. Unfortunately, the emotional state sometimes common within a vigilante group, together with limited faith in the criminal justice system, often produces a violation of this rule.
The Last Lynching in California
San Jose, California, in the early 1930s is a fairly unremarkable city born out of the California gold rush. It boasts a population of eighty thousand and is thriving despite the Great Depression. One family in particular, the Hart family, has prospered greatly. Alex Hart, a married man with four children, has built a reputable chain of department stores and by 1933 runs one of the city's two largest. The Hart family is well-known and well-liked in the community. In November Alex's son, Brooke, returns home after graduating from the University of Santa Clara and begins work as vice president of the family business.5
On the evening of November 9, 1933, Alex is waiting outside one of the stores for Brooke to pick him up and then drive home, but Brooke does not arrive. Unknown to Alex, at that moment two men, Jack Holmes and Thomas Thurmond, are in the process of abducting Brooke, something they have been planning for six weeks.
Around 6:00 p.m., Holmes and Thurmond sneak up behind Brooke and force him at gunpoint into their car. They drive north, stopping on a bridge near the southern end of the San Francisco Bay. After placing a pillowcase over his head and using bailing wire to tie cement blocks to his torso, they bludgeon Brooke with one of the cinder blocks and toss him into the water below. Knowing that the tide is low, Thurmond pulls out his gun and shoots Brooke several times to be sure that he is dead.
Around 10:30 p.m., Thurmond calls the Hart family and demands a $40,000 ransom. Over the next week, many ransom demands arrive, but the family is unable to act because there is no evidence forthcoming to prove that Brooke is alive. Finally, on November 15 authorities trace a phone call to a local pay phone and are able to arrest Thurmond. It does not take long before Thurmond implicates Holmes and confesses his own role in the kidnapping. Holmes is initially reluctant to confess but, faced with the evidence of his deeds, eventually does.
Citizens across the country, including those in San Jose, are already sensitive to the problem of kidnappings for ransom, such as the kidnapping and murder of Charles Lindbergh's infant son and nearly three hundred other kidnappings in 1931. Additionally, Congress and state legislatures seem unable to do anything about the problem. It is this state of public frustration and fear that fans the flames of rage as the story of Brooke's kidnapping becomes public.
Magazines from east to west use the compelling narrative to boost sales, newspapers intensify their coverage of the story with each new piece of information, and that constant attention keeps the story in people's minds. On November 16 local newspapers are able to obtain copies of Thurmond's and Holmes's confessions. San Joseans are shocked by the horrific details of Brooke's murder. Not trusting the government to quickly and fairly punish those responsible, as well as not wanting a trial that would torment the family further and mock Brooke's memory, Californians across the state begin to seriously talk about vigilante justice.
Angry crowds in San Francisco gather in the streets near where Thurmond and Holmes are being held, shouting, “Lynch'em! Lynch'em!”6 The San Francisco Chronicle declares that the only thing to do with the murderers is to promptly hang them but legally. Since the 1850s, newly formed cities in the American West were quite comfortable with lynching as a proper and just way for communities to fight back against heinous criminals.
The pressure to act in San Jose continues to build. On November 24 psychiatrists, under direction of the court, examine Thurmond and Holmes in anticipation of a possible claim of insanity by the defense. On November 26 local hunters discover Brooke Hart's mutilated body. With the discovery, a crowd gathers outside the jail's barricades, demanding that Thurmond and Holmes be handed over to them. The crowd grows to three to five thousand men, women, and children. Local government officials begin calling in reinforcements to contain the angry mob, but Governor James Rolph refuses to call up the National Guard because he believes that the citizens are doing the right thing. Rolph knows that not everyone agrees with his view. The governor cancels a political trip to Idaho to prevent political rivals from calling out the National Guard in his absence.
Police try to quell the angry mob with tear gas, but that proves ineffective. Due to the high number of women and children, police decide that they cannot use more forceful measures against the crowd, which ensures that the masses will ultimately overpower them. Breaking through the police barricades, the mob uses items found at a nearby construction site as battering rams to break through the jail's entrance, beating and knocking down police officers in the process. Other prison inmates fear for their lives as the hallways become flooded with angry citizens.
Thurmond and Holmes are quickly located. They are kicked and beaten, then dragged by the mob to nearby St. James Park, where a crowd of thousands, including children on their parents’ shoulders, watch as the prisoners, nearly naked from having their clothes torn from their bodies, have nooses placed around their necks and are hanged from tree branches. The two men die six minutes apart. One member of the mob sets Thurmond's hanging body ablaze, burning his corpse for the entire crowd to see.
Fig. 5.2. Vigilantes hung the kidnappers of Brooke Hart, 1933. (Courtesy of the Library of Congress)
A few days after the lynching, Governor Rolph announces that he not only approved of his citizens’ actions but also will pardon anyone involved in the lynching if he or she is charged. Rolph defends his actions: “Had I called out the troops to beat down the crowd, terrible consequences would have resulted. Should good citizens be shot down to protect a couple of fiends for whom there are no words adequate to describe?” Rolph argues that the lynching is “the best lesson California has ever given the country.”7
President Franklin D. Roosevelt and former president Herbert Hoover condemn the lynching, while reaction across other parts of the country and in the media is mixed. Charges are brought against seven leaders of the mob, but despite the leaders openly boasting about their deeds, the grand jury decides to take no action against them. The judge, Timothy Fitzpatrick, states, “There was no element of doubt in this case…. [T]he men had confessed. While ordinarily we cannot condone such happenings, from a judicial standpoint, I can only say, in my own personal opinion, they did a damned good thing.”8 The tree from which Thurmond and Holmes were hanged is cut down, as citizens had begun to strip the tree of its branches and bark to keep as mementos.
Under the ten rules for the moral vigilante, it is hard to see how rule 3 is not violated. Given the strength of the evidence, which is cited by many of the vigilantes and their supporters, it seems clear that the men would have been convicted at trial—or at least there is no apparent reason to think otherwise according to the then existing facts. In other words, justice could have been achieved without the unlawful vigilante action, and official action ought always to be preferred.
4. DON'T ACT ALONE
The vigilante is one who acts for the community, not himself; vengeance is not vigilance. If a person's conduct is to reflect community views, that fact must be demonstrated by having the vigilante action be group action. The larger and more broadly based the group, the better. Open membership in the group would be ideal. There may be practical limits on how public some discussions can be, but the guiding principles, such as the adoption of rules (such as these rules as a charter), ought to be sought and approved by as large a group as possible.
5. BEFORE ACTING, BE SURE OF THE FACTS, AND TAKE FULL ACCOUNT OF ALL RELEVANT MITIGATIONS AND EXCUSES
Perspective vigilantes must understand that they are in a credibi
lity contest with the official criminal justice system. To win the battle for hearts and minds, the vigilantes must actually do justice better than the system is doing it, not worse. Doing justice requires taking account of the mitigating or excusing factors in a case, not just the aggravating factors. A vigilance committee can as easily discredit itself by showing an indifference to mitigations and excuses as the criminal justice system disgraces itself by showing indifference to giving offenders the punishment they deserve. Consider a case that illustrates the point.
The Beating of Steve Utash
It is a brisk, sunny afternoon in Detroit on April 2, 2014. White suburban tree trimmer Steve Utash hops into his pickup truck for a drive through an East Side neighborhood.9 As he is driving slowly along, a ten-year-old African American child suddenly steps in front of his truck, and Utash is unable to stop in time. Utash hits the child, injuring one of the young boy's legs. Utash immediately jumps out of his vehicle to help the youngster but is soon confronted by a group of bystanders who have quickly gathered.
A group of around two dozen young men who are nearby decide to enact their own justice. The men attack Utash as he is kneeling down tending to the boy and proceed to take turns savagely punching and kicking him. They strike all parts of his body as he writhes on the ground in agony.
When the dust settles, the fifty-four-year-old Utash is in critical condition. He is rushed to the hospital, where he is put into a medically induced coma. He wakes up ten days later but needs long-term therapy to recover. He is released from the hospital a month and a half after his beating.
Clearly, the vigilantes here have violated at least rule 5. They did not take the time to get their facts straight, or if they did, they failed to take into account important factors such as whether the driver was truly responsible for the boy's injuries or whether it was an unfortunate accident. The injury to the child was accidental: it was the boy who stepped in front of the truck, and therefore the accident was beyond Utash's control. The vigilantes also probably violated several other rules, including rules 2 and 3. They had little if any reason on this occasion to think that the criminal justice system would not fairly punish any wrongdoing.
Unfortunately, many of the people who tend toward vigilante action do it for emotional reasons rather than as part of a thoughtful plan. Getting their facts straight commonly gets lost in their rush to be renegades. Consider the cases of the animal rights activists who, under cover of night, open the cages of semidomesticated minks to release them into the wild to save them. Unfortunately, once freed, the animals quickly die from exposure, starvation, road traffic, drowning, and attacks by other animals. Not having been raised in the wild, the animals are ill prepared for freedom. As a result of such releases, minks by the thousands have died in Illinois, Minnesota, Wisconsin, and England.10
6. SHOW RESTRAINT AND TEMPERANCE, NOT ARROGANCE OR VINDICTIVENESS
The goal is to be responsible, even if the government is not. A vigilante is not the wrath of God but just a means of shaming the government into doing what it ought to do: namely, take justice seriously. Vigilantes should not just adhere to the moral vigilante rules but make it clear that they are adhering. Unfortunately, examples of violations of this rule abound.
Pittsburgh Prison Guards
Starting in 2009, a group of eight correctional officers at the State Correctional Institution–Pittsburgh join forces under the leadership of Harry Nicoletti to punish sex offenders who are sentenced to the officers’ prison.11 The eight men feel that it is their duty not only to keep watch over these prisoners in F Block but also to make their time in prison as miserable as possible.
When one sex offender is brought to the facility after being convicted of raping an eleven-year-old girl, a guard announces the details of his conviction to the other prisoners, thereby signaling to them that they are free to punish the new prisoner. The guards also undertake their own forms of torture and harassment. They “order inmates to defecate and urinate into inmate's food [and] place defecation and other bodily fluids into inmate's food.”12 The guards also perform “swirlies” on these inmates, forcing them to put their heads in toilets and then flushing them.
The guards’ torture crosses the line into sexual abuse as well, especially by the leader, Nicoletti. On one occasion, inmate Rodger Williams is relaxing in his cell when Nicoletti enters and orally and anally rapes Williams. He then “doled [him] out to other corrections officers and a [prison] inmate into forcibly committing sexual acts.”13
In January 2010 Nicoletti approaches another inmate and gives him three choices: to be anally raped, to perform oral sex on Nicoletti, or to fondle Nicoletti's genitals. If he does not choose one of the three options, he is told that Nicoletti will beat him and file “fraudulent misconducts” against him.14 The man chooses the third option. In another instance, Nicoletti sodomizes an inmate as he slaps him. After finishing, Nicoletti threatens to tamper with the inmate's food. For the next two weeks, the prisoner survives on toothpaste out of fear that Nicoletti will poison him.
Nicoletti assaults as many as twenty inmates during his time as a correctional officer. The other members of his vigilante group also attack a large number of prisoners, often using broom handles to sexually assault them.
The guards’ conduct is not vigilance but rather vindictiveness. (Indeed, in this instance, one suspects that Nicoletti, at least, was a sexual predator who used vigilantism as a cover.) The moral vigilante is pushed into action because an indifferent government has made clear that there is no other path of justice, but some immoral “vigilantes” are simply thugs in disguise.
7. WARN THE GOVERNMENT THAT IT IS IN BREACH OF ITS SOCIAL CONTRACT WITH ITS CITIZENS, AND GIVE IT AN OPPORTUNITY TO FIX THE PROBLEM, UNLESS IT IS CLEAR THAT SUCH A WARNING WOULD BE USELESS
Ideally, this means laying out the specifics of the system's failures of justice, as well as giving the authorities the time and opportunity to make things right. It is always preferable to have the official criminal justice system do justice, no matter how well respected a vigilance committee may be. (More on this in the following two chapters.) Admittedly, in some instances, the failures of justice may be overwhelmingly obvious to all, and a special notification to the government would be senseless.
8. PUBLICLY REPORT AFTERWARD WHAT YOU HAVE DONE AND WHY
Failure to publicly take responsibility for your vigilante actions simply adds to the problem of perceived lawlessness. The community cannot judge the justness and reasonableness of a vigilance committee's actions unless it is given the details of what has been done and why. Such public reports may not always be feasible, but they ought to be done whenever possible.
9. RESPECT THE FULL SOCIETY'S NORMS OF WHAT IS CONDEMNABLE CONDUCT
Do not act in pursuit of justice for an offense unless it is clear that the larger society sees the offender's conduct as truly condemnable. Taking action based upon a peculiar view of the world lacks the basis for moral vigilante action. (More on this in chapter 7.) For example, mainstream America believes that while animals ought not to be treated cruelly, it does not share the view of some animal rights activists that animals cannot properly be farmed or eaten or used for medical research. Some activists demand that animals be given the same rights as those accorded to humans, and they feel justified in breaking the law to defend this stance.
Similarly, some people in the antiabortion movement feel strongly enough about their cause that they believe they are justified in committing serious criminal offenses. For example, in 1982 the operator of an abortion clinic, Dr. Hector Zevallos, and his wife, Rose, were kidnapped by the Army of God with demands that President Ronald Reagan publicly denounce abortion. The FBI intervened, and Dr. Zevallos and his wife were released after being held for eight days in an abandoned ammunition bunker 120 miles from their home.15
No doubt the activists in these and other causes felt strongly about the rightness of their views. However, it is equally clear that they knew themselves to be
in a small minority of the larger society. They are certainly free to try to change the society's views—and perhaps someday they will succeed—but until that day comes they cannot in a democratic society substitute their own values for those of the larger society and claim that their lawbreaking is that of a moral vigilante.
10. IF IT BECOMES CLEAR THAT THE PROBLEM CANNOT BE FIXED THROUGH VIGILANTE ACTION, THEN WITHDRAW FROM FURTHER ACTION
If it becomes clear that the criminal justice system literally cannot be changed no matter how dramatic and thoughtful the vigilante action, then further action toward that goal cannot achieve its purpose. Vigilante action must be a temporary and transitional state that moves the system to fix itself, not a permanent substitute for official conduct.
A final suggestion to the prospective vigilance committee: if you cannot abide by these rules, don't act. Justice is important, and it ought to be pursued. But vigilante action that does not take account of the preconditions and limitations that morally justify it is doomed to do more harm than good to the community and, ultimately, to the cause of justice. Certainly, many of the vigilantes in chapter 2 can make a plausible argument that the criminal justice system's failures to do justice morally authorize them to engage in some conduct that is technically criminal and legally unjustified. The 1851 San Francisco vigilance committee would seem to satisfy most of these ten rules. And many other cases—Deacons for Defense, Lavender Panthers, and Pink Gang of India—may satisfy many if not all of the requirements, although the details of each of their specific criminal acts may vary. On the other hand, many well-meaning vigilante cases, some discussed above and some in the following two chapters, will fail the test.
While one can sympathize with the frustration of all of those who suffer from the government's breach of its social contract, those who act beyond the boundaries of moral vigilantism will in the long term do more harm than good.
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