Shadow Vigilantes

by Paul H. Robinson

  The vigilante impulses that drive some people to take the law into their own hands inspire others to act in less visible ways, as with the refusal to report an offense or to help investigators. These vigilante sympathizers may not be willing to go into the streets themselves, but their subversion of effective law enforcement is commonly provoked by the same frustrations with the system that drive classic vigilantes. Rather than becoming the punishers themselves, these shadow vigilantes, as discussed in chapter 3, promote the same goals through a variety of other means by which they subvert or distort the criminal justice system.

  Imagine that the community members watching the shooting of McElroy are sitting on a trial jury for the case. Does anyone doubt what the result would be? Or what would be the likely outcome if the killing of Malcolm reached a grand jury on which sat people from his neighborhood? The same shadow vigilante impulse that produced their refusal to assist investigators is likely to express itself when they are jurors, grand jurors, and even voters, or whenever they have an opportunity to affect the operation of the criminal justice system.

  Consider, for example, the reaction of citizens, in particular jurors, to the case of “Subway Vigilante” Bernhard Goetz, discussed in chapter 3. The citizens on that jury refused to convict Goetz in part because they viewed his actions as an understandable, if excessive, reaction to the criminal justice system's failure to provide the safety and justice to which they believe citizens are entitled.

  Goetz is by no means a unique case but rather is representative of a common phenomenon. For example, in a Minot, North Dakota, case, four men came to Jeremiah Tallman's home to confront him about an incident from earlier in the day. They exchanged angry words while standing in the entryway and were told to leave; they did leave when Tallman cocked the slide of his gun. As they walked away, one pounded on a trailer and another broke a window. Tallman then shot one of the men in the back several times, killing him. He was acquitted of all homicide and assault charges.1 He hardly satisfied the legal requirements for self-defense, but jurors were particularly accommodating because they saw him as resisting aggressors.

  Empirical studies show strong support among laypersons for the use of defensive force against aggressors and for the excuse of defenders who make mistakes in using defensive force. The community views on this point are dramatically different from the stated legal rules. Summarizing a series of studies, the book Justice, Liability & Blame concludes, “In all of these studies, the community judges that these justifications are more compelling than the legal codes are willing to grant. Respondents frequently assign no liability in cases to which the code attaches liability. Even when respondents assign liability, they typically assign considerably less punishment than would be suggested by codes.”2 According to a survey of judges, prosecutors, and defense attorneys, if self-defense is raised at trial, it commonly succeeds more often than any other kind of defense. The respondents in three major surveys estimated, respectively, that the defense succeeded 76 percent, 47 percent, and 46 percent of the time.3

  In the Goetz case, it was the trial jury that exercised its nullification power in support of the vigilante. In other words, the jurors overlooked the law and found in favor of Goetz because they considered his subway shootings to be understandable given the rampant crime at the time and Goetz's own previous victimization. But that kind of shadow vigilante protection of those who resist wrongdoers can be seen at nearly any point in the criminal justice process where citizens are involved.

  GRAND JURY RELUCTANCE TO INDICT FOR THE UNLAWFUL USE OF DEFENSIVE FORCE

  Joe Horn Shoots His Neighbor's Burglar

  On November 14, 2007, Joe Horn is a sixty-one-year-old retiree living in Pasadena, Texas.4 He is having a relaxing day when he looks out the window and sees two suspicious-looking men approach his next-door neighbor's house. (The two men are Diego Ortiz and Miguel de Jesus, and they are intending to rob the neighbor's house of its cash and jewelry.) Horn watches as the two men break into the house, and then he immediately dials 911.

  When the operator answers, Horn reports the situation and asks, “I've got a shotgun; do you want me to stop him?” The dispatcher tells Horn to stay in his house, saying, “Ain't no property worth shooting somebody over, OK?” During the call, Horn keeps an eye on his neighbor's house as the burglars are robbing the place, and he repeatedly expresses his frustration that this type of crime is happening in his neighborhood. After the burglars finish stealing cash and jewelry from his neighbor's home, Horn sees them running out the front door. Realizing that they are going to escape with his neighbor's valuables, Horn tells the operator, “I'm gonna kill him.” Despite the operator's repeated pleas to stay in the house, Horn picks up his shotgun, loads it, and steps outside the front door. As the criminals are running across his lawn, he shouts, “Move, you're dead,” and when the robbers continue to run, he fires three shots and strikes them both in the back, killing them.5 Horn runs back into the house and tells the dispatcher what has happened. The police arrive on the scene and find the bodies but do not arrest Horn.

  Authorities eventually file charges against Horn for murder. In mid-June 2008 the grand jury convenes in order to hear two weeks of testimony from witnesses, including Horn. On June 30 the jury deliberates and decides not to indict Horn. Horn is relieved that he will not have to face charges, and there are many community members who feel he acted rightly. District Attorney Ken Magidson says, “In Texas, a person has a right to use deadly force in certain circumstances to protect property…and that's basically what the grand jurors had to deal with.” Horn's attorney, Tom Lambright, says, “Joe is not some sort of wild cowboy. He was trying to help the police. He was put in a situation where he didn't have a choice.”6

  The same frustration with the apparent ineffectiveness of the criminal justice system can show itself in shadow vigilante jury nullification in any case in which a defendant resists a wrongdoer and is then prosecuted by authorities. This includes not just civilian actors like Goetz but also police officers. Consider the jurors’ reaction to the police beating of Rodney King.

  JURY NULLIFICATION FOR LAW ENFORCEMENT OFFICERS

  Acquittal of the Officers Who Beat Rodney King

  Los Angeles in the middle to late 1980s is one of the more dangerous cities in America. The period from 1984 to 1990 is known in LA as the “crack epidemic.” Crack first enters South Central LA in the early 1980s. Many children are left to grow up without parents because of addiction. Crime steadily rises.7 From 1985 to 1990 the city averages nearly 2.5 murders, six rapes, and almost ninety robberies every day.8

  The heavy demand for crack cocaine also helps local gangs such as the Crips and the Bloods to increase their financial strength and recruiting power, which in turn brings an increase in gang violence. Prior to the 1980s, the gangs have had limited participation in drug trafficking. But beginning in 1983, the Los Angeles gangs and their fifty thousand members begin to get a stranglehold on the streets, taking control of the narcotics industry.9 For citizens, the most dangerous time of day may be the early afternoon, when the most dangerous criminals are on the streets: armed teenagers just out of school. By 1991 crime in Los Angeles has reached its pinnacle. Police officers struggle more than ever to control the streets. Murder and violent crime rates reach all-time highs.

  On the night of March 2, 1991, Rodney King watches a basketball game with friends while drinking quite a bit of alcohol in suburban Los Angeles.10 When the game ends, King and his two friends decide to take the 210 Freeway into downtown LA to try and meet some girls. King drives a bit erratically, probably because his blood alcohol level is 0.19, well above the legal limit, and he has been smoking marijuana. California Highway Patrol (CHP) officers notice King's speeding and reckless driving and begin to follow him. King, who is on probation for a robbery offense, does not want to go back to prison. He hits the gas and increases his speed to 115 mph. With the CHP right behind him, the high-speed pursuit heads down the freeway.

&nb
sp; When his vehicle is cornered, King finally stops; his two friends quickly exit the vehicle and surrender to police. King takes a more combative approach. He refuses to exit the vehicle. When he does finally exit, he begins waving at the police helicopter that is overhead. Police backup arrive in the form of three LAPD squad cars: Officers Laurence Powell and Timothy Wind in one car, Theodore Briseno and Rolando Solano in the second car, and Sgt. Stacey Koon in the third.

  King's erratic, even bizarre, behavior leads the officers to believe King is on PCP (or angel dust), a drug commonly associated with violence. King grabs his buttocks in a manner that a CHP officer believes indicates that King is reaching for a weapon, so she immediately draws her gun and asks him to get on the ground. Sergeant Koon, who knows that the threat of violence from all parties is escalated with the presence of a gun, orders guns to be holstered. He also orders his four officers to perform a tactical “swarm” technique to subdue King without the use of weapons.

  Right around the time that the physical struggle between the LAPD officers and King begins, George Holliday, the manager of a plumbing company, begins videotaping the interaction from his apartment ninety feet away. After the struggle begins and after it is clear to officers that King is resisting arrest, they fire their TASER gun twice at King, but the powerful voltage does not subdue him. He continues to wrestle, gets back up off the ground, and rushes toward the officers. Police officers start using “power strokes” against King's limbs with their batons to subdue him, but still King continues to struggle and stand back up. Koon orders his officers to “hit his joints, hit the wrists, hit his elbows, hit his knees, hit his ankles.”11 Ultimately, the LAPD inflicts nearly fifty blows and several kicks on King before dragging him on his stomach to the side of the road to wait for paramedics to arrive. King's medical examination reveals numerous injuries, including a fractured facial bone, a broken right ankle, and multiple bruises and lacerations.12

  The incident receives almost no publicity until Holliday releases his eighty-one-second videotape to a local news station two days later. CNN picks up the story, and it spreads like wildfire across the nation. The video sparks outrage among many who see it as yet another example of police brutality against a minority group. An LA poll taken soon after the tape's release indicates that 92 percent of participants think authorities used excessive force.13

  Two weeks after the incident, a grand jury indicts four officers—Powell, Wind, Briseno, and Koon—for use of excessive force. Due to the publicity surrounding the case, in July the California Court of Appeals unanimously grants the defense's motion for a change of venue while also removing the original judge because of evidence of his bias toward the prosecution. In November a new judge decides to try the case in Simi Valley, a conservative and predominantly white city that starkly contrasts with the makeup of Los Angeles. Nearly a year after the incident, on March 5, 1992, a jury consisting of ten whites, one Asian, and one Latino hear opening arguments from the prosecution, arguing that the use of force was excessive.

  Seven weeks of testimony are presented (Rodney King never testified). The jury studies the eighty-one-second Holliday videotape. When it is all over, the jury votes to acquit.

  Jurors report that they only needed one day to decide to acquit the officers of the main charges against them. However, they needed an additional six days because they remained deadlocked on the assault charge against Powell.

  Many experts believe that race played a role in the jury's decision, but many of the jurors dismiss that notion. One juror points out the obvious, that the two other men in the car, both of whom are black, calmly surrendered and had no force used against them.14 One female juror notes, “In my opinion, based on all of the evidence that was presented to us, it is not a racial thing. I am not unhappy with the verdict; that's the only verdict that could have been reached.”15

  The juror's statement suggests that, given the violent conditions in LA at the time, the jury was not afraid to give police officers some flexibility in their use of force. Jurors seemed to be giving police more power in policing the streets than the state's law would allow. Stanford constitutional law professor Gerald Gunther notes, “This jury seemed unwilling to put any decent limits on police discretion, and I think that's the flat-out bottom line on this. The beating that King took was not justified even on the assumption that he did not turn quiescent as soon as [police] stopped the car and even if they had a basis for using force in the first few blows.”16 Some believe the majority of the jurors had such a “reverence for police officers as guardians of the social order” that the prosecution's use of the shocking videotape may have unintentionally undermined its own case.17 Some of the jurors may well have thought that the police conduct was in violation of existing law. And yet, they may have felt that the right thing to do was to acquit the officers because the jurors were concerned that existing law did not take proper account of the need for the force nor did it give enough room for an understandable mistake in a fast-moving situation.18

  This broad leeway given to police officers is reflected in the data. According to a Cato Institute study, the prosecution, imprisonment, and other sanctions of police officers occur at a much lower rate than for civilians facing similar charges.19 In some cases, according to the Cato data, officers are acquitted even in the face of clear evidence such as multiple witnesses or videotape. For example, in September 2009 a Spokane, Washington, jury acquitted an officer of assault for kicking a suspect in the face, though other officers present confirmed that he had done so.20 In another Washington State incident in 2010, an officer was acquitted after he was videotaped striking a fifteen-year-old girl who, when told to remove her basketball shoes, kicked toward the officer's fellow deputy.21 The first trial resulted in a hung jury, while the second resulted in an acquittal.

  Of course, if a case takes on a racial component—as when a white officer is perceived as using excessive force against a black citizen—racial political influences can conflict with the normal sympathy for an officer's mistake, as what occurred to some extent in the Rodney King case. On the other hand, even though the Black Lives Matter movement has done much to sensitize the public, the police officers involved even in cases that make the headlines are rarely punished. Grand juries refused to indict the officers in the killings of Eric Garner (2014), Michael Brown (2015), and Tamir Rice (2015). None of the officers involved in the killings of Freddie Gray (2016), Terrance Cruther (2016), Sylville Smith (2017), Samuel DuBose (2017), or Philando Castile (2017) were found guilty at trial. (Similarly, neighborhood watch supervisor George Zimmerman was acquitted at trial for his 2012 killing of Trayvon Martin.)22

  Empirical studies confirm these public views: many people tend to be quite forgiving of mistakes made when force is used for law enforcement purposes, certainly much more forgiving than the criminal code itself, and this even applies to citizens when acting in a law enforcement role. As one study concludes,

  In general, the subjects are much more forgiving than the Code of a person's mistakes in using deadly force to affect a citizen's arrest. The Code imposes murder liability if the apprehending person kills an innocent person. A strong majority of the subjects, in contrast, impose no punishment even in the case in which the citizen kills an innocent person in trying to stop a fleeing rapist. Only in the case in which an innocent person is killed in an attempt to stop an offender fleeing from a property damage offense does a bare majority of our subjects judge punishment to be appropriate and, even then, liability is a few months rather than the murder liability that the Code provides.23

  These striking results help explain why it is so easy for citizens, disillusioned with the justice failures of their criminal justice system, to justify expressing their shadow vigilante impulse through protecting those who use force against wrongdoers.

  FRUSTRATION WITH CRIMINAL JUSTICE FAILURES AS GIVING RISE TO PRIVATE POLICING

  Shadow vigilantism among citizens also shows itself in the loss of confidence in and reduce
d expectations of official law enforcement, which has produced the dramatic rise in private security and neighborhood watch organizations. The 2000 National Crime Prevention Survey estimated that 41 percent of the American population lives in communities covered by neighborhood watch. The survey report concludes that “this makes Neighborhood Watch the largest single organized crime-prevention activity in the nation.”24 One writer describes the degree to which private entities have taken over law enforcement functions in this country: “Private security officers vastly outnumber public law enforcement officers, and spending on private security is approximately double the spending for public law enforcement. For the most part, this growth has all occurred within the past three or four decades—only thirty-five years ago, there were more public police officers than private security guards.”25

  Watch groups are not formed in neighborhoods that are content with their law enforcement situation. Neighborhood watch is a literal form of a neighborhood taking on the law enforcement role of the government.26

  But as chapter 7 made clear, shifting the law enforcement function to citizens commonly creates serious problems. Recall, for example, the members of the Ranch Rescue group who used improper detention methods because they lacked the formal training that police receive. In the case of the Crown Heights Maccabees, their vigilance was effective but tended to push crime into surrounding areas rather than preventing it. Project Perverted Justice, in which an unofficial group stepped in to take on a role traditionally reserved for police detectives, had the effect of inspiring others with more extreme views to take on a similar role. Society would be better off if official law enforcement did its job and did not provoke the shadow vigilante impulse that leads to citizen enforcement.

  These same difficulties that we saw in the earlier cases can occur in any situation in which citizens take on the law enforcement role, including neighborhood watch. As noted above, George Zimmerman was the neighborhood watch coordinator for his gated community in Sanford, Florida, in 2012 when he shot Trayvon Martin, a seventeen-year-old African American high school student who was temporarily staying with a family who lived in the gated community.27 (Zimmerman apparently approached Martin about his presence in the area, and the contact grew into a confrontation in which Zimmerman ended up fatally shooting the unarmed Martin.) It seems unlikely that such a confrontation would have occurred if that community relied upon official rather than private policing.