Wednesday, March 21, 2012

Law, Justice, and Rights

Sometimes when reading the news, a particular story jumps out at you. And while violence in the headlines is nothing new, this story hit me harder than many: Trayvon Martin, a Florida teen, is shot dead on his way back from buying a snack, for what sounds like just being out and "looking suspicious" to the "neighborhood watch" person who shot him. Racial profiling or prejudices for the shooting have been alleged, and the shooter was not arrested by the police when they arrived. He claims he acted in self defense, but from phone logs (911 logs as well as Martin's own final phone conversation) and other evidence, that does not appear to be the case. The shooting happened almost a month ago (I remember reading about it then with horror too) and has only now begun to gain enough attention and outrage that finally the federal Justice Department's Civil Rights Division has opened an inquiry into the shooting and police response.

That the Civil Rights Division of the Justice Department has gotten involved is telling, and gives me the hope that this might finally be taken seriously. I could write more on the probable issues that will come out in the investigation and my own outrage, but given the scope of this particular blog (on social justice and human rights), I'll be focusing instead on the legal issues that currently surround the case, and on how those legal issues created an easier environment for this to happen.

One of the things that has come into focus in this case is a law in Florida (with similar ones in other states) which allows a person who feels "threatened" in a public place to use deadly force in "self defense" before even attempting to avoid or exit a confrontation. This law sets the right to self-defense against the rights (for example) to life and to trial by jury if accused of a crime (though here the victim was only "accused" by his shooter, not even the law--he was committing no crime--and the shooter was in fact told by the police when he phoned them not to get involved). So aside from dealing with a case of vigilantism, which should be prosecuted as such, perhaps we need to take a look at laws that allow greater latitude for vigilantism to occur.

Opponents of the law in question argue that it leads to cases just like this (what they call "shoot first and ask later"), while supporters of the law say it is necessary for people to feel safe and to be able to protect themselves without fear of being jailed. It seems to me, however, that such a law does in fact disregard the rights of the person who is perceived by a potential shooter as a threat. Who gets to adjudicate what constitutes a threat? Where is the use of force justified, and to what degree? How do we look at the rights of all in society, in such a way that all are protected and respected--including those who are falsely perceived as being a threat? Bringing society to a point where profiling and racial prejudices are no longer part of people's consciousness would be a huge step, but in the meantime, perhaps we need to look at the laws that give the impression that knee-jerk violence against another person based only on suspicion is somehow legal or "appropriate".




8 comments:

  1. Definitely, laws send signals about what is expected and permitted.

    Here in Toronto a little while ago was the case of a shopkeeper who was being stolen from repeatedly by the same bandit who would grab and run with products. Eventually the shopkeeper pursued the bandit and detained him for the police. The police took them both into custody and the shopkeeper was charged with what amounted to assault and kidnapping of the bandit. The police had been unable to protect the shopkeeper from the bandit, and the shopkeeper had called them before about the repeat offences.

    Public outrage with the charges against the shopkeeper was immediate. Few in Toronto would advocate going to the other extreme and permitting people to take matters into their own hands at every turn, but all were relieved that the system somehow allowed the shopkeeper to be acquitted of the charges. Other than the shopkeeper's initial detention (which should never have happened IMO but the law required it) most would say that justice was done.

    Even absent a racial element, prejudice will always play a role, even if it is simple prejudice against those who are strangers. I have to wonder, though, about the neighbourhood where the incident in Florida took place. My impression is that it is not only laws themselves that lead to individuals making regrettable decisions but also lack of security. The sense that we cannot rely on our community to provide safety leads people to find ways to feel safe by themselves. If the police do not do their job then eventually the mob will fill the vacuum.

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  2. I wonder if one of the important issues that this post makes clear, from a rights standpoint is the difficulty of balancing rights and rights when the language of rights is the language of a given situation of conflict. When the language of rights is applied such that this right sets up a permissable action that tramples upon that right, one may be able to figure out which right trumps the other with a little reflection but that will hardly help in situ. When it feels like "his" right to life and limb or "mine" (for whatever skewed reason that is the feeling) one is likely to act in ways that infringe upon the other's rights and in defense of one's own. Is there something about rights language that encourages this sort of situation? Or is it better to think of the situation as a perennial possibility within an ambiguous world that rights language can be used to describe, if that is the way we choose to speak about the individual's relation to society?

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    1. Hi Bob. The "right" of self-defence is already well-understood as an exception to the prohibition against harming (or killing) another so I would say that the balancing of rights has already been done and embedded in law, in most jurisdictions. This may be an example of where the language of rights doesn't provide the best framework for thinking about these kinds of situations, however. I wonder if the language of duty isn't better overall, and especially for this kind of problem.

      In Canada, use of deadly force by citizens in self-defence is considered permissible only if no other options are available. We have a duty to protect life: our own as well as that of a perceived assailant. Except for our police, we have a duty to flee. In Florida the operative principle is the right to "stand your ground", which I'm having difficulty expressing as a duty sensibly without making word-soup.

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  3. There's just too many regular citizens packing heat in the States. It's totally insane. How do all those guns make anyone safer? A fundamentalistic interpretation of the Second Amendment combined with a vocabulary restricted to individual rights is a toxic mix that prevents Americans from dealing with this very real threat to their communities at a level beyond that of the individual. Possession of a gun may make one feel safer (debatable), but I still haven't seen any evidence or argument that such possession actually makes anyone safer. My feeling is that "stand your ground" statutes are popular in a culture of fear, fragmentation, suspicion, and alienation. This absolutely batshit crazy law needs to be revisited, but so does that deeper cultural malaise.

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    1. Yes, o mad professor, gun-totting and safety seem to me too to have a tendentious relationship the one to the other. My own comment was motivated by the difficulty of deploying the language of rights in a way that only mirrors the ambiguities. The question is: can a given set of theoretical categories actually do political work; can it increase or at least predispose actors to increase justice in the body politic or will it ever but find a way more or less to represent the tawdry and sad situation on the ground as in this instance of rights acted upon to horrible consequences? Maybe such siftings and questionings are too quick? Maybe one first needs to be a mad professor and snort in anger and disgust? I'll buy that, but the problem remains and it is crucial for academics, for if our conceptual analyses are merely reflective of what is and never transformative or at least potentially transformative, what good are we? If we remain wedded to the language of rights, is there a way that it can do the politically transformative work we expect and need it to?

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  4. Does anyone else see a parallel between laws permitting citizens who feel “threatened” to shoot first and ask questions later and a government policy of assassinating “terrorists” (even if they are citizens of that country) because they are a perceived “threat” to “national security”? Might the notion of human rights suggest parallel problems in these two types of cases? Just wondering…

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    1. Hi Paul. The obvious parallel is that if we assume a universal right to a trial and due process then both kinds of incidents are examples of that right denied. And I think we do universalise rights like those.

      These kinds of incidents are different in significant ways too, though. In the sense of individual self-defence, the assessment of threat must be done very rapidly, most of the time. It is an immediate threat. "Terrorists" are marked for assassination based on their record. They are an *ongoing* threat. Does this change our rights calculations at all? Or should it?

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    2. Good question, Daryl (and Paul). It seems to me that this should not change our rights calculations. Right to trial and due process is one of those fundamental corners of justice in society that, when you start making "exceptions" to it such that its "okay" for some people accused of crimes to be denied that trial and due process, damages a society's overall ability to pursue justice.

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