Black Lives Matter – sort of (part II)

If you haven’t read part I, you should; click here.

Clearly, the two men were intending to rob me, possibly physically attack me. You might expect that at this point I would be afraid. Surprisingly, I was not. This is partly due to the fact that I’m not a fearful person. I can’t remember any time in my life when I’ve felt strong fear. In particular, I’m not afraid of black people the way many white people are. When I was in law school I used to serve eviction notices on tenants in high-crime, all-black neighborhoods of Oakland. I was, in effect, threatening some pretty big, very hostile black people. It never bothered me. I’m generally careful and cautious because I don’t want to be injured or killed, but that’s simply a matter of good sense, not fear. But that night in New York, I also knew that I had a gun and knew how to shoot it. Those hours of practice on the shooting range paid off. I also didn’t think either of the men were armed, despite the one man putting his hand in his pocket. I simply didn’t feel I was in much danger.

So I pulled my gun from its holster and held it up for the men to see. I did not point it at them. I looked at them with a sort of “it’s your move” expression and waited. They looked at each other, turned around, went down the same stairs they’d come up in, and a few minutes later, came up the other stairwell and waited at the far end of the platform. In one sense, that’s the end of the story. But there’s a relevance in this incident to the current Black Lives Matter movement and the recent police shootings.

Consider for a moment what I could have done. I have no doubt that I could have shot both of them, or perhaps shot one and the other one would probably have run off. If I had killed one or both, I am certain there would have been no criminal charges filed or negative ramifications at my job. I would have been hailed as something of a hero if I had done so among my peers. I would have been viewed as a good agent, someone who protected himself and removed a dangerous threat from society. I could have told whatever story I wanted, such as that I saw what I thought was a gun and was in fear for my life, although the truth would have been sufficient to exonerate me. I would probably have gotten some type of performance bonus, maybe even a transfer to the office of my preference. So why didn’t I shoot?

That night on the subway platform I even had thoughts along those lines flash through my brain. I honestly believe I would have been doing the world a favor by removing those two muggers from the gene pool. That feeling wasn’t based on fear, racism, or hatred, just a logical assessment of the facts, although I’ll admit to a bit of anger at the muggers and all criminals. If you saw the Charles Bronson movie Death Wish, a very popular movie at the time, you know what I am referring to. Yet I never seriously considered shooting them. There was one practical reason (although it wasn’t the reason that motivated me): I couldn’t be sure of killing them. I had a revolver at that time. Revolvers have only six shots. I probably also had a speed loader with another six rounds, but reloading isn’t always all that fast and reliable when under pressure, even with a speed loader. In real life, unlike the movies, people don’t usually drop dead when the first shot hits them. If I had only wounded them, or missed entirely, they could have overpowered me, even taken my gun from me. Later on the FBI issued agents 9mm semi-automatic pistols holding 14 rounds, reloading not necessary. I did think about this at the time, but the only reason I didn’t shoot them was a simple one: it wasn’t legal.

Killing someone in self-defense is legal, but only under certain conditions. I’m a lawyer and in fact became an FBI Legal Instructor, teaching these very things to agents. One necessary condition is that you cannot escape. That applied to me, trapped at the end of the platform. Another is that you must reasonably be in fear of death or grievous bodily harm, either for yourself or for another. That’s really two conditions: fear and reasonableness. I believe it was reasonable to be in such fear, so the second part applies. But the first part didn’t. I wasn’t afraid. It may seem unlikely, but I actually thought about this legal formula, what lawyers call the elements of the defense, at the time. I thought about them as soon as I heard them coming up the stairs, even before I knew they were coming for me. I followed the law simply because it is the law, because we must have law or we have nothing. If people get to decide which laws to follow and which to ignore, we have only anarchy and chaos. I went into law enforcement for that very reason – reverence for the law.

That brings us to the subject of this post – Black Lives Matter and the recent shootings of black people, the ones that have gotten national attention in the news. The reporting on these shootings and on the demonstrations has been terrible. It sensationalizes everything and lacks the nuance necessary for reasoned judgment. Media have been going after eyeballs, trying to inflame people on both (all) sides. Liberals and conservatives are both getting things wrong. I will address this in my next (final) post.


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