The howls of outrage from progressives after the Rittenhouse verdict are rapidly transforming into calls to dismantle the bedrock of the judicial system, from the instructions to juries to the nature of self-defense. Meanwhile, 80 thugs in ski masks rob malls in San Francisco, and the experts object to calling it “looting.”
“A belief may be reasonable even though mistaken,” the instructions to Mr. Rittenhouse’s jury of his peers read. “In determining whether the defendant’s beliefs were reasonable, the standard is what a person of ordinate intelligence and prudence would have believed in the defendant’s position.” This simple, dare we say, reasonable, sounding standard derives from English common law. It was officially codified in the United Kingdom in 1932 by Lord Justice Greer. He used a logical device referred to as “the man on the Clapham omnibus” in a case involving an accident at an automobile race, when a car careened over a barrier and seriously injured spectators. The question before the court was could the organizers have reasonably foreseen this occurrence and was there anything they could reasonably do about it, or were the spectators responsible for placing themselves in that position?
Lord Justice Greer asked what this hypothetical “reasonable man” would have thought were he one of the spectators? In his reasoning, he surmised this man would “know quite well” that no barrier could provide sufficient protection from this “possible but highly probable occurrence,” and so he denied the plaintiff’s compensation. The idea of a “man on the Claphman omnibus” had made prior appearances in different forms long before Greer. In the United States, he was imagined as “the man who takes magazines home, and in the evening pushes the lawnmower in his shirtsleeves.” Back in England, Lord Bowen used the man in a case dated to 1903. The Clapham phrasing is frequently attributed to John Burns, a liberal Member of Parliament and Cabinet minister born in 1858. In May 1857, The Journal of the Society of the Arts included the passage, “so thoroughly has the tedious traffic of the streets become ground into the true Londoner’s nature, that…your dog-collared occupant of the knife-board of a Clapham omnibus will stick on London Bridge for half-an-hour with scarcely a murmur.”
Legal, or otherwise, the general concept is to attempt to put yourself in another person’s shoes, free from your immediate bias or personality quirks to judge a situation in a reasonable manner and reach an objective conclusion likely to be shared by others. Baked into the idea is the understanding that humans can sometimes go to extremes. The impatient man on the bus might be boiling with rage. The tired man might be asleep, but the average person just stands quietly as the time passes. A similar concept appears in determining “reasonable doubt” in criminal trials. The jury is instructed to understand this phrase as “such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause and hesitate before taking the represented facts as true and relying and acting thereon.” Again, a reckless person might not hesitate at all or a nervous person might hesitate too much. The goal is to consider what someone in the middle would do, full knowing that members of the jury might well be at extremes themselves.
Once upon a time, these concepts were not controversial. They are, in fact, the bedrock of jurisprudence in the Western world and how countless juries have decided cases over at least a hundred years. The recent not-guilty verdict in the Kyle Rittenhouse case, however, has prompted howls of outrage from progressives, many of whom believe this “reasonable” foundation is part and parcel of white supremacy in the United States. For example, Michael Harriot, writing for The Guardian, proclaims with absolute certainty that “A white person came up with this.” He reaches this conclusion “Because all of our opinions are shaped and colored by our experiences, ‘reasonable’ is a subjective notion. Only white people’s perceptions are made into a reality that everyone else must abide by. Think about how much privilege one must have for their feelings to become an actual law that governs the actions of people everywhere.”
Mr. Harriot takes particular issue with the idea that a police officer could be acquitted if the jury finds it “reasonable” the officer in question believed their life was in danger regardless of what hindsight shows to be the actual case. As he sees it, “The reason police are often acquitted of killing unarmed citizens is that they can argue that a ‘reasonable’ police officer would have used deadly force, even if the officer turned out to be wrong and the victim was unarmed.” Presumably, Mr. Harriot believes some different, somehow more objective standard should apply, but what would such a thing look like in a world where human perception and judgement are fallible? Who defines this “objective” standard?
We can imagine a police officer in this world who confronts a man in a dark alley. The man is belligerent, refusing to comply with the officer’s orders, and increasingly aggressive. The officer tries to defuse the situation, but with little result. The man ultimately advances upon the officer, menacingly. The officer tells him to stop and keep his hands out in the open where he can see them. The man refuses to comply and continues to within a few feet of the officer before reaching into his pocket. It’s dark, and the officer can only see him reach for something before pulling it out. Using the “reasonable” standard, the jury would likely find the officer not guilty because he had sufficient justification to believe his life was in danger regardless of whether or not the item the man was reaching for turned out to be a cellphone. Under Mr. Harriot’s unstated standard, the officer would be found guilty regardless of whether most people would agree he had reason to believe himself in danger. In other words, whatever the man did before the incident is irrelevant: The officer is solely responsible based on information he couldn’t possibly have at the time.
Even worse, the officer is expected to put his own life in even more danger at the expense of the man advancing on him. If the man does in fact have a gun, he would be permitted to brandish it in full view before the officer was able to react, costing valuable instants that will ultimately cost lives, either the officers or some innocent bystander. You might well get shot passing by on the street, but in Mr. Harriot’s mind this is acceptable so long as we follow an “objective” standard, one the police, often responding in fractions of seconds, have to take time to verify regardless of any other facts. We might also wonder what constitutes armed in Mr. Harriot’s objective opinion. Is a knife or a taser enough, or does it have to be a gun? What if the assailant picked up a pipe or a baseball bat?
Again, the “reasonable” standard enables the jury to make these decisions based on the specifics of each case, taking in the totality of what the officer could reasonably believe at the time, well aware that a pipe lying on the ground isn’t deadly, but one swinging at you is. We can imagine that Mr. Harriet expects lawmakers to define in detail a list of potentially deadly weapons in advance. If it’s not on the list, the jury is expected to find a defendant guilty, regardless of the circumstances. This isn’t a moot point when the Rittenhouse prosecutor claimed a skateboard wasn’t a deadly weapon in his closing arguments, saying if that were the case millions of parents would be giving their children something they could kill themselves with for Christmas. Of course, in most cases a skateboard is just a skateboard, until someone is beating you with it. The same is true of dozens if not hundreds of ordinary household objects, from forks to candlesticks, frying pans to rolling pins.
Nor is this “reasonable” standard the only change progressives would like to make to self-defense laws. They also seek to require defendants to escape an attacker before using force in response, what CNN’s Chris Cuomo has described as a “duty to retreat.” Combine the two, and it’s difficult to see how anyone could reasonably defend themselves before being either shot or beaten within an inch of their lives. In both cases, progressives are exhibiting a strange desire to side with criminals against both law enforcement and ordinary citizens. Their underlying concern seems to be that current self-defense and related laws favor the person being attacked instead of the attacker, but this is for reasons that should be obvious to a middle-school student. The inverse serves to empower criminals, knowing their victims will have to flee before using force or knowing they can intimidate or attack law enforcement as long as they don’t point a gun right in their face. Further, a populace and a police force aware their actions will be judged against some arbitrary standard independent of the fear they reasonably felt is far more likely to stand down rather than confront a criminal directly, leading to potentially more loss of life.
In addition to foundational laws and the traditions of jurisprudence, progressives are also taking aim at the very language that describes crime in general. Last weekend, San Francisco witnessed a wave of organized, targeted looting at major department stores. On Saturday, more than 80 people in ski masks, armed with crowbars stormed a Nordstrom, depositing the stolen goods in dozens of cars lining the block. The Walnut Creek Police Department reported that “Nordstrom employees began calling 911 when approximately 80 people entered the store and began stealing merchandise.” One employee was pepper sprayed, two punched and kicked. Sunday saw a similar scene with thieves descending on a mall in Hayward, CA. Witnesses described 40-50 looters with hammers and other tools rob Sam’s Jewelers. Macy’s was also hit, as was a Lululemon’s in Santana Row, stealing $40,000 in merchandise from a single store. This is shocking stuff, the sort of thing one sees in movies where society is on the verge of collapse, and even the normally progressive San Francisco District Attorney is talking tough while facing a recall. Chesa Boudin tweeted, “I’m outraged by the looting in Union Square last night. We are seeing similar crimes across the country. I have a simple message: don’t bring noise to our City. Great work by the SFPD. Standby for felony charges.”
Other progressives, however, said not so fast, objecting to the use of the word “looting” in the first place. According to ABC-7 News, “Experts caution use of ‘looting’ in describing rash of Bay Area smash and grabs.” “As the Bay Area grapples with a wave of seemingly organized smash and grab robberies this weekend, policing and journalism analysts are cautioning against the use of the term looting,” explained Race and Social Justice Reporter Julian Glover. ABC-7 reports that “The penal code defines looting as ‘theft or burglary…during a ‘state of emergency’, ‘local emergency’, or ‘evacuation order resulting from an earthquake, fire, flood, riot or other natural or manmade disaster.’” Lorenzo Boyd, PhD, a Professor of Criminal Justice and Community Policing at the University of New Haven and a retired police officer, believes this tiny distinction matters. “Looting is a term that we typically use when people of color or urban dwellers are doing something. We tend not to use that term for other people when they do the exact same thing,” he explained. Incredibly, ABC-7 reports that we don’t know the races and ethnic background of the perpetrators, but we do know “the crimes did follow the contentious verdict in the Kyle Rittenhouse trial Friday.”
I can’t be the only one who finds this debate completely insane, but it’s impossible to escape the larger context: Crime isn’t crime anymore in progressive eyes, and the criminal is to be protected more than the populace and the police. This Thanksgiving, we should be thankful the revolution they are calling for hasn’t happened yet, but unless fair minded people start calling crazy for what it is, this will continue until you can spend life in prison for not adequately trying to escape a mugger with a tire iron or a rapist with a baseball bat.
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