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Culture War Roundup for the week of May 20, 2024

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Texas Gov. Greg Abbott has issued a full pardon for U.S. Army Sergeant Daniel Perry.

Perry was convicted last year of murder in the shooting death of Garrett Foster, a USAF veteran and BLM protestor. Foster had attended a downtown Austin protest armed with an AK-pattern rifle, and joined his fellow protestors in illegally barricading the street. Perry's car was halted by the barricade, Foster approached the driver's side door, rifle in hand, and Perry shot him four times from a range of roughly 18 inches, fatally wounding him. Police reported that Foster's rifle was recovered with an empty chamber and the safety on.

Perry claimed that the shooting was self defense, that the protestors swarmed his vehicle, and that Foster advanced on him and pointed his rifle at him, presenting an immediate lethal threat. Foster's fellow protestors claimed that Foster did not point his rifle at Perry, and that the shooting was unprovoked. They pointed to posts made by Perry on social media, expressing hostility toward BLM protestors and discussing armed self-defense against them, and claimed that Perry intentionally crashed into the crowd of protestors to provoke an incident. For his part, Foster was interviewed just prior to the shooting, and likewise expressed hostility toward those opposed to the BLM cause and at least some desire to "use" his rifle.

This incident was one of a number of claimed self-defense shootings that occurred during the BLM riots, and we've previously discussed the clear tribal split in how that worked out for them, despite, in most cases, clear-cut video evidence for or against their claims. The case against Perry was actually better than most of the Reds, in that the video available was far less clear about what actually happened. As with the other Red cases, the state came down like a ton of bricks. An Austin jury found Perry guilty of murder, and sentenced him to 25 years in prison.

Unlike the other cases, this one happened in Texas, and before the trial had completed, support for Perry was strong and growing. That support resulted in Governor Abbott referring Perry's case to the Texas Board of Pardons and Paroles. A year later, the board returned a unanimous recommendation for a pardon to be granted. Abbott has now granted that pardon, and Perry is a free man, with his full civil rights restored to him. He has spent a little more than a year in prison, and his military career has been destroyed, but he is no longer in jail and no longer a felon.

So, now what?

It seems to me that there's a lot of fruitful avenues of discussion here. Was the shooting legitimate self-defense? To what degree did the protestors' tactics of illegally barricading streets, widespread throughout the Floyd riots and a recurring prelude to tragedy, bear responsibility for the outcome? How should we interpret Perry's comments prior to the shooting, or Foster's for that matter?

Two points seem most salient to me.

First, this case is a good demonstration of how the Culture War only rewards escalation, and degrades all pretensions to impartiality. I do not believe that anyone, on either side, is actually looking at this case in isolation and attempting to apply the rules as written as straightforwardly as possible. For both Blues and Reds, narrative trumps any set of particular facts. No significant portion of Blues are ever going to accept Reds killing Blues as legitimate, no matter what the facts are. Whatever portion of Reds might be willing to agree that Reds killing Blues in self-defense might have been illegitimate appears to be trending downward.

Second, this does not seem to be an example of the process working as intended. If the goal of our justice system is to settle such issues, it seems to have failed here. Red Tribe did not accept Perry's conviction as legitimate, and Blue Tribe has not accepted his pardon as legitimate. From a rules-based perspective, the pardon and the conviction are equally valid, but the results in terms of perceived legitimacy are indistinguishable from "who, whom". As I've pointed out many times before, rules-based systems require trust that the rules are fair to operate. That trust is evidently gone.

This is what we refer to in the business as a "bad sign".

This feels to me like another example of how America does not really seem to have a coherent philosophy when it comes to gun posession and use of force. Like, you are allowed to have a weapon, you are allowed to use it to defend your home, you are allowed to shoot intruders... But the police are also allowed to issue no-knock warrents for a wide variety of crimes, allowed to explode into your home in the middle of the night, and if they see you with a gun/knife/bat/dog chew they are definitely allowed to put 27 rounds into you. If they get the house wrong it's NBD. But yeah bro, you're definitely allowed to use guns to defend yourself.

Similarly here. Foster was allowed to open carry a rifle. He was allowed to walk up to a car on the street. He was allowed to have a hand on his rifle. ... He's allowed to have two hands on his rifle? well maybe, but low ready is out, apparently. Though, the jury thought it was in, so ¯\_(ツ)_/¯. He's not allowed to point it at anyone, sure. but there's point at, and point at, isn't there. is he allowed to muzzle sweep you? what if it's just your legs? Foster was clearly in a position to 'quick draw' on Perry... is that enough to justify shooting first?

I don't know. Seems like a pretty thin knife edge to balance the lives of two men on.

Is this problem even solvable? It seems to me that it probably isn't. If you give your citizens free access to devices which can kill in a split second it's understandable that the police don't particularly feel like politely knocking at the door of the crack house and giving some PCP-addled junkie the opportunity to fill them full of buckshot. Perhaps, like school shootings, this is simply a price that Americans are willing to pay to ensure they have access to firearms.

This feels to me like another example of how America does not really seem to have a coherent philosophy when it comes to gun possession and use of force.

Interestingly, once you go meta the guns are irrelevant to this case - both the car and the mob are deadly weapons, and IIRC car vs mob situations had ended in fatalities without guns being present in other BLM-related clashes. The issue is the American (mostly Red Tribe) culture of escalatory self-defence. (Of course, there is a feedback loop because self-defence culture makes permissive gun laws easier to pass and carrying a gun makes it easier to engage in escalatory self-defence).

The best take on the theory I have found is this post by Mark "Animal" MacYoung - his business appears to be training for violence professionals, but his website is mostly targetted at the general publ[ic with a message of "if you are not a violence professional, it is sufficiently easy to avoid situations where violence is likely that learning how to do this has a much better effort/reward ratio that learning combat skills". My summary of the idea is that

  • There is a big moral, legal, and practical difference between fighting (which MacYoung is trying to use as a semi-technical term), criminal attacks, and defending yourself against a criminal attack.
  • In particular, a fight follows a series of mutually escalatory threat displays which serve three functions: giving the other guy opportunities to back down (usually futile because someone who is going to back down does so at the first opportunity), getting yourself into the mood for violence, and performing a social ritual which in the right male-dominated subcultures makes the coming violence licit. This has the side effect of eliminating any possible element of surprise and putting both combatants into a situation where certain techniques are useful.
  • Whereas a criminal attack is not usually preceded by a threat display - a competent criminal doesn't let you know he is criming on you until he has got you into a position where you have little chance of successfully defending yourself. In the stereotypical knife mugging, the knife is already at your throat when the first verbal threat is made.
  • The vast majority of fighting situations are avoidable by not challenging people to fights, not behaving in ways that would provoke people to challenge you to a fight, and backing down from fights over trivialities. All of these are harder than they look because the situation involves strong emotions, mostly- non-verbal communication, and often intoxicants.

Because I am lawyer-brained, I tend to think of it as the difference between "duty to retreat" (DTR) culture and "stand your ground" (SYG) culture. (Note that the legal DTR isn't an invetion of modern hoplophobes - it is a codification of centuries-old English common law that was originally made by and for warrior-elites. But in the late 19th century most US States (some through the legislature, others through their Supreme Courts) decided that backing away from fights when you were in the right was unmanly and/or un-American, leading to the first wave of SYG laws. There is a second wave in response to the 1970's crime wave.

DTR culture says that the right to self-defense does not generally extend to fighting situations, even if you are right on the merits. This doesn't have to apply absolutely everywhere - the "castle doctrine" is the idea that the rules in your own home are SYG even if they are DTR in the streets. This means that the appropriate police (or other authority figure) response to a fight is to punish both parties unless one was so badly hurt that their crime was self-punishing. And if there is a fight ending with a corpse, then the winner is going down for some lower-degree homicide regardless of what was being fought over or who threw the first blow. A corollary is that to make DTR culture work at urban population densities, you need something like broken windows policing to stop obnoxious blowhards ruling the streets by behaving badly and treating a request to stop as a challenge to a fight. Someone who spits on the floor in a biker bar is going to receive a challenge to a fight which will end with them backing down or getting beaten. Someone who spits on the floor in your local golf club clubhouse is going to be warned by the Secretary and kicked out (ultimately backed by a threat to involve cops) if they continue. Someone who spits on the street needs to face the same kind of consequence.

SYG culture says that a man should only back down from a fight if you are wrong on the merits or have no reasonable chance of a good outcome(and that a RealManTM has developed combat skills to the point where the latter should only happen if massively outnumbered), and that challenging someone to a fight is praiseworthy if they are engaging in sufficiently anti-social behaviour. The corollary is the response of the authorities to a fight needs to include investigating the merits of the dispute - although common police practice is to arrest both parties and let the lawyers sort out blame. But if SYG laws are enforced as written, most fighting situations involve both parties having a sufficiently plausible claim to self defense that they could raise reasonable doubt and secure a criminal acquittal if they hired a fancy lawyer. The other problem is that most fights happen in sufficiently confused situations and investigations are sufficiently difficult that "investigating the merits" usually means "blame the guy who looks more like a stereotypical wrong'un". It probably isn't a coincidence that American SYG culture developed at a time when the wrong'uns were conveniently colour-coded, although there isn't anything inherently racist about it.

It should go without saying that DTR culture produces better outcomes if you have cops doing their jobs - you have a lot less fighting, and a lot less community-breaking post-fight litigation. But if the cops can't or won't do their jobs then the alternative to SYG is anarcho-tyranny. This is a particularly serious problem in the places which need most policing and often get least - schools and prisons.

The Perry case looks like a fighting situation - you have evidence that both sides were spoiling for a fight beforehand, a series of decisions by Perry to end up in that situation that would be a display of truly shocking poor judgement if he was trying to avoid the fight, and mutual escalation by threat display (car driven towards a crowd, crowd swarming car, gun kind-of-sort-of brandished). So from a DTR perspective, Perry is morally guilty and it is easy to make a close legal call (was Foster holding the gun in a way which made him a threat in the legally relevant way) against him. From a SYG perspective, the key question is whether Perry was right on the merits, which comes down to how sympathetic you are to street protest in general and BLM in particular.

This post is too long already so I won't do the list, but I think most scissor shootings that do not involve cops (Zimmerman and Rittenhouse) are fighting situations and the scissor is that DRT and SYG are working from completely different moral frameworks.

As @KMC notes, Rittenhouse was not a DTR/SYG case, and as I describe below, neither was Zimmerman (with the exception of one annoying detail, which I explore).

The issue is the American (mostly Red Tribe) culture of escalatory self-defence.

What about the Blue Tribe culture of aggressively taking over and blocking explicitly public transit spaces? That action happens to be illegal (at least as the laws are written) in most US jurisdictions.

From a SYG perspective, the key question is whether Perry was right on the merits, which comes down to how sympathetic you are to street protest in general and BLM in particular.

Isn't the fact that he was driving the car on a public street trying to get to his destination enough to make him right on the merits?

Rittenhouse was not a fight by your own standards, which calls into question the entirety of your post.

Kyle was attacked by Rosenbaum, after some third party fired the first shots. Kyle ran, Rosenbaum chased him. Then Huber chased him. Then Grosskruetz tried to trick him into dropping his guard, so Gaige could shoot him. This was not a fight, and Kyle Rittenhouse literally, truthfully, did nothing wrong.

A division between Stand Your Ground and Duty to Retreat philosophies exists, but in addition to the lines being a lot blurrier than this summary (eg, even a lot of SYG advocates promote deescalation and avoidance, most famously Masaad Ayoob), I think you're badly strawmanning SYG perspectives as RealManTM.

The problem with DTG isn't that retreat is Unmanly, or the various pragmatic problems where a jury second-guesses split-second decisions about ease of retreat. It's that it demands a surrender of the public sphere:

If these riots somehow create a "no rights" zone, where criminals can do as they please but honest people must either stay away or submit to illegitimate violence, then their very existence is a violation of everything we stand for as a country, and it's time to clear the streets with tanks firing canister. In that case, he and I and everyone else have been lax in our duties, because this is a war.

There is no scenario where it is okay to let the criminals run rampant, and honest people are required to let them have their way. I don't care if it reduces the death rate, because that is not a terminal value. Living in peace and freedom is, and submitting to criminals makes such a life impossible.

(Or cfe here)

Even in a perfect world, where police hammer every criminal action, a ton of 'fight' happens well below the level of criminality or what should be seen as criminality. Whoever is willing to defect can commandeer large portions of the public sphere, readily. And we do not, bluntly, live in that perfect world: no small portion of coastal cities have transparently given permission for extralegal actors to crush political positions they don't like, while ignoring (sometimes 'mandatory!') restrictions on bad actors they do like.

IMO neither "Stand Your Ground" nor "Duty to Retreat" neatly solve all cases. I don't think there's a general solution to what I'd call the Thunderdome Problem ("two men enter, one man leaves") regarding how the justice system should, absent other evidence, a dead body and the survivor's claim of having been attacked. I, at least, don't think the criminal justice system either categorically believing, or disbelieving the survivor's claim counts is sufficiently fair.

It may be the case that Thunderdome cases are sufficiently infrequent to not matter generally, but some of our more scissor-y examples of claimed self-defense violence (Zimmerman, perhaps most notably) do seem to fit with that pattern. It seems plausible to me that people are applying their personal biases toward the general case to sufficiently fuzzy specific cases.

It is almost true that SYG has nothing to do with the Zimmerman case, and I find the thin bit of exception annoying, because it doesn't engage the philosophical point at all.

In Zimmerman's case, his actions were fully covered by either a generic SYG regime or a DTR regime. The philosophical difference does not apply to that case in the slightest--when he shot Martin, he had no ability to retreat, and it was Martin that forced the encounter, not Zimmerman. All of that is very clear-cut in the evidence presented at trial; if Florida had been a full-bore generic DTR state, Zimmerman would have been equally justified under the facts of the case.

The problem is that the word "generic" in the last paragraph is doing a bit of lifting. Florida's specific SYG law did apply to the case, but on a completely secondary point--the text of the law prohibited the arrest of someone claiming self-defense unless the officers had probable cause to believe that the self-defense argument was a lie. Zimmerman's arrest violated the SYG law because the police never had probable cause to believe he was lying; the evidence collected immediately at the scene and the following day (with Zimmerman's active cooperation) uniformly supported his description of events, as did every bit of subsequently developed direct or eye/earwitness testimony.

"Categorically believing, or disbelieving" is a false choice that does not describe the law accurately--the law set up a presumption in favor of the self-defense claimant in protecting him from arrest, but that presumption could be defeated by sufficient evidence to establish probable cause.

My understanding of the Zimmerman/Martin case is that there are no witnesses to how the altercation started between Martin and Zimmerman that ended up with Zimmerman on his back and forced to shoot Martin, but there is plenty of circumstantial evidence that it was a "fighting" situation. Clearly if you start the tape with Zimmerman on the ground then it looks like Zimmerman defending himself against a criminal attack by Martin, but there is no reason to think that Martin (who was going about his lawful business peacefully at the time, regardless of his rapsheet) would respond to Zimmerman following him in a car by hiding in the bushes on the offchance that Zimmerman came back to confront him on foot allowing Martin to jump him.

The most likely scenario and, roughly, the prosecution theory of the case, is that Zimmerman (legally but stupidly) confronted Martin to ask what he was doing, Martin took offence, two hotheads verbally escalated when they should have de-escalated, and blows were thrown. The tape starts when Martin has already won the fistfight and is trying to finish the job, and we see Zimmerman pull out a gun and finish it his way. Classical "fighting" scenario, except someone bought a gun to a fist fight. With reasonable doubt as to who threw the first punch, a clear acquittal under SYG.

Even if Zimmerman had verbally provoked Martin, he can still use force to defend himself if

"Such force or threat of force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use or threatened use of force which is likely to cause death or great bodily harm to the assailant"

Zimmerman pinned down by Martin (thus unable to escape) and having his head bashed fits that condition. Note this is NOT a Stand Your Ground rule -- a person who has provoked another DOES have a duty to retreat; this rule is intended to cover inability to safely escape, not unwillingness.

In Zimmerman's case we have abundant evidence that his story was accurate. We have testimony from Trayvon's friend who was on the phone with him shortly before the encounter that Trayvon made it all the way home and decided to double back to attack Zimmerman. We have an eyewitness who saw the fight from a distance who saw (based on the colors of the clothing he saw etc.) Trayvon on top of Zimmerman, beating him. We have the reports of paramedics and medical examiners showing injuries to Zimmerman consistent with him being grounded and pounded, while the only injuries on Trayvon's body (apart from the obvious bullet to the chest) were to his knuckles.

It was pretty much an open and shut case, and were it not for public pressure (and protests by advocacy groups funded by and working directly with Eric Holder and other members of the Obama DoJ) it would have never gone to trial, and rightly so.

Edit: source on the DoJ's involvement

That's fair. I was thinking more when the case originally blew up in the media and the facts that came out at trial (the injury details) weren't as clear.

A corollary is that to make DTR culture work at urban population densities, you need something like broken windows policing to stop obnoxious blowhards ruling the streets by behaving badly and treating a request to stop as a challenge to a fight.

I'd consider a mob of people surrounding a car as such a set of obnoxious blowhards.