Law Enforcement, Philosophy, and the Ethics of Belief

From an article on the recent “swatting” case in Wichita, Kansas:

The law allows the police to use deadly force when an officer reasonably believes, given the information at the time he pulls the trigger, that his life or someone else’s life is in imminent danger. The Wichita officers had been told, wrongly, that they were encountering an armed hostage-taker who had already killed one person and was threatening to burn the house down.

“Nine-one-one is based on the premise of believing the caller: When you call for help, you’re going to get help,” Chief Livingston said. The prank call, he added, “only heightened the awareness of the officers and, we think, led to this deadly encounter.”

The antinomies of legalistic reason: The first paragraph tells us that the 911 caller made an accusation of criminal activity. But according to one prominent line of legal reasoning, an anonymous telephone-based accusation at best establishes reasonable suspicion of the commission of a crime–and usually requires a “totality of circumstances” test that conjoins the claims made in the call with facts observed or gathered independently of the call (see Lippmann, Criminal Procedure, pp. 107-109, 139-40, 2nd ed.).

Reasonable suspicion” is a legal standard that asserts that an officer have reasonable, articulable, individualized suspicion that a given individual has committed, is committing, or is about to commit a specific crime as a necessary condition of stopping or seizing the individual. But reasonable suspicion falls short of probable cause, much less of the sort of evidence “beyond a reasonable doubt” required for conviction in a court of law. So suspicions based on reasonable suspicion are defeasible, not conclusive: you can’t wholeheartedly and categorically believe that someone is guilty of a crime simply because you have reasonable suspicion that they may have committed one. And an anonymous tip is at best evidence of reasonable suspicion. So contrary to Livingston, you can’t bank on the premise that a 911 call is to be believed as stated.

In any case, it’s a basic fact of constitutional criminal procedure that an accused suspect enjoys a presumption of innocence until convicted. So the “911 premise” invoked by Livingston is once again false–fatally false.

In other words: to believe an accusation of criminality as stated in a 911 call is to violate the presumption of innocence, and to overshoot (so to speak) what “reasonable suspicion” allows. It’s to allow yourself to be set up for manipulation by anyone with the intention to lead you astray.

And yet, according to another prominent line of legal reasoning, the law is (to some extent) on Livingston’s side:

Eyewitnesses and victims are presumed reliable, and their reports may constitute probable cause. These individuals do not have a motive to distort the truth, and their credibility is enhanced by the fact that they often are interviewed immediately after observing a crime or being victimized by a crime (Commonwealth v. Carey, 554 N.E.2d 1199, 1203 [Mass. 1990]), in Lippman, Criminal Procedure, p. 136.

Confusing, no? And kind of ridiculous, to boot. Just the kind of confusion and absurdity that arises when citizens with “other things to do” leave things to “the experts who know it all.”  Why assume that someone who claims to be an eyewitness or victim is one, and is therefore a reliable truth-tracker? Bear in mind, of course (of course!), that other jurisdictions (notably New Jersey) recognize the obvious: eyewitness/victim testimony cannot be presumed reliable, even when offered in complete sincerity. As for when it’s not offered in sincerity….

To add to the complications: police officers invariably conduct custodial interrogations on the hypothesis that–as if–the suspect were guilty, and are legally entitled to do so. But that doesn’t prove that the suspect is guilty; it’s just a convenient interrogation tactic for getting otherwise taciturn suspects to talk. And yes, an officer confronting a dangerous suspect has to respond directly and immediately to the danger she faces; she doesn’t have the luxury of going through the niceties of complicated legal procedures before acting in self-defense. But that presupposes that she has some evidence, however fleeting, of real danger.

Sed contra: Livingston’s premise remains false despite the legal basis it seems to have: legalities aside, you can’t (shouldn’t) believe that a crime is being committed simply because someone tells you–in a 911 call or otherwise–that they think a crime is being committed. The premise remains false even if most 911 callers are sincerely calling for help, and are sincerely stating the facts as they perceive them. And yet the law accepts it, and law enforcement swears by it, with fatal consequences.

Again, contra Livingston, the point is not that “when you call for help, you’re going to get help.” The point is that an accusation made during a 911 call cannot be assumed to be true simply because it’s been made, or simply because it’s been made in a 911 call in what appears to be a request for help. When you call 911 for help, someone ought to be sent to determine that you really need help of the relevant (police) sort, and if so, to render the assistance you really (objectively) need, not the assistance you claim to need. To belabor the obvious: people err, and people lie–in 911 calls and elsewhere. They also exaggerate, trump up charges, and call the police for reasons that have nothing to do with the legitimate purposes of criminal law enforcement. To treat every 911 call as true because it’s been made is to set oneself up to be played.

That last sentence manages both to be true and to rhyme, two virtues it enjoys over the reigning mantras of citizen-based law enforcement today: “If you see something, say something,” and “If it doesn’t feel right, it probably isn’t.” I don’t expect anyone to adopt my slogan over the reigning ones for either of those reasons. But maybe it’s time for law enforcement to take some lessons in epistemology–and for epistemologists to gear up to teach them some. An epistemically-conscious frolic through the average textbook of criminal procedure leaves one with more questions than answers.

I only wonder whether law enforcement has the receptivity to learn what needs to be learned from epistemologists, and whether epistemologists have the “robust sense of reality”  needed to teach people in law enforcement what most urgently needs to be taught. Be that as it may, a renewed encounter between the representatives of Anytus and Meletus and those of Socrates & Co. is long overdue. After all, last time, they used hemlock. Next time, it may be the SWAT team. It’s probably time for a chat–in a seminar room rather than an interrogation room, with handcuffs and weapons checked at the door.

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