Mimesis Law
7 December 2019

Don’t Panic About the Orlando Shooting, Listen To The Lawyers

June 15, 2016 (Fault Lines) — Another terrible shooting and another ride on the media merry-go-round. Terrible events are opportunities for the media to peddle fear and pundits to suck the air out of the room. Emotionally charged events like the Orlando shootings serve as an inkblot, letting us see what we wish.

For example, the push to value diversity over other values has been cited as a cause of the shootings. Others are critical over the lack of a military response to terrorism. Still others see the failure to focus on the Islamic elements of this and other attacks to be the most critical failure.

Meanwhile, the media is busy telling us about “reports” that they are hearing, instead of, you know, doing the actual reporting. Perhaps the shooter was gay and a frequent visitor to the bar. Probably the shooter was motivated by radical Islam or not. The media worked themselves into a breathless frenzy about the type of weapon used, only to be wrong and then pretend like it didn’t matter anyway. And as if mass murder, likely inspired by an overseas terrorist group was not enough, the media was conflicted about whether the attack was homophobic or not. Finally, no discussion of a tragedy would be complete without weighing the political fallout.

Of course, the politics do not stop at simply evaluating the responses of candidates. Someone or something must to be to blame for these murders. Some believe that the guns are to blame and more laws are needed. And declaring gun control a national security issue is a vain attempt to accomplish more than would be otherwise possible. Others see immigration as the problem. More specifically, these folks believe that immigration from Muslim countries needs to be banned. In addition, religious writers have added their voices to the cacophony calling for love.

With all these voices, one could wonder what lawyers could possibly add to the conversation. I have been hard on lawyers at times, but that does not mean that lawyers have nothing worthwhile to add here.

First of all, unless criminals like the Boston Bombers, the San Bernardino killers, or the Orlando shooter are going to either be thrown into Gitmo or summarily executed or deported, eventually the criminal justice system will have to address their deeds. And that of course means involving the lawyers who keep that system running.

Lawyers involved in the criminal justice system understand that law enforcement is mostly an after the fact response. As the saying goes, when seconds count, the police are minutes away. Or in the case of Orlando, three hours away. And predictions about future criminal behavior tend to be just as wrong as other predictions about the future. Intelligence agencies tend to be focused on a sort of “proactive policing,” thus suffers from the same sorts of limitations that law enforcement agencies do, namely the inability to predict the future from tiny amounts of evidence.

Despite the magnitude of harm and the availability of federal dollars, all these “never again” suggestions resemble similar efforts to stop street crime before it happens. Unlike the assumptions built into the War on Terror, local law enforcement understands that we have yet to find the perfect solution to stopping all crime—but just wait until the next Utopia project.

But that doesn’t mean that you give up trying to find smart, cost-effective ways to do so in places where it makes a difference, whether that’s diverting first-time offenders out of the system or incapacitating serious, repeat offenders. So, even if the War on Terror is different than street crime, it shares enough similarities that previous efforts to stop street crime shouldn’t be ignored.

Also, lawyers are experts at evaluating the strength of arguments. For example, Scott Greenfield dissects the facile arguments of many pundits. Scott points out how easy it can be to convince ourselves of things we want to believe and the attendant damage it can cause along the way:

Many people who want desperately to see the end of killings such as happened in Orlando will latch on to anything they can, the life-preserver of their goals. And when that life-preserving is tossed by a law professor, someone with the attributed credibility of a scholar, they will buy whatever he’s selling.

Winkler is selling lies. Dangerous, destructive lies. Secret courts, outrageous excesses of government power, denigration of constitutional rights to pretend they legitimize the circumvention of other constitutional rights. And people will buy lies if they conform to their end goals. American history is replete with examples. But then, if muskets are removed from Hamilton, history ceases to matter.

Likewise, Josh Blackman and Mark Bennett each made cogent and strong arguments against the half-cocked policy recommendations bouncing around television and print. All of them are worthwhile reads.

Unlike pundits, academics and politicians, trial lawyers are molded by the discipline of the case. We listen to our clients and witnesses, read reports, and watch videos in the context of the law involved in the case. The facts at hand might be interesting, but that’s not why they matter to attorneys.

Small details can have big outputs in a given case. The testimony of one witness could possibly turn an otherwise misdemeanor assault into an attempted murder charge. Or being able to frame the specific facts as governed by one rule or another can change the theory of the case.

In the world of media and politics, the putative facts only have to cause a desired emotional reaction. And in that arena, the ends justify the means; there are few enforceable rules. So, these are consequence-free environments where winning and ratings are the only meaningful measurement. Lawyers, in contrast, have to consider how the rules and facts will interact in this case and potentially future cases.

Unlike the pundit who wrote it, Mark Bennett can clearly see the ridiculousness of Rolling Stone’s opinion piece. If a simple cut and paste job can turn the reasoning into a weapon against a different and more favored constitutional right, then it’s probably a weak argument. Likewise, Josh Blackmun sees how a “no-buy gun list” is just as objectionable as the no-fly list was before it. Screening people based on religion and ethnicity for gun purchases risks the same type of abuses that exist in screening travelers on a similar basis.

In a Fault Lines post, Scott points out that there are serious downstream consequences to mucking around with constitutional rights:

But when we put one of the Bill of Rights on the table, subject to popular whim, we put them all on the table. The fight over the Second Amendment might be brutal, but the fight over the First, the Fourth, others, likely wouldn’t be nearly as fierce. There are some fans of the First Amendment around, but there are an awful lot of people who feel it needs some serious work, since, you know, hate speech.

And repealing the Fourth Amendment is damn near a no-brainer, since it’s just a technicality that lets criminals go free. Ask anybody. They watch TV. They get it.

So, these non-lawyers can freely manipulate facts to make their policy suggestions. But they are blind to the collateral damage their suggestions may cause. (Good-bye, First Amendment.) Whenever the ‘there ought to be a law’ crowd gets their way, it will fall to the lawyers to deal with those consequences. This means that they have little incentive to be thoughtful, especially when hyperbole makes more money. Never mind that their careless arguments can easily be turned to other misconceived ends.

None of this is to stay that only lawyers ought to speak about legal matters; after all, everyone lives under the law. Nor is it to suggest that lawyers have a uniquely special powers of reasoning. At a minimum, lawyers can be the canary in the coal mine, offering a warning of the impending danger.

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