Balko Utterly Demolishes a Few Arguments that Jack Dunphy and I Never Made
Radley Balko is a smart man who sometimes makes apparently telling points about police misconduct. Yet whenever I read a Balko rebuttal to one of my pieces of writing, I find myself rubbing my eyes in amazement — because the argument Balko accuses me of making bears only a faint resemblance to the argument I actually made.
This trend continues today with a Balko-penned blog post at Reason that purports to respond to arguments made by myself and Jack Dunphy. I say “purports” because in nearly every instance, Balko fails to grapple with the actual arguments made by Jack and myself. Instead, Balko valiantly lays waste to arguments that are made to appear as if they originated with Jack and myself, but which in reality came to life only in Balko’s imagination.
For example, Balko says:
Patterico and Dunphy argue that Dunphy’s “lesson” here applies only to the specifics of his hypothetical—that the only time he meant to imply that you risk getting shot for asserting your rights is in the limited circumstance that an officer is looking for an armed, dangerous felon, and you happen to fit the very specific description of said felon given to police. I can’t speak for Doherty, but I stand by my original characterization of Dunphy’s post, for several reasons.
First, if this was Dunphy’s point, it’s unclear why he would invoke it in response to the Gates case, where there was no armed robbery, no getaway car, and no specific description of any unusual characteristics. Either he meant for his “lesson” to be applied more broadly, or his entire post was a red herring.
Second, as emphasized in the excerpt above (a portion that Patterico neglected to include in his post) Dunphy explicitly sets up the hypothetical by stating that its lesson should be taken to heart by “anyone else who may find himself unexpectedly confronted by a police officer.” In other words, not just people driving 1932 Hupmobiles.
(All emphasis in this post is mine.)
I was befuddled by the accusation that I had omitted Dunphy’s phrase “anyone else who may find himself unexpectedly confronted by a police officer.” After rubbing my eyes, I clicked on the link that Balko provided for my post, and was not especially surprised to see the very language Balko had accused me of omitting:
Having established that Balko is sloppy with his facts, let me clear away some of the underbrush before I proceed further, by making two or three points in as clear a fashion as I know how:
- Dunphy and I are not defending the arrest of Gates. Any argument that suggests we are, is a misleading argument.
I have called the arrest an “inappropriate” action by “an offended cop who got high on his own authority and sense of outrage.” In a milder rebuke, Dunphy has called the arrest “imprudent.” It should be clear: Dunphy’s hypothetical is not designed to justify the arrest; rather, it addresses both parties’ behavior before the arrest.
- Dunphy is not advocating unreasonable searches by cops, nor is he criticizing citizens who resist clearly unlawful searches or seizures. Any argument that suggests he is, is a misleading argument.
In Dunphy’s Hupmobile hypothetical, the officer is acting legally. One of the points made by Dunphy’s hypothetical is that a cop can behave perfectly reasonably and legally, even when he is detaining, searching, or giving commands to a completely innocent person. The law is clear: a police officer may forcibly detain a citizen whom the officer reasonably suspects is guilty of a crime — and if the officer acts with reasonable suspicion, the officer’s action is legal even if that citizen later proves to be completely innocent. The point of Dunphy’s hypothetical with a comically named and absurdly rare car is to illustrate, in an exaggerated manner, a stop of an innocent person that is undoubtedly legally justified. (The fact that some real-world stops may also be justified, but less obviously so, does not render the hypothetical inapt; hypotheticals are generated to illustrate basic principles, which often must be applied to real-world situations that are less clear.)
- Dunphy never said that “running your mouth” or “asserting your rights” alone might get you shot. Any argument that suggests he said that, is a misleading argument.
He said that, in a situation where the officer reasonably suspects you of being an armed criminal, failing to obey the officer’s lawful orders may get you shot. Those lawful orders will likely include commands to a) raise your hands; b) get your hands out of your pockets; c) exit a car or house; d) lie on the ground — and so forth. If a citizen operates under the misconception that, because he is guilty of no wrongdoing, he is constitutionally free to ignore the officer’s commands and go about his business, he runs a serious risk of making some motion that the officer interprets as threatening. And the citizen may well find himself full of holes.
With these principles in mind, let us now turn back to Balko’s rebuttal:
Patterico and Dunphy argue that Dunphy’s “lesson” here applies only to the specifics of his hypothetical—that the only time he meant to imply that you risk getting shot for asserting your rights is in the limited circumstance that an officer is looking for an armed, dangerous felon, and you happen to fit the very specific description of said felon given to police. I can’t speak for Doherty, but I stand by my original characterization of Dunphy’s post, for several reasons.
First, if this was Dunphy’s point, it’s unclear why he would invoke it in response to the Gates case, where there was no armed robbery, no getaway car, and no specific description of any unusual characteristics. Either he meant for his “lesson” to be applied more broadly, or his entire post was a red herring.
Let me explain to Radley Balko how an analogy works. An analogy is designed to illlustrate a principle. It is a fallacious attack on an analogy to assert that there are specific characteristics of the analogy that are not present in the real-life example that the analogy is designed to illuminate. The question is whether the principle illustrated by the analogy is applicable.
Here, Dunphy constructed an analogy to illustrate the principle that citizens should realize that, while they may be completely innocent, they may be approached by an officer who, unbeknownst to the citizen, suspects them of a serious crime. (In the Hupmobile example, the serious crime is an armed robbery. In the Gates scenario, it is home burglary.) Citizens should keep that in mind, and should not get offended when the officer treats them as a potential suspect. (The Hupmobile driver should not get huffy and disobey commands to get his hands in the air, since the police officer reasonably fears he may be armed; Gates should not have gotten upset at the officer for following him into his home, as the officer may have reasonably feared that Gates was arming himself.) Jack’s analogy entertainingly illustrates, not that the arrest of Gates was proper (remember, we’re not saying that!), but that the officer acted reasonably in ordering/asking Gates out of his home, and in following Gates into his home — when Gates, a possible burglar, refused to exit, and walked deeper into the house to obtain an ID (or, for all the officer knew, a gun).
So, yes: Dunphy certainly intended for his analogy to be applied more broadly. But that doesn’t mean he was saying the Gates arrest was justified, or that the Gates scenario involved a Hupmobile or anything like that. It was an analogy, and it made a good point, as any rational and unbiased observer can plainly see.
However, it is part of the nature of analogies that, when they are offered to people who refuse to be convinced, those people will inevitably resort to fallacious attacks on the analogy — because, to people not paying close attention, those fallacious attacks sound convincing. “Obama can’t be analogized to President Carter, because Obama is neither from Georgia nor a peanut farmer! Game, set, and match!”) Such fallacious attacks are what Balko is employing when he spuriously notes that in the Gates situation “there was no armed robbery, no getaway car, and no specific description of any unusual characteristics” (well, other than the fact that a possible burglar was seen entering Gates’s home, and the officer soon thereafter confronted a man inside Gates’s home, which actually is a fairly specific description of unusual characteristics that are not shared by anyone else in the world who is not in Gates’s home).
Balko argues:
Dunphy was responding negatively to the idea that the “teachable moment” in all of this ought to be for the police to be more cognizant of our rights, and not make rash arrests or employ racial profiling (we now know of course that the latter most likely didn’t play a role in the Gates arrest). Dunphy’s counter to that sentiment clearly seems to be that if there’s a lesson in the Gates arrest, it isn’t for cops, it’s for everyone else, and the lesson is to avoid “running your mouth about your rights and your history of oppression” when you’ve been confronted by a police officer.
Once again, I find myself rubbing my eyes as I find the argument described to be different from the argument actually advanced. The lesson, to repeat myself yet again, is to understand that even if you’re innocent, the officer may reasonably suspect you of a horrible crime, and if you “fail to do as the officer asks” in such a highly charged situation, you could get hurt rather badly or killed.
It is, I repeat, a rank distortion for Balko to twist this common-sense lesson into a claim that “anyone who asserts his constitutional rights when confronted by a police officer risks getting shot.” It is an even worse distortion for Doherty to claim that Dunphy said “running your mouth about your rights can get you shot.” Again, the specific hypothetical about getting shot relates specifically to a citizen who “fail[s] to do as the officer asks” when he is suspected of being an armed felon. And (remember about analogies) the broader lesson that every citizen should learn is that, like Gates, you may be utterly innocent and still be (reasonably and legally!) treated as a suspect.
It is the legality of the officer’s actions that Balko seems to misunderstand when he argues:
[E]ven within Dunphy’s hypothetical, the innocent driver of the Hupmobile has no idea why he has been pulled over. He doesn’t know about the armed robbery, or that the getaway car resembles his own car. This is precisely Dunphy’s point. He’s arguing that you can’t possibly know what’s going on in a police officer’s head when he stops you or confronts you. You can’t know what circumstances led him to stop you. So you’d best just shut up and submit, even [if] he asks you to do something that you aren’t obligated to do under the Constitution.
No, no, a thousand times, no! Revisit my second bullet point at the outset of this post. The officer in the Hupmobile example is asking for something that the driver/citizen IS obligated to do: namely, comply with his lawful demands while he investigates the driver as a possible criminal suspect. As I noted this morning, failure to comply with the officer’s demands in such a situation is not your constitutional right. Let me say that again: failure to comply with the officer’s demands in such a situation is not your constitutional right. In fact, it could get you arrested and prosecuted. (And, as Dunphy notes, it could even get you shot — if your cavalier dismissal of the officer’s commands is accompanied by a gesture that could be interpreted as threatening . . . something that may well happen if you think you have the constitutional right to do any goddamned thing you want in such a situation.) Dunphy makes no argument that assumes unlawful behavior on the part of the cop — and Balko’s suggestion otherwise is the clearest indication that Balko doesn’t really understand Dunphy’s argument.
This post is for about 1% of you. Rabid Patterico fans already understood everything I just said. Rabid Balko fans are likely to do the Internet Dance and employ every fallacious argument in the book to attack my post. Nevertheless, for a small handful of you with open minds, I felt the need to make these points.
Also, I wanted to point out Balko’s clear and undeniable error in accusing me of omitting a passage that I did not omit. I’m sure he’ll be correcting that with his usual speed and lack of accompanying grumbling.
