I suppose I should be relieved that the nation’s top cop came waltzing into New Haven the other day talking tough about gun violence, and promising safer streets. But I’m not.
As it turns out, Attorney General Eric Holder was selling the same flawed premises of the war on drugs, a never-ending crusade that has done little to stem drug use, but plenty to fill prisons with non-violent offenders.
Operation Longevity is the name of this new initiative. It’s a tawdry form of guilt by association. At a press conference attended by Holder, Mayor John DeStefano Jr., New Haven Police Chief Dean Esserman, U.S. Sen. Richard Blumenthal and Connecticut U.S. Attorney David Fein, lawmen tried to adopt a swaggering braggadocio.
“The first person that shoots and drops a body, they’re making the choice of who we focus our attention on. We’re not making the choice,” a deputy police chief said, heedless of grammar. This new enforcement initiative is based on the notion of “group accountability,” the lawmen said.
Did they say group accountability?
Let’s get real about the law for a moment, and parse the barnyard offal from what can withstand legal scrutiny. But first, some basics on criminal law.
Almost all crimes require that a person perform some prohibited act with an accompanying state of mind. Lawyers with taste for a little bit of Latin refer to an actus reus and a mens rea. A person might commit a bad act, but lack any culpable mental state, for example; that would be legal insanity.
I assume by “dropping a body,” the new sheriff in town was referring to the crime of murder. In courts of law, murder is the simplest of crimes. A person commits murder when, with the intent to cause the death of another, he causes that death. It really is that simple. Murder is what is known as a specific intent crime. In other words, you have to have it in mind to kill another when you pull a trigger.
Suppose you kill another with something less than the specific intent to do so? If you are reckless, that is, engaging in conduct carrying a significant risk of harm while heedless of the consequences, you might be guilty of the lesser crime of manslaughter. If you were merely careless, or negligent, to some significant degree, you might be guilty of a still lesser crime, criminally negligent homicide.
These concepts lurk in the lawyer’s mind whenever one person causes the death of another. They are what are known as theories of liability.
You can be an accessory to murder if you solicit, assist, cajole or otherwise come to the aid of the person actually pulling the trigger. But, again, something other than being in the wrong place at the wrong time, or associating with the wrong people, is required to be liable as an accessory.
Finally, you might also be liable as a conspirator, meaning you entered into an agreement to engage in illegal acts, and another acts, within the scope of the conspiracy, in furtherance of your joint, and unlawful, ends.
(If your head hurts ever so slightly after this sprint through the basics of liability, you now have a partial answer to the question lay people like to throw at lawyers defending heinous accusations: How can you defend those people? Crime is never quite as simple as it looks in the boldface print of a headline.)
What’s this to do with Operation Longevity?
Prosecutors are promising to expand theories of liability in ways that bend the law in new and novel ways. If a member of my crew kills a competing gang member, just how am I liable for my brother’s actions? The criminal law abhors guilt by association. Indeed, the defense of mere presence at the scene of another’s crime is well known in the law. Operation Longevity seeks to eliminate that defense for unpopular people.
What’s particularly galling about this new initiative is that the law needn’t be stretched at all in an effort to keep guns out of the wrong hands.
In the civil courts, liability for the acts of another is imposed without the fussy distinctions common to the criminal law, at least where inherently dangerous products are at issue. Place a defective product into the stream of commerce, and you, and all others who distributed the item, share liability.
So why not a law that creates an incentive among gun manufacturers and owners to keep their guns out of the wrong hands? A firearm manufactured by Smith & Wesson is used to kill someone? Then fine the manufacturer $250,000. Don’t stop there. Fine the dealer who sold it $10,000. Fine the owners who registered the gun $5,000. All this could be done in the same manner we seize the property of drug dealers, by launching parallel civil proceedings once criminal charges are lodged.
Creating financial incentive for those who manufacture, distribute and legally possess guns to keep guns out of the hands of unlicensed users should be a law enforcement officer’s dream come true. Unlike the market for narcotics, which are often produced overseas and smuggled into the United States, we know who is creating guns, who is selling them, who is possessing them. Did someone say group accountability?
We won’t do it. We love our guns. We want to protect ourselves against dangerous criminals, those gang-bangers who “drop bodies.” But who is going to worry about the kids swept up by eager lawmen armed with this novel embrace of guilt by association? Not the gun lobby — these kids are too often black, Hispanic, broke and trapped in urban enclaves the privileged avoid.
This is more than a war on gun violence. It’s just like the drug war. Cast a wide net, arrest ’em all, lock ’em up, and throw away the key. It won’t stop the body count. But it will imprison the bodies we refuse to integrate in a healthy society.