NJ State Trooper Robert Higbee is on trial for negligent homicide resulting from performance of his law-enforcement duties. It seems to me this is just another in a long string of such questionable prosecutions. (Believing firmly in the principle of the presumption of innocence as I do, the State of New Jersey is going to have to prove its case “beyond a reasonable doubt” before I will think otherwise.)

Americans are rightly wary of the power of government officials (especially police) to abuse their office. But isn’t it interesting that it’s never the “higher ups” who are charged and tried? It’s always the underlings who were “just following orders” who go to jail.

Consider these cases:

• Several Bush White House lawyers are currently in jeopardy for recommending illegal interrogation techniques. But the techniques were approved of—and perhaps even urged—by Pres. Bush’s National Security Council. (BTW: In this article I do not intend to express any opinion as to whether or not “water-boarding” is torture.)
• In 1989, Oliver North was convicted of various crimes related to his involvement in the Reagan-era “Iran-Contra Scandal.” North was a member of Pres. Reagan’s National Security Council. (BTW: In this article I do not intend to express any opinion about the Iran-Contra Scandal.)
• In 1971, Lt. William Calley was convicted for the Mi Lai Massacre. His commanding officers were all acquitted, including Capt. Ernest Medina and Maj. Gen. Samuel Koster. (BTW: I will express the opinion that the Mi Lai Massacre was undoubtedly a low point in American history. I opposed the War in Viet Nam at the time and in retrospect still do in many, many ways—although I now know that American involvement in Southeast Asia prevented the region from becoming Communist, exactly as Pres. John F. Kennedy predicted it would.)

“Just Following Orders”

Since WW II and the Holocaust, when Nazi soldiers and police claimed innocence of mass murder because they were “just following orders,” Americans have rightly looked upon such a defense with disgust.

Unfortunately, it seems that we can’t distinguish between that specious excuse and the more difficult issue of government agents and officials performing their duties as they understand them even when this results in unanticipated “collateral damage” (another obnoxious term).

“Just following orders” is a phony excuse when the acts committed violate basic standards of human decency. People who swear an oath to do a duty have an obligation to resist orders that violate essential morality. You cannot claim you are innocent because you were following orders, when the orders are obviously evil.

But let’s not misunderstand the issued in the Trooper Higbee case: no one is accusing this police officer of an officially sanctioned atrocity. Trooper Higbee is not being accused of an abuse of his power. He did not, for example, beat up a suspect.

Fulfilling Duties

A sad fact of legitimate national defense and law enforcement is that the use of force often leads to injury and death of innocent bystanders. When a law officer obeys the policies of his superiors, this is not the same thing as using an excuse of “following orders.”

• (In Trooper Higbee’s case I’m told his error was not slowing down at a stop sign in the performance of his duties. This seems like a minor infraction of police policies, not a criminal violation of the law. In other words, it sounds as if the prosecution’s claim is that failure to tap the brakes is negligent homicide. But would it have made any difference what speed the patrol car was going when it entered the intersection? How slow would he have had to be traveling in order to stop in time to avoid striking the two young victims? Is there a policy about how slow is slow enough?)

Why is it, then, that people who swear to do a duty, are given orders that seem reasonable, and then follow those orders are always the ones to be blamed when things go awry?

OK. Dumb question. We all know what’s up.

Nothing New

Well, guess what? One of the events that led to the American Revolution was just such an incident: the Boston Massacre Trial. And one of our country’s Founding Fathers went to the aid of the underlings who were supposed to “take the fall” for the real authorities.

The Boston Massacre

The very name “Boston Massacre” conjures up images of British repression of brave American patriots. However, the name was purposefully coined by Samuel Adams in order to inflame colonists against the British regime. It wasn’t really a ‘massacre.’ It was case in which a military guard unit fired into a crowd of violent rioters to prevent them from overrunning a port authority.

What was the Boston Massacre really? In March 1770, rioters attacked the Boston port authority, known as “the Custom House.” Captain Thomas Preston ordered his soldiers to protect the sentry there. Rocks were thrown at them. Some of the soldiers (who weren’t wearing helmets or body armor and were greatly outnumbered) thought they heard an order to “Fire!” They fired on the crowd. Five of the rioters died of gunshot wounds. In less than two weeks, Preston and eight soldiers were indicted.

Gov. Hutchinson of Massachusetts sent word to England for advice, which—when it came—was CYA for King George. To placate the colonists (who were British citizens and taxpayers), Hutchinson put the soldiers on trial for manslaughter in civilian (not military) court, even though they claimed to have been following orders.

Sidebar: The fact that the soldiers weren’t tried by a courts martial is very telling. They were accused of not following orders. Similarly, if Trooper Higbee’s error was in not following orders to slow down at stop signs during a pursuit, then it seems to me he should be subject to suspension or termination, not imprisonment for negligent homicide.

In fact, the British soldiers were performing their duty to protect the port. After all, that’s why the military was stationed in Boston.

Captain Preston was acquitted, because no could “prove” he yelled “Fire!” (Apparently the soldiers’ word for it wasn’t proof.) He went back to England, leaving the rank-and-file soldiers to face trial alone—without his support.

Six soldiers were acquitted, because no one could prove they had fired their weapons or had struck anyone. Two soldiers were convicted.

This was a clear case of soldiers doing their duty, whether or not they received an order to fire on the crowd. It’s absurd to imagine that their captain would have ordered them to guard a sentry post against a violent crowd by just standing there. They would have been derelict in their duty if they had let the Custom House be stormed. (If they simply panicked, then that would have been the captain’s failure to maintain discipline, wouldn’t it?)

The government’s intent in the Boston Massacre Trial was to put the blame for the deaths as far down in the chain of command as they possibly could. As far as King George was concerned, the rioters deserved what they got, but he had to dampen the anger of wealthy colonists who paid taxes into his treasury. That meant he couldn’t ignore the incident. Someone’s head had to roll.

Reasonable Doubt

John Adams, who defended the soldiers, understood exactly what the British government was up to. He wasn’t fooled by the trial judge’s admonition to the jury that they should acquit if they had any “reasonable doubt” about what happened at the Custom House. Adams knew it was his way of winking at the jury of angry colonists and assuring them it was OK to convict the soldiers (even if they suspected they were under orders), because any reasonable person could see that the soldiers had fired guns at “unarmed” civilians.

This was the British judge’s way of saying that “just following orders” is not an excuse.

No, I Don’t Approve of Police Violence

Please take the time to read this article carefully before you comment angrily on my stupidity. Like you, I hate it when people in positions of power torture and kill people.  I even hate it when soldiers and cops make negligent mistakes that result in innocents being injured and killed—everyone with a gun must behave responsibly. But mistakes aren’t the same thing as crimes. Negligence must be egregious before it becomes a crime.

What I’m saying is that people in authority ought not to be given a pass when the people who work for them make a mistake. The people who make the policies should pay the price when their policies are flawed, stupid, or evil.

And—most certainly—the justice system isn’t being just when it puts soldiers, police, and other official agents on trial so that their bosses can throw up their hands and say, “Hey, don’t look at me. I didn’t do it.” It’s those incompetent bosses we need to get rid of.