Thanks to contributions by readers (greatly appreciated), this post became a Post Scripts. That is, comments to Other Aspects spur revisits or supplementation of past posts.

I. “Good News About Lawyers: Client Protection Funds” (April 21, 2020)

With reference to this post – and after the killing of George Floyd – a reader wrote:

How about a policeman’s fund for innocent victims of police violence, paid out of dues or if necessary the police pension fund?

The reader was taking me up on my suggestion that professions besides law also consider creating remedies to protect victims of their bad actors. This got me thinking not only about that intriguing specific suggestion but also a much broader aspect: false dichotomies created in confronting wrongdoing. The amount of time and effort we waste fighting over foolish fallacies boggles the mind.

A. The Specific Suggestion: A Police Misconduct Fund?

It is intriguing. Any opportunity to right a wrong has appeal. While not saying it couldn’t be done, there are reasons a fund for victims of police misconduct would be more difficult to do well than a lawyers’ fund for client protection. Among them:

Relief anticipated from a fund: Lawyers’ funds replace clients’ money taken by a dishonest lawyer. The amount is usually clear. For police, would it be money damages? Who would decide and how would they arrive at a figure?

Threshold jurisdiction: A lawyer must be suspended, disbarred, or convicted of a crime for most funds to have jurisdiction. Requiring the equivalent for police officers would preclude many potential claims, including valid ones. This is one of the main reasons for protest, and what most needs to be fixed.

Contributory behavior: Where a lawyer steals, the client’s conduct seldom gives pause. While the victim’s innocence will be equally clear in some police tragedies, many cases will have difficult, contentious issues regarding facts and fault. The kind of fact finding done in litigation, including cross-examination, seems better equipped to deal with such issues than more informal claims.

The need for a fund: Civil suits against broke, disbarred lawyers are throwing good money after bad; without the fund, no remedy exists for victims. Not so against police departments.

In sum: where they exist, the problems with police misconduct – the need for prevention, accountability and consequences – require fixing before you even get to damages for victims. While state and federal law may need tweaking, civil remedies exist, if you can get to them. In both law and law enforcement, prevention of misconduct must be of paramount concern. Failing that, accountability must reign.

B. The Broader Issue – the Trap of False Dichotomies – When Members of Good Professions Go Bad

When either lawyers or cops go bad, the good ones must decide how to react. In both professions, generally, the good ones vastly outnumber the bad and abhor their serious misconduct. It doesn’t follow that the repercussions of such misconduct are always appropriate.

Lawyers

All the honest lawyers make the lawyers’ fund possible, but every now and then, there’s a bar leader who doesn’t get it. Invariably, this is a good lawyer who just HATES to admit there are bad lawyers. It would be nice if denial erased misdeeds, but if the denier is, say, a prosecutor disinterested in white collar crime, public outrage is justified.

Police Officers

The stakes are even higher – often life-or-death – in tragic encounters with police. Also different from lawyers is the layer of protection, and spirit of solidarity, afforded officers by unionization. As with any individual in our system, accused cops (and lawyers) are entitled to constitutional protections, like due process and the presumption of innocence. Sometimes, however, despite clear facts that are very bad, crimes are undercharged, aren’t brought at all, or are prosecuted indifferently. It doesn’t help at all when the following message emerges:

“You either support the Police, no matter what, or you don’t support the Police.”

This is a false dichotomy, a common tactic of those arguing a flawed or weak position. According to them, you have only two choices: agree with them or take a position you completely reject.

Beyond just support, one can respect and admire the police, of course, without endorsing rare instances of horrendous acts. Their job is hard, requiring much skill and courage to do well, and very important. That is why accountability is essential. Like lawyers, most cops are good to very good, but there are some really bad actors. Also like lawyers, no one should be more passionate about bringing bad officers to justice than the good ones.

Lumping all officers together and saying you’re either with them or against them in the context of horrendous misconduct is a terrible disservice to those whose dedication, hard work, and scruples make them above reproach. Taking the false dichotomy bait is a mistake for anyone, whether to countenance criminal behavior or to condemn all cops.

Ancient History

Two slogans from the 60s and 70s make clear that these foolish, false dichotomy arguments are nothing new: “America – Love it or leave it!” and “My Country, Right or Wrong!”

“Love it” meant unquestioning acceptance of what current governmental leaders did, it being said by someone who liked what the leaders were doing. Which, if you didn’t like, you had to leave. Expressing a contrary opinion wasn’t an option. Even as a young guy, I rejected this out of hand. Sez who, I gotta leave?

The second saying was clearer about the unfortunate message intended. Either you support a position espoused by your country’s current leaders, even when wrong, or you’re a traitor. But what if an elected official is the traitor? The more that true patriots love their country, the more they want it to be right – and the more they’re willing to do to help their beloved country get it right. The false dichotomies in use now may be slightly more subtle or disguised, but they’re the same old ridiculous attempts at intellectual bullying.

Another Current Example: Response to BLM

The common reply to “Black Lives Matter” never ceases to amaze me. It’s reflexive, almost automatic: “ALL lives matter!” And there’s indignation, at least – often outright anger, even rage.  

I’ve never seen a sign that says “Only Black Lives Matter” or “Black Lives Matter More Than White Lives”. Never. Nor is it implied. The clear meaning is more like “Black Lives Matter, Too” or “Black Lives Matter As Much As Anyone Else’s”.

As a matter of pure, simple logic, of course, it cannot be that All Lives Matter, unless and until Black Lives Matter. After centuries of we Caucasians – not every one of us, but as a group – seldom missing an opportunity to make clear that lives of color matter less, if at all, the response to “Black Lives Matter” is “How dare you!”?

The indignation and anger comes from two pernicious fallacies: (1) Lives mattering is a zero-sum game (see post of 4/2/19); (2) therefore, for Black lives to matter, Blue (or White) lives can’t, or must matter less – as false a dichotomy as there is.

Some people are earnest and sincere in saying “All lives matter.” More importantly, they live like they mean it, the anger and resentment missing. Indeed, for them, the saying BLM is a truism.

After John Lewis passed recently, a nun recalled how he’d been brought to Samaritan Hospital with a broken skull on Bloody Sunday in 1965. Run by the Sisters of St. Joseph, Samaritan was the only hospital in nine counties that would take Black patients. In the 8/7 piece for New England Public Media, Sr. Patricia Byrne closed with this: “All the questions of Selma are with us again. Sisters, much older and fewer, are asking ourselves just how we can be there now.”

That BLM needs to be said at all in 2020 is mortifying. That it is controversial is disgraceful, unfathomable. Has there been any progress? Yes, there has been glacial, begrudging progress. Once we behave as if All Lives really do Matter, though, genuine problem solving can begin. It’s a better use of our time, effort and energy to actually implement the “self evident truths” of 1776 than argue over false dichotomies.

Others

Here are a couple other false dichotomies that have been around a long time:

Sacred music vs. the Devil’s music – “If you love God, you can’t sing secular music.” It’s hardly surprising that some listeners find aspects of popular music off-putting, but strict adherence to this one can be tragic. One of the greatest singers of the Blues (or any genre, really) Chester Burnett, the Howlin’ Wolf, was disowned by his mother for singing the Devil’s music. Wolf didn’t write “Goin’ Down Slow” but he sang it with more conviction than anyone: Please write my mother/Tell her the shape I’m in/Tell her to pray for me/ Forgive me for my sins. (It’s said the Wolf’s mother declined to come to his deathbed.)

Science vs. Religion – This one is a double-header: (1) “Real scientists don’t, or even can’t, believe in God; (2) meanwhile, “if you believe in God, you can’t accept the findings of science.” As to the latter, God doesn’t want us to learn the details of His creation, and live accordingly? Sez who? Why? Regarding (1), science explains everything that matters? So, the beginning was the Big Bang – Nothingness exploded and then there was something: energy, which evolved into matter, and so forth. This is the intellectual explanation – nothingness exploded – but Thomas Aquinas’s God as the Uncaused Cause is foolish superstition? There can’t be a God who chose to utilize the Big Bang? Or evolution, or countless wonders we haven’t discovered yet?

If readers have false dichotomies they’d like to share, please do. There are also false equivalencies that can be equally galling, but that’s a topic for another day.

II. A Correction on “Senate Republicans, I Know What You Did Last Summer” (June 23, 2020)

Speaking of the police, thanks to the reader who wrote:

It was not the “police” (in the sense that we commonly use the term) that cleared Lafayette Square; rather, it was the federal forces over which Trump had authority–the DC National Guard (which he federalized), US Marshal’s Service, National Park Service Police, and several other agency “troops.” The DC police were not involved. Neither were [the] Arlington PD, which had been there in response to a request from DC Mayor Bowser, then abruptly came back home when Trump launched his assault.

Correct, of course. I should have caught my sloppy, incorrect use of the term ”police”. The fact that those clearing the square of peaceful protesters were unmarked, unidentified federal agents was one of the episode’s most troubling aspects.

While we’re at it, the federal statute mentioned in the post that could have and should have been effectively utilized in response to the pandemic is the Defense Production Act, not the Defense Procurement Act, as originally indicated.

III. “(Y)Our [Expletive]” (August 8, 2020)

In recommending A Warning by Anonymous, I meant to make this point: Isn’t it remarkable that the author right there in the White House is still anonymous? The desire of the president to identify this person and use the phrase that made him famous (YOU’RE FIRED!) must be extraordinary. Considering the detail in the book and the perspective of the devastating content, how can the author not be obvious?

There’s a simple reason – anyone could have written it. Let that sink in. Anyone in the administration could have written how shockingly and disastrously unprincipled and unhinged Donald Trump is. It’s the simple truth and everyone there knows it. Accounts from those departing the White House (the scene of last week’s spectacular RNC Hatch Act violations) continue to be clear, consistent and ever more disturbing.

According to recent escapee Miles Taylor, the great majority of professionals in the administration are beyond appalled and trying to decide what to do. If he’s correct, there might come a point before November 3 when Anonymous and dozens of colleagues resign together and hold a press conference no one will ever forget.

Again, thank you for reading – and writing to me at KenBossong@gmail.com.

Ken Bossong

© 2020 Kenneth J. Bossong