lethal force against a mob

Situation: Pushed to the wall by an overwhelming force of angry protesters, under attack with rocks and blunt instruments, the peace officers open fire.

Lesson: Within their range, according to law, blunt force weapons including clubs and thrown objects can constitute deadly force. Any member of a mob may share its culpability.

It’s a chilly March day with snow on the ground and still falling in an American city policed by a force of some 2,000 sworn, armed personnel. Protests have been rife, all the more so after an armed citizen attempting to disperse a rowdy group of vandals has shot and killed an 11-year-old boy. The small contingent of uniformed men at a street intersection has been urged not to start any shooting, because they’ve been informed many of the protesters are carrying concealed weapons and are fully prepared to use them.

Hatred has focused on the uniformed law enforcement personnel. The protests were born in long-standing discontent that has boiled over. On one side is the growing throng of protesters and on the other, society’s designated “Forces of Order.”

The former virulently hate the latter.

These protests have been born in what the participants see as systemic discrimination against them, and unfair treatment of them and their kind. As they look at the uniforms arrayed against them, the protesters see the very embodiment of the oppression they perceive and abhor. They hate and fear them the way the Jews of Warsaw hated and feared the Nazis.

Those protesters have grown increasingly angry. They shout epithets at the uniformed people assigned to be there, comparing them to a certain kind of lower life form normally raised as food. Some members of the crowd are agitating more vehemently than others, especially one tall, burly black man.

One particularly aggressive member of the mob loudly challenges the authority figures to shoot him. Some of those in the crowd are visibly armed with heavy sticks. Others see the hated uniforms as targets for thrown missiles. Soon they are hurling snowballs, then rocks. People in the crowd are screaming, “Kill them!”

It has begun with a few of the locals verbally and crudely harassing a single one of the “uniforms.” Responding to his call for backup, eight brothers in the same uniforms have arrived to back him up. All are white males. Meanwhile, the crowd has grown exponentially. It is escalating further.

Emboldened, one member of the crowd approaches and swings a heavy stick at one of the peace officers. It impacts with a loud thwack and, struck in the head, the peace officer falls. He regains his feet, gun in hand.

A single gunshot rings out.

Some people hear a man shout, “Fire!”

Several of the men in uniform do just that.

The series of gunshots doesn’t last long. When it is over, 11 members of the crowd have been struck by bullets. One is mortally wounded: Patrick Carr will die two weeks later. Four more are dead or rapidly dying on the snowy street. They include Samuel Gray and James Caldwell, and the youngest to die, Samuel Maverick, 17.

Among them too is the tall black man who was a leader of the crowd. Some witnesses will say he was the first to fall.
His name is Crispus Attucks.

Perspective

The above incident took place at the intersection of Devonshire and State Street in Boston, Mass., on the fifth of March 1770. It became known as the Boston Massacre, and it so aroused the ire of the American colonists it became the most strongly smoldering tinder in what would half a decade later become the roaring bonfire of the American Revolution.

Leading up to the incident, the Colonies in general and Boston in particular were politically polarized. On one side were the Tories, the Royalists who swore by King George. On the other side stood the Whig party, characterized by their opposition to Britain’s policies in dealing with the American colonies. Allied and mixed in with the Whigs were the Sons of Liberty, also known as the Patriots, many of whom would later be among the Founding Fathers of the United States.

Hostilities had been strong. Those uniformed peacekeepers were British soldiers, part of a large contingent led by General Thomas Gage and tasked with keeping a lid on things in Boston, a city considered to be a hotbed of potential revolution. When the colonists called the British soldiers “lobsters” and “lobsterbacks,” they weren’t just talking about the distinctive red coats of their uniforms. The lobster was seen as low on the evolutionary scale — a bottom feeder, a cockroach of the sea — and shouting that epithet against them was the equivalent of calling one of today’s police officers “pig.”

Eleven days prior to the Boston Massacre, a civilian customs service man opened fire on a crowd that was throwing rocks through the windows of a Loyalist-owned shop, one striking the owner’s wife. The shot killed an 11-year-old boy named Christopher Seider. Two thousand Colonials angrily attended the child’s funeral, and the anger was still fresh among the crowd on the night the British troops opened fire at the intersection of Devonshire and State.

The Boston Massacre, as it quickly became known, inflamed passions throughout the colonies. Perhaps in hopes of tamping down unrest, the soldiers who fired were charged with murder, as was their commanding officer Captain Thomas Preston.

The Trials

aptain Thomas Preston, was the first to go to trial. After three hours of jury deliberation, he was found not guilty.

Many colonists were upset by that, but there were explanations. Legal observers of the day felt the prosecutors did a sloppy job, while John Adams managed the defense magnificently. Preston himself would later write to General Gage, “The Counsel for the Crown or rather the town were but poor and managed poorly … my Counsel on the contrary were men of parts, and exerted themselves with great spirit and cleverness.” (1) Testimony differed whether Preston shouted “Fire.” Some witnesses failed to identify Preston correctly. Reasonable doubt had been established.

Many observers then and historians now felt Adams packed the jury. The panel included multiple friends of the captain, one of whom had been known to say prior to trial Preston was “as innocent as a child unborn,” and if he happened to be on the jury, he would never convict him.

When Adams defended the remaining soldiers in the next trial, he would have a steeper hill to climb. Preston, armed only with a saber, had obviously not fired a shot. The dead became so by gunfire, and it was the soldiers who ultimately pulled the triggers.

In their book John Adams Under Fire, Dan Abrams and David Fisher would write of the Preston verdict, “John Adams won his case, but doing so made his defense of the eight soldiers that much more difficult. The jury determined that Captain Preston had not given the order to fire: Therefore, the soldiers must have done it by themselves, without orders. They were responsible, and it put their lives in far greater jeopardy. The penalty upon conviction was death on the gallows. Making the situation even more precarious, the blood lust in the town had not been satisfied. Blood answers blood, but Preston, the lead officer, walked away. The soldiers were different. The people knew soldiers from the streets; if they didn’t know these particular men, they knew others just like them. They’d had their encounters, and there’d been far more bruises than friendships. Men were slain for demanding their God-given rights. Would no one pay for that?” (2)

Adams famously said in the trial of the eight remaining soldiers, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” He added, “It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.” (3)

Adams’ trial strategy was to establish straight up self-defense. In a final argument replete with references to case law and legal scholarship he exhorted the jury, “In the case here, we will take (Private) Montgomery, if you please, when he was attacked by the stout man with the stick, who aimed it at his head, with a number of people round him, crying out, ‘Kill them! Kill them!’ had he not a right to kill the man? If all the party were guilty of the assault made by the stout man, and all of them had discovered malice in their hearts, had not Montgomery a right, according to Lord Chief Justice Holt, to put it out of their power to wreak their malice upon him? I will not at present, look for any more authorities in the point of self-defense; you will be able to judge from these, how far the law goes, in justifying or excusing any person in defense of himself, or taking away the life of another who threatens him, in life or limb; the next point is this: That in case of an unlawful assembly, all and every one of the assembly is guilty of all and every unlawful act, committed by any one of that assembly, in prosecution of the unlawful design they set out upon.”

While many saw Crispus Attucks as victim and martyr, Adams painted him as an instigator who not only earned the massive 770-grain .69 caliber Brown Bess musket ball that exploded his liver but triggered the entire tragedy. Witnesses described Attucks as being armed, not just with a stick, but with a bludgeon resembling a piece of cordwood. In her book The Boston Massacre: A Family History, professor of history Serena Zabin summed up the thrust of John Adams’ theory of the defense: “Here, then, was the storyline for the four judges and jury to hold on to as they sorted through contradictory and confusing evidence. Adams offered his listeners — and the future readers of the trial transcripts — a convenient shorthand for understanding a complicated event. An unruly crowd, separate from both the town and the soldiers it was taunting, drove soldiers to think that they needed to defend themselves from Boston’s inhabitants.” (4)

The trial of Captain Preston lasted five days; that of his subordinates went seven, the court keeping hours of 8 a.m. to 6 p.m. In the end, Corporal William Wemms and Privates John Carroll, James Hartigan, William McCauley, William Warren and Hugh White (the initial focus of the mob’s anger) were found not guilty. Privates Matthew Kilroy and Hugh Montgomery were found guilty of manslaughter. Though they could have been hung, their sentences were commuted to being branded on the thumb with a small capital “M” to mark them permanently as having been convicted of manslaughter.

They served no additional incarceration beyond the months spent in jail awaiting trial. It is generally believed by legal analysts they were the only two shooters convicted because the jury determined they were the only two who fired with intent to kill.

Analysis And Lessons

If reading the above gave you a sense of déjà vu, you are not alone. Today we see outrage and riots when, for example, a Kenosha policeman shoots a supposedly unarmed man who turns out to be armed with a knife, combative, and in physical contact with the officer who fired. We see a nation divided in politics: Think today’s Left and Right, particularly at the far ends of each. This same division is found in the media. Compare today’s CNN versus Fox to 1770 Boston: The colonies were inflamed by Paul Revere’s widespread condemnatory pamphlet A Short Narrative of the Horrid Massacre in Boston, which was only partially balanced by a Loyalist pamphlet sympathetic to the soldiers titled A Fair Account of the Late Unhappy Disturbance at Boston. If past is indeed prologue, let’s look at some lessons.

Lesson: Standing up for unpopular defendants is not necessarily a career-killer. Though some saw John Adams as a turncoat licking King George’s boots, he remained a solid figure in the Patriot movement. He was one of the Founding Fathers as things went on, and of course, became the second President of the United States.

Lesson: Jury selection is critical. Many legal scholars believe a packed jury was the reason for the verdicts, and had the jury box been filled with Sons of Liberty instead, several British soldiers would have hung from Boston gallows. Certainly, friends of defendants shouldn’t have been allowed on the jury. (When the Revolution broke out, several of those Loyalist jurors fled to England and remained there.) However, the composition of the jury was not the only reason most of the defendants got off completely, and two received only a “slap on the wrist” brand on the hand.

Lesson: Disparity of force is for real. Though the term “disparity of force” does not appear to have been used in these trials, it is a long-standing but little-understood legal principle which remains in effect today. It means if an unarmed attacker is so likely to cause death or great bodily harm if his attack continues, such power to harm is the equivalent of a lethal weapon and warrants the defender’s recourse to deadly force. There can be many elements of disparity of force, but the one clearly in play here was the overwhelming force of numbers presented by a mob that far outnumbered the British soldiers. The use of blunt force weapons (clubs, thrown objects) by the crowd was also in play. We cannot avoid the comparison to situations today where frozen bottles of water are thrown, flagstaffs and hard, heavy placard poles are wielded, and illegally powerful lasers which can cause permanent blindness are aimed at LE officers’ eyes. It is obvious the jurors agreed with John Adams’ argument the soldiers were in deadly danger and were justified when they opened fire.

Lesson: “I only followed orders” was no excuse then or now. Witnesses differed whether Preston ordered his men to fire. Preston himself denied it, but prior to the trials the enlisted men sent a note to the judge claiming they fired under orders and would have been executed had they disregarded those orders. Adams, wisely, did not lean on this argument when he defended the soldiers. It should be noted the gunfire did not occur in a single thunderous volley. Eyewitnesses described the sequence of shots as separate; one, Thomas Wilkinson, testified the shots came “with the regularity of a clock striking.” (5)

Lesson: We need to fully understand the legal principle that each member of a mob shares responsibility for the danger they create, and the defensive force that comes back on them. That principle was in play in the Boston Massacre trials, but cannot be applied in some of today’s situations, described by a police supervisor who writes under the pseudonym of “Spencer Blue” as homicidal aggressors being sharks swimming in the protective sea of peaceful protesters. Violent actors in the midst of peaceful people do not necessarily call for unleashing deadly force on the entire crowd.

Santayana warned us those who do not learn from history are doomed to repeat it. If the Boston Massacre planted the seed for the American Revolution that left 25,000 dead, the comparison to events of today is ominous, indeed. While the uniforms and weapons change over time, patterns of human violence historically repeat themselves. As we see the antagonistic violence sometimes demonstrated today by both far Left and far Right, it appears almost as if some radical fringe groups are hoping to ignite a Kent State or Boston Massacre theater of martyrdom for their respective causes.

Footnotes: (1): Abrams, Dan and Fisher, David. John Adams Under Fire. Hanover Square Press, 2020, p. 114. (2): Ibid., Abrams, p. 116. (3): https://founders.archives.gov/documents/Adams/05-03-02-0001-0004-0016 (4): Zabin, Serena. The Boston Massacre: A Family History.Houghton Mifflin, 2020, p. 217. (5) Ibid., Zabin, p. 155.

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