“Burning Chris Dorner Alive”: A Powerful Argument That is Probably Irrelevant

Like many people — certainly not all — I have mixed feelings about the final week of Christopher Dorner.  (Note: I’m not interested here in discussing conspiracy theories about whether he did it; I take the manifesto published under his name at face value and it explains why he’d think that this sort of dramatic and horrific action was appropriate.  Let’s set the conspiracy discussion aside for now.) I would not be surprised at all if his employment complaint regarding cover-up of excessive use of force had had merit; if it did, I can understand his anger.  I can understand why he’d want to kill those whom he thinks conspired to wreck his reputation; I cannot argue, though, with their having a legitimate right to fight back once he had declared his intention to kill them.  (Seriously — can you?  Cops are not supposed to care about their being targeted?  Good luck with that one!)

I can understand Dorner’s going after the innocent loved ones of those persons only as a the product of mental illness or failure of moral reasoning — although, to be honest, one of the top systems of moral reasoning, utilitarianism, would be perfectly comfortable with the notion that those victims might be permissible “collateral damage.”  (We as a country rely on utilitarian principles when we inflict collateral damage — that is, when we knowingly risk killing — innocents overseas.  It should be no surprise that many people in those countries view us, for making that calculation, as most of us do Christopher Dorner.)

Dorner’s apparent calculation was that he wanted to scare the bejeezus out of cops who might engage in cover-ups of wrongdoing and retaliation against whistle-blowers in the future.  He probably wanted not just revenge against those like Det. Quan, who he thought had sold him out, but also to deter future people who (momentarily crediting his theory of what happened) might be similarly inclined to sell out others in the future.  Is preventing further abuses (and arguably saving future lives) worth the deaths of a couple of innocents now? In my opinion: the answer is NO — although like most Americans I’ve defended our nation doing just that at times.  (We’ve bombed a lot of people.  Were Monica Quan and Keith Lawrence any more innocent than the average citizens of Hiroshima and Nagasaki, which most Americans still defend?)

Is this inconsistent?  That answer is YES — and Dorner appears to have been aware of how the inconsistency may have given him a moral out.  The comparison between Dorner and Ali Syed — who last week also murdered innocents in cold blood — are hard to ignore.  Dorner could have killed more innocents (and he defined police as not being innocent) but he didn’t; Syed, in his crazed rampage in the wake of his murder of Courtney Aoki, wanted to kill as many innocents as possible.  (At the site of his first carjacking he did claim differently, but I think that he seems to have had a bit of a credibility problem.  On the other hand, he did let at least one person go despite having a bead on them.  Maybe we can’t read too much into such decisions because such people are not thinking especially clearly.)

So — uh, do we say “thanks for that much, Chris?” What prompts me to write this morning is that, now having been given enough time to get their arguments together, Dorner-defenders (not to be confused with the Dorner-imitators — whom I’ve called “Dornerites” — whose eventual surfacing I’ve already predicted) are coming up with some stronger arguments about how and where to critique the LAPD.  I came across one reasonable-sounding graphic on Facebook a day or so back quoting a person named Ben Swann.  I consider it a mix of reasonable and unreasonable, so I think that it’s worth discussing:

Quote from Ben Swann about Dorner

Some people are going to truckle immediately at the “Regardless of whether Chris Dorner was guilty [or not] of every crime of which he was accused” clause at the beginning.  This is just the old “presumption of innocence” idea; don’t let it throw you.  What concerns me are two of the statements that follow: (1) “under our system of justice, the police are not judge, jury, and executioner” and (2) “burning alive someone accused of a crime cannot simply be justified because of the [seriousness of the accusation].”

Both are true.  Both are also, I think, at least somewhat misleading here.  I’m perfectly fine with criticizing cops; I just want those criticisms to be on a solid footing.  These, to me, are not.

1. “Judge, Jury, and Executioner”

Yes.  Cops are not supposed to be “judge, jury, and executioner.”  At least, not most of the time.  But let’s get real about what this means. What does a judge do?  A judge is supposed to determine the proper application of the law.  So is a cop not supposed to be a judge?  Well, in this respect, a cop is supposed have the function of a judge — in the limited environment of contacts with individuals they encounter who may or may not be in the process of committing crimes.  The “trial judge” in the courtroom — and the prosecutor who evaluates cases before they even get to court — are in a sense acting as “appellate judges” who review the cop’s decisions and actions regarding how to apply the law. Do we want cops and prosecutors to know the applicable law?  Hell yes, we do!  The problem that I have with some cops at some times  is that, negligently or intentionally, in some circumstances they don’t know (or at least don’t follow) the law.  (Not coincidentally, many of these cases work to the detriment of critics of the cops — especially left-wing rather than right-wing, especially poor and uncorrected rather than rich and connected, especially racial and ethic minorities.)

When we say that we don’t want cops to be judges, we’re really saying that we don’t want them to make irrevocable decisions to the detriment of the accused that cannot be reversed at appellate levels — and, of course, killing someone unnecessarily is one of most irrevocable things that a copy could do.  (Burning down their home or destroying their personal property would be examples of others.  So would torturing or inflicting unnecessary pain or humiliation upon them.)  So: cop as “judge in the first instance”: ok.  Cop as negligent or malicious judge: not ok — especially when the cop’s actions are irrevocable.

What about cop as jury?  It’s pretty similar to that of the judge, except that the jury is tasked with determining what the facts are in a given situation.  So, in the first instance, are cops — so, for the most part the same analysis applies.  Cops are the equivalent of juries in the first instance — and the only reason we can tolerate that are that (1) we don’t have much of an alternative in dealing with situations evolving in real time and (2) cops are supposed to act in such a way that their factual judgments are subject to later review and the actions that they’ve taken can be, so far as is possible, reversible.

What about cop as executioner?  Obviously, this is in part a problem because execution eliminates the possibility of later review.  (Just as obviously, that’s not the only problem.)  But do cops have the legal right to be executioners, based on the finding of the “judge on the scene” (themselves) and the “jury on the scene” (themselves)?  Yes, they do — that’s the main reason why they are given guns — although they are supposed to be very reluctant to act as such and any such action is supposed to be subject to very stringent review.

If you want cops not to have this ability, you want to take away their guns — and, as we’ve learned — lots of other methods they can use to execute someone (intentionally or negligently or as a judgment call when they have no other choice.)  Again, you can argue with that — but it’s probably not going to change.  Most of us don’t want a society where only private actors have access to armed security. So again, in all cases, the argument is not actually that cops are not supposed to be “judge, jury, and executioner,” because they are supposed to be able to be all three of these (and the first two of these are to some extent inevitable).  The argument is that they are not supposed to screw up in these three roles — and especially in the last, irrevocable, role of executioner.  And that brings us to the events of two weeks ago today, on Ash Wednesday, Feb. 13.

2. Burning Dorner Alive

Chris Dorner was not “burned alive because of the terrible accusation” made against him.  First, it’s not clear that he was burned alive at all.  To reach this conclusion, one has to believe that he didn’t have the ability and opportunity to kill himself with a bullet when the inflammable tear gas was sent in, and that he didn’t do so — which, if he did shoot himself, would mean that he did so poorly.  My guess is: he killed himself with a gunshot (that was reportedly heard outside the cabin) and that the end was quick.  He wasn’t burned alive in that case — he was burned dead. Not good, but not as grotesque.

Beyond that, he clearly wasn’t burned (whether alive or dead) “because of the terrible accusation” made against him.  That would be crazy.  He was burned because he was resisting arrest and apparently posed a lethal danger to those around him.  Unless you buy into one of several conspiracy theories that Matt Coker has lovingly collected for you over at the Weekly, he killed people; published his manifesto so that people would know why, with an eye towards roiling the populace (and especially the law enforcement contingent) as much as possible; kept killing people; and apparently fully expected to die.  (He seems to have hoped to die in a blaze of glory.  He got the blaze — and for a minority of people he also has gotten the glory.)

Now, when dealing with someone with that motivation, what exactly is one supposed to do as a law-enforcement officer?  Does one still have the responsibility to try to take him alive?

I’d say “yes” — but not at unreasonable costs.  If possible, he should be given an out.  Where critics limit themselves to complaints that the police (speaking generically here to include sheriffs) didn’t give him an out — they do have a point.  Was there an alternative?  Potentially, yes: the Rev. Jesse Jackson (and possibly others as well) had volunteered to go inside to meet Dorner, if he would agree to do so, and to bring him out alive and unarmed.  (By the way, can we get consensus that this is a pretty brave thing for a person to offer to do?  Sadly, my guess is that we can’t.)

In the face of such an offer, I think that the police did have a responsibility to convey it.  I don’t know whether they did.  However, this has to be set against their interest in not letting him escape.  Not letting Dorner remain holed up until twilight or dark seems reasonable.  As for an escort out to ensure his safety, one problem is that Dorner could have taken Jackson or someone else as a hostage and used their threatened (or actual) killing as a diversion.  Someone making that offer would have to understand that they were volunteering to, if necessary, become “collateral damage” in a shooting of Dorner if they were used as a shield or a diversion.  But I don’t get the sense that Dorner was open to negotiation or communication with police at all, so this is not clearly a failure of the police on the scene.  (Again, he probably was not at his peak rationality at that moment.)

Short of that, what were the police to do?  Well, get him to come out of the building.  (Can we agree on that much?  Again, my guess is “no.”)  Use of non-flammable tear gas is a good means of doing so.  Dorner knew what that meant — and he knew what the next step of escalation was.  He chose not to come out.  Maybe that was in part due to the prospect of his being shot — although I don’t see why coming out in his underwear and being shot despite having his hands up wouldn’t have aided his campaign to demonstrate police brutality — but mostly it seems that he had reconciled himself to dying in that building if he couldn’t mount another escape, the only questions being when and how.

Regular tear gas didn’t get him to surrender.  The higher-grade tear gas — quite incapacitating and also quite flammable — would be expected do the trick.  It had a likelihood of burning down the house — either due to Dorner’s setting off a spark or despite his desire not to — but it’s not clear to me that there was a better tactic to get him out of there before daylight faded.  Witnesses say that they heard a single gunshot — my guess (although we may never know) is that he killed himself — and was dead before the fire consumed his body.  Why do I think so?  Because even at that point he did, presumably, have the ability to exit the house before the fire made that impossible.  He would have known what was coming — and that it would likely end in a fire.  He could have left; he chose not to, perhaps believing that he was dead either way.  If it turned out that he was actually incapacitated (say that a filing cabinet fell on him) and desperately did want to surrender — well, sorry, but I can’t really blame the police for a bad turn of luck in a situation that was essentially of his doing.

I understand what prompts Ben Swann to say that intentionally burning someone alive when officially they were simply accused of a crime is unacceptable.  But this wasn’t clearly intentional, and to the extent it was it was balanced against a legitimate desire not to allow him to escape, and Dorner had done a hell of a lot more than simply being “accused of a crime” — including refusing to surrender.

He’s right — this isn’t “Judge Dredd.”  Let’s not pretend that it was.

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)