What follows is in the nature of a thought experiment. I am not a lawyer, and I have only a layman’s familiarity with the ins and outs of the law.
Even so, I understand that there are very obvious problems with what I will suggest below, problems that I will attempt explicitly to take note of. Once again, this is simply meant as a legally-informed way of thinking through an ethical problem rather than as a claim that some sort of juridically viable case can be made.
In the wake of the mass shooting in El Paso by a guy who posted a white nationalist screed on 8chan, social media has been buzzing. One doesn’t have to look too far to find people air-gapping Mr. Trump from any kind of responsibility. This is not just the province of people with tinfoil peeking out from underneath their MAGA caps. One even hears moderate liberals making the argument that, reprehensible as Mr. Trump’s conduct has been in myriad ways, the actions of a white nationalist murderer are the responsibility of that person and that person alone.
In the case of the former, there is not much to be said. For those convinced that everything that Mr. Trump does is, by definition, part of a project that will lead to the regeneration of American greatness, there are simply no counterexamples that will make the case. But for those of a more liberal (or at least non-psychotic) cast of mind, there are a number of elements at play.
The first is the liberal individualist account of free will, which sees each person as capable in the last instance of legislating their own behaviour. This is one of the most common base-level beliefs about the human condition in modern American society, in addition to being fundamental to the punishment structure of the carceral state. It is for this reason that the rules governing insanity defences vigorously assert that the faintest trace of the capacity to discern right from wrong is enough to ground a claim of criminal culpability.
This is, at the very least, more complicated than is commonly believed. There is an extensive literature on free will and moral responsibility, some of which gives credence to that way of viewing matters, but much of which raises difficult questions about it. This is not the place to summarize the (quite voluminous) literature on this topic. But, just to give one example, Bruce Waller’s Against Moral Responsibility (2011) provides numerous examples from the scientific literature that call into question the idea of a rational actor straightforwardly guiding their moral conduct aforethought.
Waller’s point is not that there is no such thing as free will (Derk Pereboom does come close to such an argument in Living without Free Will), but that the questions about free will are profound. We are thus debarred from lording self-indulgent moral superiority over those who violate rules and laws. There is more be said about this below. Suffice at this point to say that, at least on this account, human conduct is at best a mix of self-legislation and post facto retconning of thoughts and actions emerging from other parts of the psyche than conscious intention.
The second is the racial coding of violent actors. You can see this happening as we speak. Conservative politicians (and not only them) are spinning out a narrative that has become typical. Whites are individuals. Some of them have malign intentions. Some of these intentions have valid bases, like the fear of destruction of their communities (white genocide, the Great Replacement theory, etc.). But their bad acts are down to their own inclinations, generally shaped by some variety of derangement.
There is a concomitant other side to this. African Americans and Latinx people are emotionally brittle and inclined to criminal activity. Muslims are jihadis or jihadi sympathizers, without exception. Sometimes this is cast in terms of blood, but more often these days it is just pulled out of the empty air, or the racially valenced bourgeois public sphere. Any possible justifications for the actions of non-whites (systematic exclusion from the circuits of white capital, the heritage of colonialism and neo-colonialism, etc.) are just so much liberal pettifogging. What matters is the essentialist conception of non-whites as prone to violence and crime. When whites commit acts of violence, they are the exception. When non-whites do it they are simply reverting to type.
That this the case can be seen clearly in the emissions of the media, but even more materially in the different ways that these groups are policed. The shooter in El Paso, apparently, surrendered peacefully to law enforcement after exacting his toll. It takes real effort to imagine this happening in the case of someone who wasn’t white. I’m not saying it couldn’t happen, only that it’s markedly unlikely.
In practice, police officers in the United States are prepared to employ deadly force when they feel the slightest threat to their person. In part, this is due to the fact that firearms as freely available a commodity as there is in the country. Also, given the persistent and intense racism abroad in American culture, it is hardly surprising that the bar for “feeling threatened” when confronted by a person of color is extremely low. Deadly force has been employed against people of color in the case of a guy selling illegal cigarettes, a guy sleeping in his car, a guy with a cell phone in his own backyard, a guy with a 3 Musketeers bar, a guy running away from a traffic stop for a broken tail light, a kid with a toy guy who failed to respond to a shouted police command in under two seconds, and on and on.
One might look at each of these cases individually and be able to cobble together some sort of justification in each case, particularly if one were systematically inclined to be sympathetic to one particular side. But a study published in the American Journal of Public Health last year by a team of researchers from Cornell indicated that “Black and Latino men are twice as likely to die during interactions with police.” Given that African American and Latinx males comprise roughly 4 and 12 per cent of the population respectively, this suggests that the threat level that they face is considerably higher.
A second part of the narrative currently being spun across the major media platforms in the United States is the mirror image of the first. If all responsibility rests with the individual (white) then, by definition, it does not lie with white men aged 18 to whatever, and particularly not in any way, shape, or form, with Mr. Trump. After all, Mr. Trump did not call him up to command him to go an shoot up a Walmart. Nor did Mr. Trump issue systematic calls for the killing of people in Walmarts. Ergo, Mr. Trump cannot be held responsible.
There is a case to be made that Mr. Trump is guilty of depraved indifference homicide, if not juridically, at least morally. By constantly demonizing non-whites and both explicitly and implicitly excusing the violent actions of white nationalists, Mr. Trump behaved with depraved indifference to human life. Mr. Trump didn’t have to intend that any acts of violence occur. The violence only has to be a foreseeable consequence of his actions. There has been an identifiable upsurge in white nationalist violence which maps fairly straightforwardly onto Mr. Trump using the platform of the presidency to designate non-whites as animals, rapists, etc.
The uptick in rightwing terrorism since 2016 maps neatly onto the rise of Mr. Trump and his strategy of ramping up inflammatory racist rhetoric in public. According to a study by the Center for Strategic and International Studies,
Terrorist attacks by right-wing extremists in the United States have increased. Between 2007 and 2011, the number of such attacks was five or less per year. They then rose to 14 in 2012; continued at a similar level between 2012 and 2016, with a mean of 11 attacks and a median of 13 attacks; and then jumped to 31 in 2017. FBI arrests of right-wing extremists also increased in 2018.
Moreover, there are also ways that Mr. Trump’s presence and action can be more directly connected to violent conduct. A recent study undertaken at the University of North Texas found that counties in which Mr. Trump held rallies in 2016 experienced a rise in hate crimes of over 220%.
Once he managed to tear himself away from affairs at his New Jersey golf resort today, Mr. Trump addressed the events in El Paso but, as usual, limited his remarks to thoughts, prayers, and the assertion that there were great people there. One supposes that, on Mr. Trump’s view, the situation would have been rather less tragic had it happened in Baltimore or Chicago, or any of the other urban areas whose large non-white populations have made them targets of his vitriol.
Mr. Trump also raised the issue of mental health. This, once again, is straight out of the Republican hymn book. If a white guy commits mass murder, it must be because he was deranged (or played too much Call of Duty or both). This was a particularly odd assertion given the tone and content of the manifesto that the killer posted to 8chan 20 minutes before opening fire. Those with the stomach to read it will find that the writer was by no means unhinged, in any other way than that garden variety sense in which you have to be messed up in order to butcher innocent people.
The shooter makes the argument that, although he felt sympathy for Mr. Trump, the latter shouldn’t be blamed for the shooter’s action. He avers that he held his beliefs long before Mr. Trump became president. But this actually makes it look worse for Mr. Trump since, apparently, the shooter held homicidal racist views for quite a while, but only decided to act upon them during Mr. Trump’s administration. There is also a notable homology between the shooter’s talk of invaders and that which could be found (at least until it was scrubbed out a few hours ago) in the tweet log of the Commander in Chief.
Once again, to be clear, I am not making an argument that Mr. Trump should be, or could reasonably be, indicted in an American court for the crime of depraved indifference homicide. And yet there is a non-trivial moral sense in which he is guilty of precisely that. Mr. Trump is clearly depraved. His propensity to consume McDonald’s filet-o-fish sandwiches is compelling prima facie evidence of that. His indifference is also visible from space. Or at least from the photography pool, given that an image taken from that vantage point showed that Mr. Trump had written himself a note reminding himself to be empathetic when meeting with a grieving family.
There is always a subjective element when courts determine whether the crime of depraved indifference homicide has been committed. But the question is whether one has perpetrated an act imminently dangerous to another human being and demonstrating, “a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.”
Given the way that Mr. Trump and his associates have conducted themselves, it is by no means obvious that any part of this does not apply. It’s not like he has called for the killing of any person or group. But making the sort of racially provocative statements that he has done for the last several years in a country full of heavily armed white nationalist fanatics always stood a good chance of generating adverse outcomes.
In the time between when this essay was first conceived and now, yet another mass shooting has taken place (this time in the Oregon District of Dayton, Ohio). Given what has gone on, and the powerful symbiotic relationship between the NRA and the Republican Party, it is virtually certain that nothing will be done with regard to all of this…unless Ted Cruz gets his way and antifascists are declared a terrorist group. One might, I suppose, offer to of the obligatory thoughts and prayers, but this is the season of thoughts and prayers, and at this point, the market is in glut.
Photograph courtesy of Cowgirl111. Published under a Creative Commons license.