Punishment & Protection: A Libertarian Defense of the Cop-Killers

Put your emotion and knee-jerk reactions aside. To understand when and if violence is permitted, based upon the libertarian nonaggression principle forwarded by Murray Rothbard, we may have to wade into uncomfortable waters. Take it as an exercise in philosophy. And take the following events as the uncomfortable waters needed for our exercise to bear fruit.

Three Recent Events

“I’m sorry for the lack of mercy that people are displaying for [Justin] and for the friend [Daniel Levesque] he lost and for the lack of justice in this world and that he felt it was necessary to take justice into his own hands and set things straight for the family and loved ones of the dead boy [Levesque].”

“I’m sorry for the lack of mercy that people are displaying for [Justin] and for the friend [Daniel Levesque] he lost and for the lack of justice in this world and that he felt it was necessary to take justice into his own hands and set things straight for the family and loved ones of the dead boy [Levesque].” – Jasper Stam, friend of Justin Bourque.

Justin Bourque

On June 4, Justin Bourque ambushed and killed five Moncton RCMP officers. His friend would later state that Bourque’s actions may have been retaliation for the RCMP shooting of Daniel Levesque, a friend of Justin. Daniel Levesque was killed by a Codiac RCMP officer in July of 2013. The investigation, conducted internally by the Fredericton Police, cleared the RCMP officer of all wrongdoing. Despite Levesque having been shot four times, it was ruled that his death was the result of previous stab wounds suffered from an unknown assailant. This has aroused some controversy and local Canadian media outlets have now begun to ask if the Moncton RCMP are paying the price for a pattern of abuse that has received little publicity.

Dennis Marx

On June 6, Dennis Marx drove his SUV up the steps of the Forsyth County courthouse in Cumming, Georgia. He brought homemade explosives, homemade spike strips to delay oncoming vehicles, tear gas canisters, a gas mask and zip tie restraints. Local police stated that his intention was to occupy the courthouse. After engaging in a three-minute gun battle with Deputy James Rush, local SWAT arrived on scene and ended Marx’s life.

Marx was to enter a plea at the courthouse that day on ten counts of the manufacture, possession and sale of illicit drugs, including marijuana, plus one count of having a firearm while in the commission of a felony. In essence, Marx was called to court for victimless crimes. Marx was growing marijuana (a felony) and was in possession of a firearm while growing marijuana (it is a felony to possess a firearm in the commission of a second felony, such as growing marijuana, in the United States). If Marx were convicted he could receive multiple decades — an effective life sentence — for nonviolent crimes.

Amanda & Jared Miller

On June 8, Amanda and Jared Miller, who I previously wrote about here, walked into a CiCi’s Pizza Buffet in Las Vegas and shot two uniformed police officers. They then entered a nearby Wal-Mart, ordered everyone to leave the building and fatally shot a concealed weapons carrier who attempted to defend himself. Although it was initially reported that Amanda shot Jared Miller in a suicide pact, it has now emerged that a Las Vegas officer shot Jared Miller and Amanda shot herself. The initial reports of links to white supremacist movements or neo-Nazi ideology have also been repudiated (as I predicted in my previous article):

Investigators said they believe the shooting was an “isolated act,” and that the couple is not believed to be white supremacists. Instead, they said, the couple appeared to believe the government as oppressive and officers as the enforcement of that oppression.

Understand The Assailants And Their Motives

Amanda Miller Las Vegas Shooting

Amanda Miller had no criminal history, but suffered as her husband Jared Miller was imprisoned and had his rights restricted due to a victimless, nonviolent marijuana conviction.

Neither Justin Bourque, The Millers, nor Dennis Marx had a violent past. Justin Bourque had no criminal history, nor did Amanda Miller. Jared Miller had a felony drug conviction stemming from a marijuana-related arrest for which he served time in a county jail. Dennis Marx was facing serious felony charges for the production of marijuana. Marx, facing multiple decades in prison, had nothing to lose.

None of the past “crimes” of these individuals — before the violence of course — would be criminal in a libertarian society.

Even in the case of firearms charges, to quote Rothbard: “It should further be clear from our discussion of defense that every man has the absolute right to bear arms — whether for self-defense or any other licit purpose.  The crime comes not from bearing arms, but from using them for purposes of threatened or actual invasion.” The state has no legitimate authority, not from a libertarian point of view, to restrict firearm ownership. Not even for felons. Not even for violent felons, much less nonviolent marijuana felons.

We must admit that these laws are unjust. And the Millers, as well as Marx, were the victims of unjust laws. They had a legitimate grievance with the state. They shared the same legitimate grievance that all nonviolent, victimless offenders share. This may not excuse what came next, but it does explain it. Jared wrote extensively on Facebook that he believed he had the right to own a firearm. The United States prohibits nonviolent felony offenders from owning firearms. Marx knew he was going to spend the rest of his life in prison for growing a plant. Can we truly be shocked that these individuals were goaded to violence?

Rothbard, The Ethics of Liberty & Self-Defense

Murray RothbardMurray Rothbard began his chapter on self-defense by stating: “If every man has the absolute right to his justly-held property it then follows that he has the right to keep that property — to defend it by violence against violent invasion.”1 Rothbard clarified that “defensive violence may only be used against an actual or directly threatened invasion of a person’s property” and that “defensive violence, therefore, must be confined to resisting invasive acts against person or property.” This was not restricted to a defense against physical force, but included “two corollaries to actual physical aggression: intimidation, or a direct threat of physical violence; and fraud, which involves the appropriation of someone else’s.” Rothbard explained that if one were to use “the threat of invasion to obtain your obedience to his commands” that this would be “the equivalent to the invasion itself.”

The “threat of invasion to obtain your obedience” is ever present in the modern state. This is the threat that compelled Dennis Marx to appear in court. It is the threat that prevents you from smoking marijuana in public. It is the threat that stops you from opening a lemonade stand without a permit. It is the threat behind every arbitrary, moralistic or victimless law.

The legitimacy of force used to fend off such a threat does not permit what Rothbard described as a “grotesque” use of disproportionate force. He rejected the idea that the shopkeeper may use force against the street urchin who steals a pack of gum: “By concentrating on the storekeeper’s right to his bubble gum, it totally ignores another highly precious property-right: every man’s — including the urchin’s — right of self-ownership.” Yet this is not a universally accepted premise in the context of the nonaggression principle. Rothbard admitted, but personally rejected, that the “maximalist” position would allow lethal force to be used against the urchin.

Nonetheless the maximalists who would shoot the gum-stealing urchin have no place in our discussion. Justin Bourque, Dennis Marx and the Millers did not face off against an urchin. They confronted the what Murray Rothbard had previously described as a “gang of organized criminals”2 — state law enforcement. It is important to understand the Rothbardian paradigm of law enforcement. As a gang, state law enforcement agencies take on a new character. What we call an arrest is kidnapping in the Rothbardian paradigm. What we call incarceration is slavery in the the Rothbardian paradigm.

Keep this in mind, because from here on out we will be working under the Rothbardian assumption that state law enforcement is a gang whose primary actions consist of kidnapping and enslaving individuals. And the same may be extrapolated to correctional officers who work in jails, court officials and legislators.

It is Defense, Not Collective Punishment

The Ethics of LibertyLibertarianism asserts both the autonomy and the responsibility of the individual. There is no collective punishment. There is also no absolution from individual responsibility. The law enforcement officer who kidnaps a man for growing, selling or possessing marijuana cannot hide behind the facade that his career requires it any more than the assassin can hide behind the facade that his career requires assassinations. As an individual the law enforcement officer is as guilty of a kidnapping as the assassin is of a murder. As an individual the judge who sentences a man to imprisonment is guilty of enslaving a fellow human being.

A misunderstanding of libertarian ethics may make the actions of the Millers, Justin Bourque and Dennis Marx appear to be a form of collective punishment. But they are not. Every law enforcement officer who has arrested a man for a nonviolent, victimless crime is guilty of kidnapping. Every agent of the court who has sentenced a man to incarceration is guilty of an act of enslavement. Even the legislator, far removed from the actual event, is culpable in the Rothbardian view. While the legislator’s mere endorsement of a law is not sufficient to make himself or herself culpable, if they conspire to pass such as a law they become an accessory to the conspiracy: “It is obvious that if [a politician] happened to be involved in a plan or conspiracy with others to commit various crimes, and then [that politician] told them to proceed, he would then be just as implicated in the crimes as are the others—more so, if he were the mastermind who headed the criminal gang.”

These are the “mastermind[s] who headed the criminal gang” in the Rothbardian view: the legislators. They share the culpability of every arrest, every incarceration, made by a law enforcement agent or a court official. Again, this is not collective punishment. This is the direct result of an individual’s participation in a specific gang action.

Rothbardian Retaliation

Rothbard reigned in retaliation under what he called the “theory of proportionality.” This is distinct from defense as outlined above. And many misconceptions arise when defensive actions are misunderstood as retaliatory actions. When people accuse Justin Bourque, David Marx or the Millers of “collective punishment” they are mistaking defensive actions for retaliatory actions.

If defensive actions are not required to be proportional, retaliatory actions require proportionality without a doubt. “We have advanced the view that the criminal loses his rights to the extent that he deprives another of his rights: the theory of “proportionality.”3 Rothbard wrote that proportionality defines “the maximum limit on punishment that may be inflicted before the punisher himself becomes a criminal aggressor” and that “under libertarian law, capital punishment would have to be confined strictly to the crime of murder.”

Clearly, few police officers are guilty of murder. And, as such, they do not merit fatal retaliation. Nonetheless, almost all are guilty of both kidnapping and slavery. And according to Rothbard’s standard of proportionality slavery is a permitted response: “The ideal situation, then, puts the criminal frankly into a state of enslavement to his victim, the criminal continuing in that condition of just slavery until he has redressed the grievance of the man he has wronged.” The practical implication is that while the Millers, Justin Bourque, or Dennis Marx would not be justified in using homicide as retaliatory punishment they would be justified in capturing and enslaving any, and all, officers who have engaged in acts of kidnapping and slavery themselves. And that describes most officers.

But we must remind ourselves — because this is where it gets mixed up — the actions of the Millers, Justin Bourque and Daniel Marx are not necessarily retaliatory. They can also be interpreted as defensive. And as defensive actions individuals would be within their right as per libertarian ethics to use lethal force in response to the “physical aggression: intimidation, or direct threat of physical violence” perpetrated by all uniformed officers on the street.

Rothbardian Retaliation and Restorative Justice

Up to this point it may appear that Rothbard has endorsed “an eye for an eye.” But this is not the case. Rothbard rejected slavery, or imprisonment, as an ideal solution. This is because slavery and imprisonment do very little to restore damages to the victims. Yet, if a man is arrested (kidnapped) and enslaved (imprisoned) — if a man or woman is raped or murdered — how can true compensation be made? Rothbard noted that arbitrary fees, just as arbitrary prison sentences, do little to compensate the victim; they are “wholly arbitrary, and bear no relation to the nature of the crime itself.” Rothbard’s solution was that, as we cannot put a monetary price on kidnapping or enslavement “for proportionate punishment to be levied we would also have to add more than double so as to compensate the victim in some way for the uncertain and fearful aspects of his particular ordeal.”

And what is more than double the price of a kidnapping, the price of enslavement or the price of a rape? We have no clear answer here. Yet, we know that Rothbard’s conception of libertarian ethics permitted the death penalty. And it is not a stretch to assert that the double of a 20, 30, or 40 year prison sentence is the death penalty, nor that the double of a violent rape could be capital punishment. This is speculative, but it is worth examining in more depth. If this is the case, it would also open the door for the actions of the Millers, of Justin Bourque and Dennis Marx to enact lethal retribution upon any law enforcement officers who have taken part in a kidnapping or enslavement.

A Silver Lining

Rothbard wrote, “Many people, when confronted with the libertarian legal system, are concerned with this problem: would somebody be allowed to “take the law into his own hands”? Would the victim, or a friend of the victim, be allowed to exact justice personally on the criminal? The answer is, of course, Yes, since all rights of punishment derive from the victim’s right of self-defense.”

This sounds akin to vigilantism; passionate, imbalanced and brutal. Yet, this is because a libertarian system of criminal justice allows — just as libertarianism as a whole allows — maximum liberty. The capricious individual, the Shylock who wants his pound of flesh, may seek it in a libertarian society. But so may the individual who wants absolute mercy:

In the first place, it should be clear that the proportionate principle is a maximum, rather than a mandatory, punishment for the criminal. In the libertarian society, there are, as we have said, only two parties to a dispute or action at law: the victim, or plaintiff, and the alleged criminal, or defendant. It is the plaintiff that presses charges in the courts against the wrongdoer. In a libertarian world, there would be no crimes against an ill-defined “society,” and therefore no such person as a “district attorney” who decides on a charge and then presses those charges against an alleged criminal.

The state does not allow this and, as such, prohibits forgiveness. A crime against an individual is a crime against the state. The punishment or sentence may have no utility in restoring the rights or damages to the victim. Or, to put it another way: “If [the victim] were a Tolstoyan, and was opposed to punishment altogether, he could simply forgive the criminal, and that would be that.” But not with the state.

What, then, of Bourque, Marx and the Millers?

It is clear from Rothbard’s libertarian ethics — the ethical framework that has come to define the nonaggression principle — that the acts of Bourque, Marx and the Millers can be justified unquestionably as defensive acts in response to the ongoing intimidation, threat and persistent force of institutionalized state policing. This is not a palatable position for most, but it is fully consistent with Rothbardian libertarian ethics and the nonaggression principle. It is less clear, but there is also a strong argument that said attacks could also be legitimate reprisals, in addition to defensive acts, for kidnappings and enslavement committed by state police. When we remove emotion from the picture, when we consistently analyze the ethical principles of Rothbard’s libertarian magnum opus, these are the conclusions we must arrive at.

But, justified as they may be, these are not prescriptions for libertarian criminal justice. That is the beauty of libertarian ethics. Yes, if you are abused you may go the Jared Miller or Dennis Marx route. But you may also go the Leo Tolstoy route. You may forgive, fully and completely, those who have trespassed against you. As a victim of (multiple) violent crimes I have chosen the latter simply by refusing to call the police. But at the same time, as a libertarian, I cannot condemn the Millers, Marx or Bourque for seeking justice as they see fit.

Resources

1. Murray Rothbard, The Ethics of Liberty, Ch. 12.

2. Murray Rothbard, 1969. Confiscation and the Homestead Principle, The Libertarian Forum.

3. Murray Rothbard, The Ethics of Liberty, Ch. 13.

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