Friday, December 14, 2007

Joe Horn and Bernard Goetz: America's Vigilante Heros (?)

  • Twice in the past quarter century America has discovered vigilante heroes in violent shootings of criminals. The November 14 saga of Joe Horn in Pasadena, Texas is becoming well known.

    Joe, 61, was upstairs in his home at 2:00pm when he heard glass breaking in his neighbor’s house. He saw Diego Ortiz, 30, and Hernando Riascos Torres, 48, with a crowbar climbing into the neighbor’s house. The residents were away for a few days.

    An increasingly agitated Joe called 911 and talked to a dispatcher, who cautioned Joe not to do anything, pointing out that if Joe went outside he could put his life at risk, and that there “ain’t no property worth shooting someone over.” Heedless to the dispatcher’s admonitions, Joe went outside to retrieve his shotgun from his pickup truck.

    Joe saw the two culprits leaving the house with a bag of loot ($2,000 in cash – which raises other interesting questions). He asked the dispatcher if he should go out to stop them. The dispatcher cautioned him: You’re going get yourself shot if you go outside that house with a gun.” Horn’s response was “You wanna make a bet?” At another point he clearly said “I’m gonna kill ‘em.” He went out, clicking his shotgun, and said to them : “Move; you’re dead,” quickly followed by two shotgun blast killing the two. Joe said to the dispatcher: “I had no choice; they came at me, man. I had no choice.”

    We start with a basic premise in our society: the sanctity of human life. Life is valued higher than property. The general rule is that while you can engage in self-defense, even to the extent of using deadly force if necessary to protect yourself, that privilege does not extent to protecting a neighbor’s house.

    Texas law is more liberal than the common law in allowing the use of deadly force to protect person and property. Texas is also very permissive on the possession and carrying of weapons. It is possible therefore that Horn’s acts may not trigger liability in Texas.

    The deceased burglars were illegal immigrants with criminal records. One had spent six years in prison for cocaine possession and then was deported. Both had several phony ID’s.

    The outpouring of support for Joe Horn has touched a nerve with the American public, or at least a large number of bloggers. A march through the neighborhood by dozens of protestors was led by an African-American leader. It met with hundreds of supporters for Joe Horn. Motorcyclists revved their engines and drowned out the protestors when they tried to talk. A web site has been established for donations to Joe Horn’s legal defense fund. Joe Horn T-shirts are for sale.

    The odds are that even if a grand jury indicts Horn, a jury in the community will probably acquit him.

  • Bernard Goetz was riding the New York City Subway on December 22, 2004 when four African-American youths with criminal records (the four had 18 outstanding bench warrants between them) rose to isolate him from the other passengers on the car. One asked Goetz for $5. Goetz had been mugged twice before and viewed their acts as threatening. (One of the four subsequently stated that they in fact intended to steal from Goetz). Goetz responded by pulling out a .38 revolver and fired five shots, hitting all four, paralyzing one for life with partial brain damage from a bullet shattering his spine. Goetz was promptly labeled “The Subway Vigilante.” His current business is “Vigilante Electronics.”

    New York was experiencing a major crime wave with riding the subway especially problematic. Rudolph Guilani had not yet been elected Mayor of New York City.

    Blogs and talk radio did not exist a quarter century ago, but strong public support existed for Goetz. The first grand jury refused to indict him. He was acquittal by a New York City jury on all charges except for a misdemeanor unlawful gun possession count. Two of the attackers/victims were subsequently arrested for rape and robbery.

    Once a community perceives that the police will be unable to protect their lives, families, and property, once the people believe that the fabric of an ordered society is breaking down, then they will tolerate self-help, unilateral action, extra-judicial means against criminals and criminal activity - in short vigilante justice. We also call it jury nullification.

    Other examples over the past decades illustrate this phenomenon. A 1982 jury in New Haven acquitted a 72 year old woman in shooting to death one youngster and wounding another. Neighborhood youth had been taunting her for years. The shootings were preceded by two days of rock throwing at her house.

    A Bronx jury in July 1991 acquitted a man of attempted murder for shooting his son’s killer in the back on the steps of the Bronx County Courthouse.

    A 1988 Detroit jury acquitted 2 men of arson insetting fire to a neighborhood house used by drug dealers. Similarly, a 1996 jury absolved a man for torching a crack house in West Palm Beach.

    Ironically, crime has been dropping in America in recent years, but people still feel threatened in their homes and on the streets. The “Going Postal” syndrome with random acts of mass violence is occurring everyway in society, including schools and churches. Goetz and Horn will not be the last vigilantes.

Wednesday, December 5, 2007

Indian Casinos: The Dark Side

Connecticut’s Foxwoods and Mohecan Sun, the two largest casinos in the world, showcase a boom in Indian casinos. Seemingly every pueblo in New Mexico has one. They provide employment, hope, pride, revenue, housing and healthcare for tribal members, taxes to the states, and growing political power for the tribes. Considering the 3½ centuries of discrimination and depravations against America’s Native Americans, they deserve whatever success they have achieved.

Prior to the casinos, the situation on most reservations was abject poverty, alcoholism, despair, and unemployment. Many tribes were not even recognized by the federal government, which in essence meant they had no separate rights under federal law. Most reservations were intentionally located on lands seemingly lacking in resources. A classic example occurred with the creation of the Colville Reservation in Washington. It was originally established on the eastern side of the Columbia River by Executive Order. Settlers promptly protested because of the high quality land on that side of the river so it was moved, again by Executive Order, to the western side of the Columbia.

Some reservations contained natural resources, such as oil and gas, coal, timber, and grasslands for grazing. A few, such as the Aqua Calientes in Palm Springs, were blest with an advantageous geographic location. Some scratched out a meager existence with “Indian Smoke Shops.” These sold not only tobacco, but also in some cases alcoholic beverages, such as beer, and fireworks. I remember decades ago when legal fireworks were sold in Washington State as “Safe and Sane,” but a local tribe advertised “Unsafe and Insane” fireworks.

Congress legalized the status of Indian casinos and gambling with the Indian Gaming Regulatory Act of 1988. States have very limited options in authorizing, regulating, and policing Indian casinos. Congress expressly gave them a highly subordinate role in regulating Indian gaming.

The casinos have changed the fortune of many tribes. Foxwoods, while not the first Indian Casino, has been by far the most successful. It is reportedly the largest grossing casino in the world, and pays 25% of its slots revenue to the state. About 400 Indian gaming facilities now gross over $25 billion.

Yet, as is often the case with great success, a dark side exists. Indian casinos are no exception. Although opponents warned of corruption, no reason exists to believe that Indian casinos will be any more corrupt than non-Indian casinos or any other human organization. Any questions about the morality and wisdom of gambling have already been resolved in most states through state sponsored lotteries.

A major issue is not the traditional forms of corruption, but political corruption. The successful Indian casinos are pouring millions of dollars into referendums and the campaign coffers of favored politicians. McCain-Feingold and other campaign laws do not apply to Indian tribes.

One of the lesser reasons California voters recalled Governor Gray Davis was his seeming obsequiousness to tribes contributing to his campaigns. His Lieutenant Governor was similarly tainted in the recall election as he unsuccessfully sought the Governor’s Office. Roughly 20% of all the funding in the recall election came from Indian tribes. Two tribes, the Viejas Band of Kumeyaay Indians and the Pechanga Band of Mission Indians, each directly poured over $2 million into the election.

Much of last year’s corruption scandal of Jack Abramoff, the disgraced lobbyist, was over Indian Casinos. Tens of millions of dollars were collected from several tribes either to facilitate or oppose new casinos.

Another problem, exhibited by a few successful tribes today, is to purge their rolls of members they suddenly and often arbitrarily decide do not in fact qualify as members. Tribes, not the federal government, determine tribal membership. The Supreme Court has held that a tribe’s right to define its membership is viewed as “central to its existence as an independent political community.”

Every “nonmember” removed from the rolls, sometimes it would appear with an electron microscope, sharply increases the payments to the ever shrinking band of remaining members. The exiled members are legally powerless to prevent these ousters, except by appeal to tribal courts. History and human experience teaches us to expect false claims and chicanery when sudden wealth flows into an entity, but that should not justify a purging of tribal rolls of families who have been accepted as members for generations.

On a related note, most tribes possess sovereignty. Tribal entities and tribal lands cannot be sued in federal or state courts. If, for example, you have a dispute with a Nevada or New Jersey casino, you can pursue your legal remedies in state and federal court. By way of contrast, your only recourse against tribal casinos will again be in tribal court, which may not seem a viable remedy to non-tribal members. Tribes also run ski slopes and hotels, such as the Florida hotel where Anna Nicole Smith spent her final days and hours.

Even worse, only 275 of the 360 federally recognized tribes have court systems. The rest will simply create a review committee on an ad hoc basis.

In one case a casino patron was injured by someone running through a casino, knocking her over. Her claim against the casino was rejected by the tribe’s defense counsel and insurer. Imagine her reaction in showing up to her appearance before the tribal panel, finding that five Council members who oversee the casino, sat on the panel and that the presiding judge was the defense counsel who rejected her claim.

If casinos wish to market their operations to hundreds of thousands, if not millions, of non-tribal members, then they should be prepared to answer in non-tribal courts for their wrongful acts.

They have a fear, clearly justified by history, that they will not always get a fair hearing in state courts. The bias can even be by supposedly impartial judges as well as jurors. In one Montana Supreme Court opinion, the Court opined that if the Supreme Court of the United States didn’t like this decision, then they could always reverse it.

The fear of non-tribal members is that they cannot get a fair hearing in tribal judicial systems. To the extent that tribes are engaged in large commercial enterprises dependant upon revenues of non-tribal members, they must be prepared to answer legally for the legitimate claims of non-members.