Saturday, 9 July 2016

Call it cowardice

     I don’t know if it’s the worst thing you can call someone, but it’s still pretty darned inflammatory to call someone a racist. It’s so bad that racist comments are typically prefaced with “I’m not racist, but…”
     Nobody wants to think of themselves as a racist, and so we come up with all sorts of denial and coping strategies, to allow ourselves to pretend that really, we don’t see race, we don’t care what colour someone is, we don’t have a prejudiced bone in our body. And all those little things we do that someone who doesn’t know us might mistake for racist behaviours are really just misunderstood.
     This isn’t completely a bad thing. I mean, overall, I think it’s probably better that everyone recognizes racism as bad in principle, than for people still to be openly adhering to and advocating explicitly racist doctrines. So in a way, it’s progress, I suppose. But it does make it extremely difficult to address one’s own prejudices, if one consistently denies that they exist.

     But you know what? I’m not even going to bother with that right now, except to assert that pretty much all of us have unconscious, maybe even hardwired, presumptions or biases that make some degree of unintentionally racist behavior almost impossible to avoid. This can be measured with cleverly designed testing protocols: see Project Implicit, the results of which show a pretty consistent bias (manifesting as increased processing time to overcome that bias in simple cognitive tasks). I have wondered if the basis of that bias might even be something as tragically simple as contrast; is it just easier for our visual cortex to process and recognize an image as a human face if the eyebrows are darker than the skin? Or are we acculturated to see black as evil and white as good?
     I don’t know, and at this point it really doesn’t matter. The fact is that for some reason, most people of all races have some tendency to see a black person as more threatening than a white person, all other factors being equal. Ideally we wouldn’t, but for some kind of neural flaw or cognitive illusion or learned preference.

     So my point is this: I’m not going to blame a police officer for feeling more afraid when dealing with a black man. Fear has a mind of its own, and doesn’t pay much attention to our rational thoughts. When you’re scared, you’re scared, even if you know you shouldn’t be. Maybe your reasons for being scared are ideologically racist, maybe they’re unavoidable parts of how our brains are wired, maybe they’re reasonable responses to your personal history and experiences. I don’t know why you might be afraid, and I don’t really care. What matters is how you deal with your fear, and you can deny being a racist all you want and we can argue forever about whether or not you’re really deep down a racist, but regardless of why you’re afraid, there is a word we give to people who surrender to fear, and that word is “coward”.
     A coward isn’t necessarily someone who runs away from danger. It’s someone who panics, who is unable or unwilling to act wisely and responsibly in spite of their fear. It’s someone who shoots first, instead of calmly evaluating the reality of the threat. As Frank Herbert memorably put it in Dune, “Fear is the mind-killer”. Fear makes you act stupidly.

     Now, I’m not a cop. Apart from a couple of minor fisticuffs in grade school, I’ve never been in a situation where I had reason to think someone was imminently trying to harm me, much less kill me (unless you count that scuffle with colon cancer). So you might well point out that I don’t know what it’s like, and true, I don’t. But what would you be trying to argue with such a point? That fear is powerful, and it’s right to surrender to it? Or just that the level of fear is so great that it cannot reasonably be withstood?
     Look, cops have a dangerous job, I’ll grant that. I mean, that’s actually kind of the whole point: we need our police officers to have exceptional courage, because we need them to remain calm and rational, even when they’re scared and thinking they might be killed in the next few seconds. We need people who will confront potentially dangerous situations and turn them into safe situations. That’s a lot to ask, I know, but if you aren’t able to stay on top of your fear, you really ought not to be in this line of work. A coward with a gun is dangerous and unpredictable, and cowards get people killed: themselves, their colleagues, innocent bystanders.
     I don’t blame the cop who shot Philando Castile the other day for being scared. There’s no arguing with fear. But I do blame him for letting that fear call the shots, because by surrendering to his fear, he not only killed one innocent person, he also contributed to the atmosphere of resentment, distrust and fear in which a sniper in Dallas shot eleven cops, killing five of them. I’m not blaming him for those shootings, for which only the shooter was responsible, but dammit, a cop’s job is to make society safer for everyone, not just for himself in the immediate circumstance regardless of what it means for everyone else.

     There’s another problem with cowardice, a more systemic one, and that is that cowards (being governed by fear) naturally assume that’s what drives everyone else. And so they tend to approach conflicts as contests of fear: they think whoever’s the most scared loses, so they try to pretend that they’re not afraid at all, while they strive to be as terrifying as possible to their enemies. I mean, it’s a natural strategy with a long evolutionary history; even insects do it. But it’s inherently unstable, and degenerates into destructive arms races; every escalation must be met by a greater escalation. And every challenge, every failure to defer to the authority of might-makes-right must be made an example, for fear of showing any sign of “weakness”. And the only place that can end is with everyone being terrified all the time. But that’s fine, I suppose, so long as everyone else is more afraid?

     That’s not what we want from law enforcement. We’re supposed to be less afraid when we have effective police services. Something has gone terribly wrong when they think they must scare people to do their jobs or to stay alive.
     Don’t get me wrong. I think personal and institutional racism in law enforcement is a huge problem. But we can argue until the cows (or chickens) come home about that, because “I’m not racist” is so resilient a belief, and we’ll probably never convince the people who need to be convinced. And in any event, it may turn out to be impossible to fully eradicate the irrational tendency to be more afraid of a black face than a white one. 
     So in the meantime, maybe we should also pay attention to the sheer cowardice driving so many of these shootings, to recognize that part of a police officer’s job is to face dangers so the rest of us can be safer. It’s okay and natural to be afraid, even irrationally (including racistly) afraid. But if you’re so afraid that you cannot do your job without putting other people’s live at greater risk, then what good are you doing anyone?

Friday, 1 July 2016

One Weird Trick to Defeat Phone Scammers

     I kind of enjoy getting calls from telephone scammers. It's fun to play along with them for as long as possible, deliberately keeping them on the line so they can't call someone more vulnerable to their fraud.
     One recent scam that has been making the rounds here in Canada goes like this: you get a call from someone claiming to be with the Canadian Revenue Agency, informing you that a lawsuit has been filed against you and they need to talk to you right away. Most of the time it's a recorded message, but sometimes it's an actual human. Presumably, the idea of being sued by the taxman is terrifying enough that you go ahead and send them the money via some kind of wire transfer or gift card or something that just conveniently happens not to be traceable, because maybe CRA doesn't want to have to declare the income on its own tax return? Um, yeah, I guess that sounds legit.
     The one time I got an actual human calling me on this one, he sounded very polite and professional, and asked if I was going to be represented by a lawyer in this matter. When I said yes, he didn't miss a beat, and asked me for the contact information for that lawyer. Of course, he didn't actually want to contact my lawyer; he was in fact calling my bluff, because I probably hadn't retained counsel for a matter I'd never heard of before this call. And this was a very skillful bit of psychology, because it put me on the defensive, off-balance knowing that I'd been caught out in a lie.
     Or rather, it would have done that, if not for the fact that I am a lawyer. "Well, the problem," I said "is that I haven't actually seen the Statement of Claim yet." Click.
     He hung up on me immediately. Dang. What a disappointment! I was hoping to keep him on for at least a half an hour.

     But these guys are looking for people who don't know very much about the law, and so my mention of a Statement of Claim marked me as someone who'd probably see through their scam, which depends very heavily on making you feel like you have no power, and you must do whatever they say or else. Which is not actually how law works.

     Now, I'm not currently a practicing lawyer, and this must not be construed as legal advice, but there's a very fundamental principle that underlies pretty much all legal procedure, and if you just understand that one thing, you'll be a lot less vulnerable to scammers and schemers of various sorts. And that principle is basically pretty simple: everyone has a right to make their case. Not necessarily to win, of course, but to present their claim against someone else, or to attempt a full and complete answer to any claim made against them. And that means you need adequate notice of a claim against you; in the case of a lawsuit, you must be served with a Statement of Claim that lays out the particulars of that claim.
     See, when you get down to the very core of it, the job of the courts is to resolve disputes.  If everyone agrees about something, it gets done, it doesn't go to court. If the accused pleads guilty, the court doesn't have to hear the evidence. If the defendant agrees that she owes the plaintiff money, she pays it and the court doesn't get involved. Courts are there to decide who's right when there's actually a question to be decided, and if everyone agrees, there's no question.
     But the court wants to make a just and fair decision, based on all of the evidence and all the best arguments available. Ideally there will be lawyers on both sides, and here's the thing about trial lawyers: you hear them addressed as "Counsel", but that's not because they counsel their clients (although they do that, too). It's because their job is to counsel the Court, to ensure that the court considers every favourable argument for their clients' case. Lawyers are called "officers of the court" for this reason, and you might notice that they refer to each other in court as "my friend" and not "my opponent"; they serve the decision-maker together, even if their clients are bitterly opposed. And the lawyers, in order to provide good counsel to the Court, must have access to all the facts, and have enough time to think and research and formulate arguments.

     Which means that Courts hate surprises.

     Surprise witnesses are a staple of TV and movie courtroom dramas, but they are actually very rare, and only allowed in very particular circumstances. The general principle is that both sides to a dispute must be given adequate notice of something in order to be able to respond intelligently. And in particular, this is why we have rules about serving defendants with a Statement of Claim. If I don't know I'm being sued, I (or my lawyer) cannot prepare arguments. If I don't know the charges against me, I can't mount a defense. And if I don't even know I owe CRA money, I can't be expected to pay them, let alone argue why I don't owe them.

     So the upshot of all this is: If someone threatens you with jail or a lawsuit or seizure of assets or any other sort of legal proceeding unless you pay up right away, and they don't give you enough information or time to make a good faith reasonable effort to ascertain if their claim is valid, they're probably trying to scam you. I say probably because it's possible they have a valid claim and just don't know how to proceed with it, but in any event, the best way to defend yourself against scammers and legitimate claimants alike is with good faith insistence on basic procedural fairness. "Really? I'm being sued? This is the first I've heard of it, but if you say so, perhaps it's just been an oversight that I haven't been properly notified. Could you send me something in writing with the particulars, so I can figure out what's going on and give you a proper answer?"
     And remember that good faith is key, here. If you're using this as a stalling tactic, and you know you actually do owe money, that will eventually catch up to you in court. The point to remember is that the Law isn't about winning, but about following a fair and impartial procedure intended to insure that the person in the right wins. If someone manages to prove to you that you are in the wrong, well, pay up and move on. Fair's fair. But if you suspect someone's trying to scam you, polite insistence on procedural fairness will almost always make them hang up and try to scam someone else.