Police and the Use of Force

The death of Eric Garner raises important questions about the use of force by the police. The rapidity with which the encounter between Garner and the NYPD escalated to violence suggests an imbalance between the legitimate needs of the police to safely neutralize suspects and the rights of civilians. In order to understand this imbalance, it’s useful to look at the moral requirements soldiers have towards civilians in wartime.

In his seminal work Just and Unjust Wars, Michael Walzer explains the differences between soldiers and noncombatants as a difference of rights. By joining the army, or being conscripted, the soldier gains certain rights and loses others. Specifically, he gains the moral and legal right to kill but loses his right to not be the target of violence. Civilians exist on the opposite side of this equation. They have no right to kill, but they retain their inherent and natural right to not be subjected to violent acts. Yet in war, civilian deaths are often unavoidable, which means this description of rights is too simple. How do we reconcile the right of the soldier to kill and his need to succeed in the mission with the rights of civilians to not be harmed? Walzer offers as a solution the concepts of double effect and double intention.

Double effect is an old Catholic principle that states it is permissible to kill noncombatants as long as that is not the actor’s intention and as long as the act is proportional. In other words, “the ‘good’ and evil effects that come together, the killing of soldiers and nearby civilians, are to be defended only insofar as they are the product of a single intention, directed at the first and not the second.” Proportionality is the only limit on the extent of noncombatant carnage allowed – the good that comes from the legitimate military activity must compensate sufficiently for the evil that results from civilian deaths.

For Walzer, double effect is a good start, but needs further modification. In his view, the proportionality constraint is too weak and easily manipulated to mean anything. Thus to double effect he adds the principle of double intention, which simply means that an action which kills soldiers and civilians is only moral when the soldiers are the intended target and the foreseeable damage to civilians is reduced as much as possible. Such an addition is necessary according to Walzer because,

Simply not to intend the death of civilians is too easy; most often, under battle conditions, the intentions of soldiers are focused narrowly on the enemy. What we look for in such cases is some sign of a positive commitment to save civilian lives. Not merely to apply the proportionality rule and kill no more civilians than is military necessary – that rule applies to soldiers as well; no one can be killed for trivial purposes. Civilians have a right to something more. And if saving civilian lives means risking soldiers’ lives, the risk must be accepted.

Therefore, in Walzer’s eyes, it is permissible to kill noncombatants when the following four conditions hold:

  1. The act is good in itself or at least indifferent, which means, for our purposes, that it is a legitimate act of war.
  2. The direct effect is morally acceptable – the destruction of military supplies, for example, or the killing of enemy soldiers.
  3. The intention of the actor is good, that is, he aims narrowly at the acceptable effect; the evil effect is not one of his ends, nor is it a means to his ends, and aware of the evil involved, he seeks to minimize it, accepting costs to himself.
  4. The good effect is sufficiently good to compensate for allowing the evil effect; it must be justifiable under the rules of proportionality.

These are the moral constraints that bind soldiers’ actions during wartime. At their core, they recognize that noncombatants have rights that must receive deference simply because they are human. It does not matter their nationality, religion, or creed. All human beings retain these natural rights unless they take a specific action, such as becoming a soldier, which sacrifices some of them (in this case in exchange for other specific rights). As Walzer notes, “We draw a circle of rights around civilians, and soldiers are supposed to accept (some) risks in order to save civilian lives. It is not a question of going out of their way or of being, or not being, good Samaritans.” Human rights exist as ends in themselves and can only be violated when the principles of double effect and double intention are met.

These rules, and the reasoning behind them, are extremely useful in illustrating the imbalance between police force and civilian rights in the U.S. If soldiers are expected to bear some risk in order to save civilian lives, what should we expect of law enforcement? To begin with, it’s important to highlight that there’s a fundamental difference between soldiering and policing. The former is dedicated primarily to killing and breaking things, and operates in an environment where violence is accepted and rampant. The later, by contrast, is dedicated to preventing harm to people and their belongings, and operates in an environment where violence is the ostracized exception rather than the established norm.

Furthermore, the specifics of the society being policed matter. In the case of the US, domestic society is relatively peaceful. Violent crime has fallen precipitously in the past several decades. And, despite the large number of privately owned firearms in the US, the vast majority of Americans carry out their daily lives unarmed.

This suggests that when it comes to policing in the United States, the balance between necessity and risk should lean further in favor of risk. In other words, because American police are engaged in police rather than military functions, and operate within a largely peaceful country, they should have to accept greater risk to themselves before resorting to the use of force against civilians. The police should commit themselves to abstaining from force until the last possible moment. While well intentioned, the aggressive use of neutralizing tactics (and growing access to military equipment) is frequently an over-the-top response to rather mundane issues. Police officers have a legitimate right to protect themselves and carry out their duties, but these rights are inferior to the rights held by civilians.

To close, I will offer an example of how this theory should work in practice. In peacetime, there’s no clear-cut distinction between groups of individuals like there is between soldiers and civilians in wartime. Police often cannot identify criminals immediately or from a distance. This uncertainty complicates the police’s job to target and apprehend criminals. Theoretically, there are two extremes in how to deal with this situation. In the first, the police take aggressive action to detain and neutralize any presumed offender, using whatever means necessary to do so and to protect themselves in the process. In the other extreme, the police proceed with caution and resolve to act only once they have a credible doubt about an individual’s innocence. In the process, they take positive actions to avoid harm being done to the individual and any others around him, recognizing that absent confirmed proof or a direct and present threat, that this individual is innocent until proven guilty and retains rights as a human being that must be recognized.

Walzer’s theory of double effect and double intention would appear to favor the latter approach, recognizing all the while that these extremes exist on a scale. Where exactly along the scale policing should fall is too specific of a question to be answered by theory alone. To do so would require answering how much risk should officers be expected to tolerate in doing their jobs? How much risk should the community bear in the process of bringing criminals to justice? It’s difficult to say. In wartime, Walzer offers as a possibility the idea that, “the limits of risk are fixed, then, roughly at that point where any further risk-taking would almost certainly doom the military venture or make it so costly that it could not be repeated.” This rubric, while helpful, still leaves society to adjudicate police action on a case-by-case basis. It’s a good place to start though, and ultimately, double effect and double intention, coupled with a recognition of innate individual rights, should direct us toward a cautious and skeptical approach. Such constraints may appear harsh and onerous, but the legal and moral right to use force should come with severe restrictions. Otherwise, incidents like the death of Eric Garner could be more common than they already are.

 

All quotes taken from:

Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977): 151-157.

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