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On law enforcement officers’ liability to defensive harm
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On law enforcement officers’ liability to defensive harm
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On Law Enforcement Officers’ Liability to Defensive Harm By Bob Overing A Thesis Submitted to the Department of Philosophy, University of Southern California in partial fulfillment of the requirements for the degree of Master of Arts in Philosophy and Law December 2016 On Law Enforcement Officers’ Liability to Defensive Harm 2 Table of Contents Table of Contents ............................................................................................................................ 2 Abstract ........................................................................................................................................... 3 1 Introduction .................................................................................................................................. 3 1.1 Exigencies ............................................................................................................................ 4 1.2 Overview .............................................................................................................................. 5 2 Typology of Attackers in Self-Defense Cases ............................................................................. 5 3 Paradigm Self-Defense Cases ...................................................................................................... 7 4 Why Law Enforcement Might Have a Better Excuse ................................................................ 11 4.1 Non-Culpable Ignorance .................................................................................................... 11 4.2 Duress ................................................................................................................................ 13 4.3 Diminished Responsibility ................................................................................................. 15 4.4 Summary of Excuse ........................................................................................................... 18 5 Why Law Enforcement Might Have Better Justification .......................................................... 18 5.1 The Division of Moral Labor ............................................................................................. 19 5.1.1 Rule-Consequentialism and Rules of Thumb ............................................................ 21 5.1.1.1 Broad Rules ........................................................................................................ 21 5.1.1.2 Rules of Obedience ............................................................................................ 22 5.1.1.3 The Limitations of Rule-Consequentialism ....................................................... 27 5.1.2 Special Obligations .................................................................................................... 28 5.2 Hohfeldian Rights and Social Contracts ............................................................................ 28 5.2.1 Three Approaches to Rights: Utilitarian, Kantian, and Contractarian ....................... 29 5.2.2 Breaking the Social Contract ..................................................................................... 32 6 Conclusion ................................................................................................................................. 34 Notes ............................................................................................................................................. 35 References ..................................................................................................................................... 38 On Law Enforcement Officers’ Liability to Defensive Harm 3 Abstract In the United States, law enforcement officers are allowed greater latitude in their use of force than private civilians, who often incur additional penalties for defensive force against officers. This paper explores what could be distinctive about law enforcement officers that makes them less liable to defensive harm than any ordinary person in a similar situation. I ultimately deny that law enforcement officers should be subject to special moral treatment by virtue of their status as law enforcement. In doing so, I adapt Jeff McMahan’s typology of attackers in self-defense cases and describe a handful of self-defense cases involving law enforcement officers and similarly-situated civilians as attackers. I discuss the three major excuses for attackers – nonculpable ignorance, duress, and diminished responsibility – and reject each as a potentially unique excuse for law enforcement officers. Then, I raise and object to two potential justifications for law enforcement attackers – McMahan’s division of moral labor argument relying on rule-consequentialism and role- based reasoning and a social contract theory argument within a Hohfeldian framework. Both potential sources of unique excuse or justification fail. I conclude by recommending greater standardization of self-defense requirements across cases involving law enforcement and civilian attackers, stronger restrictions on officers’ use of excessive force, and greater protections for civilians who employ self-defense against officers. 1 Introduction 1 “Quis custodiet ipsos custodes?” (“Who will guard the guards themselves?”) – Roman poet Juvenal, Satires Self-defense is widely recognized as an exception to the general proscription against killing and other uses of force, both in the academic writing of philosophers and in positive law around the world. Any exception to such a strong moral and legal prohibition must be limited. If someone threatens to flick my ear, I ought not kill her in self-defense. Hence, self-defense must be proportionate. If someone threatens to harm me tomorrow, but I can easily call the police and have her arrested, I ought not harm her in self-defense. Hence, self-defense must be necessary. Other limitations might include that self-defense must be a defense of oneself, not property or third persons, or that self-defense must be used against a malicious or villainous attacker, not an innocent or justified threat. In this paper, I examine whether a different factor, the attacker’s status as a law enforcement officer, affects liability to defensive force. I consider arguments that posit a conceptual distinction between law enforcement and civilian attackers as a source of differential liability. These claims can be distinguished from those that posit a mere empirical distinction between the common contexts in which these attackers find themselves. 2 My thesis is that ultimately, there is no strong argument for treating cases of defensive force against law enforcement officers distinctively. Law enforcement attackers, by virtue of their status, have neither special excuse nor special justification for their attacks; accordingly, law enforcement officers are just as liable to defensive force as similarly-situated civilians. On Law Enforcement Officers’ Liability to Defensive Harm 4 1.1 Exigencies There are at least three reasons why the topic of defensive force in the context of law enforcement deserves special attention: (1) the law enforcement context is generally underexamined in self-defense literature, (2) many arguments within the self-defense literature depend on judgments about law enforcement contexts, and (3) national focus on the racialized dimensions of law enforcement in the United States is at an all-time high, creating a unique demand for new scholarship in the area. Much of the self-defense literature has been applied to the context of war (see McMahan 2009), which does involve a conflict between government employees (soldiers) and civilians. However, there has been little discussion about the domestic context where conflicts arise between police and civilians on a daily basis. This context raises a whole host of concerns – e.g. the role of law enforcement, a civilian’s duty to obey, and hypothetical social contracts – that do not apply in other self-defense cases. Often cases involving law enforcement attackers and defenders are raised as analogies or useful examples, but if I am right that these contexts are under-theorized, then these arguments may need to be re-evaluated. The following is a sample of arguments reliant on judgments about law enforcement. McMahan (2009) and Jeffrey (2012) use law enforcement examples in arguments about the moral equality of combatants thesis in just war theory. Leider (2009) uses law enforcement cases to apply and vindicate his rights-based account of self-defense. Tomkow (2011) reasons about law enforcement examples in arguments about what he calls “the paradox of self-defense.” Kutz (2000) uses law enforcement examples in a discussion of Hobbes’s view on self-defense (p. 755). Finally, Kopel, Gallant and Eisen (2008) define a “human right” to self- defense in international law, involving a case about a policeman to describe the difference between excuse and justification. In sum, many a philosophical argument turns on judgments about law enforcement contexts which I hope to prove controversial. Finally, my current topic addresses an extreme political exigency in the United States, where law enforcement practice is pivotal in ongoing discussions of race relations. Naomi Zack is a notable philosopher in the critical race theory tradition, and her recent book White Privilege and Black Rights: The Injustice of U.S. Police Racial Profiling and Homicide unpacks the racialized dimensions of modern policing. She writes that overt and implicit racism evident in American policing “undermine trust in government, as well as the constitutional legitimacy of government” to such an extent that we can say “[j]ustice…exists for white Americans, but not in the same ways for the rest” (2015, pp. xii-xvi). Zack sees policing as one of the starkest examples of injustice against black Americans, and this conclusion is confirmed by much of the evidence on racial profiling I cite in my Section 5.1. Of course, Zack’s evidence for the overwhelming injustices against black Americans is also striking: “of 2.2 million people in jails and prison in 2005, 900,000 were African American” and between 2005 and 2012, a white police officer killed a black person roughly twice a week (p. 35, pp. 64-65). While Zack acknowledges some of the methodological difficulties of assigning causality and maintaining accurate records of these incidents, there is clearly “a serious problem” (p. 65). On Law Enforcement Officers’ Liability to Defensive Harm 5 Zack worries that her methodology can be critiqued as “color blind” because she heavily analyzes the concept of justice and political rights in the abstract, and I share her concern (p. 16). In the wake of two recent high-profile cases of police homicide of two black men, Philando Castle in Minneapolis and Alton Sterling in Baton Rouge, it might seem insensitive to discuss police attacks divorced from the clearly racialized contexts in which they occur. Zack forcefully argues to the contrary, however, that we can and should situate these events within larger discourses of justice and rights. She states that “the discourse of rights is the only existing practical discourse that can lead to the protection of those conditions for human existence that have been called ‘rights,’” and as such, a focus on rights and self-defense rights in particular can be a powerful tool (p. 16). High-profile cases of police brutality call for impassioned outrage, but they also call out for “analyses in terms of rights and justice” (p. 16). That is exactly what I seek to do in this paper. 1.2 Overview In Section 2, I adapt Jeff McMahan’s typology of attackers in self-defense cases to deduce potentially relevant factors in determining whether law enforcement attackers should be distinguished from civilian attackers. In Section 3, I carefully set out what I call paradigm cases of self-defense in the law enforcement context. Each case involving a law enforcement attacker has a civilian analogue such that the attacker’s status as law enforcement is the only clear difference. In Section 4, I discuss possible sources of excuse for law enforcement attackers: non- culpable ignorance, duress, and diminished responsibility. I conclude that none of these possible excuses is particularly strong in excusing law enforcement attackers such that they would be less liable to defensive force. In Section 5, I discuss possible sources of justification for law enforcement attackers. These are the division of moral labor argument (from rule- consequentialist and role-based reasoning) and a Hohfeldian approach relying on social contract theory. Overall, the two groups should be regarded as generally morally equivalent in the cases described. Lastly in Section 6, I conclude by briefly discussing potential legal upshots of my analysis, recommending that current laws regarding defensive force against law enforcement in the United States are revised to reflect the strong moral arguments against treating these attackers in a special way. 2 Typology of Attackers in Self-Defense Cases While there is little scholarship on law enforcement contexts in particular, the larger self- defense literature has established helpful conceptual resources. I have adapted the following typology of attackers in self-defense cases from Jeff McMahan (2002, pp. 400-401 and 2009, pp. 159-174): A. Culpable Attacker: Attacker poses an unjustified and unexcused threat to Defender and is morally blameworthy for doing so. For example, Attacker is angry and knowingly chooses to take her anger out by threatening Defender. B. Excused Attacker: Attacker poses an objectively unjustified threat to Defender but is not fully 3 blameworthy. For example, Attacker is accidentally given the wrong medication, which makes her violent when she sleepwalks, and she threatens Defender in her sleep. On Law Enforcement Officers’ Liability to Defensive Harm 6 C. Justified Attacker: Attacker poses an objectively justified threat to Defender but the threat, if realized, would wrong B. For example, in order to stop a bomb from killing dozens of innocent people, Attacker pushes Defender, an innocent bystander, out of the way, breaking her arm. 4 D. Just Attacker: Attacker justifiably poses a threat to Defender and the threat, if realized, would not wrong Defender. For example, Attacker knows Defender is a notorious international terrorist and threatens Defender in an attempt to detain her. According to McMahan, this typology creates a spectrum of self-defense cases where, all else equal, the use of defensive force is most justifiable in A and least justifiable in D. At the very least, our intuitions about these cases render clear answers about cases A and D. Most would agree that the use of defensive force is justifiable against Culpable Attackers and that defensive force is not justifiable against Just Attackers, though there are holdouts to these views. 5 My four types do not exhaust the possibilities for different attackers, and McMahan himself expands upon this spectrum throughout his work (2009, pp. 159-174). But for my present purposes, only these four are necessary. Some of the cases of confrontations between law enforcement and civilians fall neatly into these categories, and some do not. However, the categories themselves lend some insight into the underlying variables that may be relevant when evaluating the justifiability of self-defense in the cases I examine. First, the difference between cases of Type A and Type B reveals that an attacker can be excused. According to McMahan (2002, p. 401), there are three commonly recognized forms of excuse: nonculpable ignorance, duress, and diminished responsibility. Diminished responsibility excuses can be further divided into cases of not initiating the attack, not intending the attack, or lacking control over the attack. Importantly, none of these mitigates the wrongfulness of the act itself; when we say an act is excused, we condemn the act but not the actor because she lacks blameworthiness due to an excuse. The medication example I gave for B is a case of diminished responsibility because Attacker has no control over her actions, and she trusted medical professionals to prescribe the right medicine. 6 Second, the difference between cases of Type B and Type C reveals that an attacker can be objectively justified or objectively unjustified. The distinction relies on whether the evidence and reasons the attacker has for threatening force track are mistaken. An attacker is objectively justified if she has sufficient reason to attack, regardless of whether she is aware of the relevant facts. An attacker is subjectively justified if she has sufficient reason to attack, but that reason could be defeated by increased awareness of the relevant facts (e.g. if she had all true beliefs or fully rational assessment of the evidence) (Schroeder 2008 7 ). The example I gave for C is a case of an objectively justified attacker because the threat if realized would wrong the innocent bystander but prevent dozens of deaths. However, if the example were modified such that there is no bomb threat after all, the mistaken attacker would not be a Justified Attacker, since she would not have an objective reason. Third, the difference between cases of Type C and Type D reveals that an attacker’s threat if realized can wrong the defender or not. Employing force against an innocent bystander On Law Enforcement Officers’ Liability to Defensive Harm 7 wrongs her, but employing (necessary, proportionate) force against a dangerous terrorist does not. Thus, whether an attacker wrongs the defender often has something to do with the defender herself. For the purpose of this paper, I am setting aside the question of whether defenders against law enforcement attackers are more or less liable. 8 In sum, McMahan’s typology suggests that there are three features of the Attacker that could make a difference when evaluating cases of self-defense against law enforcement officers: 1) whether attacking officers have a special excuse, 2) whether attacking officers have special justification, and 3) whether an officer’s attack would not wrong the defending civilian. In the following sections, I clearly define cases of law enforcement attackers and then discuss their potentially unique excuses and justifications, which, if sound, would decrease their liability to defensive force. 9 3 Paradigm Self-Defense Cases To see how the factors derived from McMahan play a role in the context of an attacking law enforcement officer, I need to flesh out the details of these encounters. The following ten hypotheticals are paradigm cases of self-defense involving attackers of Types A-D. They are arranged in pairs. I present one case involving a law enforcement attacker followed by one involving a civilian attacker. I have minimized differences between the cases in each pair so that only the necessary features of a law enforcement encounter can affect our judgments. The goals of this section are to clearly describe these paradigm cases and to identify some key simplifying assumptions. For instance, six of my ten examples involve lethal defensive force, but this detail is included to provoke strong convictions about the cases; they could easily be re-written to involve less drastic force. Additionally, I leave out any judgments about whether the attacker’s status as law enforcement or civilian plays a role in categorizing the cases. Instead, I argue for each case’s category based on other factors to give a sense of where the case would lie if status does not play a major role. 10 I first present examples of Culpable Attackers (Type A), second Excused Attackers (Type B), third Justified Attackers (Type C), and fourth Just Attackers (Type D): Villainous Enforcing Officer (VE1): Law enforcement officer A harbors extreme racist dispositions and local civilians know him to be violent. Civilian B, a member of a racial minority group, knows all of this and decides to walk the other way when she sees officer A on the street. Under no illusion that he is doing his job or protecting law and order, A pursues B with the intent to arrest her, merely because of B’s race. Against police procedure, A draws his firearm, and B attempts to escape on foot. A shoots at B. In response, B draws her own firearm and fatally shoots A. And, Villainous Enforcing Neighborhood Watch Captain (VE2): Neighborhood watch block captain A harbors extreme racist dispositions and local civilians know him to be violent. Civilian B, a member of a racial minority group, knows all of this and decides to walk the other way when she sees A on the street. Under no illusion that he is doing his job or On Law Enforcement Officers’ Liability to Defensive Harm 8 protecting law and order, A pursues B with the intent to detain her, merely because of B’s race. A draws his firearm, and B attempts to escape on foot. A shoots at B. In response, B draws her own firearm and fatally shoots A. These two cases are unfortunately realistic, as I described in the Section 1. Both are Culpable Attackers because there is no justification for the threats, no possible excuse, and the attackers are clearly morally blameworthy. It is useful to have cases displaying McMahan’s different types of excuses: non-culpable ignorance, duress, and diminished blameworthiness. The non-culpable ignorance cases are fairly straightforward. Consider this adaptation of McMahan’s classic case The Mistaken Attacker: 11 Mistaken Encounter with Law Enforcement (ME1): Law enforcement officer A has orders to conduct random stops to search suspicious-looking persons for weapons. A sees suspicious-looking civilian B on the street. B looks like known and wanted criminal C, so A tells B to stop walking. B is in fact C’s identical twin, and does not respond to the command because she fails to realize she is the one addressed. A perceives B’s behavior as attempting to evade and decides to stop B by force. Taken by surprise, B resists, and A appears prepared to strike B’s head and neck with a baton. B knows that several hits to head can be lethal, so she takes out her firearm and fatally shoots A. (By stipulation, all of A’s actions are legal and specifically commanded police procedures.) This case is a law enforcement confrontation gone wrong. ME1 relies on confusion about the civilian’s identity, but many other epistemic problems could cause escalation. For instance, an officer might misread a civilian’s actions as evasive or hostile, mistake some object in a civilian’s possession for a weapon, or simply miscommunicate some command (Stoughton 2014, para. 5-8). The purpose of this case is to demonstrate that law enforcement officers make mistakes, and in light of the mistake, the officer is less than fully blameworthy for threatening force. As such, this is a paradigm case of an Excused Attacker in the law enforcement context. Now, consider an analogous case outside the law enforcement context: Mistaken Encounter with Neighborhood Watch Captain (ME2): Civilian A is the neighborhood watch block captain and likes to patrol the neighborhood for suspicious- looking persons. A thinks civilian B looks suspicious because she looks like known and wanted criminal C. A tells B to stop walking, but B is in fact C’s identical twin, and does not respond to the command because she fails to realize she is the one addressed. A perceives B’s behavior as attempting to evade and decides to stop B by force. Taken by surprise, B resists. A takes out a baton and appears ready to strike B’s head and neck. B knows that several hits to head can be lethal, so she takes out her firearm and fatally shoots A. This case is supposed to be directly analogous to ME1 while swapping the attacker’s status as law enforcement to a civilian role. Both ME1 and ME2 seem like cases of Excused Attackers because of their non-culpable ignorance. Consider the following case of an Excused Attacker based on a duress or diminished responsibility excuse: On Law Enforcement Officers’ Liability to Defensive Harm 9 Arrest Quota with Law Enforcement (AQ1): Law enforcement officer A has orders to make a certain number of arrests per month to reach a “performance quota.” The police department is undergoing justified budget cuts, and the police chief wants to improve public perception of law enforcement by reporting record numbers of arrests to reverse the cuts and preserve his own high salary. A knows that if she does not reach her quota, she could be fired. A sees civilian B, a homeless man, sleeping on a park bench, which is a minor misdemeanor in their jurisdiction. A attempts to arrest B, and startled, B does not cooperate, resisting arrest. A threatens to use force to arrest B if he does not comply, and in response, B punches A. It should be obvious that this case is not one of a Just or Justified Attacker. Both the protocol (maximize arrests) and the ultimate cause (to increase public perception of the force for personal gain) make any attack or threat on a homeless man clearly unjust. There is no objective justification sufficient to warrant an attack absent additional information. While the officer in AQ1 does not seem totally blameless or fully excused, she may have at least two plausible partial excuses. First, she operates under a degree of duress. The command from the ranking officer to meet a certain quota carries an underlying threat. If officer A fails to meet the quota, she could lose her job. While not blatantly coercive, this could be a major explanation for why officers do make unjustified arrests like the one described. Second, she could exhibit a form of nonculpable ignorance. Suppose her training is so thorough or her belief in ‘law and order’ is so strong that she simply does not know she does wrong. Such ignorance would not fully excuse her actions, but it is reasonable to suggest that it diminishes her blameworthiness. This is not to suggest that law enforcement officers are morally inept, but there is much psychological research indicating that strict hierarchal authority can impair one’s judgment. Section 4.1 and 4.2 explore this argument in depth. Crafting an analogous Excused Attacker case where A is a civilian is difficult because an arrest is a government function and an arrest quota, a government policy. A neighborhood watch captain does not have similar functions, but some private citizens in the private security industry do, so the best corollary may be the following: Arrest Quota with Private Security Guard (AQ2): Private security guard A works for a security company that has contracted with a large outdoor shopping mall. The security company is facing stiff competition from other firms, and management wants demonstrate the shopping mall’s reliance on their company by reporting record numbers of security incidents. Security guard A has orders to detain a certain number of people per month to reach a “performance quota.” A knows that if she does not reach her quota, she could be fired. A sees civilian B, a homeless man, sleeping on a bench in the mall, which is trespassing, a minor misdemeanor. Following (legal) procedure, A attempts to detain B, and startled, B does not cooperate, resisting. A threatens to use force to detain B if he does not comply, and in response, B punches A. Next, I lay out examples of Justified Attackers: On Law Enforcement Officers’ Liability to Defensive Harm 10 Dangerous Burglar with Innocent Obstruction (IO1): Law enforcement officer A sees burglar C attempting an escape with a bag of stolen items and harming innocent civilians in her path. In an attempt to pursue and ultimately detain C, officer A needs to push innocent bystander B out of the way with significant force. In response to A’s attempt to push B out of the way, B pushes A back with significant force. The civilian analogy is the following: Dangerous Burglar with Innocent Obstruction (IO2): Neighborhood watch block captain A sees burglar C attempting an escape with a bag of expensive stolen items and harming innocent civilians in her path. In an attempt to pursue and ultimately detain C, A needs to push innocent bystander B out of the way with significant force. In response to A’s attempt to push B out of the way, B pushes A back with significant force. There is objective reason for A threaten and use force against B to stop a much larger threat based on simple consequentialist reasoning. These are Justified Attackers because while there is objective justification to attack, the defender is wronged in the process. To create a case of a Just Attacker, we can modify IO1 and IO2 such that the defender is not wronged: Dangerous Burglar with Law Enforcement (DB1): Law enforcement officer A sees burglar B attempting an escape with a bag of stolen items and harming innocent civilians in his path. In an attempt to detain B, A takes out her firearm and threatens, “Stop and put down the bag.” B sees this and fatally shoots A. This case is supposed to be an obvious example of a Just Attacker, and it happens as part of routine law enforcement activities. Officers threaten force to detain felons, especially ones in the act of committing the crime. These threats may seem coercive, but given good evidence and reasons to think that the defender is committing a crime and could hurt innocent people, there is both objective and subjective reason to threaten the burglar. Because the burglar poses an imminent threat and is fully culpable/responsible, he is not wronged by the officer’s attack. In contrast, consider the parallel civilian case: Dangerous Burglar with Neighborhood Watch Captain (DB2): Civilian A is the neighborhood watch block captain and sees burglar B attempting an escape with a bag of expensive stolen items and harming innocent civilians in his path. In an attempt to detain B, A takes out her concealed firearm and threatens, “Stop and put down the bag.” B sees this and fatally shoots A. DB2 seems like a case of a Just Attacker for the same reasons that DB1 is: given good evidence and reasons to think the burglar is committing a crime and could hurt innocent people, there is both objective and subjective reason to threaten him. Since he poses an imminent threat and is fully culpable/responsible, he is not wronged. Still, the difference in status between the two attackers in DB1 and DB2 strikes me as a potentially relevant factor. Some might object that the neighborhood watch captain should call law enforcement instead of taking matters into her own hands. 12 Thus, both cases may be Just Attackers, but there may be a difference in the degree of justness that affects the justifiability of defensive force by the burglar in these two cases. On Law Enforcement Officers’ Liability to Defensive Harm 11 To summarize this section, I have organized the cases in the following table in the order they were presented: Case Type A has an Excuse A is Justified B Would Not Be Wronged by Attack VE1 A. Culpable Attacker VE2 A. Culpable Attacker ME1 B. Excused Attacker Yes ME2 B. Excused Attacker Yes AQ1 B. Excused Attacker Yes AQ2 B. Excused Attacker Yes IO1 C. Justified Attacker Yes IO2 C. Justified Attacker Yes DB1 D. Just Attacker Yes Yes DB2 D. Just Attacker Yes Yes While I have represented “excused/unexcused,” “justified/unjustified,” and “just/unjust” as simple binaries in this table, there are differences of degree. I have not drawn the bottom line by suggesting that the attackers in ME1 and ME2 are both justified; they may have different degrees of justification for their threats due to their status as law enforcement or civilian. The following sections explore and evaluate the potential arguments for the claim that law enforcement attackers are more excused or better justified than similarly-situated civilians. 4 Why Law Enforcement Might Have a Better Excuse In this section, I evaluate reasons why law enforcement attackers may be excused based on non-culpable ignorance, duress, or diminished responsibility in ways that similarly-situated civilians are not. I conclude that none of the three excuse types is a promising defense of the claim that law enforcement officers are less liable to defensive force. 4.1 Non-Culpable Ignorance For law enforcement officers to be partially excused on the basis of non-culpable ignorance, they must have some special epistemic limitations that similarly-situated civilians lack. The Mistaken Encounter 1 case employs the trope of a mistaken identity to demonstrate how bad information can be exculpatory or at least diminish the blameworthiness of an attacker. In law enforcement work, there are many potential sources of factual uncertainty. Limited On Law Enforcement Officers’ Liability to Defensive Harm 12 evidence about a crime or about the identity of a criminal can be contradictory and misleading. In a potentially dangerous encounter, a law enforcement officer could be uncertain about the civilian’s intentions, any hidden weapons, the likelihood of compliance, etc. These uncertainties about the descriptive details of an encounter are unlikely candidates for unique sources of ignorance in law enforcement contexts. Ignorance or partial ignorance of the relevant moral facts, however, may play a role. Officers are rigorously trained to follow procedure and the commands of higher ranking members of the law enforcement hierarchy. Thus, it is unlikely than an officer stops to deliberate about her actions on a regular basis, instead deferring to instincts developed in training or the commands of higher authority. Stoughton (2014) cites the effectiveness of hands-on police training in developing fear in officers and reducing hesitation to employ force. This lack of moral reflection may be objectively unjustified (see Section 5), but if it is reasonable from an officer’s perspective to rely on her training and instruction, then it constitutes an excuse. Ultimately, the strength of such an excuse is determined in part by how reasonable the agent is in remaining ignorant of the relevant facts. Given the moral risks posed by much of law enforcement work, it does not seem reasonable for officers abstain from moral reflection. Officers make life-and-death decisions on a frequent enough basis 13 such that even if deferral to established practice or authority is justified, an individual should reason about that justification. In a particular confrontation where a threat of lethal force is an option, an officer must be confident that the reasons for deferring judgment on what to do trump the general presumption against using force against civilians. Such a general presumption is justified by a very simple moral calculation. If an officer attacks a civilian who is completely innocent, not liable to attack, then the officer does a grave wrong. She has violated an innocent person’s rights. On the other hand, if an officer fails to attack a civilian who is liable to attack, the officer may not commit a wrongdoing of the same magnitude at all. 14 The difference between ME1 and a variant of DB1 is instructive here. The officer clearly does wrong in ME1 by employing force against an innocent person, but suppose the officer in DB1 fails to use force. It is unclear who would be wronged by the officer’s inaction. On purely consequentialist grounds, there may be no or little difference, but on rights-based accounts, there is a very strong moral difference. In low-stakes contexts, this reasoning may be even more persuasive: the arresting officer in AQ1 unjustly attacks a homeless man, and refraining from the attack does not seem nearly as wrong (if at all). 15 This fairly simple argument for precaution when considering force decreases the reasonableness of officers’ deference to training and instruction. Further, there is fairly strong evidence that current police training techniques over- emphasize the use of force. According to Stoughton (2014), violent attacks against officers are “few and far between when you take into account the fact that police officers interact with civilians 63 million times every year. In percentage terms, officers…were injured in some way in .02 percent of interactions, and were feloniously killed in 0.00008 percent of interactions” (para. 9). This is not decisive evidence that intense, fear-inducing police training is unnecessary, but it should at least warrant additional moral deliberation from officers considering force. On Law Enforcement Officers’ Liability to Defensive Harm 13 None of this is to say that the bar for using force should be impossibly high. In cases like Dangerous Burglar 1, it is stipulated that the officer has good evidence because she sees the burglar escaping and harming innocent people along the way. The previous claim is a presumption against harm that can be overridden by sufficiently strong moral reasons. The risk the burglar presents is sufficiently strong consequentialist justification for overriding the presumption against harm. Whether the same can be said of Mistaken Encounter 1 is dependent on the details of the evidentiary and moral facts of the particular situation. The officer has a duty in each case to assess the facts and make a decision, not merely defer to the judgment of others. As I have shown, it is unlikely that most law enforcement officers engage in the appropriate weighing of moral reasons to evaluate whether these presumptions are overridden by exigent circumstances. As such, their ignorance of the moral facts does not rise to the level of a partial excuse. Finally, even if law enforcement officers as a group were woefully ignorant of the moral facts, it would not be due to their status as law enforcement. The training, emphasis on procedure and obedience to hierarchy that lead law enforcement officers to remain ignorant of important moral and non-moral facts is not unique to law enforcement. A private security company could require comparable training and emphasize the importance of obedience to one’s superiors in much the same way a police department does. It may be that, as a matter of fact, private security companies do not have these features. 16 But then it would only be an empirical accident that law enforcement officers have a potential excuse unavailable to private security guards. The availability of the excuse would have little to do with the attacker’s status as law enforcement. A possible objection is that law enforcement officers are less culpable for their ignorance because epistemic deference to government institutions is more justifiable than the same deference to private security companies. This argument is addressed in depth in Section 5 on the justification for attacks. The short answer here is that even if officers are less culpable for their ignorance, they are still not so blameless that their ignorance rises to the level of a full or even strong partial excuse. 4.2 Duress Like the ignorance excuse, an excuse premised on duress is unlikely to constitute a distinctive explanation for why law enforcement officers are excused relative to similarly- situated civilians. On face, it seems that a command from a ranking law enforcement officer to use force could be coercive. Perhaps an officer feels compelled to obey for fear of losing her job. The Arrest Quota 1 case could be modified to include an even more dire threat. Suppose that the officer needs her job to pay for life-sustaining medical treatment or that she has no other means of feeding her family without her salary. These factors would make it pretty clear that she acts under duress. However, this argument only suggests that some law enforcement officers operate under duress. To constitute an excuse for law enforcement officers writ large, it would have to be the On Law Enforcement Officers’ Liability to Defensive Harm 14 case that all or most officers feel coerced into compliance with the commands of their superiors. Further, to have a duress excuse for a particular threat or attack, there would need to be a fairly specific command and penalty for refusing that action. It seems extremely unlikely for routine law enforcement activities that neglecting to threaten or attack one person would result in losing one’s job. The officer in AQ1, for example, is not under a specific threat to arrest the homeless man. Her reason for attacking this person is about as good as her reason for attacking any other person. Thus, it seems the officer has some choice in the matter, mitigating the availability of the duress excuse. To see this more clearly, imagine that person A takes a normal, mundane job, but one day her boss tells her to commit some heinous moral wrong such as killing innocent person B. If A refuses, she will be fired. The correct appraisal of this case is not to suggest that A has an excuse for attacking B because she needed to take the job or needs to maintain the job to earn a living. The correct appraisal is that A should refuse, and she has a very weak partial excuse, if any, for killing B. The harm that A faces (losing her job) is not nearly as bad as the harm she would impose on B (death). This is true from a pure consequentialist perspective but also from a rights- based perspective: the innocent person has a right not to be killed, but there is no right to have a particular job. This argument also explains why A would not be acting in justified self-defense against her boss by killing B: the act is not proportional to the threat. Other examples are less clear. The AQ1 case is one where the harm to the homeless man sleeping on a park bench is not so drastic that the law enforcement officer should obviously risk losing her job. I take this to be a more common example of the tension between an officer’s reasons to obey and her reasons to avoid harming or violating the rights of others. However, cases like AQ1 are more difficult not because the duress excuse is more legitimate. The case is more difficult because the scales are more balanced. In the example above where A is asked by her boss to kill innocent person B, it is obvious that the reasons for obeying one’s boss, fulfilling an institutional role, etc. do not outweigh the rights of the innocent person. In AQ1, the calculus is less clear. But note that I am weighing the reasons on both sides to discover which choice is justified. If we discovered that A’s reasons for attacking the homeless man in an attempt to arrest him were better than the reasons against it, then A would be justified, not excused. To claim that A is excused because she acted under duress is to say she is not fully blameworthy for taking the wrong action because she was coerced in some way. If the reasons for attacking are better than the reasons not to attack, the attacker may be justified, but she is not excused. My final argument against the notion that duress could be an excuse for law enforcement officers is the same one I gave in the previous section about ignorance. Even if law enforcement officers as a group operate under duress, it would not be due to their status as law enforcement. A security guard could face the same pressures to use force for fear of losing her job. The Arrest Quota 2 case demonstrates this pretty clearly. It may be that more law enforcement officers operate under duress more frequently, but this empirical fact does not establish a conceptual relationship between the officers’ status and the duress excuse. On Law Enforcement Officers’ Liability to Defensive Harm 15 4.3 Diminished Responsibility In Section 3, I gave several suggestions for how an attacker might exhibit diminished responsibility. These include not initiating one’s attack, not intending one’s attack, or lacking control over one’s attack. This list is not exhaustive, as we shall see, but it is a good starting point. Not initiating one’s attack could occur if one is used as a human weapon, for example, in the strange cases of attackers falling from above or in strange science fictional scenarios involving mind control. Neither seems very applicable or plausible in law enforcement contexts. One plausible source of diminished responsibility for law enforcement officers is lacking complete control over one’s actions. In the military context, McMahan (2009) suggests that because many soldiers volunteer at a young age (late teens and early twenties), the average soldier’s brain is not fully developed, especially the prefrontal cortex (p. 122). This lack of development means worse decision-making (Casey 2008), poor threat-assessment (Barina & Bishop 2013), susceptibility to peer pressure (Jetha & Segalowitz 2012), heightened reward sensitivity (Steinberg 2013), and increased risk-taking (Steinberg 2008). Because no one has complete control over their rate of brain development, these factors suggest that young people should be held less responsible for their actions. Unfortunately, since each individual’s rate of brain development differs, there is no easy way to separate the fully responsible from the partially responsible. The legal distinction between juveniles and adults, especially in the criminal justice system, uses age as a rough proxy for responsibility. Adolescent brain development, however, occurs neither in clearly distinct stages nor in a predictable linear fashion (Casey 2008). As such, there is no age cut-off point where individuals are suddenly fully morally responsible for their actions. If age is an imprecise indicator of incomplete cognitive development, then one’s status as a law enforcement officer is even more imprecise. Of course, many law enforcement officers fall into the relevant age range such that they are likely to lack full cognitive development. Potential officers are encouraged to join early, and some jurisdictions have maximum age limits (Discover Policing, n.d.). But even if the average law enforcement officer is younger than the average person, the correlation seems so weak that it cannot possibly provide a partial excuse for law enforcement generally. 17 It is certainly not the case that the average officer lacks complete cognitive development. Thus, there is little justification for excusing the group as a whole on the basis of some officers’ cognitive development. The presumption then should be that law enforcement officers are treated as fully competent, responsible adults until proven otherwise. This is the reverse presumption we see in juvenile justice laws: A juvenile is presumed non-responsible until some special factor such as evidence of decision-making competence or a pressing need to punish a particularly heinous crime overrides the presumption. Any age cut-off point is arbitrary and inevitably over-includes in some instances and under-includes in others, which is why the presumption can be overridden in light of evidence. On Law Enforcement Officers’ Liability to Defensive Harm 16 The last argument I consider in favor of the diminished responsibility of law enforcement officers is the idea of transferred responsibility (McMahan 2009, p. 84). Some philosophers (e.g. Augustine, Hobbes, and Pufendorf) argue that when a principal issues a command to an agent to perform some act, and the agent obeys that command, responsibility for the act is ‘transferred’ to the principal (McMahan, pp. 84-85). In our context, this would mean that if an officer acts in obedience of some command, she is not responsible for her act, but rather, whoever issued the command is responsible. Despite its historical adherents, the very general formulation of this principle is obviously false. If principal P commands agent A to murder someone in cold blood, A does not suddenly get a free pass to permissibly commit murder. Perhaps the command makes P also responsible, but P cannot be solely responsible for A’s act because A still made the decision to act in that way. We might revise the principle to something more plausible by adding a constraint that responsibility is only transferred when an agent believes the action is right, or at least not clearly wrong. Another version could hold that responsibility is only transferred when it is reasonable for the agent to believe the action is right given her evidence. Either variant creates a narrower, more plausible principle. There is, however, a sense in which A should be responsible even on these narrower versions: A can be held responsible for her agreement to transfer responsibility in the first place. In other words, A can be held responsible for everything leading up the transferal, including her deliberation, decision and agreement to transfer. This reveals that transferring responsibility is self-defeating. If the act of transferring responsibility has some horrible effect, e.g. it leads A to obey a command to murder in cold blood, then A is responsible that horrible effect. The result is that A is just as responsible as if she never ‘transferred responsibility’ at all. The narrower, more subjective principles do not avoid this critique. If the agent’s beliefs and interpretation of the relevant evidence are relevant to whether responsibility transfers, then she can be held responsible for the formation of those beliefs and the reasonability of her interpretation of the evidence. A serious error in moral reasoning about the commanded action is the fault of the agent, not the principal. If there were any legitimacy to the idea of transferred responsibility, then we should see it other contexts, but we do not. One thought is that when attorneys or other agents act in unscrupulous ways on behalf of their clients, their responsibility is transferred. For instance, an attorney who draws up a will on behalf of a father who wrongfully leaves nothing to his children or an attorney who pursues a frivolous lawsuit that could seriously harm the defendant. At first these may seem like cases of transferred responsibility, but if the lawyer is not guilty of wrongdoing, it is likely because she is justified, not because she is excused. Our intuition may be that the legal system has many moving parts, and it is justified for agents within it to fulfill their roles rather than evaluate the morality of each individual action. On this view, a lawyer can permissibly fulfill her clients’ unscrupulous wishes. As this argument creates a source of justification, not an excuse, it is discussed at length in the next section. On Law Enforcement Officers’ Liability to Defensive Harm 17 Another idea is that responsibility transfers when P is incapable of acting for some reason (Kamm 2007, pp. 312-313). However, even if A acts as a surrogate for P, this arrangement would never fully excuse A for any act she might commit. It would be bizarre if it did. If A wanted to do something obviously impermissible, all she would need to do is find someone incapable of the act to command it of her. In the specific context of law enforcement, transferred responsibility would not be sufficient to provide a general excuse for attacking officers. This is because most law enforcement action is not explicitly commanded. Instead, officers have “police discretion”; they can choose whether or not to enforce a criminal law based on a variety of different structural factors (Aynes 1984, pp. 93-94). Even in jurisdictions where it is a crime for an officer to fail to make an arrest after witnessing an offense, it is understood that full enforcement is impossible. Worries about discretion have prompted proposals for reform, but generally these proposals suggest stricter criteria for exercising discretion rather than its abolition (Aynes p. 94). Discretion is such a significant feature of police work that many jurisdictions have statutes limiting the liability of law enforcement (Aaby 1989, p. 296). We want officers to have some freedom in how perform their duties, so we grant some legal protection when mistakes are made. All of this is to say that the ordinary behavior of law enforcement is not commanded by the police chief. Cohen (1985) puts it succinctly: “Neither statute not official departmental directives delegate to field officers any decision-making authority beyond law enforcement…Officers receive no official directives outlining the appropriate scope and limits of discretionary action” (pp. 27-28). In employing discretion, an officer takes responsibility for her decisions; there simply is no one else to whom responsibility can seamlessly transfer. The best justification for transferred responsibility might be on consequentialist grounds. Perhaps it is best to blame those in power rather than their employees because those in power have the best opportunity to right wrongs and prevent them in the future. Nevertheless, this reasoning is flawed for two reasons. First, the longstanding legal and political concept of sovereign immunity is based on the exact opposite idea. Sovereign immunity is the legal doctrine that the government is immune from civil or criminal suit. It is widely held that suing the government undermines democratic process and separation of powers by giving too much power to the judiciary (Sisk 2010, p. 905), squanders public funds through legal fees (Mayer 1992, pp. 426-27), and risks revealing state secrets in court (Parry 2007, pp. 820-21). Thus, there are compelling consequentialist reasons to reject the notion that solely blaming the top of the totem pole is best. One could argue alternatively that consequentialist reasons are irrelevant to assigning responsibility in the first place. Suppose in the wake of some horrible wrongdoing, it would be best to ‘blame’ an innocent bystander for the damage because this person would feel guilty and use her personal wealth to alleviate any damages. We might rightly say, if the consequences are sufficiently weighty, that we ought to blame the innocent bystander. However, we would not take a further step and say that she is responsible for the wrongdoing. Responsibility seems to imply some causal connection between agent and act and conveys the agent’s control over the situation. These features of responsibility are facts that cannot be altered just because it would be On Law Enforcement Officers’ Liability to Defensive Harm 18 best from a consequentialist standpoint to blame a particular person. Accordingly, transferred responsibility cannot be justified on consequentialist grounds. Finally, my analysis of transferred responsibility is confirmed by public judgment: Outrage at recent instances of police brutality and police shootings indicate that obedience to procedure is not an acceptable defense in the public eye. Responsibility does not easily transfer away from the attacker. The public responses to the deaths of Tamir Rice and Eric Garner were fairly similar (outrage), but in one case, the attacking officer obeyed procedure (Scruggs 2015), and in the other, the attacking officer did not (O’Brien, Saul, & Shallwani 2014). If the idea of transferred responsibility were a widespread moral intuition, we would expect to see heavy criticism of Ohio law in the Tamir Rice case and clamoring to punish the police chief. But instead, the attacking officer himself, Timothy Loehmann, was the focus of much public blame. The recent police shooting of Alton Sterling in Baton Rouge, Louisiana has led the NAACP to call on the mayor to fire the police chief, but the organization also called on the department to arrest the two officers involved (Stanglin 2016). Thus, the commonsense response to law enforcement attacks may be to blame all potentially responsible parties, not to pinpoint one and exonerate the other on the basis of ‘transferred responsibility.’ 4.4 Summary of Excuse I stated in Section 2 that if some analysis would drastically affect the categorization of one of the paradigm self-defense cases, our judgment about the case should serve as a counter- example to whatever argument would re-categorize it. The arguments in this section may have been forceful enough to cast doubt on whether AQ1 and AQ2 involve Excused Attackers at all. However, recall that the proposed excuses in Section 2 – duress and nonculpable ignorance – were unlikely candidates for full excuses to begin with, only partial excuses. Further, I have set a high bar for what constitutes a special excuse for law enforcement attackers. I have rejected potential excuses that only apply to some officers, excuses that apply in special circumstances, and excuses that may be very common but lack a deep connection to the attacker’s status as law enforcement. This means that AQ1 could be a case of an Excused Attacker, but the features that create the excuse cannot be generalized. The arguments in Section 4 demonstrated first that law enforcement officers do not have special excuses that would make them less liable to defensive force. This means that within each pair of self-defense cases from Section 3, the law enforcement officer and her civilian counterpart are excused to similar degrees. Any difference in the degree of excuse between the two cases can be eliminated by modifying details other than the attacker’s status as law enforcement. 5 Why Law Enforcement Might Have Better Justification This section evaluates arguments for why law enforcement attackers are better justified in using force than similarly-situated civilian attackers. As I noted in Section 2, there is at least one large division of justifications: objective and subjective. The delineation is straightforward. An attacker is objectively justified if she has sufficient reason to attack, regardless of whether she is On Law Enforcement Officers’ Liability to Defensive Harm 19 aware of the relevant facts. An attacker is subjectively justified if she has sufficient reason to attack, but that reason could be defeated by increased awareness of the relevant facts (e.g. if she had all true beliefs or fully rational assessment of the evidence). The stronger an officer’s objective and subjective reasons, the more justified she is in attacking. We might have a judgment about which type of reason is more important for overall justification, but for the purposes of this paper, I do not assign the two relative importance. To do so would be to make a large theoretical assumption about normative ethics. A standard consequentialist ethical theory, for instance, defines an act as right if and only if it produces good (or the best) consequences overall. However, there are variants of consequentialism that take an agent’s expectations as relevant to the rightness of the act. Such a variant would incorporate subjective reasons while the standard consequentialist picture does not. Since this is a huge debate in ethics, I conservatively proceed assuming that both types of reasons are relevant to my analysis. Beyond the subjective/objective distinction, I do not categorize justifications for attacking like I do with excuses. Excuse is a niche category, generally used to describe cases where the attack was wrong or unjustified, but there is a special reason to avoid placing blame on the agent. A justification, on the other hand, can be far more wide-ranging. Any consideration that could give an agent all-things-considered reason to attack could potentially make that agent a Justified Attacker. In this section, I consider only those justifications that seem to give law enforcement officers more reason to attack than similarly-situated civilians. So, the fact that the attacker witnessed the defender committing a crime or that the attacker feels threatened and lacks the ability to retreat are both obvious examples of justifications, but neither is the sort that seem unique to law enforcement officers. The potential justifications I evaluate and reject are (1) the division of moral labor argument and its variants and (2) a Hohfeldian analysis of state powers based on social contract theory. 5.1 The Division of Moral Labor The first major argument for why law enforcement officers may be uniquely justified in attacking is the division of moral labor. While the idea is not new, Jeff McMahan has recently considered it as a possible argument for the moral equality of combatants (MEC) in just war theory (McMahan 2006, pp. 384-85; McMahan 2009, p. 67). MEC says that the permissibility of actions of combatants is not affected by whether they are performed in service of a just or unjust cause. Regardless of a combatant’s side in a war, if she observes the in bello rules governing warfare (e.g. no direct attacks on non-combatants), she acts justly. Supporters of MEC suggest that combatants should be concerned with fulfilling orders and following these proper rules of engagement; it would not be effective for soldiers to constantly deliberate over the justness of the larger war, and they may not even be epistemically situated to do so. Versions of this argument can be made to conclude that institutional agents have reason to perform all sorts of seemingly-unjust behavior. McMahan is concerned specifically with direct combatants in war, foot soldiers and the like who can be characterized as ‘merely following orders,’ but to demonstrate the principle, he cites several other contexts. For example, in the On Law Enforcement Officers’ Liability to Defensive Harm 20 legal system, roles are very clearly defined, and we expect that agents do their jobs regardless of their moral qualms. A defense attorney should vigorously defend her clients, even if she knows they are guilty. A prison guard should keep inmates locked up, regardless of her opinion on their case. A judge should fairly decide on the arguments at trial, an executioner should execute, etc. The thrust of these claims is that agents with particular institutional roles should generally perform the acts prescribed by their role. On its face, the argument seems very plausible and coheres with how we treat these agents even when they act in morally questionable ways. Public defenders are praised for providing the right to counsel, not criticized for defending clients they know to be guilty. Prison guard are not publicly condemned for doing too good a job at keeping an innocent person locked up. Prosecutors and police have some level of immunity because we believe moral latitude is necessary to perform their jobs. The idea seems to be that overall, things go best when everyone is allowed to perform a specialized role without thorough moral scrutiny. The argument has obvious import for our present context. Law enforcement officers count as an institutional agent just like combatants in war or public defenders. Their role is part of the overall legal system, and it seems to work best when each officer does his or her job, rather than questioning and morally deliberating over any given action. Further, law enforcement officers are not in a position to know which acts should be criminalized and whom should be punished, so they lack justification for making complex moral judgments. In sum, law enforcement officers, by virtue of their role, have unique objective and subjective reasons to attack and use force when it is prescribed by their role. Now that I have rehearsed the general thrust of the argument in several contexts and applied it to our own, it must be set out more clearly. There are at least four different arguments in the neighborhood, each of which is present in the literature on just war theory (McMahan 2009, Zupan 2006) or literature on just legal practices (Huemer, forthcoming; Gur-Arye 2011). The following might all be placed under the banner of the division of moral labor. Given an institutional agent A and a role-prescribed action φ, 1. Rule-Consequentialism: There is objective reason for A to φ because the rule that prescribes φ is the best rule to follow. For example, it is permissible for a soldier to fight when commanded to do so because it is better to follow the rule ‘fight when your country is at war’ than the rule ‘fight when you personally believe it is right.’ 2. Rule of Thumb: There is generally an objective reason for A to φ because generally, φ- ing is morally required. There is a high degree of fit between the set of actions one’s role prescribes and the set of actions morality requires. Thus, there is generally an objective reason against deliberating over φ because it is generally better to φ than to deliberate and then φ. 3. Special Obligation: There is an objective reason for A to φ because A’s role creates a special obligation to φ, a very strong type of reason. On Law Enforcement Officers’ Liability to Defensive Harm 21 4. Epistemic Deference: There is subjective reason for A to φ because the institution that dictates φ is in a better epistemic position than A, so A should trust and defer to the institution’s judgment. McMahan only sometimes distinguishes between these different flavors of the argument and does not always use the same nomenclature. 18 As such, some of his and others’ discussion may apply more directly to one of the four but not the others. Each merits its own attention. 5.1.1 Rule-Consequentialism and Rules of Thumb The first variant of the division of moral labor argument is roughly based on a rule consequentialist ethic. Rule-consequentialism combines the attractive feature of act consequentialism – the idea that consequences determine the morality of an act – with the attractive feature of Kantian or deontological theories – the idea that there are general moral rules to be followed. A simple rule-consequentialist formula is something like “an act is right if it accords with a rule that, if generally followed, would produce the best consequences.” For the purpose of this section, I do define what consequences are the best consequences. A particular theory of rule-consequentialism is unnecessary to get the argument off the ground. The claim is that a law enforcement officer is more justified in employing force than a civilian because the officer has a rule-consequentialist justification that the civilian lacks. The officer can be said to act on a rule like “if you are a law enforcement officer, then employ force in context C” where C is defined by police procedure or the command of a superior officer. This same rule is completely unavailable to a civilian attacker, so it looks like a good candidate for justifying law enforcement attackers. Further, this argument’s conclusion is especially powerful because it suggests that in every instance, the law enforcement officer is justified in doing what police procedure or her superior prescribes. There are no exceptions, no need to weigh options morally, because the rule-consequentialist dictate is simply “follow the rule.” The strength of the rule-consequentialist reasoning hinges on (1) the unique justificatory role that this rule plays in weighing the reasons in favor of attack and (2) the viability of rule- consequentialism. I will address each issue in turn. 5.1.1.1 Broad Rules First, for the rule-consequentialist reasoning to support the thesis that law enforcement officers have unique justification for their attacks, it must have significant normative consequences when weighing the reasons for the attack. In a case like Dangerous Burglar 1 or Dangerous Burglar 2, it seems that the strongest reasons to attack are that (i) attacking would prevent a crime in progress at little cost, and (ii) attacking would save lives at little cost. Both of these reasons justify the actions of both the law enforcement officer and the neighborhood watch captain. In rule-consequentialist terms, the justification for attacking would be that to attack is to act in accordance with the rule “attack when you can prevent a crime in progress at little cost” and the rule “attack when you can save lives at little cost.” These rules are too broad to provide unique justification for law enforcement attackers. Artificially affixing the phrase “if you are a law enforcement officer” does not make a difference to the rule-consequentialist reasoning. On Law Enforcement Officers’ Liability to Defensive Harm 22 Neither does the fact that the act is prescribed by police procedure or a superior’s commands. The underlying normative justification is the same because any unique reasons are redundant: the broad, actor-neutral rules already warrant the action. 19 This might seem like an objection to the whole idea that a law enforcement officer could have unique justification: if many potential reasons are unique but make little difference in the overall normative calculation, then it seems I have already drawn the bottom line. However, I raise this objection in response to rule-consequentialist reasoning specifically because it might seem like there is something unique about the way an officer follows rules that does not apply to citizens. As we have seen, this is false; the actions of both officers and civilians can be described as following the same general rules. Second, I raise the point here because it represents a condition on the type of justification we need. It must be unique to the status of law enforcement officers but also normatively strong. 20 Finally, I am not convinced that my reasoning about DB1 and DB2 easily extends to the other cases. In particular, lower-stakes contexts when neither the law enforcement officer nor the civilian have very strong reasons for attacking may be more open to rule-consequentialist analysis. For example, take Arrest Quota 1 and Arrest Quota 2. These I categorized as cases of Excused Attackers, and we saw in the last section that the excuses are very weak and not at all unique to law enforcement officers. These are not paradigm cases of Justified Attackers, but we are reluctant to categorize them as Culpable Attackers because they look nothing like the clearly wrongheaded, racist attackers in Villainous Enforcing Officer and Villainous Enforcing Neighborhood Watch Captain. So the attackers in AQ1 and AQ2 may be weakly justified. This fits with commonsense judgments about officers enforcing minor infractions. Someone might get upset about receiving a ticket, saying “He didn’t have to do that; he could’ve let me off the hook with a warning,” but the same person would not go so far as to say the officer had no justification. Does the rule-consequentialist reasoning fare any better in cases of weakly-justified attackers? In the case of AQ1 and AQ2, there is not the same obvious underlying rule like “attack when you can save lives at little cost” to justify the action. This means that a weak reason that is specific to law enforcement officers can make a much larger impact on the overall justification for the act. This general point is good to note for the rest of this section: Finding a unique justification for law enforcement attackers that matters should be easier in contexts where there is little justification to begin with. 5.1.1.2 Rules of Obedience For rule-consequentialism to make a difference between attackers in AQ1 and AQ2, there must be a rule that (a) only the law enforcement officer follows and (b) makes a strong impact on the attack’s overall justification. One candidate could be a rule like “if you are a law enforcement officer, obey police procedure and the commands of superior officers.” Call this a rule of general obedience. If rule-consequentialism would dictate following a rule of general obedience, it would clearly justify the officer’s attacks in AQ1. So, the next question is whether following this rule would produce the best consequences. On Law Enforcement Officers’ Liability to Defensive Harm 23 The obvious problem is that blind obedience to authority can lead to horrible atrocities. The well-known Milgram experiments and historical examples of the Nazi regime and the My Lai massacre are testaments to the psychological power of authority. Clearly, a superior rule to follow would be one that escapes these consequences. So instead, consider a rule that says “if you are a law enforcement officer, obey police procedure and the commands of superior officers when they are just.” Call this a rule of conditional obedience. The problem with evaluating this rule is that it is too idealistic. Rule-consequentialism is concerned with rules that could actually be followed (Hooker 2015, “Full rule-consequentialism,” para. 7). An objective rule of conditional obedience could not actually be followed because it assumes perfect information about which commands are just and unjust. Instead, we should consider a rule that says “if you are a law enforcement officer, obey police procedure and the commands of superior officers when you believe they are just.” This subjective rule of conditional obedience captures all the good consequences of effective authority, such as efficient organization and leaders’ confidence that their commands will be executed, while avoiding the bad consequences of abuses of power. Following this rule can only avoid the problems of blind obedience, however, if officers’ beliefs about what is just track what is actually just. If officers’ beliefs about what is just are misguided, as an empirical matter, then this may not be the optimal rule at all. Given the prevalence of impermissible uses of force discussed in Section 1, I find it likely that many officers’ fail to appropriately deliberate about what is just. This is not the only explanation, however, for racially disproportionate and excessive uses of force. Either (1) officers do not effectively deliberate about the morality of their actions, (2) they do effectively deliberate and come to a different conclusion (implying that I am wrong about the justness of these police actions), or (3) they effectively deliberate and agree with me but exhibit some failure in moral motivation. McMahan makes a similar point about combatants deliberating about whether they fight a just war. He concludes that combatants do not effectively deliberate about the morality of their actions, and I believe the same is true of law enforcement officers. The following evidence on police culture, rates of deadly force, arrest quotas, and racial profiling casts doubt on options (2) and (3), leaving (1), that many officers do not effectively deliberate about the morality of their actions, as the most plausible explanation. There is substantial research on law enforcement culture and ideology suggesting that officers may lack the motivation to adequately deliberate about the justness of their actions and procedures. Cockroft (2013) describes a phenomenon called “police cynicism” where “the discord between police officers’ sense of mission and their experience of the ‘reality’ of their occupational world” leads them to lose faith in the public and in themselves (pp. 54-55). Research demonstrates that such cynicism causes antipathy toward the wider public (MacAlister 2004), minority groups (Chan 2003), police management (Chan 2003), and the judicial system (Skolnick 1994) (as cited in Cockroft, 2013, pp. 54-55). Police culture demands “lip service” to the core values of law enforcement “but little more” (Cockroft, p. 55). On Law Enforcement Officers’ Liability to Defensive Harm 24 That law enforcement officers are not overly concerned with justice may be disturbing to some, but it should not be overly surprising. Individuals who choose a career in law enforcement are more likely to exhibit pro-punishment attitudes that transcend a concern for just outcomes. McAdams, Dharmapala, and Groupa (2015) review data from economic experiments suggesting that a significant number of people will make sacrifices to satisfy their desire to punish wrongdoers, but they will not make similar sacrifices to satisfy a desire to exonerate innocent parties (pp. 17-18). Thus, if law enforcement officers represent a random sampling of the population, there are more officers concerned with enacting punishment than a larger desire for justice. McAdams et al. argue further that people with pro-punishment attitudes are over- represented in law enforcement since the job offers more opportunities to satisfy punitive desires. There may be some officers with pro-justice attitudes, but because we know that few people have pro-exoneration attitudes to begin with, the average law enforcement officer is likely more punitive than the average citizen (p. 23). If the presence of pro-punishment attitudes could interfere with deliberation over the relevant moral facts, then law enforcement officers are more likely to get it wrong than a similarly-situated civilian. As further evidence, consider the following striking example: Research suggests that restrictive deadly force policies in New York police departments in the 1970s dramatically decreased the use of deadly force (Fyfe 1996, pp. 200-201; also Stoughton 2014, para. 11 for similar evidence from Richmond, California). Assuming officers’ moral beliefs about the use of deadly force did not dramatically change at the same time, this research demonstrates that officers are receptive to authority. Either they believed their level of deadly force to be unjust but carried it out anyway pre-policy shift or they believed their level of deadly force to be just but curtailed it anyway post-policy shift. In either case, authority heavily influences officer behavior. There are plenty of examples of a change in procedure or legislation affecting officer behavior, but this example is remarkable because it deals with the use of deadly force. Absent new factual information, officers’ beliefs about the permissibility of deadly force should not change so rapidly simply because of a policy change if they appropriately deliberate. Unfortunately, Fyfe (1996) states that his research supports the hypothesis that “the major determinant of police deadly force rates…was the personal philosophies and policies of the department’s chiefs” (emphasis added, pp. 200-201). Thus, obedience to authority, not a balancing of the relevant moral facts, guides officer behavior. The efficacy of arrest quotas also demonstrates obedience to authority. Mathias (2014) cites informal interviews with police officers who revealed that they often cave to pressure from their precinct captains or lieutenants to meet monthly productivity goals (para. 3-5). This leads to arrests for minor infractions such as “begging, sleeping on a park bench or subway, walking between subway cars, jaywalking, or having an open alcohol container,” and the accused is almost always a person of color (para. 10-11). The prevalence of racial profiling is my final piece of evidence for officers’ inadequate moral deliberation. Despite its illegality and ineffectiveness, study upon study has demonstrated the reality of racial profiling in police work. Carroll and Gonzales (2014) and found black drivers are more likely to be frisked and searched (also Antonovics & Knight 2004). Novak (2004) On Law Enforcement Officers’ Liability to Defensive Harm 25 found that police stop a disproportionate number of minorities. Strassmann (2015) cites a Department of Justice investigation, revealing that in Ferguson, Missouri, African-Americans make up 93% of those arrested, despite being only 67% of the overall population (para. 5-6; see also Hernández-Murillo & Knowles 2004). While there is some debate on the prevalence or even existence of racial profiling 21 , there is enough evidence to suggest that at least some police departments profile. If profiling is instructed top-down, then officers defer too much to authority; if profiling is enacted at the bottom level, then officers are employing racist tactics to achieve their goals. Either way, the evidence supports my present argument. Given all of this evidence about the psychology of authority, police cynicism, excessive use of force, quotas, and racial profiling, many law enforcement officers clearly exhibit some moral failings. Even if officers always acted on the rule of conditional obedience, they would fail to pick out the just commands. The rule would fail in two ways: officers might follow wrongful commands believing them to be just or officers might neglect to follow just commands believing them to be unjust. This could mean catastrophic results in life-or-death situations, but the rule could also fail in more mundane situations too, leading to widespread inefficiencies. The upshot of this analysis is that following the rule of conditional obedience may produce even worse outcomes than following the rule of general obedience. Nevertheless, the rule consequentialist line of argument could be vindicated by justifying the rule of general obedience in this specific context. Perhaps our squeamishness about blind obedience due to horrible historical atrocities is premature. If police procedures and the commands of superior officers in fact produce better outcomes than analogous commands for similarly-situated civilians, officers do have special reason to follow the rule of general obedience. Take the different authorities in AQ1 and AQ2. The law enforcement officer in AQ1 obeys the authoritative police procedures and commands given by superior officers. The security guard in AQ2 obeys her company’s procedures and commands given by her employer or other superiors. In theory, commands for a law enforcement officer should more likely require actions that produce the best consequences because law enforcement is an arm of government, an entity designed to serve the public good. A private security firm, on the other hand, has no such obligation. Police departments serve the public. Companies serve their shareholders (recall the evidence about the security firm G4S). This logic seems simplistic but may be the fundamental difference between the types of reasons held by different institutional agents. The private security guard in AQ2 has little reason to believe that her company requires her to perform the action that produces the best consequences. She may be in a poor epistemic position to figure out how to act morally or what rule to follow, and following her company’s mandates may not get her any closer to performing the best action. Her company may have a stated goal to provide the best security, but the ultimate goal is to turn a profit, and the two goals do not always line up. The company may decide to take an action that makes the most money yet decreases the quality of security provided. The government, at least in theory, is held accountable for these types of decisions. On Law Enforcement Officers’ Liability to Defensive Harm 26 The work of Bill Stuntz and Richard H. McAdams on principal-agent problems, however, casts doubt on just how much the government acts in the public’s best interests and suggests the difficulty in holding officials accountable. Because one member of the public has such little influence over government decisions, “it remains rational for most citizens to be fairly ignorant about crime rates, criminal law, and criminal processes, and the evidence suggests that most people are ignorant” (McAdams 2011, p. 46-47). The media publicizes high-profile crimes, but overall, the public is not paying enough attention to law enforcement operations. McAdams also cites ambiguity about the crime rate and debates about how it should be measured, arguing that it is too broad and too vague to be very useful for holding law enforcement accountable. It is difficult to determine whether law enforcement performance is slipping or other factors affect the crime rate, whether problems are due to federal, state, or local policies, and who exactly is underperforming (p. 52). Because of these fundamental information asymmetries about law enforcement, police departments can exploit the public’s ignorance. For example, they can implement arrest quotas to create the illusion of better crime prevention (p. 54). Legislators further try to skirt accountability by expanding the scope of criminal law as broadly as possible to give law enforcement and prosecutors ultimate discretion (pp. 53-54). These deceptive and blame-avoiding behaviors are structural problems with the legal system, especially in the United States, and McAdams suggests only massive organizational reforms could solve the problem. All of this is to say that while in theory, governmental institutions should be better epistemic guides than corporations, theory may not reflect reality. Thus, law enforcement officers may have only marginally better reason to trust the commands they are given than similarly-situated civilians such as security guards. Importantly, this analysis applies to several of the variants of the division of moral labor argument. Given that officers are in a position to know many if not all of the features of modern law enforcement described by McAdams et al., they are both objectively and subjectively unjustified in deferring to authority as a source of moral judgment. Thus, deference is neither justified on rule-consequentialist grounds nor subjective epistemic grounds. A second major objection to the rule consequentialist argument is that law enforcement officer behavior cannot generally be described as following the rule of general obedience. Officers often have a high level of discretion in how they fulfill their duties (Clearly 2000, p. 13- 14; Pellicciotti 1989, p. 39-41; Shircore 2006, p. 11). While an officer certainly has general guidelines, she may not be following specific orders or procedures in many ordinary contexts. In fact, courts in the United States have enshrined police discretion in cases on the public duty doctrine, the notion that officers have a general duty to the public but no duty to a specific victim of a crime. There is no government mandate for an officer to act in a particular way in a given situation; in fact, several court cases have concluded that officers have no enforceable obligation to any individual citizen at all. The famous case of Warren v. District of Columbia found no liability for officers who miserably failed to investigate an ongoing assault of three women, who repeatedly called 9-1-1 for assistance (as cited in Huemer 2013, pp. 32-33). This case and others like it indicate the willingness of courts to allow officers a high degree of latitude in how they perform their duties. The rule-consequentialist argument fails because there simply is no authoritative command for officers to follow. If officers are not following direct orders or On Law Enforcement Officers’ Liability to Defensive Harm 27 procedure on a regular basis, it is hard to see how their behavior could be characterized as following a rule of general obedience. 5.1.1.3 The Limitations of Rule-Consequentialism The second limitation I alluded to at the beginning of this section: rule-consequentialism may not be a very plausible moral approach. There are several well-known objections to the theory. Rule-consequentialism is said to collapse into act-consequentialism because either i) act- consequentialism is the best rule for everyone to follow or ii) rules must be built with a sufficient number of exceptions and a sufficient degree of specificity such that the set of rules obtained would be equivalent to act-consequentialism (for a summary, see Huemer, forthcoming, p. 7-8). There are also well-known counter-examples to many variants of rule-consequentialism. For instance, it is impermissible to have no children because if everyone had no children, humanity would go extinct. While I lack the space to discuss any of these in depth, it is worth noting that rule-consequentialist reasoning in this context may not be the most plausible because of the theory’s weaknesses. That said, much of the argumentation in this section can stand alone without the appeal to rule-consequentialism. Recall that the second variation of the division of moral labor argument is the “rule of thumb” idea. While there may be exceptions to a general rule of obedience, perhaps there is a high degree of fit between the set of actions prescribed by officer’s roles and the set of actions morality requires. If this is true, it may be generally better to act according to one’s role than to engage in lengthy moral deliberation first. The strength of this claim depends on the success rate of officers’ moral deliberation and the cost of lengthy moral deliberation. As I have demonstrated, the success rate is likely low, and the cost can be high. Officers’ general effectiveness could be hampered by long decision-making processes, which is why some level of police discretion is generally accepted and justified. However, the cost of deliberation is not so high that it outweighs the potential damage of unjustified force against civilians. Officers risk seriously harming and violating the rights of innocent civilians, so the moral cost of a wrong decision in these situations is quite high. Thus, moral deliberation is generally justified despite its costs. 22 Another factor that mitigates the argument for deference as a rule of thumb is that officers need not quickly make complex moral judgments about their uses of force; moral deliberation can occur over a period of time. Knowing that high-stakes situations will arise, there is even more reason to deliberate and consider deviating from command and procedure even before such circumstances arises. In sum, the reasons in this section to distinguish law enforcement attackers from similarly-situated civilian attackers – the rule-consequentialist and rule-of-thumb arguments – are fairly weak. Neither the rule of general obedience nor the rule of conditional obedience seems to produce better outcomes for law enforcement officers than similarly-situated civilians. Finally, the moral stakes involved in officers’ uses of force are high enough to warrant additional On Law Enforcement Officers’ Liability to Defensive Harm 28 and deeper moral deliberation than generally takes place. Obedience and deference to authority is not an adequate justification. 5.1.2 Special Obligations I have now dealt with three of the four versions of the division of moral labor argument: rule-consequentialism, general rule of thumb, and epistemic deference. The last one is the special obligation version: There is an objective reason for A to φ because A’s role creates a special obligation to φ, a very strong type of reason. Commonsense morality makes room for special obligations to those we have special relationships with such as friends and family, but the concept can be applied to professional relationships as well, e.g. between attorney and client. Almond (2005), for example, gives a recent defense of partiality in professional-client relationships, arguing that professionals have special obligations of truth-telling, confidentiality, and prioritization of the client’s interests (p. 164). While Almond states that this argument should extend to police-work, her reasoning does not clearly apply. One of her premises is that the client-professional relationship is an “intimate personal relationship into which people enter as a matter of choice and in many cases, it serves a valuable social function” (p. 165). No such intimate personal relationship exists by virtue of the law enforcement role. As I discussed in relation to the Warren v. District of Columbia case, it is held in the United States and reasonable to suggest that officers have no particular obligations to any particular citizens by virtue of their role. If they do, it is because of a special promise to protect an informant or a witness. An obligation could not arise to a citizen simply because of the citizen’s citizenship or need of police protection. If this were the case, then every crime would entail that some law enforcement officer failed in fulfilling a special duty, which is absurd. Further, even if the law enforcement role could give special obligations, they would be extremely weak ones. Huemer (forthcoming) rebuts this idea as part of his argument that attorneys can be blamed for unjust legal advocacy. He writes, “it is the job of a mafia hit man to murder those whom the Boss targets…But this does nothing to justify murders carried out by hit men. If a particular job description includes activities that we are antecedently convinced are morally wrong, the mere introduction of employment opportunities for people who perform those actions will do nothing to render them permissible; normally, it will simply mark the jobs in question as immoral jobs” (p. 6). This reasoning is directly applicable here. If the role is the sole or primary reason for performing an otherwise wrongful action, the easy answer is that it may be wrongful to adopt the role in the first place. If the law enforcement role requires wrongful or unjustified attacks, those attacks do not have special justification; instead, we should conclude they are reasons against becoming a law enforcement officer. 5.2 Hohfeldian Rights and Social Contracts According to the standard Hohfeldian interpretation of rights, a right can be a privilege, a claim, a power, or an immunity, defined as the following: A has a privilege to φ if and only if A has no duty not to φ. A has a claim that B φ if and only if B has a duty to A to φ. On Law Enforcement Officers’ Liability to Defensive Harm 29 A has a power if and only if A has the ability to alter her own or another's Hohfeldian rights. B has an immunity if and only if A lacks the ability to alter B's Hohfeldian rights. (Lazarev 2005; Andrews 1982) One thought about civilian encounters with law enforcement is that the state has the power to overcome resistance to the exercise of its authority. This right would be a power because it enables the state to potentially violate citizens’ rights to defensive force. Leider (2009) writes that for any claim right of the state that citizens perform some action (like paying taxes, jury duty, etc.), there must be a corresponding right for the government/its agents to overcome resistance (p. 225). Otherwise, the claim right on its citizens would have no “practical legal effect” (p. 225). This could be an underlying justification for laws criminalizing the act of resisting arrest, for example, because it facilitates the state’s enforcement of citizen’s legal duties. This argument seems plausible but has a severe limitation for our present purposes. The argument that a state has a power to enforce its claim rights on citizens only applies when the citizens in question are failing in performing some duty. In the Excused Attacker cases, Mistaken Encounter 1 and Arrest Quota 1, the citizen defenders either do not have a duty or it is very weak. The homeless man on a park bench has a duty not to loiter or sleep in that public space, but this duty is so weak that the state’s claim right and power to enforce its claim right must also be very weak. In Innocent Obstruction 1, the innocent bystander does create an obstacle for the state to enforce its claim rights against the dangerous burglar, but it is hard to see that the state’s power to overcome resistance and enforce this right against the burglar also gives it powers over the rights of innocents. To force civilian A to comply with the tax code, the IRS cannot torture a different civilian B until A gives in. If this is true, then in many of the interesting cases of law enforcement encounters with civilians, the state has no such power. 5.2.1 Three Approaches to Rights: Utilitarian, Kantian, and Contractarian To dig deeper into whether law enforcement officers have a particular power to use force against civilians, we can analyze three sources of justification: the utility of such rights, Kantian arguments about the right-holder’s status, and the notion that such rights are required by a hypothetical social contract. According to a utility-based approach, the state should have a power to enforce its claim rights because doing so promotes general utility. The counter-examples above about IO1 and tax- compliance-by-torture seem to weaken the account, but arguments about police discretion could motivate the opposite conclusion. Recall from Section 4.3 the idea of police discretion: individual officers are expected to make mistakes, and the best officer behavior is not to hesitate or deliberate about each individual action but to act on the basis of well-trained instincts. While further empirical data could confirm or deny claims about the efficacy of officers operating with varying levels of police discretion, the conclusion that some discretion is beneficial seems fairly plausible. In general, police-work is carried out more effectively without officers second- guessing themselves in the field. If this is true, there is consequentialist reason to regard law On Law Enforcement Officers’ Liability to Defensive Harm 30 enforcement officers as having Hohfeldian claim rights against interference; despite the possibility for mistakes, regarding officers’ rights in this way promotes the most social utility. The difficulty for this view, however, is whether the utility argument can generate an especially strong right for law enforcement officers in comparison to similarly-situated civilian attackers. A consequentialist approach is a generally poor candidate for justifying this conclusion because it relies not on something special about law enforcement status but the base empirical fact that law enforcement officers happen to be most efficacious when allowed some latitude and granted the corresponding claim right to non-interference and power to overcome resistance. Those empirical factors, however, may equally apply in the case of civilian security guards and the like. Huemer (2013) constructs an analogous argument about discretion for private agents: “It is also unrealistic…to expect a large private corporation to be perfect; any such corporation will sometimes make mistakes” (p. 175). Huemer concludes that we should condemn such mistakes, not pardon them on consequentialist grounds. But suppose he is wrong. Even if there are good consequentialist reasons for granting that it is permissible for large institutions to make mistakes and to employ agents with discretion, this fact has nothing to do with law enforcement officers’ status. This feature of consequentialist reasoning, then, makes Kantian and contract-based approaches more attractive to ground special Hohfeldian rights for law enforcement officers in these contexts. The second approach – the Kantian one – is somewhat unworkable on a governmental level without a full-fledged Kantian account in political philosophy. Generally, Kantian arguments about the status of rights-holders involve some claim about the inviolability, worth, or rational nature of persons, none of which easily apply when the rights-holder is the state. Of course, there are full-fledged Kantian political philosophies developed on these bases (E.g. Ripstein 2009), but without adopting any one model wholesale and applying it to the present discussion, there is no easy way to get the Kantian argument off the ground. The far more promising approach is the contract-based argument. For the purpose of my present discussion, I do not assume a specific hypothetical contract or social contract theory, but the general principles of this tradition are easily applied. Law enforcement is one of the essential functions of government that any contractors, hypothetical or actual, would consent to as a fundamental part of a social contract. On these theories, individuals give up some liberties (e.g. they agree to follow the laws of the state under certain conditions, they agree to pay taxes to finance the basic functions of government, etc.) in exchange for benefits that only a government can provide: namely protection from outside threats and some measure of internal security and stability. Traditional criticisms of contract theories reject that there is some underlying implied consent between citizens and government. Of course, there is no explicit agreement to accept the risk of harm from law enforcement officers, for example, so any consent must be merely implied. The implied consent argument rose to prominence in the writings of John Locke (especially Locke 1689). Since then, several well-known and plausible objections have been raised. First, whether one becomes a citizen of a state is not under the citizen’s control. No one can control his On Law Enforcement Officers’ Liability to Defensive Harm 31 or her own place of birth and where one’s parents decide to live and raise children. Thus, there is no consent because there is no choice to enter an arrangement with a government in the first place – it is wholly decided by other agents. Second, citizens may be unable to leave for a variety of reasons, which weakens the consent argument. Especially likely obstacles to leaving include insufficient economic means and the difficulty of uprooting and starting a new life somewhere else. Thus, citizens stay put by necessity, not because they consent to any particular government functions such as law enforcement. These are serious difficulties with contract theories, but I lack the space to develop a sustained discussion at such a level of abstraction. Given the theories’ major presence and staying power throughout the history of political philosophy, I do not dismiss them out of hand. Further, whatever weaknesses the contract theory has for grounding political authority more generally, it may have special relevance to the law enforcement context. The relationship between citizenry and the law enforcement function of government is different than the relationship between citizenry and the transportation infrastructure-building function of government, for instance. While the building of roads may be a valuable state function, it does not seem like a necessary feature of government (even if government does it best). Law enforcement, on the other hand, is one of the most basic benefits of government. On Hobbesian contract theory, for example, enforcement of the sovereign’s public judgment (i.e. state law) is the primary reason to form a commonwealth and escape the state of nature (see Hobbes 1994, Sec. 29 and Lloyd 2002, p. 261 for analysis). Without proper law enforcement, no citizen can be assured that she can pursue her interests and have her rights protected. 23 Thus, the fundamental idea of these contract theories – that individuals should or would consent to a government with certain essential properties – seems especially applicable to law enforcement. An important qualifier at this point is that law enforcement attackers are not more justified than similarly-situated civilian attackers purely based on hypothetical or actual consent to a contract. The fact that person B consents to some harm from person A does not normally give person A any justification for harming B. It may be that consent defeats reasons not to harm someone, but this is not equivalent to a justification to attack. B could consent to having her leg broken, but that does not give anyone a reason to break B’s leg. In the context of my Hohfeldian discussion, however, there is a place for this style of reasoning. For roughly the same reasons behind the consequentialist line of argument, hypothetical or actual contractors would choose a societal arrangement where law enforcement officers have the power to overcome resistance and claim rights to non-interference. The difference between the consequentialist and contract arguments, however, is that there is a straightforward explanation for the contract theorist for why law enforcement officers should possess these rights by virtue of their status. Whatever underlying normative concerns justify the social contract theory justify the powers and rights of law enforcement officers, but not private citizens, since the actions of law-enforcing private citizens are not prescribed by the social contract. There is no contractual basis for the neighborhood watch captain or private security guard to attack another civilian. Since I decided not to define any particular contract theory, it is worth preempting a possible equivocation here. A private security guard can certainly be On Law Enforcement Officers’ Liability to Defensive Harm 32 contractually obligated based on a contractual commitment to her employer, but the normative justification for abiding by this agreement is distinct from the justifications underlying the social contract. On social contract theories, the state and its agents are supposed to embody or at least be responsive to the collective will of the people, but a private security guard or any other similarly-situated civilian crucially lacks this quality. Thus, the contract-based argument is particularly promising. One objection is to note that many law enforcement operations do have a legal, civilian analogue, as shown by the cases described in Section 3. By virtue of their legality, these attacks can be considered authorized by the social contract. For example, the right of a private security guard to detain someone on private property under certain conditions and the right to employ defensive force to defend a third party against a violent burglar are both societally endorsed. This objection is somewhat weakened by differentiating between the strength of social contract-based reasons. Obligations generated by social contracts can differ in degree. The example above about roads proves this straightforwardly. A more serious objection to the contract argument arises when we consider that there are limits to any social contract: Citizens would not and should not give up just any rights or cede just any powers to the state. Ultimately, the social contract idea justifies the state’s use of force to the extent to which it would be rational to renounce one’s private use of force for common gain. If by sacrificing some freedom for the sake of the contract, more freedom and safety is lost than gained in the process, this is a significant disadvantage and reason to dissolve or nullify the contract. In the context of law enforcement, we must “see that freedom-threatening acts by public officers are exactly the same sort of acts as those against which law enforcement is meant to protect us” (Reiman 1985, p. 241). This means that the contract-based reasons for assenting to law enforcement must be borne out by the facts: law enforcement must actually fulfill its purpose and reliably protect society’s rights and interests. 5.2.2 Breaking the Social Contract As has been a theme throughout this paper, it is clear that law enforcement departments and law enforcement officers do not always reliably fulfill their purpose. From a contract-based perspective, there are at least three ways in which the state and its agents fail to uphold their end of the contract. The first two apply with particular force to modern policing in the United States, and the third is an abstract argument about the nature of officer-civilian encounters. Contractual violations come in varying degrees, of course; the following arguments are the strongest case for the claim that there is no legitimate social contract justifying law enforcement. First, the analysis of police use of force and its disproportionate impacts on racial minorities can be read as a serious contractual breach. Smith (2012) explicates Charles Mills’s scholarship on John Rawls and the idea of “the racial contract” to this effect. The “racial contract,” according to Smith, is the de facto subordination of black Americans, with regard to socioeconomic opportunities generally but also with regard to specific public goods like police protection (para. 1-5). Smith (2012) and Zack (2015) argue along similar lines that the social contract is unhelpful for describing race relations in America today because the state is clearly On Law Enforcement Officers’ Liability to Defensive Harm 33 failing to uphold its end of the bargain. Smith is very explicit in calling it “the whites-only social contract” where civic obligations toward the white majority are taken seriously by citizens and the state, but the contract does not extend or apply equally to racial minorities. Thus, not all American citizens are equal parties to the contract. One could think this argument only denies contract-based reasons for law enforcement officers attacking racial minorities, but the idea is not that the state has failed particular minorities in particular interactions with law enforcement (although that might also be the case). If the state is racially profiling, disproportionately employing stop-and-frisk, and incarcerating minorities at unprecedented rates, there is evidence of a widespread failure to provide police protection. This severely weakens any contractual justification for law enforcement’s Hohfeldian powers. Second, court decisions like Warren v. District Columbia cast doubt on whether the state has upheld its law enforcement duties to protect. Huemer (2013) suggests that this case and others like it are explicit rejections of the state’s duty to provide police protection to individual citizens. While the court held that there is a general duty to the public at large, there is no duty to protect individuals. This is a problem for social contract theory, Huemer argues, because individuals are generally thought to be parties to the contract (pp. 32-34). Since individual citizens have duties to pay taxes, to obey state laws, and perhaps non-interference with government functions (as discussed in the previous section), the state ought to have a reciprocal obligation to individual citizens. “The general public” cannot be party to the social contract because the duties of the citizenry are not general but specific. I agree with Huemer’s analysis because many of the social contract theory’s alleged benefits only make sense if conceptualized on this individual level (see also Aynes 1984, p. 70). For instance, the protection of individual rights is supposed to be one of the primary justifications for a social contract. It would be strange to suggest that the state could violate an individual’s rights so long as it fulfills some general duty to protect rights most of the time or in general. The very language of rights undermines a general approach to governmental obligations: “the general public” is not in need of rights protection because “the general public” has no rights; individuals do. Third, Ferzan (2008) has argued that circumstances in which self-defense is necessary create state-of-nature-like conditions where the state has failed to protect. He writes that self- defense, then, is necessary “to fill in the cracks” in the social contract (p. 461). When danger is imminent, individuals, even ones who have contract-based reasons to obey state authority, retain the right to self-defense. This fits the very plausible idea that citizens do not cede “total monopoly of force to the state” when entering a social contract (Fletcher 1996, cited in Ferzan, p. 460). Any contract must allow such exceptions and limits on state power; otherwise the state has absolute power, and there could be no right to rebel, no right to revolution, no right to self- defense, and ultimately no recourse against the state. When law enforcement officers attack civilians, they effectively create a qualified state of nature whereby the state has failed to protect the particular citizen in that circumstance. On some extreme social contract views, this would mean that any defensive action is permissible since there is no contract to define the rights of the attacker and defender. A more plausible view, however, is that the law enforcement attacker no longer has a contract-based reason to attack, or at least the reason is significantly weakened by the creation of state-of-nature-like conditions. A defender would still have independent moral On Law Enforcement Officers’ Liability to Defensive Harm 34 reasons establishing limits on defensive force, e.g. proportionality, so a law enforcement attacker would be no more liable to defensive force than she would be otherwise. This is an important qualification because it rebuts the possibility that Ferzan’s argument justifies rampant vigilantism when individuals judge the state has failed. The argument does not imply that vigilantism is generally permissible because there are external constraints outside of the purely contract-based arguments that would prohibit many forms of vigilantism. This line of argument is especially powerful because it can allow that a contractual theory of rights is generally plausible but that it breaks down in the specific context of law enforcement encounters with civilians. Depending on one’s particular social contract theory, the upshot of each of these arguments could be quite different. These three failures could be read as breaks in the social contract or as reasons to dissolve or nullify an existing contract and create a new state. The precise implication and terminology is irrelevant for my present purposes. What matters is that all three serve to severely weaken the social contract argument for a special Hohfeldian power for law enforcement officers. 6 Conclusion I conclude that policy on defensive force against law enforcement officers should be significantly modified given the lack of special excuse and justification for this group of attackers. Many of my arguments throughout this paper could apply to contexts beyond the United States, and if departments and officers elsewhere behave similarly, then the conclusions are fairly generalizable. Current law on excessive force and self-defense against law enforcement is a patchwork of different statutes and case law on the state level. In the wake of the killing of Trayvon Martin in Florida and the prominence of Stand Your Ground laws in George Zimmerman’s case, several states have made statutory changes to self-defense clauses affecting the duty to retreat. These reforms indicate that self-defense laws, while a staple of the American criminal justice system, are not static and immutable. Indiana, for example, recently passed a law clarifying and strengthening civilian’s rights to defend themselves and their property against law enforcement (David 2015). In contrast, Texas can charge civilians with capital murder and impose the death penalty for killing a peace officer on official duty, regardless of how morally justified defensive force may be. Of course, there is no strong morally relevant distinction between these jurisdictions – Texas and Indiana – to justify such a wild distinction in policy. Given the arguments in this paper, that law enforcement attackers have no special excuse or justification that similarly-situated civilians lack, some states should undergo major statutory reform to (a) reduce the use of excessive force and ease with which officers can avoid liability for excessive force and (b) give civilians who use self-defense against law enforcement greater protections. These revisions are not difficult to implement as the Indiana case shows. The moral equivalence of these two groups of attackers suggests that generally-accepted standards for self- defense, while perhaps imperfect, would still be a better solution than the status quo. On Law Enforcement Officers’ Liability to Defensive Harm 35 Notes 1 I am deeply grateful to my committee chair Jonathan Quong, my committee members Stephen Finlay and Gordon Stables, and to many people for their reactions to this material, especially John Scoggin, who provided indispensable support when I needed it most. 2 It may still be useful to consider the features of the common contexts in which law enforcement encounters occur, even if those features are not dependent on the attacker’s status. Arguments about these contexts could provide valuable insight for public policy. Suppose that that we live in a world where only law enforcement officers act under duress so as to have an excuse, but this empirical accident has nothing to do with their status as law enforcement. This would still be useful information about self-defense in the context of law enforcement encounters. 3 This category includes both totally innocent/excused attackers and partially excused attackers. Self-defense literature typically provides examples of totally innocent/excused attackers or threats such as someone who accidentally falls from a high place and will inevitably crush a person below absent defensive force (see Nozick 1974, pp. 34-35; Thomson 1991, p. 287). I expand the category here because it is unlikely that a law enforcement officer would be totally innocent/excused, and even a partial excuse distinguishes the attacker from the Culpable Attacker discussed above. 4 Of course, some moral absolutists would deny this example is a justifiable threat. I am assuming, however, that most would agree that a sufficiently large potential harm from a terrorist attack could justify imposing some harm on an innocent person. 5 Extreme pacifists might object to all uses of force, including self-defense. Thomas Hobbes famously and puzzlingly defends the inalienability of any rights to defensive force in a political order (1994, 14.8, see Finkelstein (2001) for discussion). 6 Quong (2015) denies that degrees of responsibility beyond a certain threshold affect the attacker’s degree of liability to defensive force. While he presents a forceful new argument, his view does not currently represent the majority view in the field, so I assume the more traditional view espoused by McMahan. 7 Schroeder (2008) provides a very clear example of the difference between the objective and subjective sense of reasons, from which I am deriving the difference between objective and subjective justification. Suppose Ronnie, Bradley, and Freddie are thinking about going to a party. Ronnie likes dancing but does not know if there will be dancing, Bradley dislikes dancing but does not know if there will be dancing, and Freddie likes dancing and knows there will be dancing. Ronnie has an objective reason to go that Bradley lacks, and Freddie has a subjective reason to go that Ronnie lacks (p. 59 and pp. 65-68). 8 This line of inquiry seems less promising because any argument for heightened defender liability in law enforcement contexts is likely premised on a bad act or threatened bad act by the defender, which (a) is not unique to the attacker’s status as law enforcement and/or (b) creates additional justification for law enforcement attackers which is covered in Section 5. 9 One wrinkle in law enforcement cases is that officers are often defenders themselves. This substantially complicates the picture in fascinating ways; however, the additional questions raised by these cases are general problems for self-defense theory, not law enforcement contexts in particular, so I do not discuss them. (see Tomkow 2011 for discussion of defensive force against defensive force cases). 10 This is important because if an argument in a later section would drastically affect where the case is categorized, its initial placement should serve as a counter-example. For instance, suppose I make the bad argument that law enforcement officers are more justified attackers because it is always good for the state to maintain control by demonstrations of force. This argument would imply that a seemingly Culpable Attacker is actually a Justified Attacker or even a Just Attacker, moving the case two or three categories down the spectrum. Because the argument’s implication is a radical readjustment of the case’s original placement, we have good reason to be skeptical of the argument. I am making the conservative assumption that no argument for the special status of law enforcement officers is so powerful that it causes us to think about a case in a radically different way. While I leave the door open for such a possibility, my method presumes against it by granting strong weight to my initial intuitive placement of the cases. 11 McMahan (2002) describes a case where a resident opens his door to see the identical twin brother of a notorious mass murderer, panics, and shoots the innocent man (p. 402). This is a textbook case of an Excused Attacker because it is perfectly reasonable absent any evidence to disregard the possibility that the man at the door is not the dangerous murderer but instead his identical twin. The resident is ignorant of this fact but not culpable for his ignorance. 12 Media coverage and discussion of the Trayvon Martin killing indicates some of these sentiments, calling the killer George Zimmerman a vigilante who took justice into his own hands. See for example Schneider (2012). 13 Elinson (2015) reports approximately 1200 deaths due to police use of force in 2015. The Federal Bureau of Investigation (2016) reports that 41 officers were feloniously killed and 45 accidentally killed in the line of duty in 2015. Neither of these numbers precisely reports the number of life-and-death situations for officers, but they help give a rough baseline. 14 See Zuradzki (2014) for similar reasoning in the context of abortion, where there is moral uncertainty regarding the status of the being affected by one’s action; such uncertainty seems to give rise to a presumption against harm (p. 447). 15 This argument for an officer’s presumption against the use of force is analogous to the reasoning McMahan suggests that combatants should engage in before deciding whether to fight in war (2009, p. 141). In war, there are many more actors and variables to consider in measuring the likelihood of success and of harm to innocent civilians. The moral calculation for a soldier is not so clear-cut. A confrontation between a civilian and law enforcement officer, by contrast, is much simpler. Thus, if McMahan is right that soldiers have a duty to morally deliberate about their warfighting despite their epistemic and moral limitations, law enforcement officers, a fortiori, have at least as strong a duty to evaluate the morality of their actions. 16 Consider the security company with the highest revenue in the world, G4S, which is known for employing “woefully undertrained” guards and “has long been accused of cutting corners, reducing pay, and caring more about profit margins than public safety” (Schlosser 2016, para. 7-9). 17 McMahan rejects the argument that soldiers have this excuse by virtue of their age (p. 122). On average, soldiers probably join earlier and retire earlier than law enforcement officers, so if McMahan is right that soldiers should be fully responsible, then certainly law enforcement officers should be too. I do not discuss his argument at length, however, because he merely appeals to existing criminal laws that hold all adults equally responsible, regardless of relative youth or brain development. 18 McMahan (2006, p. 384-85) refers to same argument as “a paradigm of the division of moral labor” and the “argument from institutional commitment” while McMahan (2009) retains “the division of moral labor” header while sub-dividing between “deference to institutional authority” (2.4.1) and “duty to sustain efficient functioning of just institutions” (2.4.2). For clarity, I re-label. 19 The number or diversity of reasons does not matter. If this were the case, we could construct any reason that references the law enforcement officer’s status as a reason that references the similarly-situated civilian’s status instead. Substitute the phrase “if you are a neighborhood watch captain” or “if you are a private security guard” and then both agents have the same number and diversity of reasons. 20 For this reason, I do not discuss in depth several arguments one might think justify law enforcement attackers on the basis of rule-consequentialist reasoning, especially traits like special skills in assessing and handling dangerous situations. None of these traits are unique to law enforcement officers even if they are more prevalent in that group. We can easily and plausibly imagine a private security company with better-trained guards even if such a company does not currently exist. It would be an extremely uninteresting conclusion if the reason that law enforcement officers have special justification is that they are simply better trained than most civilians. This is certainly the case, but we are considering a comparison between law enforcement officers and similarly-situated civilians, i.e. civilians with comparable evidence and ability. See Section 1 and Footnote 2. 21 Against the existence of racial profiling, see Grogger and Ridgeway (2006), Knowles, Persico, and Todd (2001), Lange, Johnson and Voas (2005), Persico and Todd (2006), and Pickerill, Mosher and Pratt (2009). In favor of the legitimacy of racial profiling, see Adler (1994). I take for granted that racial profiling is unjust. 22 One might think that this reasoning only justifies moral deliberation in high-stakes contexts like Mistaken Encounter, not low-stakes ones like Arrest Quota. However, even in Arrest Quota, the moral stakes are relatively high even if the level of force likely to be employed is low. In these more routine police stops, the officer has a weaker justification, which increases the wrong done to the civilian defender. The more unnecessary the attack, the more wrong it seems to violate civilians’ rights through the use of force. 23 Miller and Blackler (2005) argue that the “most important moral purpose of police work” is “the protection of moral rights,” from which all other important purposes of police institutions can be derived (p. 5). For example, laws against speeding “derive in part from the moral right to life” (p. 5). Several definitions of law enforcement reinforce this feature, calling it “A department of a government or state concerned with maintaining public order and safety” or “that branch of the administrative machinery of government…charged with the preservation of public order” (Oxford English Dictionary, n.d., and Black’s Law 2 nd Edition). The importance of law enforcement and its functions for any government is so clear that these features are built into the definition of law enforcement itself. References Aaby, D. A. (1989). Scope of the public duty/special duty doctrine in Illinois: municipal liability for failure to provide police protection, The. N. Ill. UL Rev., 10, 269. Adler, J. E. (1994). More on race and crime: Levin's reply. Journal of Social Philosophy, 25(2), 105-114. Almond, B. (2005). Reasonable Partiality in Professional Relationships. Ethical theory and moral practice, 8(1-2), 155-168. Andrews, M. (1982). Hohfeld's cube. Akron L. Rev., 16, 471. Antonovics, K., & Knight, B. G. (2009). A new look at racial profiling: evidence from the Boston police department. the review of economics and statistics, 91(1), 163-177. Aynes, R. L. (1983). Constitutional considerations: government responsibility and the right not to be a victim. Pepp. L. Rev., 11, 63. Barina, R. & Bishop, J.P. (2013). Maturing the minor, marginalizing the family: on the social construction of the mature minor, Journal of Medicine and Philosophy, 38: 300-314. Carroll, L., & Gonzalez, M. L. (2014). Out of Place: Racial Stereotypes and the Ecology of Frisks and Searches Following Traffic Stops. Casey, B. J., Getz, S., & Galvan, A. (2008). The adolescent brain. Developmental Review : DR, 28(1), 62–77. http://doi.org/10.1016/j.dr.2007.08.003 Cockcroft, T. (2013). Police culture: themes and concepts. Routledge. David, M. (2015). State makes it legal to shoot cops in self-defense if they violate your rights. Anti-Media. Retrieved http://theantimedia.org/state-makes-it-legal -to-shoot-cops-in-self -defense-if-they-violate-your-rights/ Discover Policing. (n.d.). Basic requirements. Discover Policing. Retrieved http://discoverpolicing.org/what_does_take/?fa=requirements Elinson Z. (2015). More police go to trial in killings, but convictions remain rare. The Wall Street Journal. Retrieved http://www.wsj.com/articles/more-police-go-to-trial-in-killings -but-convictions-remain-rare-1443044871 Federal Bureau of Investigation. (2016). FBI releases 2015 preliminary statistics for law enforcement officers killed in the line of duty. Retrieved https://www.fbi.gov/news/pressrel/press-releases/fbi-releases-2015-preliminary - statistics-for-law-enforcement-officers-killed-in-the-line-of-duty Ferzan, K. K. (2001). Self-defense and the state. Ohio St. J. Crim. L., 5, 449. Finkelstein, C. (2001). A puzzle about hobbes on self-defense. Pacific philosophical quarterly, 82(3 & 4), 332-361. Greenwald, A. G., Oakes, M. A., & Hoffman, H. G. (2003). Targets of discrimination: Effects of race on responses to weapons holders. Journal of Experimental Social Psychology, 39(4), 399-405. Grogger, J., & Ridgeway, G. (2006). Testing for racial profiling in traffic stops from behind a veil of darkness. Journal of the American Statistical Association, 101(475), 878-887. Gur-Arye, M. (2011). justifying the distinction between justifications and power (justifications vs. power). Criminal Law and Philosophy, 5(3), 293-313. Hobbes, T. (1994). Leviathan: with selected variants from the Latin edition of 1668. E.M. Curley (Ed.). Indianapolis: Hackett Pub, 1994. Print. Hoffman, D. N. (1986). Has police power gone too far?. Hastings Center Report, 16(5), 44-44. On Law Enforcement Officers’ Liability to Defensive Harm 39 Hooker, B. (2015). Rule consequentialism, The Stanford Encyclopedia of Philosophy (Winter 2015 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/win2015/entries/consequentialism-rule/>. Huemer, M. (forthcoming). Devil’s advocates: on the ethics of unjust legal advocacy. PhilPapers. Huemer, M. (2013). The problem of political authority. Palgrave Macmillan UK. Kleinig, J. (2014). Legitimate and illegitimate uses of police force. Criminal Justice Ethics, 33(2), 83-103. Kopel, D. B., Eisen, J. D., & Gallant, P. (2008). The human right of self-defense. BYU Journal of Public Law, 22. Kutz, C. (2000). Self-defense and political justification. Cal. L. Rev., 88, 751. Jeffrey, K.J.P. (2012). Moral liability to self-defense: challenging Jeff McMahan's fact-relative account. (Master’s Thesis). Retrieved https://qspace.library.queensu.ca/bitstream/handle/1974/7564/Jeffrey_Kory_JP_201209_ MA.pdf;jsessionid=2EDA2C3579F0F07A069858B4649924A8?sequence=1 Jetha, M. K., & Segalowitz, S. (2012). Adolescent brain development: implications for behavior. Academic Press. Lange, J. E., Johnson, M. B., & Voas, R. B. (2005). Testing the racial profiling hypothesis for seemingly disparate traffic stops on the new jersey turnpike. Justice Quarterly, 22(2), 193-223. Lazarev, N. (2005). Hohfeld’s analysis of rights: an essential approach to a conceptual and practical understanding of the nature of rights. Murdoch University Electronic Journal of Law, 12(1). Leider, R. (2009). Justifying self-defense, defense of others, and the use of force in law enforcement (Doctoral dissertation). Retrieved from DigitalGeorgetown. Locke, J. (1689). Second treatise of government. The Project Gutenburg eBook of the Second Treatise of Government, by John Locke. Mathias, C. (2014, October 2). Police quotas are terrible, and the NYPD still seems to be using them. The Huffington Post. Retrieved http://www.huffingtonpost.com/2014/10/02/nypd-quotas_n_5916596.html Mayer, D. (1992). Sovereign immunity and the moral community. Business Ethics Quarterly, 2(04), 411-434. McAdams, R. H. (2011). Bill Stuntz and the principal-agent problem in american criminal law. In M. Klarman, D. Skeel, & C. Steiker (Eds.) The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz. Cambridge University Press. McAdams, R. H., Dharmapala, D., & Garoupa, N. M. (2015). Punitive police? agency costs, law enforcement, and criminal procedure. Agency Costs, Law Enforcement, and Criminal Procedure (April 7, 2015). Illinois Public Law Research Paper, (13-47). McMahan, J. (2002). The ethics of killing: Problems at the margins of life. Oxford University Press. McMahan, J. (2005). The basis of moral liability to defensive killing. Philosophical Issues, 15(1), 386-405. McMahan, J. (2006). On the moral equality of combatants. Journal of Political Philosophy, 14(4), 377-393. McMahan, J. (2009). Killing in war. Oxford University Press. Miller, S., & Blackler, J. (2005). Ethical issues in policing. Aldershot, Hants, England: Ashgate. On Law Enforcement Officers’ Liability to Defensive Harm 40 Murray, J. (2014). Beyond moral responsibility and lesser-evils: moral desert as a supplementary justification for defensive killing. Novak, K. J. (2004). Disparity and racial profiling in traffic enforcement. Police Quarterly, 7(1), 65-96. Nozick, R. (1974). Anarchy, state and utopia. O’Brien, R.D., Saul, M.H., & Shallwani, P. (2015). New York City Police officer won’t face criminal charges in Eric Garner death. The Wall Street Journal. Retrieved http://www.wsj.com/articles/new-york-city-police-officer-wont-face-criminal -charges-in-eric-garner-death-1417635275 Parry, J. T. (2007). Terrorism and the new criminal process. William & Mary Bill of Rights Journal, 15, 765. Pellicciotti, J. M. (1989). Police Civil liability for failure to protect: the public duty doctrine revisited. Am. J. Police, 8, 37. Quong, J. (2015). Proportionality, liability, and defensive harm. Philosophy & Public Affairs, 43(2), 144-173. Reiman, J, (1985). The social contract and the police use of deadly force. In F. Elliston & M. Feldberg (Eds.), Moral Issues in Police Work (237-249). Totowa, N.J.: Rowman & Allenheld. Ripstein, A. (1996). Self-defense and relations of domination: moral and legal perspectives on battered women who kill: self-defense and equal protection. U. Pitt. L. Rev., 57, 685-983. Ripstein, A. (2009). Force and freedom. Kant’s legal and political philosophy. Schlosser, E. (2016). The security firm that employed the orlando shooter protects American nuclear facilities. The New Yorker. Retrieved http://www.newyorker.com/news/news- desk/the-security-firm-that-employed-the-orlando-shooter-protects-american-nuclear- facilities Schneider, M. (2012). Was Fla. shooter a vigilante or good neighbor? Associated Press. Retrieved from http://www.bet.com/news/national/2012/03/22/was-fla-shooter-a -vigilante-or-good-neighbor.html Schroeder, M. (2008). Having reasons. Philosophical Studies, 139(1), 57-71. Scruggs, A. (2015). Tamir Rice shooting justified, say expert reports, as grand jury process continues. The Guardian. Retrieved http://www.theguardian.com/us -news/2015/oct/11/tamir-rice-shooting-justified-say-expert-reports-as-grand-jury -process-continues Shircore, M. (2006). Police liability for negligent investigations: when will a duty of care arise?. Deakin Law Review, 11, 33. Sisk, G. C. (2010). The inevitability of federal sovereign immunity. Villanova Law Review, 55, 899. Smith, A.S. (2012). Deadly force and public reason. Theory and Event, 15(3). Stanglin, D. (2016, July 7). New video in Alton Sterling shooting stirs anger. USA Today. Retrieved http://www.usatoday.com/story/news/nation/2016/07/06/black-leaders -demand-state-probe-fatal-shooting-baton-rouge-police/86745562/ Steinberg, L. (2008). A social neuroscience perspective on adolescent risk-taking. Developmental review, 28(1), 78-106. Steinberg, L. (2013). Does recent research on adolescent brain development inform the mature minor doctrine?. Journal of Medicine and Philosophy, 38(3), 256-267. On Law Enforcement Officers’ Liability to Defensive Harm 41 Stoughton, S. (2014). How police training contributes to avoidable deaths. The Atlantic. Retrieved from http://www.theatlantic.com/national/archive/2014/12/police -gun-shooting-training-ferguson/383681/ Thomson, J. J. (1991). Self-defense. Philosophy & Public Affairs, 283-310. Tomkow, T. (2011). Self defense. Tomkow A Philosophical Journal. Retrieved from http://tomkow.typepad.com/tomkowcom/2011/03/self-defense.html Zack, N. (2015). White privilege and black rights: the injustice of us police racial profiling and homicide. Chapter 3 Black Injustice and Police Homicide. Rowman & Littlefield. Zupan, D. (2006). The moral (in)equality of combatants. Retrieved from http://isme.tamu.edu/JSCOPE06/Zupan06.html
Abstract (if available)
Abstract
In the United States, law enforcement officers are allowed greater latitude in their use of force than private civilians, who incur additional penalties for defensive force against officers. This paper explores what could be distinctive about law enforcement officers that makes them less liable to defensive harm than any ordinary person in a similar situation. I ultimately deny that law enforcement officers should be subject to special moral treatment by virtue of their status as law enforcement. In doing so, I adapt Jeff McMahan’s typology of attackers in self-defense cases and describe a handful of self-defense cases involving law enforcement officers and similarly-situated civilians as attackers. I discuss the three major excuses for attackers—nonculpable ignorance, duress, and diminished responsibility—and reject each as a potentially unique excuse for law enforcement officers. Then, I raise and object to two potential justifications for law enforcement attackers—McMahan’s division of moral labor argument relying on rule-consequentialism and role-based reasoning and a social contract theory argument within a Hohfeldian framework. Both potential sources of unique excuse or justification fail. I conclude by recommending greater standardization of self-defense requirements across cases involving law enforcement and civilian attackers, stronger restrictions on officers’ use of excessive force, and greater protections for civilians who employ self-defense against officers.
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University of Southern California Dissertations and Theses
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Overing, Robert
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On law enforcement officers’ liability to defensive harm
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College of Letters, Arts and Sciences
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Master of Arts
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Philosophy and Law
Publication Date
12/07/2016
Defense Date
07/14/2016
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defense against law enforcement,defense against police,defensive force,division of moral labor,Hohfeld,Jeff McMahan,Law enforcement,OAI-PMH Harvest,officer liability,Police,police officers,responsibility,rule-consequentialism,self-defense,social contract
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English
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Quong, Jonathan (
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bob.overing@yale.edu,bobovering@gmail.com
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Overing, Robert
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Tags
defense against law enforcement
defense against police
defensive force
division of moral labor
Hohfeld
Jeff McMahan
officer liability
responsibility
rule-consequentialism
self-defense
social contract