EssaysFeature

Use of Force

Law Enforcement in the United States

On July 6, 2016, at the age of 32, Philando Castile was shot dead in his car in what should have been a routine traffic stop. Although the officer involved in the shooting was charged with manslaughter and reckless discharge of a firearm, he was acquitted of all charges on June 16, 2017. It is not my intention to focus specifically on the details of this case, tragic as it is, but to use this case to think through some of the cultural values that are encoded in it and similar cases. Specifically, to think through the cultural values that are at work in how we think about and understand police work, especially when that work ends with the officer’s use of deadly force. It is well noted that it is exceedingly rare for an officer to be charged for excessive use of force in the United States, rarer still for an officer to be convicted. Just as predictable as the lack of conviction in such cases is the typical defense offered by the officers involved — “I had no other choice. I feared for my life. I thought I was going to die.”

For the sake of the argument that follows, I want to set aside questions of whether such fear is actual or manufactured as a winning defense after the fact, as well as questions about whether genuine fear might be motivated by racial animus, conscious or unconscious. I would also like to set aside, at least for the opening reflections, questions about whether or not there was just cause for the fear in the particular encounter, or again, what statistics might tell us about the number of police actually killed in the line of duty by armed assailants. If we can enter the phenomenological worldview of the officer on the street, the very uncertainty of police work, the thought that “this encounter might be my last,” would be enough to motivate the fear. While I do not wish to be insensitive to the very real fear the officers on the street must deal with on a daily basis, we should not let sensitivity to that fear be the last word.

Assuming then that Officer Yanez is not acting for the dashcam in the moments following his shooting of Philando Castile, we can take the video as an accurate depiction of his frame of mind. Recounting the events to his partner, Yanez states, “I was getting fucking nervous.” In his testimony, Officer Yanez offers a more polished version of the same: “I was scared to death,” adding “I thought I was going to die. My family popped into my head. My wife. My baby girl. I was forced to engage Mr. Castile.” While every case is different, and while the specific circumstances of each encounter must ultimately weigh on how each case is decided, what interests me here is the use of fear both as an explanation and defense of the shooting.

Again, assuming that such fear is real, what does it say about us when we uncritically accept that the conclusion, “I was forced to act as I did,” follows seamlessly from the premise, “I was scared?” What values do we uphold when we allow such an argument to function as a valid defense in use of force cases and, just as critically, what values do we foreclose by failing to investigate such claims?

We should begin by taking the claim seriously. That is, we should assume that the fear is real, and that the person who is overcome by such fear feels as though they have no alternative. We often speak of fear, and other emotions, in this manner – they “overcome us.” In such situations, we are apt to say that it was the fear that made us act as we did, just as in other situations, overcome with love, or jealousy, we attribute our actions to these overpowering emotions. We say that we have been overpowered; we could not do otherwise.

The first, and most obvious, question that arises is one of human agency and autonomy. Is it true that while in the grip of fear we simply lose all agency and autonomy, that we must act in some prescribed manner given the reality of the fear? Or do we still retain some effective control over the choices we make when dealing with that fear? As the tradition of virtue ethics stretching back at least to Aristotle argues, we can exert control over our responses to such fear. I’m sure we can all find examples, even in our own lives, where we have chosen not to let fear prevent us from embarking on some chosen course of action. Habituating ourselves to respond appropriately to fear is the mark of a virtuous, and we should say, free human being. That is, we can recognize that while the fear is in some sense irrational, that it seems to overtake us from without, it is not completely so, for we can overcome it, and with practice, master it. If we choose not to do so, that is, choose not to habituate ourselves through practice to responding appropriately to our passions, surrendering our freedom and allowing our passions to dictate our actions instead, we should then be held accountable for our behavior. For we could have chosen another path, we could have chosen to develop our characters in a different manner, a manner that would not have left us at the mercy of our passions.

If then we say, “I was afraid, I could not act otherwise,” we are admitting to our own moral failure, not just in the instance where our fear was put on display and put to the test, but over the course of the life we have lived up until that moment. It is true, if we have failed to develop a character sufficient to face down fear “in the heat of the moment,” then we will perceive the situation as one in which we have no choice. Here is where the words of Heraclitus, “a man’s character is his fate,” bite hardest. But this should not be taken as an excuse, for character is not something one is born with, but something one cultivates, or, perhaps more often than not, fails to cultivate actively.

We should add one last thought here on the cultivation of character, and this is simply the observation that one does not cultivate one’s character in a vacuum. While we should all be held individually responsible for the choices we make, choices that simultaneously reinforce the character that we have developed through such choices, just as those choices reflect that very character which we have developed over time, we must also recognize the work that cultural values play in this process. We need not go so far as to say that we are all merely “socially determined” to recognize that the values that society holds up as worthy of pursuit and emulation will be reflected in a large number of the members of the society that upholds those values. Directly and indirectly, we transmit and sustain the values that give society its particular shape and character. We find this at large in society, and again on even smaller scales in those social groupings that form within the larger society. Thus we might talk about the social norms operating within police forces that would prevent officers from testifying against other officers, even when a clear violation has occurred. This is not so different as the social norm that operates “on the street,” poetically phrased as “snitches get stiches.” If, as a culture, we accept that fear is not simply to be taken as a motivation, but as a justification, for one’s actions, then we should not be surprised to find police officers viewing encounters on the street through this same lens and acting accordingly.

Of course, one might reply that given the fear of losing one’s life, the appropriate response is to do precisely what Officer Yancey did in this situation and protect his own life at all costs. On the surface, this appears to be a reasonable claim. We do ask police officers to do dangerous jobs, and we should expect them to take precautions concerning their own safety. But should the primary thought of police officers, officers trusted with “serving and protecting” the public, be with their own safety? That is, should we valorize a system that promotes the preserving of the officer’s own life, especially when it risks the lives of those who are to be “protected and served,” as the morally sound one? We should seek to minimize the risk that officers face, but have we gone to far when we concede that any risk to the officer’s life is too great?

Is the good life the life that clings to life, or the life that willingly surrenders its mere existence in pursuit of noble goals, however they might be defined? We need not answer the question as to which goals satisfy the criterion of “noble,” but by failing to raise the question, as we do when we accept that force is the appropriate response to mere possibility of losing one’s life, we have already given an answer, one that sees nothing higher than mere existence. But this life that clings to life, this life that pursues nothing beyond simple existence, is the life of nihilism that is fitting only for Nietzsche’s “last man” or is, as Aristotle might have put it, a good life for a plant. While it is true that life, mere existence, is the ground for any future value, a full human life must reach for something beyond its own existence. We need not expect that only individuals who have become either Nietzsche’s ubermensch or Aristotle’s virtuous sage are fit to engage in police work, but as representatives of the state, armed representatives at that, entrusted with the power to use force against a civilian population, police officers should be held to higher standard of behavior, and citizens should have a right to expect that the officer they are engaging with will not respond simply from fear, even in tense encounters.

We should not take this to mean, however, that there are no instances in which it would be legitimate for an officer to open fire, and to do so directly in the service of “mere existence.” When an attack has already been made and the threat of danger has become actual, not simply thought to be imminent, it may be appropriate for officers to respond in kind. Defensive violence may become necessary, always as a last resort, when such violence is the only means by which other lives may be protected. But here again, and in keeping with the thoughts above, we might come to expect that the first thought of the officer responding to a scene of violence should be, “what can I do to de-escalate the situation,” not, “what can I best do to preserve my own life?” This will require difficult, and disputable, judgments to be made by the officer on the scene. However, habituated into a new set of values, acting within a new framework of virtue, those decisions, difficult as they will always be, will be made against a framework that asks more of the officer, and by an officer who, one might hope, will likewise demand more of himself. A public too, educated to a new set of values, might come to recognize that the lethal use of force that is called for in one situation, to put an end to a mass shooting in a movie theater for example, is not appropriate in another, for example, a routine traffic stop of a law abiding citizen.

Some might object that we are giving more protection to criminals than we are to police officers, but this criticism too hides a dangerous slippage of thought. Merely being stopped by the police does not make one a criminal, at least not in respect to the particular stop in question. In many cases, these fatal encounters between police officers and civilians end before a ticket could have been written or an arrest made. But even having charges pressed against one is not enough to make one a criminal. This is what “innocent until proven guilty” means, and must mean. Until a judgment in the appropriate judicial setting has been rendered, the presumption of innocence must remain with the citizen, the burden of proof with the state. If we replace the word “criminal” with the word “citizen” in the criticism, we are left with the charge that we are giving more rights to the citizen than we are to the police, that is, that the balance of “right” is tipped slightly in favor of the citizens against the state. Another way of making this point is that we are asking for the state to show restraint in the use of force against its citizens. Phrased that way, the criticism no longer stings. Instead, it sounds like the common sense understanding of civil liberties that we should expect, if not as human beings possessed of human rights, than at least as American citizens, protected by the civil rights outlined in the Amendments to our Constitution.

In what I have written, I have tried to steer clear of questions of race, class, and gender, questions that are often at the heart of the debates that take place in the wake of the killing of civilians by police officers. I did this not because I believe these issues are unimportant; indeed, I believe each of them represents a major fault line along which the “we” of this country is perpetually in danger of being rent, tentative moves towards solidarity notwithstanding, but in the hopes that by putting them aside, temporarily, we might expose a dangerous habit of thought that would be equally dangerous, even were these fault lines healed once and for all. This is the habit of thought that sees fear, not simply as a reason for acting, which, for the beings of precarious existence that we are, it is always likely to be, but a justification for that action. Fear is a bare fact, even if what we fear has a social component to it, but it is only a set of social values that can turn this bare fact of fear into a justification that holds sway in a court of law or the court of public opinion. There is no silver bullet that will solve all of our problems, no silver bullet that would have prevented the very preventable death of Philando Castile and others in similar encounters, just as there is no silver bullet that will bring about justice, too little, too late, after the fact. But if there are many steps forward in “bending the arc of history towards justice,” overcoming our culture of fear may be one.

Louis Colombo is a professor of Philosophy in the School of Religion at Bethune-Cookman University in Daytona Beach, Florida.

Louis Colombo

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