What Makes Reasonable Force Reasonable?
Conceptions of Virtuous Rationality
In a recent essay published by Public Seminar, I argued that we should rethink the appeal to fear as a motive and justification for the use of force by police officers. Although I concluded that fear should not be seen as a legitimate defense of an officer’s decision to use force, my appeal to Aristotle leaves open the response that while an excess of fear should not be accepted as a justification, there is a reasonable amount of fear upon which one should act. As this response, if valid, would derail my argument, I would like to consider it here, broadening my discussion to include the Stoic tradition, and reaffirming my view that an appeal to fear should never be taken, morally and legally, as legitimate grounds for the use of force.
To understand the charge against which I seek to defend my conclusion, we should recall that to live virtuously, according to Aristotle, is to live “according to reason.” With respect to the passions, such as fear, Aristotle argued that we should moderate them, seeking the mean between the extremes of “too much” and “too little.” While the mean is relative to both the individual and the situation, it is the part of reason to find the appropriate measure of the passion in question upon which one should act. Thus, with regard to fear, Aristotle was equally concerned that one might have “too much fear” or “too little fear.” Acting at either extreme, “too much” or “too little” would be a vice. As Aristotle argues, the virtuous person is not the one who has eliminated passions, but who, through practice, has cultivated a disposition that habitually finds the mean with respect to them. Hence one might argue that a police officer, responding to a call, might enter a frightening situation that demands some action on her part. Acting virtuously would require not that she act without regard to the ruling passion, fear, but on that passion moderated by reason. If this is true, one could legitimately say, “I acted as I did because I feared for my life, and this fear, and my response, was appropriate to the situation.”
While the Stoics would agree with the Aristotelians that the virtuous life is the one that is lived “according to reason,” they would disagree with the latter as to how this injunction should be interpreted. The Stoics took a much harder line on the passions. They argued that the passions run counter to reason — hence our talk of being “overcome with anger” and “overcome with fear” — and that the virtuous individual should seek, in Martha Nussbaum’s phrasing, to “extirpate” them. One is not virtuous when one acts from passion. In doing so, one is submitting to a motivation less noble than reason, and thereby forfeiting, at least in that action, one’s humanity. As a way of life, such forfeiture is destitution.
The point of disagreement here is rather subtle. In the Aristotelian tradition, a virtuous individual undergoes a rational appraisal that precedes any action, acting only on the rational appraisal of the passion. Aristotle believed that habituation enabled us to hasten these recurring rational appraisals that otherwise would render one unable to act. Like the Aristotelians, the Stoics too understood the importance of character and habituation, but rather than a life of perfectly moderated passions, the Stoics saw a life free from the passions as the ideal to which one should aspire.
Given this dispute, I want to suggest that the Stoics advance the more consistent position. On both accounts, it remains true that for everyone but the virtuous sage, reason remains locked in conflict with the passions, and so all but the sage will act from mixed motives. However, from the Stoic point of view, the Aristotelian ideal of “perfectly moderated passions,” insofar as it allows the passions a share in motivating actions, can not be wholly consistent with human virtue, for the passions, even if moderated, are not where human good is to be found. Against the Aristotelian position, the Stoics argued that if reason is the source of human virtue, as both traditions agreed, then not only should we seek to follow it free from any admixture of that which is of lesser stature, but the standard by which we judge our actions should be equally strict. While this is not likely to settle the dispute between the two traditions, for our purposes, we can see that the Stoics would reject as a justification for action an appeal to fear, even an appeal couched in Aristotelian terms of “rationally sanctioned fear.”
The Stoic thinkers would offer one more argument against acting from fear, based on their unique understanding of what it means to live “according to reason.” According to Stoic teaching, to live according to reason means to concern one’s self only with that which is under one’s control — judgment, desire, and will. We are completely free to judge or not judge, to assent to or dissent from any desire, and to will ourselves to act or not act. According to the Stoics, the opinions of others, fame, fortune, honors, and mortality all fall outside of our control, and so lie beyond both the realm of virtue and our concern. Thus, the Stoics thought, we should not think of these things, but only of our judgments, our desires, and our will. Once one has distinguished between that which is within our control and that which is outside of our control, fear can be seen as a stubborn attachment to “externals.” To fear death, and to act out of such fear, displays an error in judgment, because it suggests that death, and not what we think of death, is an evil to be avoided. However, with the exception of suicide, the time and manner of our death lies outside our control, just as much as does the facticity of our mortality. In the final analysis, fearing death and seeking to avoid it is a rejection of the universal reason that has decreed that humans, and all finite beings, must pass.
Of course, suggesting that we follow the Stoics here is not to suggest that one should run blindly into death. As a member of a community — here the Stoics were keen to call attention to our interconnectedness with others — we have obligations and duties vis-à-vis its other members. So not only should we seek to preserve our own lives for our own sakes, insofar as we can do so while retaining our virtue and dignity, we should also seek to preserve them so as to be useful to our community. We see this most visibly in Cato, a Stoic thinker who, judging that the preservation of his life would ill benefit the Roman Republic under the reign of Julius Caesar, took his own life. Cato neither rushed blindly into death nor clung to life at all costs. In the most difficult of circumstances he chose the course of action that would allow him to live and die with his virtue preserved while serving the Republic.
To understand how this argument would look in practical terms, lets consider the case of Tamir Rice, shot and killed on November 23, 2014, by police officer Timothy Loehmann just seconds after he and his partner, Frank Garmback, arrived at the Cudell Recreation Center in response to a call about a male suspect waving a pistol at people in the park. Although Loehmann was later fired for having lied on his job application, neither he nor Garmback were indicted for the killing of Tamir Rice. Explaining his action, Loehmann reported that he thought Rice’s gun was real, and that the “threat just became incredible.” In hindsight we can see that Tamir was not holding a real gun and so posed no real threat. However, according to the Supreme Court’s ruling in Graham v. Connor (1989), the “reasonableness” of an officer’s use of force must be measured against a “reasonable officer” on the scene at the time, and not judged “with the 20/20 vision of hindsight.” And photos of the fake gun have since demonstrated that it looked “real enough” to be easily mistaken as functional. Let’s then assume that Loehmann did truly believe that the gun Tamir was holding was real, and further, that racial bias had no hand in motivating that belief. What’s more, video has shown that Tamir was indeed reaching towards his waistband, perhaps for the gun, just before Loehmann shot and killed him. In this case, the decision in Graham v. Connor would suggest that as Loehmann and Garmback had a “reasonable” belief that Tamir Rice was armed and presented a threat, Loehmann’s decision to use deadly force was justified.
Returning to the Aristotelian and Stoic traditions, can we square Loehmann’s use of force with each tradition’s conceptions of virtuous rationality? On the face of it, Loehmann’s decision does seem reasonable, as it was deemed by legal standards. It’s only when one questions the values inherent in this application of the word “reasonable” that one can understand its flaws. The injunction to judge an officer’s decision to use force against what a “reasonable” officer on the scene at the time would have done leads one to assume that what is “reasonable” is an objective fact, one that operates free from any consideration of values. But what is “reasonable” can only be assessed against a framework of values. If we believe, as I have been arguing that we should not, that a police officer’s ultimate concern should be the preservation of their own life, then we might be led to see officer Loehmann’s decision here as “reasonable.” Although he cites fear as a motive, we might even suggest that, if self-preservation were an officer’s greatest concern, this would be a case of “rational fear,” one of which Aristotle might approve.
On the other hand, if we consider the question of “reasonableness” from the Stoic point of view, then we come to a different conclusion. For according to the Stoic view, I should act to preserve my life insofar as I can do so without sacrificing my moral virtue, and I should act always with the good of my community in mind. Having these thoughts in mind should have led the officers to make a whole series of different decisions. Thinking of his duty to preserve his own life in service to his community, Officer Loehmann would not have rashly exited his police cruiser on the side of a potentially armed suspect, but would have immediately taken a defensive position behind the car. Not thinking primarily of his own life, but of his duty to protect the community, he would have watched Tamir’s actions with caution, rather than responding in haste. It is important to remember here that Tamir was shot dead within seconds of the officers arriving on the scene. Cautiously waiting from behind a safe position, Officer Loehmann would have had time to warn Tamir to put down his weapon, as he might have been intending when he reached for his waistband, and would not have felt compelled to fire due to the “threat” he faced.
It is impossible to know if the situation would have turned out differently had Loehmann acted more cautiously, but what does begin to look different, once one questions the values implicitly embedded in our assessment of “reasonableness,” is what exactly counts as “reasonable.” If we can agree that fear has no part in virtuous action and that police officers, trained armed agents of the state, are duty bound to “serve and protect” the public, putting the good of the public even above their own good, then a decision to proactively use force, not in defense of citizens of the community but strictly in self-defense, can no longer be justified as “reasonable.” Only when what is “reasonable” is tied to an explicit conception of virtue can we see cases like the killing of Tamir Rice for what they are: unreasonable and unjustifiable decisions to use deadly force for which officers should be held accountable.