When may police kill in self-defence?

A special moral obligations argument against moral parity.

Kuo Fu Si Hua Chang

Thesis submitted to the faculty of the Virginia Polytechnic Institute and State University in

partial fulfilment of the requirements for the degree

Master of Arts

In

Philosophy

Daniel Wodak

Sukaina Hirji

Michael Moehler

Douglas Lind

August 14th, 2019

Blacksburg, Virginia

Keywords: police killing, self-defence, special moral obligations

When may police kill in self-defence?

A special moral obligations argument against moral parity.

Kuo Fu Si Hua Chang

ABSTRACT

That police have special moral obligations to protect others is an important moral consideration

which is largely absent from discourse about the moral permissibility of police killings of

civilians in self-defence. I argue that police officers, at least when acting ex officio, face a special

justificatory burden such that the set of conditions under which a police officer may permissibly

kill a civilian in self-defence is more tightly constrained than the set of conditions under which a

civilian may kill a fellow civilian in self-defence. In other words, police officers’ right to kill in

self-defence is attenuated by their special moral obligation to protect others. I provide three

arguments for this claim. First, police officers' special obligation to protect others

directly constrains their exercise of self-defence rights by making it impermissible for them to

prioritise their own safety in the way that civilians are permitted to. So there are some situations

in which, compared to a civilian, an officer must tolerate an elevated level of risk of harm to

herself before she is justified in pursuing certain defensive actions. Second, police have a

derivative obligation to minimise imposing harm on those whom they have undertaken to

protect. It is a greater wrong to harm those to whom one has special moral duties. Thus,

compared to the civilian, the police officer must give greater moral weight to the possibility that

she is facing an innocent or non-responsible threat. The third argument rests on the view that the

right to self-defence derives from the right protect oneself. I show that the special moral

obligations of police officers attenuate this right and, derivatively, attenuate their right to self-

defence as well.

When may police kill in self-defence?

A special moral obligations argument against moral parity.

Kuo Fu Si Hua Chang

GENERAL AUDIENCE ABSTRACT

Discussions about the morality of police killings of civilians in self-defence lack an important

consideration; they fail to take into account the fact that police have special moral obligations to

protect others. I argue that this special obligation interferes with police officer’s self-defence

rights. Because of this, the set of conditions under which it is morally permissible for a police

officer kill a civilian in self-defence is more tightly constrained than the set of conditions under

which it is morally permissible for a civilian may kill a fellow civilian in self-defence. I provide

three arguments for this claim. First, police have a special obligation to protect others, even at

risk to themselves. Because of this, there are some situations in which, compared to a civilian, an

officer must tolerate an elevated level of risk of harm to herself before she is justified in resorting

to defensive harm. Second, police have an obligation to minimise imposing harm on those whom

they have undertaken to protect. This obligation is derived from police officers’ obligation to

protect others, because it is a greater wrong to harm those to whom one has special moral duties.

Thus, compared to the civilian, the police officer must give greater moral weight to the

possibility that she is facing an innocent or non-responsible threatener (that is, an individual who

threatens harm but who is either innocent, or is not responsible for the threat that they pose). The

third argument rests on the view that the right to self-defence derives from the right protect

oneself. I show that the special moral obligations of police officers attenuate this right and,

derivatively, attenuate their right to self-defence as well.

iv

Table of Contents

I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. Special Obligations: What they are, and why police have them. . . . . . . . . . . . . . . . . 6

III. The right of self-defence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

IV. Argument from the obligation to protect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

V. Argument from the obligation to minimise imposing harm. . . . . . . . . . . . . . . . . . . . 18

VI. Argument from the Right of Self-Preservation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

VII. Some broader implications of the view. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

VIII. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Works Cited. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

1

I. INTRODUCTION

From 2015 to 2017, police in the US killed about 981 people per year on average. In

2017 alone, police in the US fatally shot at least 987 people, at least 68 of whom were unarmed.

In nearly a quarter of the total cases, victims were described as experiencing some form of

mental distress at the time of the encounter with the police.1 Concerns that minority groups face

disproportionate harms at the hands of police continue to be of considerable moral and political

significance in the US, especially with respect to members of racial minorities, and those with

mental illnesses. Such concerns are reflected in nationwide protests in response to several recent

police killings,2 and in the growth of movements such as Black Lives Matter.

Many such killings are purportedly motivated by police officers acting in self-defence, or

in the defence of other officers. Police use of lethal force in self-defence often results in tragic

deaths of civilians who either posed no real threat to the officers, who were not responsible for

the threats they posed, or who were only perceived to pose a threat because of officers’ implicit

biases that reflect the racism endemic to the US criminal justice system.3

There are many incidents of police killings over which there is considerable disagreement

about whether the officer or officers involved were justified in using lethal force. Yet many seem

to take for granted what justification looks like: if a ‘reasonable person’ (i.e. reasonable civilian)

would have been justified in using lethal force in self-defence in a particular situation, then a

reasonable police officer would also be justified. Some even support the stronger view that a

1 The United States does not accurately keep track of how many people are killed by law enforcement officers, but several independent groups keep records. The numbers for 2015, 2016 and 2017 are taken from the Washington Post national police shootings database, which generally has lower estimates compared to other databases. 2 By police killings I mean any incident in which some person or persons are killed by an on-duty police officer. 3 Lopez (2016) provides a brief summary of evidence of racial bias in police killings in the United States. A more comprehensive selection of evidence of racial bias both in police killings and in the US criminal justice system as a whole is given in Balko (2018).

2

police officer may permissibly kill in self-defence even in conditions in which a civilian may not.

Such views are supported even among police officers themselves.4

For example, in 2015 the Los Angeles Police Department (LAPD) initiated a new

‘Preservation of Life’ award to recognise officers who demonstrated “commendable restraint” by

taking exceptional measures to de-escalate dangerous situations without resorting to lethal force.5

But the LAPD police union was highly critical of this award, insinuating that the award

undermined officers’ right self-defence, and that it would “prioritize the lives of suspected

criminals over the lives of LAPD officers.” What is particularly noteworthy is the way the blog

seems to take offence at the fact that the award “suggests that officers must go above and beyond

their normal activities to avoid harm” to others.6

The widespread tacit acceptance of the notion that police have as much or even more

permission than civilians to employ lethal force in self-defence means that most disagreement

about police killings largely focusses on whether a particular incident meets the reasonableness

standard, and whether the standard is vulnerable to the influence of racist and other biases. This

assumption of moral parity between the defensive actions of civilian and law enforcement agents

is rarely questioned.7 The legal standards concerning police officers’ use of the self-defence

justification also reflect this omission. In fact, they appear to give police additional permission to

4 Radley Balko has drawn attention to this permissive view on many occasions. For example, see Balko (2014). 5 Mather, Kate. “Police union calls LAPD’s new Preservation of Life medal ‘a terrible idea’.” Los Angeles Times. November 13th, 2015. Accessed Aug 03, 2019. https://www.latimes.com/local/lanow/la-me-ln-police-union-lapd-award-20151113-story.html 6 “Preservation of life award: A terrible idea that will put officers in even more danger.” Blog of the Los Angeles Police Protection League. November 12th, 2015. https://www.lapd.com/blog/preservation-life-award-terrible-idea-will-put-officers-even-more-danger. Accessed Aug 03, 2019. 7 Jake Monaghan is a notable exception. Monaghan (2017) directly challenges the parity assumption, and also draws attention to the special obligations of police. While I share many of Monaghan’s concerns, my account is novel in its focus specifically on officers’ right of self-defence, and how that right is affected by their special obligations. One of my arguments uses Monaghan’s view to draw implications about police self-defence. My other two arguments are distinct from Monaghan’s.

3

kill in self-defence. In the United States, the use of force by police officers is governed by the

Fourth Amendment, which protects against unreasonable search and seizure. But the

‘reasonableness’ standard must be applied in a way that is judged with respect to what a

‘reasonable officer’ might have done on the scene, and cannot be judged with reference to the

specific officer’s motives. Moreover, the assessment of reasonableness must also take into

account the fact that police are compelled to make ‘split-second decisions’ in dangerous

circumstances, and under pressure, about the level of force necessary in a particular situation.8

This standard is much more permissive than the standards usually applied to civilians.9 Thus, at

minimum, most people appear to accept what I will call the Moral Parity Thesis:

For any set of conditions under which a civilian may permissibly kill a fellow civilian in self-defence, those conditions are also sufficient for a police officer to kill a civilian in self-defence.

This paper draws attention to the special moral obligations of law-enforcement to protect

others. I argue that these obligations are an important moral consideration which is largely absent

from discourse about the moral permissibility of police killings that are (purportedly) motivated

by—and thus justified on the basis of—self-defence. I will argue against the Moral Parity Thesis

and instead defend what I call the Heightened Burden Thesis:

Police officers, at least when acting ex officio, face a special justificatory burden such that the set of conditions under which a police officer may permissibly kill a civilian in self-defence is more constrained than the set of conditions under which a civilian may kill a fellow civilian in self-defence.

8 This interpretation of the Fourth Amendment was established in Graham v. Connor 490 U.S. 386 (1989). For a detailed overview and criticism of legal standards concerning police use of deadly force, see Lee (2018). 9 Contrast these standards with those applied to Cory Maye. Police mistakenly believed Maye possessed drugs, and broke into his house late at night. Maye, believing he was being attacked, fired three shots before he realised it was the police, fatally wounding a police officer in the process. Maye’s account of mistaken self-defence was rejected by a jury and Maye was sentenced to death. Fortunately, Maye appealed and his conviction was reversed. But the initial reaction to Maye’s account demonstrates a steep asymmetry between the way police officers’ and civilians’ mistaken use of force is treated by the law. See Maye v. State of Mississippi, 49 So. 3d 1124

4

My main claim is that police officers’ right to act in self-defence against civilians is

attenuated by the special moral obligations that police have in virtue of the roles they occupy—

obligations which apply to all those who occupy the role of a police officer. My argument for

this claim is as follows:

1. Police officers have a special moral obligation to protect others.

2. If one has a special moral obligation to protect others, then one’s right to kill in self-

defence is attenuated by that special obligation.

3. Thus, police officers’ right to kill in self-defence is attenuated by their special moral

obligation to protect others.

The primary objective of this paper is to establish (2), because I take the view that police

have special moral obligations to be less controversial. In Section II of this paper, I discuss what

special moral obligations are, and why police have them. Section III provides a description of the

right of self-defence, and discusses rights-attenuation. In Sections IV through VI, I give three

distinct arguments, each of which provides independent support for (2).

First, and most importantly, I argue that police have a special obligation to protect others,

even at risk to themselves. Thus, there are some situations in which, compared to a civilian, an

officer must tolerate an elevated level of risk of harm to herself before she is justified in resorting

to defensive harm.10 Second, I develop an argument made by Jake Monaghan to show that police

have a derivative obligation to minimise imposing harm on those whom they have undertaken to

protect. It is a greater wrong to harm those to whom one has special moral duties. Thus,

10 When a police officer is off-duty, she is for most purposes considered a civilian, but the fact that she is a police officer by occupation may still be of moral relevance, and thus might introduce additional complications. I will thus exclude cases of off-duty police officers for the present analysis, and use ‘civilian’ to refer exclusively to non-police civilians hereafter.

5

compared to the civilian, the police officer must give greater moral weight to the possibility that

she is facing an innocent or non-responsible threat. The third argument rests on the view that the

right to self-defence derives from the right protect oneself, which I call the Right of Self-

Preservation. I show that the special moral obligations of police officers attenuate this right, and

derivatively, attenuate their right to self-defence as well. Section VII concludes with a brief

discussion of some implications that follow if (3) is true.

6

II. SPECIAL OBLIGATIONS: WHAT THEY ARE, AND WHY POLICE HAVE THEM

Many moral obligations are owed to members of the moral community in general (i.e.

universally), simply because they are worthy of moral consideration, and without regard to who

they are, or what relationship we have to them (i.e. impartially). General obligations provide only

reasons for action that are agent-neutral, that is, reasons which can take a general form that

doesn’t require an essential reference to the particular agent to whom it applies.11

It is commonly understood that there are certain parties to whom we have special

obligations that go above and beyond our general obligations.12 Special obligations provide

agent-relative reasons — that is, they provide reasons whose general form does require a

reference to the person who has those reasons.13 As such, special obligations are held only by

some moral agents, and are often owed only to some subset of the moral community. Such duties

compel only the agent, or others who share the same special obligations.14 They may permit or

even require the agent to pay special attention to the interests of the beneficiaries of the duties,

and to give them preferential treatment, even at the cost of depriving others of those benefits,

even others who might be as important (or more) in a broader sense. For instance, parents may

act to benefit their own children even if this means they are prevented from acting to benefit the

children of others. Moreover, special duties are additive: they hold in addition to one’s general

duties, and thus impose a stronger moral burden on those who have them; If we both ϕ, violating

the same obligation to a person S, but you also thereby violate a special obligation to S, you

wrong S more.15

11 The term ‘agent-neutral’ is Thomas Nagel’s (1986), 152. See also: Parfit (1984), 137-148. 12 E.g. See Pettit and Goodin (1986). 13 Nagel (1986), 152-153 14 I use ‘obligation’ and ‘duty’ interchangeably throughout this paper. 15 This overview is adapted from Philip & Goodin. (1986), 651-653

7

Note that one may have a special obligation to ϕ even if one already has a general

obligation to ϕ. For instance, if I am a lifeguard I may have a special obligation to save those

who are drowning. I may have the very same obligation simply by virtue of being an able

swimmer, but this general obligation would be distinct from my obligation as a lifeguard.16

Agents may gain special obligations for a number of reasons. Of particular interest to the

aims of this paper are the obligations agents gain when they voluntarily make certain

commitments, such as by taking oaths or by voluntarily taking on a role. I will assume without

argument that voluntarily making such a commitment is sufficient for an agent to acquire special

moral obligations.17

At least with respect to the sort of roles relevant to the present discussion (namely, the

role of being a police officer), one acquires special obligations by voluntarily signing on for the

roles from which they stem. In other words, by signing on for a role, one agrees to carry out the

tasks associated with the role, and to assume the cluster of rights and duties that the role entails.

Here I follow Michael Hardimon’s lead: he defines a role as a collection of “institutionally

specified rights and duties organised around an institutionally specified social function,” and

argues that to adopt a role is to take on obligations associated with the role and its function.18

While different police departments may have codes that vary somewhat in terms of

specific commitments, broad themes such as “serving the community; safeguarding lives and

property; protecting the innocent; keeping the peace; and ensuring the rights of all to liberty,

equality and justice” are common to all police forces.19 Of particular relevance to the issue of

16 Unless otherwise noted, hereafter I will use normative terms (e.g. concerning obligation, responsibility, permissibility, liability, and justification) to refer specifically to moral norms. 17 Promises are a paradigmatic mechanism by which special obligations are generated. For further discussion of promissory obligations, see Heuer (2012). 18 Hardimon (1994), 334 19 Executive Committee of the International Association of Chiefs of Police (1989) Law Enforcement Code of Ethics. See also, the Core Values of the US Federal Bureau of Investigation

8

self-defence are the obligations relating to protecting the innocent and safeguarding lives. I take

it that the aim of protecting civilians is an essential function of police, and one which they

explicitly take oaths to uphold. Thus, at the very least, police officers have a special moral

obligation to protect others because they have taken oaths to do so.20

20 On stronger views of role obligations, such as Hardimon’s, this obligation holds additional weight for those who identify with the role of a police officer — that is, they take the norms of the role to function as reasons for action. However, the more minimal promissory or contractual grounds for police officers’ special obligation to protect others are sufficient for my purposes.

9

III. THE RIGHT OF SELF-DEFENCE

It is generally wrong to kill or otherwise harm others, but certain exceptions permit

killing. For instance, it is sometimes permissible to kill in self-defence (or in defence of others),

especially if the agent you are defending against is intentionally and culpably threatening to

unjustifiably kill or seriously harm you. Consider the following case: Murderer hates you and

wants to end your life. In order to do this, she attempts to push you off a cliff —the only way to

save yourself is to shoot her.21 The literature on self-defence agrees that it is permissible for you

to kill Murderer, though there are many different accounts of why this is permissible.

A common approach to such cases of self-defence holds that the party who is being

defended against has become morally liable to bear the harm imposed on them. What liability is

may depend somewhat on the specific account of defensive harm in question but, generally, if a

person is liable to defensive harm, they have forfeited their right against that harm, and will

thereby not be wronged if that harm is imposed.22 Broadly speaking, if Threatener is voluntarily

and culpably attempting to impose harm on Defender, then Threatener becomes liable to

defensive harm from Defender, who is then justified in harming Threatener if the defensive harm

inflicted is proportional to the harm Threatener is imposing, and is necessary for Defender to

protect herself.23 While I will focus on defensive killing for simplicity, similar permissions likely

apply to defending against non-lethal harm.

Supporting a particular account of defensive harm is beyond the scope of my aims in this

paper, neither is it particularly of concern. My intent is not to define specific conditions for the

justification of defensive harm employed by police. Rather, I claim, whatever the criteria needed

21 This version of “Threat from Murderer” is paraphrased from Doggett (2011), 220 22 This broad definition of moral liability to defensive harm follows Jeff McMahan’s account (2005). 23 I use ‘Threatener’ to refer to any person who poses a threat to another person. Any person facing such a threatener is referred to as a ‘Defender’.

10

to justify whether a defender is justified in killing a threat in a particular situation, they must be

more stringent for defenders who are police officers than for civilian defenders, other things held

equal.24

A note about rights attenuation: I use the term ‘attenuate’ to signify that the force or

scope of a right has been reduced. There are at least two mechanisms by which a right may be

attenuated. For one, an agent’s claim to ɸ might be overridden by competing claims. I take it that

unless an obligation is absolute, it can be overridden by other considerations, including other

obligations. In other words, one may have several conflicting moral obligations operative with

respect to a particular choice. Morally speaking, what one ought to choose depends on which

action one has an all-things-considered moral obligation to do.25

If an agent’s claim to ɸ is overridden by competing claims, the right remains intact,

although the bearer may be prevented from asserting it. Suppose it is permissible to break one of

Jack’s fingers to save the lives of two others. In this case, Jack’s right not to be harmed remains

intact, but it is overridden by other reasons. On the other hand, the claim itself may be weakened,

or even revoked—that is to say the right itself is diminished. For instance, if Jane culpably

attacks you unprovoked, and you defend yourself, Jane’s right to defend against your

counterattack is attenuated. This is distinct from the first case because Jane’s right to self-

defence isn’t merely overridden—by attacking you Jane has forfeited part or all of her right to

self-defence against you.26 Killing Jane may be permissible because there is an exception to the

24 I will limit my investigation specifically to instances which involve only police officers and (potential) threats, since the presence of civilian bystanders introduces competing moral considerations concerning the defence of others, and my concern is solely with the moral permission police have for defending themselves and other police officers. 25 There is a further question here that I take no stance on: If one morally ought to ϕ, but prudentially not to ϕ (or epistemically ought not to, or ought not to on the norms of etiquette, and so on), is it the case that one ought, all-things-considered, to ϕ? See Stroud (1998) for argument that morality is overriding. 26 This is the case on nearly all accounts of self-defence. Hobbes’ account is an exception (1991).

11

right to life.27 I believe it is possible that police officers’ right to self-defence may be attenuated

in both of these ways. However, my current aims are to provide a general argument for rights

attenuation of police officers, so I make no further detailed distinction between specific types of

attenuation in this paper.

It will also be helpful to have some method for indicating the extent to which a right is

attenuated. A key consideration in assessing an agent’s ability to discharge an obligation is not

merely that agent’s capacity to perform requisite action, but the cost which discharging the

obligation imposes on the agent.28 For instance, I may have an obligation to take out the trash in

the morning. This might require me to wake up early, a cost I would normally be required to

bear. However, if I fracture my ankle, the cost I would have to bear would be high enough that

my obligation would be overridden. This also serves as a means by which to measure the

strength of an obligation.

One’s right to self-defence can be cashed out in terms of at least two variables.29 For one,

we can think about the minimum level of risk that an agent must endure before some particular

defensive action is justified. Other things held fixed, suppose we are interested in whether A and

B are permitted to use lethal defensive harm against T, who imposes some risk of death on A and

B. If A’s right to self-defence is attenuated and B’s is not, A must face a higher degree of risk

than B before she is justified in killing T in self-defence. In other words, one whose right of self-

defence is attenuated may permissibly kill in self-defence in fewer circumstances than those

whose right to kill in self-defence is not attenuated ceteris paribus.

27 Regarding rights overriding and exceptions, I broadly follow Michael Huemer’s lead — the terms are his (2003). Huemer’s position is similar to Thomson’s (1986), though Thomson’s account does not allow for overriding. 28 This observation is central to Monaghan’s argument: see Monaghan (2017), 223 29 Thanks to Renee Bolinger and Georgi Gardiner for helping me to clarify this.

12

Alternatively, we can also hold fixed the level of risk faced and instead consider what

sort of response is justified in terms of proportional response to the threat. T imposes a fixed

level on risk of harm on both A and B. If A’s right to self-defence is attenuated and B’s is not, B

is permitted to employ more forceful defensive measures than is A. Since the use of lethal force

is of particular interest, I will primarily (though not exclusively) discuss attenuation of self-

defence rights in terms of risk endured, holding fixed the particular action of defensive killing.

13

IV. ARGUMENT FROM THE OBLIGATION TO PROTECT

Several factors affect whether an individual confronted with a potential threatener is

permitted to kill in self-defence. When a defender faces a potential threat, she must weigh the

risk of being hurt against the possibilities that her judgement is mistaken, or that the person is not

responsible for the threat they pose or appear to pose. Defenders who are police officers also

have a special obligation to prevent harm to civilians, an obligation which civilian defenders

lack. So how might having an obligation to protect someone attenuate one’s right to self-

defence? Consider the following cases concerning Bo, who is hired as Clint’s bodyguard. She is

fully informed, and voluntarily agrees to protect him from harm, understanding that in doing so

she will have to face certain risks to her own safety. I will assume this is sufficient to give Bo a

special obligation to protect Clint.

A. External Threat: An assailant corners Clint and Bo, and begins shooting at them. During the course of the attack, the two are separated, and the assailant advances on Clint. Bo has a tactically advantageous position from which she can defend herself, but from which she is unable to protect Clint. If she abandons her position and heads towards Clint, her chances of saving him are much higher, but so is the risk that she herself will get shot.

As Clint’s bodyguard, Bo has a special moral obligation to protect him.30 At times, Bo’s

obligation will require her to prioritise Clint’s safety above her own. In the situation above, Bo

has an obligation to put herself in harm’s way to protect her client. Depending on the terms of

her role as a bodyguard, and the level of risk associated with taking that particular action, this

obligation may be overridden. As discussed in Section II, one measure of the strength of an

obligation is the cost one must bear in order to discharge it. In this case, the relevant cost Bo

30 As previously noted, this moral obligation can be distinguished from Bo’s legal obligation, even if the two obligations are very similar. Simply entering a voluntary agreement to protect Clint is sufficient to give Bo a special moral obligation to protect him. That this agreement may be coextensive with a legal agreement (and corresponding legal obligation) does not thereby diminish the moral obligation acquired.

14

faces is the high risk of getting shot, and the reduction of her options for defending herself. As

such, the number of situations in which Bo may permissibly act in self-defence is reduced by her

special obligation to Clint. In other words, her right to self-defence is attenuated by her special

moral obligation to protect Clint.

The key point to consider about this analogy (and the subsequent ones) is that our

intuitive verdict in these cases would be different if Bo were merely a random passer-by, rather

than Clint’s bodyguard. Similarly, the verdict should also be different if Clint were merely a

random passer-by, rather than Bo’s client. This shows that the difference maker is the special

relationship between the two, and the resultant special obligation Bo has to Clint. At the very

least, it is clear that Bo’s obligation to risk her safety in order to save Clint is stronger than it

would be if she were not his bodyguard, other things held equal. Bodyguards have a special

obligation to protect one person. As such, they can effectively be used to illustrate the way in

which self-defence rights of police (who have a special obligation to protect all civilians

generally) can differ from those of civilians (who lack such a special obligation) because we can

compare our intuitions about the appropriate response of the defender when they do and do not

have the relevant special obligation.31

Analogously, the obligation that a police officer has to put herself in harm’s way to

protect others is stronger than that obligation would be if she were not a police officer. However,

this is no novel conclusion—it is relatively uncontroversial that police have a stronger obligation

(than civilians) to risk their lives in order to protect others from external threats. As Seumas

Miller argues, in societies which have dedicated professional police forces, the rights of civilians

31 I do not mean to suggest that there are no differences between bodyguards and police officers. Importantly, bodyguards typically have a special obligation to protect a single client, while police officers have an obligation to a large group. The primary purpose of the examples is to illustrate the general principle that protective special obligations can interfere with one’s self-defence rights.

15

to act in self- and other-defence are at least slightly curtailed, since it is often expected that

civilians first turn to police for protection, rather than take it upon themselves (depending, of

course, on the severity and immediacy of the threat).32 One feature of such arrangements is that

police are expected to take certain risks to protect others that civilians are not expected to take.

There is a further question concerning the self-defence rights of a protector that is yet

unanswered: what happens when the threat and the object of protection coincide? Consider the

following variant on a canonical scenario:

B. Projectile client: Clint is forcefully propelled towards Bo after being swept up in a tornado. Bo is unable to move away because the same tornado has deposited her gently at the bottom of a well. Bo could save herself by using her trusty ray gun to vaporise Clint before he hits her, or she could allow herself to cushion his fall. If she picks the latter option, Clint will survive, but Bo risks death or severe injury.33

Again, it seems clear that Bo has some obligation to cushion Clint’s fall in both cases. If

Clint falls and is badly hurt, he would have some reason to hold her accountable for the harm he

suffers, but only because she is his bodyguard. His claim to such a grievance would be much

weaker if Bo were merely an unrelated passer-by. Of course, depending on how much Bo would

risk in doing so, this obligation may be overridden. Nonetheless, her role as his bodyguard gives

her a relatively stronger obligation to cushion his fall. Again, Bo’s right to self-defence is

attenuated by her special obligation. Consider also the following:

C. Innocent aggressor client: Clint is in a dark parking lot, and mistakes Bo for an assailant. Seeking to defend against the threat, Clint draws a gun and attempts to shoot Bo. Bo is fully aware that Clint is not responsible for the threat he poses. There is a good chance he will successfully kill her unless she does one of two things: shoot and kill him first, which will certainly save her, or attempt to knock Clint unconscious by throwing

32 Miller (2016) 33 Based on Robert Nozick's example in Nozick (1974), 34. It’s worth noting that many philosophers are of the view that it isn’t permissible to kill a morally non-responsible threat in cases like the human projectile scenario. However, to many others, killing in such cases is permissible. For an overview, see Doggett (2011), and Doggett (2018).

16

her gun at his head, which is less likely to succeed. The situation is such that these are the only two options available to her.

Here Bo’s special obligation to protect Clint is very clearly in tension with her right to

self-defence against Clint. But even before Bo’s special obligations enter the picture, there are

two considerations that must be weighed in judging what actions are permissible: the likelihood

that Clint’s attempt to kill Bo will be successful, and the likelihood that Bo’s non-lethal means

can successfully neutralise Clint. If the former is low, and the latter is high, it seems clear that Bo

must pursue the non-lethal option whether or not she is Clint’s bodyguard. Likewise, if the

chances that Clint will kill her are overwhelmingly high, and her non-lethal intervention is very

unlikely to succeed, Bo might be permitted to kill Clint. At both these extremes, Bo’s special

obligations may make no difference to her actions. But there are many cases along the middle

ground in which Bo must face a substantial risk of getting killed by Clint if the chances that she

may non-lethally neutralise him are reasonably high. It is in these cases that Bo’s special

obligation makes a difference.

Crucially, I believe it is clear that Bo must opt for the non-lethal option in more of these

risky situations than she would if she were facing an innocent aggressor who was not her client.

If this assumption is true, it is best explained by the fact that Bo’s special obligation to Clint

places constraints on what defensive actions she may permissibly take against him. In other

words, her special obligation to protect Clint attenuates her right of self-defence against him.

Further, this comparative constraint on Bo’s actions doesn’t depend on whether or not she

knows that her client is mistaken. Consider a variant of the situation in which Bo is merely aware

that it’s possible that Clint has mistaken her for a threat. Even so, Bo has a stronger obligation to

give Clint the benefit of the doubt (and thus face more risk in attempting to non-lethally diffuse

his attack) because of her obligation to protect Clint.

17

Many of the threats police face are quite real, and many police officers die in the course

of their line of work. However, many of those who pose threats to police officers will not be

morally responsible for the threats they pose. Some will be merely apparent threateners; they

may also be non-culpable for appearing as threateners. For instance, many of those who are

mentally ill may appear to pose threats, but may actually be harmless. Some of these individuals

will be responding to the police in a threatening manner, but justifiably so. For instance, those

who are subject to no-knock raids might reasonably believe they are being attacked and respond

in self-defence before they realise that it is the police. Moreover, some will appear threatening

because of widespread implicit bias against them. In the United States, there is strong evidence of

widespread implicit bias against persons of colour, particularly those who are (or are perceived

to be) Black.34 This bias is wrong in its own right, but given that it exists, and is known to be

misplaced, police have an especially strong obligation to mitigate its effects.35

The implications of the bodyguard cases should be clear: Given their obligation to protect

civilians, police have a stronger duty to give potential threateners the benefit of the doubt. A

defender who is an officer has a special obligation that a civilian defender lacks. This obligation

reduces the number of permissible self-defence actions available to her, relative to the civilian.

The officer’s right to self-defence against those she has an obligation to protect is thus

attenuated.

34 For instance, Eberhardt, Goff, Purdie, and Davies (2004) found that both police and members of the general population have been shown to demonstrate robust associations between crime and black male faces, with the more stereotypically Black faces having the strongest associations. 35 Racial bias has also been shown to affect many other factors, including the following:

• Whether ambiguous behaviour is evaluated as aggressive: Devine (1989), Sagar and Schofield (1980) • Whether non-weapons get categorised as weapons: Payne (2001) • How quickly people decide to shoot a weapon-holder, and the likelihood people they will shoot at all:

Correll, Park, Judd, and Wittenbrink (2002) The cognitive association between Blacks and crime is consistent, occurs frequently, and appears to be involuntary: Payne, Lambert, and Jacoby (2002).

18

V. ARGUMENT FROM THE OBLIGATION TO MINIMISE IMPOSING HARM

Jake Monaghan argues that when police officers violate the rights (to life, liberty,

property, etc.) of those whom that they have voluntarily taken on obligations to protect, they

commit a serious wrong. Agents in general have obligations to refrain from violating others’

rights. But a police officer who violates the rights of those whom she has voluntarily taken on

obligations to protect, she violates not only these general obligations to them, but also her special

moral obligations to them.36 In this section I show how Monaghan’s argument counts as a

consideration against the Moral Parity Thesis.

When one takes on an obligation to protect someone, one also takes on a derivative

obligation against harming that person, other things being equal. In other words, if one harms a

person one has an obligation to protect, one wrongs them more seriously than one would if one

harmed them while lacking that special obligation. For instance, parents have special obligations

to protect their children. A parent who harms their child thus wrongs them doubly — they not

only fail their general obligation to refrain from harming children, but also directly contravene

their special obligation to protect their own child.

One implication of Monaghan’s argument is that police officers should take greater care

to avoid mistakenly harming civilians, even civilians who appear to pose a threat. Think back to

the case of Bo the bodyguard. It would be appropriate for Clint to place greater blame on Bo for

wrongfully harming him than on some random stranger who wrongfully harms him. It follows

that Bo is expected to take extra precautions against harming Clint, precautions which others

36 Monaghan (2017) 228. Monaghan further grounds police officers’ special obligations in the fact that they are particularly well-suited to give aid, and also in that they are causally responsible for creating vulnerability in the populations they are meant to protect. However, I think my argument should apply independently of these reasons, which is why I decline to invoke those parts of Monaghan’s argument.

19

who aren’t Clint’s bodyguard would not be obligated to take. In taking on an obligation to

protect Clint, Bo also takes on a derivative obligation not to kill Clint—a special obligation

which applies to her in addition to the general prohibition against killing Clint. Thus, Bo’s

comparatively stronger obligation to face risks imposed by Clint is grounded not only in her

obligation to protect him, but also in her obligation to avoid wrongfully harming him.

Analogously, police take on an additional prohibition against killing those whom they

have undertaken to protect. A civilian facing a potential threatener has a right to defend himself,

but also an opposing general obligation not to harm innocent people, which places certain

restrictions on how much risk he must bear before he can justifiably use force in self-defence. If

he acts with poor judgement, the civilian risks wrongfully killing an innocent person (perhaps

someone who merely appeared to be a threat, or someone who was not responsible for the threat

they posed). However, if the risk of harm to self is sufficiently high, it is permissible for him to

employ defensive harm. A police officer in the same situation has the same right to defend

herself, and the same general duty to not wrongfully harm innocents. However, in addition to the

general duty, the police officer also has a special obligation to avoid wrongfully harming those

whom she has undertaken to protect — a special obligation which the civilian defender lacks.

This also means that if a police officer wrongfully kills an innocent or non-culpable threat in

such a situation, she has wronged the victim more seriously than a civilian who makes the same

mistake. Thus, given the possibility that she may wrongfully harm an innocent, a police officer

must tolerate a relatively higher level of risk before she is permitted to employ defensive harm.

20

VI. ARGUMENT FROM THE RIGHT OF SELF-PRESERVATION

We have a prima facie right to protect ourselves from harm or death. Call this our Right

of Self-Preservation (hereafter RSP). This right may be overridden—for instance, it may be I

may not protect myself from being bruised if the only way to do so is to kill several innocent

humans. Some accounts of self-defence characterise the right to self-defence as a special case of

RSP. For instance, Jonathan Quong’s account construes the right of self-defense as an agent-

relative permission that is grounded in the particular value that each agent has in preserving her

own life.37 Tyler Doggett’s recent account is also rooted in the permission one has to avoid

harms that one is not liable to suffer, though Doggett’s account is admittedly more modest than

Quong’s.38 Arguably, Michael Huemer’s view of the right of self-defence is also similar, since

he argues that it is grounded in the right to life.39

However, if the right of self-defence is grounded in one’s permission to preserve one’s

own life, then if something attenuates one’s RSP, then it must also attenuate one’s right to kill in

self-defence. This section argues that having a special obligation to protect others attenuates

one’s RSP, and thus, derivatively, one’s right of self-defence. Given that many accounts of self-

defence rights are independent of RSP, this argument may be less convincing to those who

espouse alternative accounts, particularly rights-based accounts such as Thompson’s, or moral

culpability accounts such as McMahan’s.40

Those with obligations to protect others must face certain risks. For instance, a lifeguard

may be morally obligated to take greater risks to save a drowning person than would an equally

competent non-lifeguard swimmer. Likewise, a soldier may be required to endure dangers that a

37 Quong (2009). 38 Doggett (2018) 39 Huemer (2003) 40 E.g. Thompson (1991); McMahan (2005)

21

civilian would not be required to endure, and perhaps even face risks in order to protect enemy

civilians.41 Police too are obligated to face risks in the course of their work. Many of these are

not risks which civilians are generally required to face. Among other things, police are expected,

as part of the job, to pursue and confront criminals, protect civilians from harm, diffuse tense

situations, and respond to a variety of dangerous circumstances. Consider the following situation:

D. Car Chase: Axel is a police officer on patrol. He is alerted to a petty theft that just took place nearby. Upon arriving at the scene and sees Sally, the thief, make her getaway, Axel pursues her. In her attempt to escape, Sally turns onto an abandoned highway and drives recklessly, reaching high speeds. Given the condition of the road, matching her speed would be quite risky.42

Axel has some obligation to pursue Sally. Depending on how dangerous the situation is,

this obligation may be overridden by Axel’s right to protect himself from harm. But minimally,

he still has a stronger obligation to engage in pursuit than does a civilian. This isn’t to say that

Axel is compelled to risk his life to chase down a petty thief. While upholding the law and

bringing criminals to justice might be intrinsically worthy causes, they are perhaps not worth

seriously jeopardising the lives of police officers over. Given the choice between bringing a non-

violent criminal to justice while seriously risking the life of an officer, or foregoing both the risk

and the capture of the criminal, it seems clear that the latter option is preferable. But that does

not entail that police have no obligation to face risks for the purpose of bringing criminals to

justice, or of protecting property, or of enforcing the law. And it certainly does not entail that

police need not face risks in order to protect civilians. So our assessment of the case could

change if the stakes were different. Consider the following variant:

E. Serial Killer: The same as Car Chase, except that Axel is chasing Kilgrave, a notorious serial killer. If Kilgrave escapes, he will likely kill many more people.

41 For instance, David Luban (2014) argues that soldiers are not permitted to risk civilian lives —even those of enemy civilians— to safeguard their own. 42 I am indebted to Douglas Lind for this example

22

Here, Axel’s obligation to continue pursuit might still hold, despite the risks of the chase.

His obligation to protect lives is not as easily overridden by the risk he would have to endure to

discharge the obligation. Suppose that the level of risk Axel faces in Car Chase is the same as

the level of risk he faces in Serial Killer, and that that risk would be minimally sufficient to

override Axel’s obligation to pursue in Car Chase. That does not entail that that same level of

risk would be sufficient to override his obligation to continue pursuing Kilgrave, even if it would

be sufficient to justify calling off the chase were Axel not a police officer.

Thus, even when no civilians are immediately nearby, police are expected to take risks

that civilians are not expected to take because police have a special obligation to protect the

public, even at risk to themselves. Thus, if the right to self-defence is dependent on one’s Right

of Self-Preservation, it would be strange if police have a relatively stronger obligation to put

themselves at risk in situations like Serial Killer in order to protect civilians, but are nonetheless

permitted to put themselves first in situations of direct self-defence, especially if doing so might

thereby endanger a civilian. Yet according to the moral parity thesis, police are not required to

tolerate a heightened level of risk in situations where self-defence is concerned. What explains

this difference? I am inclined to think there is no good reason. Thus, if police are generally

expected to face higher risks than members of the general public in order to protect the public,

then in the absence of extenuating circumstances this expectation should hold regardless of

whether the risk in question occurs in a context of defence against a threat.

To clarify, I don’t deny that a police officer who seriously risks her life to save civilians

from, say, an active shooter situation is being heroic—it can certainly be heroic to take on jobs

which involve such dangerous tasks. But it is nonetheless clear that the obligation for police

23

officers to perform such actions is stronger than the obligation for civilians, other things being

equal. This extra force derives, at least partly, from their special obligation to protect others.

24

VII. SOME BROADER IMPLICATIONS OF THE VIEW

First, my discussion raises a more general question about the nature of liability to

defensive harm: How should we evaluate the moral status of a threatener with respect to a

defender who has a special moral obligation to protect that threatener? (To distinguish between

an ordinary defender and one who has a special obligation to the threatener, call the former

‘defenderOR’ and the latter ‘defenderSP’). One option is that while liability to defensive harm

itself is insensitive to the special obligations of the parties involved, a threatener’s being liable to

defensive harm is not always sufficient to permit a defender to engage in defensive harm. There

may be conditions such that a particular threatener is liable to defensive have, but while

defenderOR is permitted to defend herself against the threatener, defenderSP is not. More broadly,

this could be an indication that having certain properties can block or inhibit a defender’s

permission to defend herself, even with respect to a threatener who is liable to defensive harm.

The second option is that liability to defensive harm is itself sensitive to the special obligations

of the parties involved, such that the very same actions and circumstances could make a

threatener liable to defensive harm from defenderOR , but not from defenderSP. More broadly, this

indicates that liability to defensive harm is not a feature of a threatener alone, but must be

assessed relative to some particular defender or defenders.43

A proponent of the first option would have to account situations in which defenderOR and

defenderSP have permission to kill, as I have shown in my argument. Some contemporary views

of self-defence hold that it is not necessary for a threatener to be liable to defensive harm in order

for a defender to be permitted to kill them.44 Perhaps, additionally, in some cases liability to

defensive harm may also not be sufficient for a defenderSP to be permitted to kill a threatener.

43 Thanks to Daniel Wodak for suggesting this distinction. 44 For instance, see Quong (2012), and Doggett (2018).

25

However, I think this is difficult route to take, since it risks distancing liability to defensive harm

from permission to employ defensive harm.

I suggest that the latter option is correct, namely, that I think an agent’s liability to

defensive harm is relative to particular defenders, though effectively arguing for it would require

a paper-length treatment. The greater justification necessary for an officer to have permission to

kill in self-defence indicates that a threatener may pose a greater threat to a defender* than to a

defender before he becomes liable to be killed in self-defence. This implies — correctly, I

believe — that one may permissibly endanger a police officer’s life to a greater extent than a

civilian’s before one becomes liable to defensive killing.45

Second, my argument has only addressed police officers’ rights to employ defensive

harm against civilian threats. Jason Brennan has argued that government agents (including police

officers) may permissibly be killed in self-defence or in defence of others whenever it would be

permissible to kill a civilian in the same circumstances.46 However, if the special duties of police

affect their right to self-defence, it is at least plausible that these special obligations also affect

when it is permissible for non-police actors to employ defensive harm against police. Since

someone who attacks a party to whom she has special duties does that party a greater wrong than

would an attacker who lacks such special duties, one might conceivably argue further that

attackers with special duties to those they attack are more liable to defensive harm than attackers

lacking any special duties to the defender. In other words, under certain conditions police may

bear a special liability to defensive harm.

45 Very briefly, one motivation for this is the desire to distribute harms that occur in mistaken cases in such a way that police officers bear slightly greater risks than civilians do. Renee Bolinger’s (2017a, 2017b) Assumptive Signalling Account of self-defence examines the general phenomenon of how self-defence regulaitve norms should distribute harms in mistaken self-defence — in a similar vein, I think that there is good reason to develop self-defence norms which distribute greater risk of harms on police than civilians, especially in cases of mistaken self-defence. 46 Brennan (2016)

26

VIII. CONCLUSION

Many believe that law enforcement and civilian rights to self-defence are on par; some

even hold that police have stronger rights to self-defence. I have argued that this view faces a

serious problem: There is good reason to believe that police face a heightened justificatory

burden against the use of self-defence. However, in order to morally and legally evaluate the

actions of police officers in specific cases, and to get a better sense of how many police killings

end up being unjustified, further work concerning the practical significance of my claim is

warranted, especially concerning the particular conditions under which police may kill in self-

defence, and the specific extent to which they are relatively more constrained than the conditions

for permissible self-defence for civilians.

27

Works Cited

Balko, Radley. (2014). “Being anxious and afraid does not justify attempting to execute a man

on his way to go surfing.” The Washington Post.

https://www.washingtonpost.com/news/opinions/wp/2014/01/17/being-anxious-and-

afraid-does-not-justify-attempting-to-execute-a-man-on-his-way-to-go-surfing/ (retrieved

Aug 03, 2019)

Balko, Radley. (2018). “There’s overwhelming evidence that the criminal-justice system is

racist. Here’s the proof.” The Washington Post.

https://www.washingtonpost.com/news/opinions/wp/2018/09/18/theres-overwhelming-

evidence-that-the-criminal-justice-system-is-racist-heres-the-proof/. (retrieved Aug 03,

2019)

Bolinger, Renee J. (2017a). Mistaken Defense and Normative Conventions. (Unpublished

doctoral dissertation). University of Southern California, Los Angeles, California.

——— (2017b). Reasonable Mistakes and Regulative Norms: Racial Bias in Defensive Harm.

Journal of Political Philosophy 25(2):196–217.

Baude, William. (2018). Is Qualified Immunity Unlawful? California Law Review 106: 45-90.

Brennan, Jason. (2016). “When may we kill government agents? In defense of moral parity.”

Social Philosophy and Policy 32(02): 40-61.

Correll, Joshua, Bernadette Park, Charles M. Judd, and Bernd Wittenbrink. (2002) “The police

officer's dilemma: Using ethnicity to disambiguate potentially threatening

individuals.” Journal of Personality and Social Psychology 83(6): 1314-1329.

Devine, Patricia G. (1989). “Stereotypes and prejudice: Their automatic and controlled

components.” Journal of Personality and Social Psychology 56(1): 5-18.

Doggett, Tyler. (2011). “Recent Work on the Ethics of Self-Defense.” Philosophy

Compass, 6(4):220-233.

——— (2018). Killing Innocent People. Noûs, 52(3): 645-666.

Executive Committee of the International Association of Chiefs of Police. (1989). Law

Enforcement Code of Ethics. Available at <http://ethics.iit.edu/ecodes/node/3353>.

Eberhardt, Jennifer L., Phillip Atiba Goff, Valerie J. Purdie, and Paul G. Davies. (2004). “Seeing

Black: Race, crime, and visual processing.” Journal of Personality and Social

Psychology 87(6): 876-893.

28

Federal Bureau of Investigation. Mission & Priorities. Available at

<https://www.fbi.gov/about/mission>

Garrett, Brandon, and Seth Stoughton. (2017). “A Tactical Fourth Amendment.” Virginia Law

Review: 211-307.

Lopez, German. (2016). “There are huge racial disparities in how US police use force”. Vox

Media. https://www.vox.com/identities/2016/8/13/17938186/police-shootings-killings-

racism-racial-disparities. (retrieved Aug 03, 2019).

Hardimon, Michael O. (1994). “Role obligations.” The Journal of Philosophy, 91(7): 333-363.

Heuer, Ulrike. (2012). “Promising-Part 2.” Philosophy Compass 7(12): 842-851.

Hobbes, Thomas. (1991). Leviathan. Cambridge: Cambridge University Press.

Huemer, Michael. (2003). “Is there a right to own a gun?” Social Theory and Practice 29(2):

297-319.

Lee, Cynthia. (2018). “Reforming the Law on Police Use of Deadly Force: De-Escalation,

Preseizure Conduct, and Imperfect Self-Defense.” University of Illinois Law Review:

629-692.

Luban, David. (2014). “Risk Taking and Force Protection.” In Benbaji, Yitzhak, and Naomi

Sussmann (Eds). Reading Walzer. New York: Routledge. 277-301.

McMahan, Jeff. (2005). “The Basis of Moral Liability to Defensive Harm,” Philosophical Issues

15: 386-405

Miller, Seumas. (2016). Shooting to kill: the ethics of police and military use of lethal force. New

York: Oxford University Press.

Monaghan, Jake. (2017). “The Special Moral Obligations of Law Enforcement.” Journal of

Political Philosophy 25(2): 218-237.

Nagel, Thomas. (1986). The View From Nowhere. New York: Oxford University Press.

Parfit, Derek. (1984). Reasons and persons. Oxford: Oxford University Press.

Payne, B. Keith. (2001). “Prejudice and Perception: The Role of Automatic and Controlled

Processes in Misperceiving a Weapon.” Journal of Personality and Social

Psychology 81(2): 181-192.

Payne, B. Keith, Alan J. Lambert, and Larry L. Jacoby. (2002). “Best laid plans: Effects of goals

on accessibility bias and cognitive control in race-based misperceptions of

weapons.” Journal of Experimental Social Psychology 38(4): 384-396.

29

Pettit, Philip, and Robert Goodin. (1986). “The possibility of special duties.” Canadian Journal

of Philosophy, 16(4): 651-676.

Quong, Jonathan. (2009). “Killing in self-defense.” Ethics, 119(3): 507-537.

Quong, Jonathan. (2012). “Liability to defensive harm.” Philosophy and Public Affairs 40(1):

45-77.

Thomson, Judith Jarvis. (1991). “Self-defense.” Philosophy & Public Affairs 20(4): 283-310.

——— (1986). “Self-Defense and Rights.” In Rights, Restitution, and Risk. Cambridge, Mass:

Harvard University Press.

Sagar, H. Andrew, and Janet W. Schofield. (1980). “Racial and behavioral cues in black and

white children's perceptions of ambiguously aggressive acts.” Journal of Personality and

Social Psychology 39(4): 590-598.

Stroud, Sarah. (1998). “Moral Overridingness and Moral Theory.” Pacific Philosophical

Quarterly 79: 170–89.

Washington Post National Police Shootings Database. Available at

https://www.washingtonpost.com/graphics/national/police-shootings/