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Law Enforcement, Role-Based Duties, and Bodily Autonomy

photograph of police officer in gear

On May 24th 2022, 21 people from Uvalde, Texas, lost their lives in an elementary school mass shooting. As people across the country experienced vicarious horror hearing the stories of the children who witnessed the atrocity, discrepancies and changes in the police report started to grab the attention of the general public. In all, the Uvalde police department made a total of 12 report updates and amendments, finally settling on one attention-grabbing fact: of all 19 armed officers and guards who were present at the active crime scene when the shooting began, none of them entered the room where the gunman had barricaded himself with a class full of students. This continued for 78 minutes, until the classroom was finally breached and the shooter killed.

Much of the public conversation surrounding the response of the Uvalde Police Department has focused on the motivations behind the officers’ reluctance to enter the classroom. Namely, on their own admission, they were concerned they would get shot. This is clearly not an irrational fear: they would have to enter the classroom not knowing the position or state of the gunman. Like anyone confronting another with a gun, they would be in danger. But most people’s views of the situation seemed unmoved by these facts.

The overwhelming public consensus was that this danger was precisely part of the role of police officers. By failing to take on this risk, the officers were neglecting a crucial aspect of their duties.

The question of the extent of self-endangerment obligations is one that has arisen in other cases of controversial uses of deadly force among law enforcement officers: for example, Darren Wilson’s killing of Michael Brown and Philip Brailsford’s killing of Daniel Shaver, among many other cases. In many cases where the self-defense plea was used to argue the officer’s case, the plea was successful: officers could kill to preserve their own life, if they legitimately feared for it. Leaving aside the crucial question of how racism and subconscious bias factored into the officers’ perception of threat, we are left wondering: if the officers did feel threatened, isn’t their primary duty still to the public, even when that public currently seems threatening? More simply: under what circumstances are law enforcement officers required to risk their lives for the sake of helping others?

In the wake of the Uvalde shooting, a 2005 Supreme Court decision began making the rounds on social media for its surprising answer to the above question.

Namely, the Court ruled that law enforcement officers had no constitutional duty to protect a person from harm. They would violate no constitutional duty to refrain from assisting someone who needed, or even requested, their assistance.

Of course, this does not mean that there is no sense in which officers must risk their lives for the public. Officers are supposed to respond to orders to serve — orders which come from their captain or chief of police. In the case of Uvalde, the chief of police had not told the responding officers to move in on the shooter. But what if he had? Can someone’s job ever obligate them to risk their life for the sake of another?

In a strictly moral sense of “obligation,” the answer seems to be, very plausibly, yes! Many philosophers accept a category of moral obligations that are attached to specific relational or social roles. For example, one may think that someone ordinarily has no moral obligation to donate a kidney to someone in need of one. But they may also believe that this obligation does kick in if the person in need of the kidney is the donor’s child. The changing variable in this case is the relationship that the donor stands in to the recipient: they have special obligations to the recipient based on their social or familial role.

The idea of role-based obligations goes back at least as far as the ancient Chinese philosopher Confucius. The Analects, a collection of his teachings, describes the following exchange:

Duke Jing of Qi asked Confucius about government. Confucius replied: “Let the ruler be a ruler, minister be a minister, father be a father, son be a son.” The Duke said, “Excellent! Indeed, if the ruler is not a ruler, the ministers not ministers, fathers not fathers and sons not sons, even if I have food, how can I eat it?”

Here, Confucius points to the importance of role-based obligations for maintaining social cohesion. It is clear that, if parents universally and routinely ignored their special role-based obligations to their children, there would be a huge humanitarian crisis to contend with. It is clear that, if law enforcement officers or other kinds of civil servants ignored all role-based obligations to protect those they serve, the social order would lack a class of protective services that, under ideal conditions, seem crucial to the well-being of a nation.

The legal question of such obligations, however, is more complicated. In the majority of U.S. states, commercial surrogacy (contracting paid gestational labor from another) is illegal. In these states, such contracts are prohibited because they are deemed unenforceable: a citizen cannot sign away their rights to bodily autonomy, even of their own volition. Therefore, most terms of the contract would be unenforceable, as a surrogate would maintain the right to, say, obtain an abortion as allowed under the particular state’s abortion laws. Would a labor contract that required law enforcement officers to risk their lives on command be less of a voluntary relinquishing of bodily autonomy than a surrogacy contract?

On the other hand, there is an obvious and prominent counterexample to the idea that no contract can oblige someone to surrender some bodily autonomy: military service.

When someone signs up for military service, they relinquish their right (while on duty) to choose their own clothing, haircut, and innumerable other aspects of their day-to-day life.

Of course, they also obviously contract themselves into a potentially highly-dangerous job. A military, to function, must assume that personnel are obligated to follow orders into battle, even if those orders put their lives at serious risk. At various times in history, we have even drafted people into the army, forcing them to take up arms in defense of the nation, or else face jail time. While many are critical of a draft, few question the right to voluntarily sign away significant portions of bodily autonomy in order to (as a free choice) join the military.

At the crux of this issue lies a seeming-conflict between two incompatible propositions: 1) in order for a nation to flourish, there must be a way of holding law enforcement, and other civil servants, to their role-obligations to risk their own well-being for the sake of the public; 2)the right to bodily autonomy is inalienable, and the voluntary relinquishing of autonomy cannot be legally enforced. Finding a way to reconcile the two — or to carve a middle ground between them — may be helpful for determining future matters of contract policy and responsibility.

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The Totalitarianism of the Borg

image of Enterprise spaceship and Borg Queen

WARNING: The following article contains minor spoilers for Picard seasons 1 & 2 on Paramount+.

Sir Patrick Stewart has once again returned to our screens as the iconic explorer, archaeologist, writer, historian, diplomat, and Earl Grey drinking machine that is Jean-Luc Picard. The first season of Picard saw Starfleet’s greatest officer come out of retirement to save the life of Soji, a woman with a mysterious past. As a result, we saw him make new friends and enemies, tackle a nefarious cabal, and attempt to come to terms with his failing health. Permeating the thoughtful narrative were philosophical issues galore, including what makes us worthy of moral consideration, how we find or create meaning in the face of death, and whether the ends can justify the means.

While only a few episodes in, Picard’s second season is shaping up to be equally thought-provoking, challenging our perceptions of personal identity and what we are willing to sacrifice or destroy to secure our survival. It also reintroduces us to several familiar faces, one of which featured heavily in the show’s promotional material, the Borg Queen. So, in honor of the return of one of Star Trek’s great villains, I wanted to explore the Borg’s totalitarian tendencies.

The Borg are a group of cyborgs that search the galaxy for assimilatable people, technology, and cultures. They are not made up of a single species but consist of countless ‘drones’ whom they have forcibly assimilated into their group. There are no individuals within the Borg as each drone is linked together via a hive mind called “The Collective.” Once connected, individuality is absorbed and subsumed. The individual becomes a techno-zombie, possessed by the vast hive mind.

The Borg’s ultimate goal is biological and technological “perfection.” They seek this by harvesting anything distinctive from other races. Because of this unrelenting process of assimilation and incorporation, the Borg are one of Star trek’s most formidable entities. A single drone can assimilate an entire starship, and a single borg vessel can destroy entire fleets or raze a city to the ground.

In their debut, Q describes the Borg as:

the ultimate user. They’re unlike any threat your Federation has ever faced. They’re not interested in political conquest, wealth, or power as you know it. They’re simply interested in your ship, its technology. They’ve identified it as something they can consume.

In their pursuit of perfection, the Borg leave no room for freedom of choice, equality, or compassion. On the contrary, the collective sees these traits as inefficiencies; obstacles on the path to perfection. As Seven of Nine – a Borg drone later freed from the collective – observes while aboard a Starfleet vessel, “you’re erratic, conflicted, disorganized. With every individual giving their own small opinion, you lack harmony, cohesion, greatness.” The disdain Seven of Nine expresses for the individual’s worth, and specifically for the value afforded to the expression of that will, is in direct opposition to Jean-Luc’s philosophy. As he states, in no uncertain terms, when the Borg captures him:

Capt. Picard: I have nothing to say to you; and I will resist you with my last ounce of strength.

The Borg: Strength is irrelevant. Resistance is futile. We wish to improve ourselves. We will add your biological and technological distinctiveness to our own. Your culture will adapt to service ours.

Capt. Picard: Impossible. My culture is based on freedom and self-determination.

The Borg: Freedom is irrelevant. Self-determination is irrelevant. You must comply.

Capt. Picard: We would rather die.

The Borg: Death is irrelevant.

Indoctrination into the collective erases all prior relationships with friends, family, religious affiliations, political memberships, and even one’s species status; the Borg consume them all. Even death lacks meaning for the Borg as death is merely the loss of the individual.

The portrait of the Borg painted here – a horrifying force assimilating everything into its structure, to the exclusion of all independent thought and actions, for the propagation of its survival and goal satisfaction – is terrifying. However, the Borg are more than tyrannous; they’re totalitarian.

Totalitarian governments attempt to control every aspect of their citizens’ lives through coercion and repression. As Alan Haworth highlights in his book, Totalitarianism and Philosophy, totalitarianism attempts to achieve total control via (i) the constriction of space and/or (ii) the conflict of wills.

The constriction-of-space model eliminates areas, be they conceptual or physical, where citizens can act autonomously. But, this is difficult to achieve as there are always ways for citizens to rebel and ways for states to exert more control. So, as Haworth argues, this avenue is more aspirational than anything else. A totalitarian state aims towards the total restriction of autonomous space even though such a state is unattainable. Or, in his own words:

This is, thus, a model of the relationship between control and liberty from which it follows that there is an inverse ratio between increase in control by the rulers and decrease in the area within which the ruled are free to act, in which case we must be forced to the conclusion that total control is a practical impossibility since – as the argument presupposes – rulers only have total control when their subjects cannot, as it were, ‘move’ at all, and that is something that could only happen – or so I take it – when the rulers are in a position to direct every single action and thought of those they rule.

The conflict-of-wills model envisions totalitarianism coming into full fruition when the oppressive government enforces its will upon its citizens, dominating their desires. This form of totalitarianism is more subtle than the overt constriction-of-space model. As Hannah Arendt remarks in The Origins of Totalitarianism, “[t]otalitarian terror achieved its most terrible triumph when it succeeded in cutting the moral person off from the individualist escape and in making the decisions of conscience absolutely questionable and equivocal.” This mode of totalitarianism subverts autonomy’s foundations and makes the previously unimaginable possible.

The Borg, however, do both of these. They invade the body and mind of the assimilated so entirely that they effectively enact both formulations of totalitarianism at once. The collective is housed just as much in the ships it commands as in the drones at its disposal. It maintains an all-pervasive watch on those who make up its quasi-species; there is no room for deviation from the collective’s will. More troubling, however, is their capacity to dominate the will of the individuals it assimilates. Even if room for deviation existed, the drones don’t have the capacity to take advantage of it. The Borg hive utterly dominates their will.

The portrayal of the Borg in the Star Trek franchise illustrates something important about totalitarianism’s nature. Namely, that as a political system, it demands unflinching obedience to the goals of those in power and cannot stand, nor survive, a populace that rebels against it. Indeed, when drones have regained their independence, the collective sees this as an imminent threat. The power of the Borg and the totalitarian state comes from their ability to dominate the wills of those they hold in their power. Thus, it is paramount to reject the urge to comply or be consumed by their pursuit of perfection or security. Neither the Borg nor the totalitarian state is invincible. Resistance isn’t futile.

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Individual Rights, Collective Interests, and Vaccine Mandates

Despite popular support, Biden’s recent policy – requiring vaccinations for all government employees and mandatory testing for businesses with more than 100 employees – is attracting the attention of a small but vocal minority. These voices question the very notion of public health and challenge the basis for the state to supersede individuals’ fundamental claim to bodily autonomy. Given these objections, how are we to justify the policy to those who remain opposed? How are we to adjudicate between the claims of individual liberty and the demands of collective interest?

Are vaccine mandates legal? The relevant precedent concerns a 7-2 Supreme Court ruling in Jacobson v Massachusetts which determined that the local government could enforce mandatory vaccinations to fight a smallpox outbreak. In the decision, Justice Harlan argued that

in every well ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

In fact, tyranny could just as easily come from government failing to take action and allowing individual freedom to trump collective interests. “Real liberty for all,” Harlan wrote, “could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others.” In a state of nature where everyone is free to pursue his or her own interest to the furthest extent, there can be no security, no rights, and no peace.

But even if such measures have legal history on their side, can these current vaccination mandates be morally justified? As with all things these days, it depends on who you ask. Red state governors have been quick to seize on these policies as obvious government overreach. Big brother is determined to interfere with average Americans’ daily lives and tell them what they can and can’t do with their bodies. These critics claim that the directives go far beyond what is reasonably required for ensuring public safety. These invasive measures are part of a crude, ham-fisted, one-size-fits-all approach to a fairly isolated problem. Big government is making a foot-long incision to get at the issue when a couple of tiny, strategic punctures might do.

So what makes these emergency orders “unreasonable”? Despite over 725,000 deaths from COVID-19 in the U.S. alone, we’re still squabbling over whether workers are in “grave danger.” Folks like Governor Ron DeSantis claim that the choice of whether to get vaccinated “is about your health and whether you want that protection or not. It really doesn’t impact me or anyone else.” And these sentiments resonate with a not insignificant swath of the population that bristle at being told what to do and who pride themselves on being “more worried about herd instinct than herd immunity.” The trouble, as they see it, is that all the bleeding hearts fail to recognize the basic fact that “life is always a risk.” 38,000 Americans die every year in car crashes, but no one is lining up in favor of a ban on driving. “We live with these risks,” these voices contend, “not because we’re indifferent to suffering but because we understand that the costs of zero drowning or zero electrocution would be far too great. The same is true of zero Covid.” In the end, the right balance between personal liberty and public safety is always to be found in letting the people decide for themselves.

But part of our disagreement stems from misunderstanding the science. Contrary to DeSantis’s claims, vaccination is not a private choice without practical consequences for anyone else. The vaccine does not make one invulnerable to infection and having a large unvaccinated population creates a breeding ground for variants. That’s why the unvaccinated represent the greatest threat to pandemic recovery. Leaving it up to individuals won’t do; we can’t simply agree to go our own ways.

As others have noted, the current conversation resembles the standoff over smoking bans in the not-so-distant past. We’re arguing over the answer to a large and complicated question: at what point does one’s private choices about their health encroach on the rights of others to be free from having risks imposed on them by their neighbors’ behavior?

Given the deep disagreement about the predicament we’re in, finding a trustworthy authority has become paramount. One body which might seem especially well-positioned to rule on the matter is the ACLU – the American Civil Liberties Union which is devoted to protecting people’s basics rights enshrined in the Constitution.

Instead of undermining individuals’ civil liberties, ACLU officials David Cole and Daniel Mach argue that vaccination mandates “actually further civil liberties. They protect the most vulnerable among us, including people with disabilities and fragile immune systems, children too young to be vaccinated and communities of color hit hard by the disease.” Echoing Harlan’s sentiments, the ACLU reminds us that liberties and duties are two sides of the same coin; a right’s very existence imposes corresponding obligations. Making a space for others to exercise their basic freedoms means recognizing the limits of one’s individual liberty: the freedom to swing my fist ends where your nose begins. While much attention has been paid to the coercive leverage in demanding vaccination as a condition of continued employment, we fail to appreciate the situation of those who must daily weigh the risk of exposing their immunocompromised family members against the necessity of putting a roof over their heads. While the number of folks faced with this second scenario may be smaller, surely we can appreciate that the injustice in these two situations is not equivalent.

We have a tendency to speak of rights as guaranteeing individuals’ absolute freedom of choice in pursuing whatever might make them happy — rights without obligations and without bounds. We speak in reverence of individual autonomy as the fundamental basis for human dignity. When I am impeded from doing what I want to do, or (worse) made to do something which I would otherwise not, I have been disrespected and harmed. We equate being free with being unconstrained.

But this kind of autonomy fits poorly within our philosophical traditions. Hobbes encouraged us to lay down our sword in order to enjoy the benefits of neighbors who are more than obstacles to our private interests. Kant argued that only by acting from duty can one be truly free. Showing sufficient respect for others means more than simply making space for their unimpeded desiring, willing, and choosing. No one can claim absolute license to pursue their private ambitions, come what may.

Where does this leave us? We find ourselves once again at the intersection of a number of related issues. We’re bad at conceptualizing disease; we’re addicted to the anecdotal, allergic to authority, and eternally unsure of who to trust. Matthew Silk has investigated the media’s troubles in relaying vaccination information; Martina Orlandi and Ted Bitner have explored our failure to change people’s hearts and minds; Marshall Bierson has pointed out how conflicting federal, state, and local legislation is complicating the picture; and Daniel Burkett has explained why we’re upset by others’ free-riding.

So, how should we respond? Megan Fritts recently raised the question of whether doctors are justified in refusing to admit unvaccinated patients to their overbooked and especially vulnerable waiting rooms. Much like we might penalize alcoholics on a donor list for liver transplants, there is at least one line of thought that suggests that those choosing to expose themselves to greater risk should be asked to bear the cost of that choice rather than forcing others to live with the consequences of that decision. Given the scarcity of medical resources and need for emergency assistance, some form of triage is inevitable. And the mantra of personal responsibility has always proven an efficient tool for separating the “undeserving” from the rest of us.

But this solution is too neat; it neglects to investigate who exactly the unvaccinated are. Over the weekend, The New York Times attempted to put a face to this broad label. The obstinate “Don’t Tread on Me!” die-hard doesn’t always track reality. From young mothers to the various outcasts of the healthcare system, there are at least some not-so-unreasonable anxieties expressed by the “vaccine-willing.” And there are, no doubt, a number of the unvaccinated who deserve our compassion and should inspire us to show a modicum of humility. Unfortunately, those folks with a legitimate medical complication or sincerely-held religious conviction constitute a collective that is not anything as large as it purports to be. You know who you are.

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Should You Have the Right to Be Forgotten?

In 2000, nearly 415 million people used the Internet. By July 1, 2016, that number is estimated to grow to nearly 3.425 billion. That is about 46% of the world’s population. Moreover, there are as of now about 1.04 billion websites on the world wide web. Maybe one of those websites contains something you would rather keep out of public view, perhaps some evidence of a youthful indiscretion or an embarrassing social media post. Not only do you have to worry about friends and family finding out, but now nearly half of the world’s population has near instant access to it, if they know how to find it. Wouldn’t it be great if you could just get Google to take those links down?

This question came up in a recent court case in the European Union in 2014. A man petitioned for the right to request that Google remove a link from their search results that contained an announcement of the forced sale of one of his properties, arising from old social security debts. Believing that since the sale had concluded years before and was no longer relevant, he wanted Google to remove the link from their search results. They refused. Eventually, the court sided with the petitioner, ruling that search engines must consider requests from individuals to remove links to pages that result from a search on their name. The decision recognized for the first time the “right to be forgotten.”

This right, legally speaking, now exists in Europe. Morally speaking, however, the debate is far from over. Many worry that the right to be forgotten threatens a dearly cherished right to free speech. I, however, think some accommodation of this right is justified on the basis of an appeal to the protection of individual autonomy.

First, what are rights good for? Human rights matter because their enforcement helps protect the free exercise of agency—something that everyone values if they value anything at all. Alan Gewirth points out that the aim of all human rights is “that each person have rational autonomy in the sense of being a self-controlling, self-developing agent who can relate to others person on a basis of mutual respect and cooperation.” Now, virtually every life goal we have requires the cooperation of others. We cannot build a successful career, start a family, or be good citizens without other people’s help. Since an exercise of agency that has no chance of success is, in effect, worthless, the effective enforcement of human rights entails that our opportunities to cooperate with others are not severely constrained.

Whether people want to cooperate depends on what they think of us. Do they think of us as trustworthy, for example? Here is where “the right to be forgotten” comes in. This right promotes personal control over access to personal information that may unfairly influence another person’s estimation of our worthiness for engaging in cooperative activities—say, in being hired for a job or qualifying for a mortgage.

No doubt, you might think, we have a responsibility to ignore irrelevant information about someone’s past when evaluating their worthiness for cooperation. “Forgive and forget” is, after all, a well-worn cliché. But do we need legal interventions? I think so. First, information on the internet is often decontextualized. We find disparate links reporting personal information in a piecemeal way. Rarely do we find sources that link these pieces of information together into a whole picture. Second, people do not generally behave as skeptical consumers of information. Consider the anchoring effect, a widely shared human tendency to attribute more relevance to the first piece of information we encounter than we objectively should. Combine these considerations with the fact that the internet has exponentially increased our access to personal information about others, and you have reason to suspect that we can no longer rely upon the moral integrity of others alone to disregard irrelevant personal information. We need legal protections.

This argument is not intended to be a conversation stopper, but rather an invitation to explore the moral and political questions that the implementation of such a right would raise. What standards should be used to determine if a request should be honored? Should search engines include explicit notices in their search results that a link has been removed, or should it appear as if the link never existed in the first place? Recognizing the right to be forgotten does not entail the rejection of the right to free speech, but it does entail that these rights need to be balanced in a thoughtful and context-sensitive way.