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State of Surveillance: Should Your Car Be Able to Call the Cops?

close-up photograph of car headlight

In June, 2022, Alan McShane from Newcastle, England was heading home after a night drinking and watching his favorite football club at the local pub when he clipped a curb and his airbags were activated. The Mercedes EQ company car that he was driving immediately called emergency services, a feature that has come standard on the vehicle since 2014. A sobriety test administered by the police revealed that the man’s blood alcohol content was well above the legal limit. He was fined over 1,500 pounds and lost his driving privileges for 25 months.

No one observed Mr. McShane driving erratically. He did not injure anyone or attract any attention to himself. Were it not for the actions of his vehicle, Mr. McShane may very well have arrived home safely and without significant incident.

Modern technology has rapidly and dramatically changed the landscape when it comes to privacy. This is just one case among many which demonstrates that technology may also pose threats to our rights against self-incrimination.

There are compelling reasons to have technology of this type in one’s vehicle. It is just one more step in a growing trend toward making getting behind the wheel safer. In the recent past, people didn’t have cell phones to use in case of an emergency; if a person got in a car accident and became stranded, they would have to simply hope that another motorist would find them and be willing to help them. However, this significant improvement to safety isn’t always accessible during a crash. One’s phone may not be within arm’s reach and during serious car accidents a person may be pinned down and unable to move. Driving a car that immediately contacts emergency services when it detects the occurrence of an accident may often be the difference between life and death.

Advocates of this technology argue that a person simply doesn’t have the right to drive drunk. It may be the case that under many circumstances a person is free to gauge the amount of risk that is associated with their choices and then choose for themselves the amount that they are willing to take on. This simply isn’t true when it comes to risk that affects others in serious ways.

A person doesn’t have the right to just cross their fingers and hope for the best — in this case to simply trust that they don’t happen to encounter another living being while driving impaired.

When people callously rely on luck when it comes to driving under the influence, living beings can die or be injured in such a way that their lives are involuntarily altered forever. Nevertheless, many people simply do not think about the well-being of others when they make their choices. Since this is the case, some argue that if technology can protect others from the selfish and reckless actions of those who can’t be bothered to consider interests other than their own, it should.

Others argue that we can’t let technology turn any country into a police state. Though such people agree that there are clear safety advantages to technology that can help a person in the event of an accident, this particular technology does more than that — it serves as a non-sentient witness against the driver. This radically changes the role of the car. A vehicle may once have been viewed as a tool operated by a person — a temporary extension of that person’s body. Often cars used as tools in this way are the property of their operators. Until now, a person’s own property hasn’t been in the position to turn them in. Instead, if a police officer wanted information about some piece of a person’s body, they’d need a search warrant. This technology removes the element of choice on behalf of the individual when it comes to the question of whether they want to get the police involved or to implicate themselves in a crime.

This is far from the only technology we have to be worried about when it comes to police encroachment into our lives and privacy. Our very movement through our communities can be tracked by Google and potentially shared with police if we agree to turn location services on when using our phones.

Do we really have a meaningful expectation of privacy when all of the devices we use as extensions of our bodies are accessible to the police?

Nor is it only the police that have access to this information. In ways that are often unknown to the customer, information about them is frequently collected and used by corporations and then manipulated to motivate that customer to spend more and more money on additional products and services. Our technology isn’t working only for us, it’s also working for corporations and the government, sometimes in ways that pretty clearly run counter to our best interests. Some argue that a product on which a person spends their own hard-earned money simply shouldn’t be able to do any of this.

What’s more, critics argue that the only conditions under which technology should be able to share important information with any third party is if the owner has provided fully free and informed consent. Such critics argue that what passes for consent in these cases is nowhere near what would be required to meet this standard.

Accepting a long list of terms and conditions written in legalese while searching for crockpot recipes at the grocery store isn’t consenting to allowing police access to knowledge about your location.

Turning a key in the ignition (or, more and more often, simply pressing an ignition button) does not constitute consent to abandon one’s rights against self-incrimination or to make law enforcement aware of one’s blood alcohol content.

Advocates of such technology argue in response that technology has always been used as important evidence in criminal cases. For instance, people must be careful what they do in public, lest it be captured on surveillance cameras. People’s telephone usage has been used against them since telephones were invented. If one does not want technology used against them in court, one shouldn’t use technology as part of the commission of a crime.

In response, critics argue that, as technology develops, it has the potential to erode our fourth amendment rights against unlawful search and seizure and our fifth amendment rights against self-incrimination to the point of meaninglessness. Given our track record in this country, this erosion of rights is likely to disproportionately affect marginalized and oppressed populations. It is time now to discuss principled places to draw defensible lines that protect important democratic values.

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Justice for All?: William Kelly and Kyle Rittenhouse

photograph of police officer with blurred civilians in the background

Last week, a police officer was fired over the details of an anonymous donation he made. Norfolk Police Lieutenant William Kelly contributed $25 to a legal defense fund for Kenosha shooting suspect Kyle Rittenhouse last September. That donation was accompanied by a message:

“God bless. Thank you for your courage. Keep your head up. You’ve done nothing wrong. Every rank and file police officer supports you. Don’t be discouraged by actions of the political class of law enforcement leadership.”

Kelly’s donation was anonymous and only made public following a security breach of Christian crowdfunding website GiveSendGo when data was shared with and circulated by Distributed Denial of Secrets and later published by The Guardian.

In the wake of his firing, GiveSendGo has started a fundraising campaign for Kelly. Co-founder Heather Wilson argues that “Regardless of how you feel regarding Kyle Rittenhouse, the fact is that Mr. Kelly’s individual rights have been grossly violated.” His donation “wasn’t against the law, but a criminal hacker group and a biased media outlet decided that was enough to make an example of him.”

This particular framing conforms to a broader (misleading) narrative regarding cancel culture’s all-out assault on individual rights. The story is presented by some as the obvious overreach of the progressive thought police. Kelly, these voices claim, is being persecuted merely for holding private, personal opinions that a powerful bunch have deemed distasteful. Woke mob rule has conspired once again to force the hand of another institution to cut ties with a controversial figure or risk being tarred with the same brush. What was once a call for boycott or an urging to deplatform has transformed into something much bigger. This isn’t a mere public shaming; Kelly’s dismissal highlights the serious threat to professional livelihood: an 18-year veteran and the second-highest ranking officer in the Norfolk Police Department lost his job in less than 72 hours.

Given the situation, labor lawyers like Ray Hogge have suggested that the firing was “inappropriate and illegal.” Kelly’s dismissal is a violation of his rights of speech and association. As a free citizen, Kelly is at liberty to support any charitable cause he chooses, regardless of whether city leaders approve. Employers shouldn’t be in the business of picking and choosing the values their employees can espouse. And this should be especially true in the case of a private, off-duty communication between friends.

The trouble is that Mr. Kelly’s rights are not the only rights at issue. His interests must be weighed against the state’s interest in delivering impartial justice for us all. Kelly’s case is more than just a matter of bad optics or a squeamish politician rolling over to avoid backlash from a mob spoiling for a fight. This is a state official countermanding the expressed purpose and obligations of the post he serves — a post that sometimes requires the use of deadly force. Kelly’s words give us reason to question whether he can adequately execute the functions of his office.

Even out of uniform, officers have a duty to uphold public image and not engage in activities that might erode respect for the badge. As Police Chief Larry D. Boone made clear,

“A police department cannot do its job when the public loses trust with those whose duty is to serve and protect them. We do not want perceptions of any individual officer to undermine the relations between the Norfolk Police Department and the community.”

The effect Kelly’s position as an officer of the law has on this speech act (even in private as a public citizen) appears inescapable (for discussion see A.G. Holdier’s “Pastor Fritts, the First Amendment, and Public and Private Reason”). His incidental use of his police department email in making the donation helps to highlight the trouble: Lt. Kelly is incapable of speaking on this matter while wearing a different hat. A police officer expressing support for a vigilante (publicly or privately) and suggesting that outlaw is above the law is fundamentally at odds with the sworn duty to protect and serve. It betrays an indifference to the law he is meant to uphold and to the exclusive position that he occupies. It confers legitimacy on some while denying it to others and fails to discourage us from taking the law into our own hands.

But there remains much that needs to be settled. Rittenhouse only stands accused and has pleaded not guilty on the basis of self-defense; the jury is still out. Unfortunately, this fact means that Kelly’s endorsement is more egregious, not less. Choosing to support a suspect before his day in court is a problematic stance for law enforcement to take. The police shouldn’t stand as judge, jury, and executioner. Kelly’s actions are objectionable, then, not because he chose the wrong side in the culture war, but because he chose to take a side at all.

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Sarah Everard and the Politics of Fear

photograph of palm protecting candle at vigil

In early March of this year, 33-year old marketing executive Sarah Everard vanished while walking alone at night through a neighborhood in south London. Days later, her body was found about fifty miles away in Kent. There was an instant outpouring of grief and rage from women around the world, many of whom shared their own stories of being assaulted or victimized while walking alone at night. Their collective rage only grew stronger when the police arrested Wayne Couzens, a London Metropolitan Police officer, for the kidnapping and murder of Everard. Couzens was still an active member of the force when he committed the crime, despite previous allegations of indecent exposure.

However, it isn’t just police corruption or misogynistic violence that make this case so troubling. In an article for The Cut, Angelina Chapin explains her perspective on this case as a Black American woman, and explains that this tragedy should make us question “how white women’s deaths are emphasized and whether fear is a logical response to random acts of violence.” Chapin argues that the media tends to focus on “good victims,” meaning attractive white women who are middle-class, often well-educated or members of the professional class, and not sexually promiscuous. Their deaths are certainly no less tragic,  The but the deaths (and sexual assaults) of women of color tend to receive far less attention in the press. Furthermore, the state often uses collective anxiety as an excuse to increase police presence and resources, a move which always has an overwhelmingly negative impact on people of color.

Chapin also points out that sensationalized cases like these tend to draw our attention away from other arenas where women more commonly experience sexual violence. She writes that

“what’s bothering me in the discourse around [Everard’s] death is the way that some people seem to universalize the feeling of terror women have being out on the street at night . . . While women do get attacked by strangers, it’s relatively uncommon. Women experience more risk in domestic settings than in the streets. So if this hypervigilance is warranted anywhere, it should be in the home.”

Data on sexual assault is notoriously tricky to gather, and conclusions will vary wildly depending on when the study was done, sample size, and demographics, but the existing body of research does seem to support Chapin’s assertion. The Department of Justice’s National Crime Victimization Survey, cited by the Rape, Incest, & Abuse National Network, reveals that only 7 percent of assaults committed against children and teens are perpetrated by a stranger. Another study conducted by the NSA claims that about 23 percent of assaults were committed by strangers. While this is not an insubstantial amount, it certainly feels less pressing than the 70 percent of assaults which were committed by people known to the victim. But at the same time, a recent study conducted by UN Women UK shows that a whopping 80% of women from all age groups have experienced street harassment, which can range from catcalling to verbal threats. For women walking home alone at night, verbal harassment (while also being deeply dehumanizing) may very easily become a precursor to physical harassment.

Women have every right to mourn Everard’s senseless death, but it’s also important to treat this less as an act of random violence and more the result of a rotten system. When we view violence as random and unavoidable, our fear increases, but if we acknowledge the well-substantiated link between police officers and violence against women, we have the power to address and eventually end structural violence. As the co-founder of the Women’s Equality Party in Britain, Catherine Mayer, wrote “We can best honour the victims of violence not only by demanding their assailants face justice, but by challenging the systems and cultures that enable violence and pin the blame on victims.” The tension between systems of power and individuals are becoming more and more apparent; at a recent vigil held in Everard’s honor, protesting women were arrested after confrontations with members of the Metropolitan police force, which is especially jarring given that the offender the women were protesting against was himself a cop. Hopefully this tragedy will bring positive rather than negative change, and everyone, regardless of gender or race, will be able to feel safe in their communities.

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The Ethics of Digidog

photograph of german shepherd next to surveillance robot dog

On February 24, the New York City Police Department employed a robot “dog” to aid with an investigation of a home break in. This is not the first time that police departments have used robots to aid in responding to criminal activity. However this robot, produced by Boston Dynamics, and affectionately named “Spot,” drew the attention of the general public after New York Congresswoman Alexandria Ocasio-Cortez tweeted a critique of the decision to invest money in this type of policing technology. While Digidog’s main purpose is to increase the safety for both officers and suspects during criminal investigations, some are concerned that the implementation of this type of technology sets a bad precedent, contributes to police surveillance, and diverts resources away from more deserving causes.

Is employing surveillance technologies like Digidog inherently bad? Is it ever okay to monitor citizens without their consent? And which methods should we prioritize when seeking to prevent or respond to crime?

In the United States, an estimated 50 million surveillance cameras watch us, many escaping out notice. The use of these surveillance cameras, formally called Closed Circuit TV’s (CCTVs), have dramatically expanded due to the interest in limiting crime in or around private property. Law enforcement often rely on video surveillance in order to identify potential suspects, and prosecutors may use this footage as evidence during conviction. However, there has been some debate about whether or not the proliferation of CCTV’s has really led to less crime, either through deterrence or through successful identification and capture. This lack of demonstrable proof of positive effect is especially concerning given the pushback against this type of surveillance as potentially violating individuals’ privacy. In a 2015 study by Pew Research Center, 90% of Americans ranked “not having someone watch you or listen to you without your permission” as very important or somewhat important. In a follow-up question, 2/3 of respondents ranked “being able to go around in public without always being identified” as important. Considering the clear importance of privacy to many Americans, increased surveillance might be considered a fundamental infringement on what many see as their right to privacy.

Digidog is a police surveillance tool. Equipped with a camera and GPS, the robot dog is capable of allowing officers to monitor dangerous situations without risking their lives. However, many are skeptical that Digidog’s use will be limited only to responding to crime and could soon instead become a tool to patrol the streets. In one particularly alarming example, an MSCHF Product Studio armed their robot dog with a paintball gun and demonstrated how easy it was to shoot the gun from a remote location. If police departments began arming these robot dogs, the potential for violence and brutality stands to increase. As yet, these uses have not been explicitly suggested by any law enforcement agency, and defenders of Digidog point to its limitations, such as its maximum travel speed, usage in many fields other than policing, and its lack of covert design. These features suggest that Digidog is not yet the powerful tool to patrol or surveil the general public that critics fear.

In terms of Digidog as an investment to combat crime, is it an unethical diversion of money, as Congresswoman Ocasio-Cortez has suggested? In the past year, calls to decrease or reallocate police funding have entered the mainstream. The decision to invest in Digidog could be considered unethical because its benefits to the public can’t justify its significant cost. Digidogs themselves cost around $74,000 each. Considering that they are only intended for use in extreme and dangerous situations, their usage is rare, and they do not appear to improve the life of the average individual. However, by serving as a weaponless first responder, Digidogs could save both the lives of officers or those suspected of engaging in criminal activity. Human error and reactivity can be removed from the equation by having robots surveil a situation in place of an armed officer.

Whether or not the Digidog represents an ethical use of public funds may turn on the legitimacy of investing in crime response rather than crime prevention. As previously noted, “Spot” is primarily used to respond to existing crime. Because of this, critics have suggested that these funds would be better aimed at programs that seek to minimize the occurrence of crime in the first place. Congresswoman Ocasio-Cortez’s tweet, for example, makes reference to those who suggested resources should go to school counseling instead. In fact, some criminology experts argue that investing in local communities and schools can drastically decrease the incidence of crime. Defenders of Digidog are quick to point out that the two goals are not mutually exclusive; it is possible to invest in both crime response and crime prevention, and we need not pit these two policy aims against one another. It is unclear in this situation, however, whether similar funds were directed at preventing crime as were spent in purchasing Digidogs.

This investment in Digidog could also be seen as unethical not just in terms of its lack of efficiency in addressing crime, but also in terms of the lack of similar treatment in other areas of social concern. In a reply to her original tweet, Ocasio-Cortez retorted “when was the last time you saw next-generation, world class technology for education, healthcare, housing, etc. consistently prioritized for underserved communities like this?” In a time when so many have called to defund the police following centuries of police violence against Black people, it seems an affront to invest money in technologies designed to aid arrest rather than address systemic injustice. Highlighting this disparity in funding shows that urgent social needs are being unjustly prioritized last. Again, defenders of Digidog might respond that this comparison is a false one, and that technology can be employed for both policing and social needs.

Together, these concerns mean that Digidog’s usage will continue to be met by skepticism, if not hostility, by many. As police and surveillance technology develop, it remains especially important that we measure the value these new tools offer against their costs to both our safety and our privacy.

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“Defund the Police”: A Powerful if Ambiguous Slogan

black-and-white photgraph of protestors holding "Defund the Police" sign

During the recent protests in wake of the murder of George Floyd, many have begun calling for state and local governments to “defund the police.” However, as Matthew Yglesias at Vox aptly puts it, “A three-word slogan is not a detailed policy agenda, and not everyone using the slogan agrees on the details.” So what are these protestors calling for with this slogan? And, what are the ethical ramifications of these different proposals?

The most radical proposal represented by this slogan is in line with the traditional meaning of “defunding.” Yglesias defines “defunding” a part of the government as “reduc[ing] appropriations to zero dollars, thus eliminating it.” Under this proposal, the police would be completely abolished as an institution. While radical, this proposal is not completely without support:  In Minneapolis, where Floyd was murdered, the mayor was booed and met with chants of “shame” when he refused to commit to abolishing the police department. Police have not always been around. As activist Mariame Kaba explains in The New York Times, police in the United States arose to enforce slavery and combat labor activists. We lived without them once and could do so again.

Others using this slogan don’t literally want to wholly eliminate the police. Rather, they want the scope of police action greatly minimized. Rather than have police respond to reports of mental illness or suicide attempts, we could send “community care workers,” as Kaba suggests. Rather than have police be called for every noise complaint or traffic violation, these issues could be dealt with communally. In fact, in Dallas, something like this is already happening. Heightened police contact with the public increases the odds that people will be subject to police violence. So, they say, where we don’t need police contact, why have it? On the whole, this group cries “defund the police” mostly to shift public discourse.

This group does not just want to minimize the role of police, however. They also advocate for reallocating funding to social programs. A major proponent of the abolition of the police today is professor of sociology at Brooklyn College, Alex Vitale. As he explains in an interview with Mother Jones, many crimes can be prevented by tackling social issues head-on rather than punishing people who violate the laws.

But, you may be wondering, why should we think this? In recent history, the Clinton administration passed the Violent Crime Control and Law Enforcement Act of 1994, which “put 88,000 additional police on the streets and mandated life sentences for criminals convicted of a felony after two or more prior convictions, including drug crimes,” for seemingly good reason. Violent crime increased immensely in the late 80s and early 90s before falling drastically around the time of these reforms. Increasing law enforcement stops crime. Case closed, right? Not quite. While this is a simple and satisfying story, the causes and effects of the rise and fall of violent crime during this period are still being studied so it is difficult to make any definitive claims.

Let us, then, consider an alternate account of the relationship between crime and law enforcement. Former US Secretary of Labor and UC Berkeley professor Robert Reich presents increased law enforcement as a cheap stopgap for solving real problems of social inequity that prompt crimes in the first place. As he writes, the people in power can choose to engage in social investment or social control. Social investment serves to satisfy people so that they have no reason to go out and commit crimes. It includes funding “healthcare, education, affordable housing, jobless benefits and children.”

Social control, in contrast, takes people’s general dissatisfaction as given, assuming that people will just commit crimes and that’s the way it is. Under those assumptions, social control serves to maintain order over a population of people who are intrinsically motivated to commit crimes. There are reasons for these assumptions, if not good ones: social control is much cheaper than social investment and it maintains the present social stratification, which benefits those who are already well-off and powerful.

Defunding the police, then, is a means to increasing social investment, thus removing the dissatisfaction that prompts the need for social control in the first place. But, again you might protest: “Maybe social investment can minimize a lot of kinds of crime. People may not be intrinsically motivated to commit crimes. But aren’t there still a number of legitimate purposes for having police?” To answer these questions, we must consider the origin of modern policing. In doing so, we can see what, if any, are the legitimate purposes of police. It might also become clear that the dichotomy between falling back into a state of nature and maintaining the police as they are today is a false one. Defunding the police is not a view limited only to the most resolute of anarchists.

While people associated with the government who serve to enforce the laws have been employed since ancient times, the modern idea of a professional police force has its origin in London in the year 1829. This is very recent in historical terms and was actually a controversial move at the time. At the time, many London residents were opposed to the idea of a police force as they imagined it would function as a domestic wing of the military. The British people, though happy to occupy other people’s lands in their colonies, were, unsurprisingly unwilling to live under military occupation themselves.

Early founders of the London police force (among them, Sir Robert Peel) enumerated nine principles of good policing to inspire faith in communities that were not happy with the idea of being policed.  These principles were philosophically based. As a student of English philosopher Jeremy Bentham, founder of utilitarianism, Sir Peel justifies the police’s existence with a utilitarian argument. At the time, this utilitarian argument was fairly a progressive idea when crimes were previously punished with public executions.

He argued that if we are to maximize human pleasure and flourishing (according to utilitarianism) then it is better to prevent crimes rather than to merely punish them. Punishing a crime does not fix the harm the crime does and, in fact, the punishment, in harming the criminal, may actually lead to a net decrease in the amount of human pleasure in the world. By preventing crimes, there would be neither victims of crimes nor criminals who become victims of state punishment. Police help deter crimes merely by their presence. You’re less likely to steal a purse if a police officer is watching.

Now, the easy response to Bentham’s idea is the same as that levied against modern police: preventive policing does not resolve the problem of why people steal. If a person is starving, he may very well steal the purse anyway because he is hungry. But Bentham’s utilitarianism anticipates this objection: his principle of diminishing marginal utility states that the very rich do not derive very much pleasure from each extra dollar they get (they already have plenty) while starving people derive immense pleasure from each such dollar (for they have none). Thus, achieving the maximum happiness of the people “requires that the external instruments of felicity, whatsoever they may be, be shared by the whole number in a proportion so near to equality as is consistent with universal security.” In modern English, money and resources (“the external instruments of felicity”) must be distributed to increase equality up until that redistribution threatens to increase crime and disorder in a way opposed to utility (a state that would be inconsistent with “universal security”). Bentham thus supports resolving the root causes of crimes just as the proponents of defunding the police do. The parallel between Bentham’s view here and the view of people like Reich, Vitale, and Kaba who advocate social investment over social control is clear.

But suppose that we do redistribute wealth in this way. Won’t this solve crime? Why, again, do we need police? One might think that the social investment argument quickly runs into absurdity here since one might believe there exist certain crimes that social investment cannot prevent. In some cases, people are not driven by circumstance but by some natural flaw, be it greed, sociopathy, or irresponsibility. Given these facts, one might go on to argue that until we are able to eliminate these from the human condition, some crimes will persist and will need to be dealt with. And, attaching a personal cost, such as incarceration, to these crimes will disincentivize some people from committing them.

Now, abolitionists are not foolish or naive. An abolitionist can easily respond that many of these sorts of crimes go on with the police around anyway. If we are stuck with these crimes either way, it’s best to have them and not have police violence. They might argue like so: If social investment rids the world of most crime, if community care workers take care of most community problems without the risk of violence, and we still, time to time, have to deal with these irresoluble sorts of crimes, well, that’s a world we would be happy to live in. Here, I think, we may return to Peel and his seventh principle of good policing and see how his view of the police did not differ all that much from the abolitionists’ idea of community care workers:

“Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.”

It is conceivable that many of the injustices perpetrated by the police today come from a failure to uphold this normative principle. Police, it seems, do not feel a connection to the rest of the public. It is hard to see how they could and simultaneously perpetrate violence against nonviolent criminals and protestors. This principle also requires police to trust the public. Police should not be opposed to the public but, as Peel writes, they should see themselves as part of the public, differing only in being the “only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence” (emphasis all mine). It is hard to see the police and the protestors of Minneapolis, or any American city, as being part of one community when they are so far opposed. And it is hard to see how tear gas and rubber bullets (among other “less-lethal” attacks on the public) promote community welfare. Protestors, like the ideal version of police, pursue community welfare. If our police recognized this, they would not be driven to view them as “other” and to attack them.

If you support the movement to “defund the police,” consider what you mean exactly by “the police” which you mean to defund. If you view racist violence and domination of the citizenry by those with a monopoly on state violence as essential properties of the police, then I have little to say against you. Defund those police. But if we take Peel’s view of the police as paid, full-time citizens who have a duty to community welfare, and if we remember the unfortunate flaws in the human condition that drive some members of the community to crime, I struggle to see how one could argue that we should entirely defund these police.

As Vitale argues, procedural reforms have failed and barely deserve the title of “reforms.” Seeking to abolish the police, given the present circumstances, is thus not an unreasonable position. But, as I hope to have shown above, it is also not obviously the best position. As a rallying cry it remains ambiguous. In the end, the choice is not between widespread social reforms to attack the root causes of crimes on one hand and having police at all on the other. As Bentham advocated, we can have a useful, publicly-approved police force alongside an equitable distribution of resources such that both prevent crime.

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Malum in Se: The Use of Tear Gas by Police

two police officers dressed in riot gear holding smoke grenade guns

Whenever police use tear gas against protestors and rioters, someone invariably asks, “Why, if tear gas is banned for use in war, is it allowed for use in law enforcement?” Ultimately, the justification appears to be, “Because there aren’t any better options.” However this practical excuse is undercut by some of the fundamental considerations of Just War Theory, which underpins international law governing warfare. 

In the nationwide protests against police brutality and systemic racism sparked by the killing of George Floyd by former Minneapolis police officer Derek Chauvin, tear gas has been used by the police departments of numerous US cities, including Atlanta, Minneapolis, Philadelphia, and Washington, D.C. Tear gas is a name that refers to a variety of different chemicals, including pepper spray. All tear gas compounds act by rapidly and severely irritating people’s eyes, skin, nose, mouth, throat, and lungs. This causes people’s eyes to swell and water (hence the name “tear gas” and “lachrymator agent”) and leads to difficulty breathing. Lachrymator agents are one among many “less than lethal” weapons used in riot control, alongside rubber bullets, beanbag rounds, flash-bangs, and many others. If tear gas is non-lethal, why is it forbidden for use in warfare?

Weapons that are banned for use in warfare by international law typically have one of more features which make them mala in se (i.e., evil in themselves). Means which are mala in se are morally unacceptable for use in warfare according to Just War Theory provisions concerning jus in bello, which refers to rules governing morally appropriate conduct during the course of war. What makes a weapon malum in se? Relating to tear gas, one criterion sticks out clearly. Any weapon the effects of which cannot be controlled is malum in se. Gases are inherently not controllable because to where they drift is determined by wind speed and direction, rather than user intention. Hence police using tear gas on a group of rioters in a residential area, or a non-residential area upwind from a residential area, will likely end up affecting people nearby, and in completely different areas who are complying with the law. In the context of war using weapons that fail to discriminate, or using weapons in a manner that fails to discriminate, between combatants and non-combatants is illegal. Why then is it acceptable for police to use weapons that fail to discriminate between law-breakers and law-abiders? 

Another criterion for determining whether a weapon is malum in se is its proportionality for achieving a legitimate goal. In Just War Theory, a war that has been justly entered into (jus ad bellum) allows those on the just side to use only the minimum necessary force to achieve victory by incapacitating the enemy (who is, if the war has been entered into justly, unjust by definition). Weapons and munitions that cause excessive harm to enemy combatants are prohibited in Just War Theory (and correspondingly outlawed by international accords). For example napalm and white phosphorous are both banned because they cause tremendous pain to combatants and maim them, rather than incapacitating or quickly killing them. Being exceedingly charitable to police, the use of tear gas can be seen as a proportional measure. Police, who are often outnumbered by rioters, need a method to promptly subdue rioters and restore peace without resorting to lethal means. If lethal force is the only viable alternative to weapons like tear gas, then it appears that the use of tear gas may be justified (ignoring that tear gas is malum in se because of its inherent indiscriminateness). 

While tear gas is “less than lethal,” both it and the delivery system for it can cause long-term harm to people. Even people with no underlying respiratory conditions can, with extensive exposure, suffer chronic respiratory issues. Likewise extensive exposure can lead to blindness. It is an indiscriminate chemical agent that has been banned for use in warfare. Under what circumstances, if any at all, could it be acceptable to use it? If we can imagine a group of rioters recklessly or intentionally committing serious crimes, but not doing so in a place from which the tear gas is liable to spread and affect innocent citizens, then we would have found an acceptable situation. Is there any such situation? Prison riots come close to the mark. Indeed, this is one of the situations in which the US Military reserves the right to use tear gas and in which the international laws governing chemical weapons allow militaries to deploy tear gas. However the use of tear gas by police on peaceful protestors or even on rioters in close proximity to peaceful protestors or densely populated urban areas is clearly unjust. The inherently indiscriminate nature of gaseous chemical agents makes them an evil in themselves.

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Complications in Our Picture of Looting

photograph of boarded up business in downtown LA

Not all opinions are socially acceptable. Oftentimes, there is a range of acceptable opinions and opinions outside that range are not given even the slightest consideration. In May of 2020, a Minneapolis police officer, Derek Chauvin murdered an unarmed man named George Floyd through suffocation over the course of eight minutes while several other officers held back the crowds from stopping him. In response, many people have protested, some people have rioted, and a small number of people have looted. Opinions about these actions vary but, in general, we tend to think that nonviolent protests are acceptable while violent riots are not. A few support riots, but almost no one supports looting. However, the morality of looting is not as clear-cut as public opinion might suggest.

“Looting” is distinguished from ordinary theft in a few important ways. First, the word itself has its origin in describing military forces pillaging a conquered area. Thus, looting implies a breakdown of the ordinary social order. Looters, military or otherwise do not much fear prosecution for their actions.

Second, looting is always associated with a context of destruction. Looting involves not only taking property, but also destroying or damaging the business or home where the property is found. As economist Alex Tabarrok argues here, looting may be a worse crime than ordinary theft since “Looters destroy intermediate goods and infrastructure and gain far less than owners lose.”

Third, theft is more or less universally objected to by the members of a community where it takes place while looting can have public support. Thus, looters less frequently hide their identities as compared to thieves. And, looting is often done by groups, pairs, and family units while theft is usually conducted individually. It may be hard to believe that looting would be supported by the community where it takes place, but this instinct toward disbelief can be explained by the flawed assumptions people have about the motivations looters have for their actions.

The conventional view is that looting is universally opportunistic: most people believe that looters see the opportunity presented by the chaos of protests, riots, and the breakdown of law and order and use it to steal things they want for their own gain. A few, more charitable people might say that looters have no ignoble motivation and act according to some instinct that takes over in times of great stress. Almost no one believes that reasonable, well-functioning members of society would engage in violent looting. Nonetheless, these are exactly the sort of people who engage in looting according to the evidence.

L. Quarantelli and Russell R. Dynes were the founders of disaster sociology and wrote on the nature of looting in an article titled “Property Norms and Looting: Their Patterns in Community Crises.” This article was written in 1970 and the authors focused their analysis on the riots and looting that occurred between 1964 and 1968 as part of the Civil Rights Movement. Given the cause of the present riots, this article’s subject, though long past, is analogous enough to the present situation for its findings to stand the test of time.

In contrast to popular belief, they found that those engaged in rioting and looting were not the most disaffected, alienated people. In cases where black people rioted in their communities, up to one fifth of the black population participated, including many employed people with strong social ties. These people did not loot out of economic need and they were not the sort of people one would expect to be overtaken by impulse. In fact, consistent majorities in these communities viewed the riots and looting as a form of protest.

Suffice to say, rioting and looting are not broadly believed to be legitimate forms of protest. People have numerous arguments against these extreme forms of protest. Let’s briefly consider a few of these, one utilitarian, one deontological, one based in virtue ethics, and one based on an appeal to law and order.

People oppose rioting and looting on utilitarian grounds because they believe that these forms of protest cause great harms in the form of destruction of property and loss of life and have no outweighing benefits. This view is especially obvious if you view all rioting and looting as opportunistic, as violence and theft perpetrated by people who want to steal and who enjoy the chaos. However, the foundation of the argument grows shaky if violent protests are capable of affecting large scale social change.

The deontological argument against rioting and looting stems from a belief that in participating in these actions, people fail to uphold their duty to maintain other people’s rights. If people are killed in a riot, those people’s right to life has been violated. Looting violates business owners’ property rights. This argument is only defeated if by rioting and looting people obey some higher duty that they could not obey without violating other people’s rights.

The argument from virtue ethics says that good people don’t riot and loot. People advancing this argument point to preferable protests: the nonviolent protestors today as well as the gold standard, MLK Jr. and those who protested alongside him. These people, like the utilitarians, depend on the idea that looters are inspired to action by selfishness. If rioting and looting serve some higher virtue, then the argument is defeated.

Finally, and perhaps most commonly, people merely appeal to a vague sense that it is wrong to disrupt the social order. These people are opposed to all forms of illegal protest. Even if they claim to agree to the righteousness of the cause of protest, they disagree with the means of protest. The weakness of this appeal is in the righteousness of the social order. It is hard to defend upholding a social order that is deeply unjust; this is, of course, the same argument that MLK Jr. came up against in pursuing his nonviolent, though frequently illegal, protests.

The arguments against rioting and looting might seem overwhelming, but they are not undefeatable. Each depends on some assumptions that are not obviously true. Furthermore, there are some positive arguments that rioting and looting are forgivable, arguments that they are justified, and arguments that they are necessary. By considering these, we may come to a more balanced assessment of the morality of extreme protests.

The easiest argument to make is that looting is, in many cases, forgivable. In making this argument, we don’t have to defend the morality of looting. It is still an important argument to make, though, since many people are advocating extreme violence toward those who are participating in extreme protest. President Trump tweeted that “when the looting starts, the shooting starts,” mirroring former Miami police Chief Walter Headley who used the phrase in 1967. Headley was infamous for what he called a war on “young hoodlums, from 15 to 21, who have taken advantage of the civil rights campaign. … We don’t mind being accused of police brutality.” Obviously, “hoodlum” here is a dog-whistle for young black people. And, it should be obvious that using lethal force against people who are looting, essentially committing property crimes, is disproportional and unconstitutional, equivalent to executing people without trial for crimes that are never punished with execution.

Looting and rioting may be forgivable if they are prompted by incredible rage at a criminal injustice, such as the murder of George Floyd. Though many regard this rage as being misdirected when it is applied to businesses. We tend to think that a person’s judgment being clouded by emotion is enough to diminish their legal culpability. So-called “crimes of passion” are already punished less severely than premeditated crimes. We can extend this reasoning to think rioters deserve a great deal of forgiveness.

MLK Jr. gave a speech called “The Other America” where he said that “a riot is the language of the unheard.” Rather than being an action taken out of selfishness, rioting and looting are actions taken as a cry for help, a call for reform, albeit an extremely disorganized sort of call. He went on to ask this sharp rhetorical question: “what is it that America has failed to hear?” And he answered it thus: “It has failed to hear that the plight of the Negro poor has worsened over the last few years. It has failed to hear that the promises of freedom and justice have not been met.” Given the stunning amount of racist police violence that persists to today, it’s clear his words ring just as true in 2020 as they did in 1967. So, if any crimes at all should be forgiven, looting that causes no physical harm to anyone is one of them. We can still hold that looting is a crime, and that it deserves punishment while still maintaining that it is not unforgivable and deserving of execution by cop or soldier.

Arguing that looting and rioting are justified is quite a bit harder, though still very possible. Prominently, The Daily Show host, Trevor Noah, did this very thing in a video he posted in the midst of the protests. Noah justifies the ongoing extreme protests by appealing to social contract theory and turning the question on its ahead. Instead of asking “why do people loot?” he asks “why don’t people loot?” and attempts to give an answer. Hearkening back to seventeenth century English philosopher Thomas Hobbes, he argues that people are only obliged to follow the laws because they have agreed to do so in order to enjoy the benefits of an ordered, just society that cannot exist without laws. But, as Vanity Fair transcribes him saying,

“As with most contracts, the contract is only as strong as the people who are abiding by it. If you think of being a black person in America who is living in Minneapolis or Minnesota or any place where you’re not having a good time, ask yourself this question when you watch those people: what vested interest do they have in maintaining the contract? Why don’t we all loot?”

The greatest benefit people gain from escaping the Hobbesian “state of nature” is protection of their lives and property. As black people are under constant threat of murder by the government (through the police) they cease to have any reason to obey the social contract. It’s all risk, no reward, essentially. Given that, if they can’t escape the risk, they might as well enjoy the reward of the state of nature, getting to take whatever you can by your own power.

More radically, some argue that looting is justified not because it is itself a right action, but because its rightness or wrongness pales in comparison to the institutionalized looting of the poor by the rich. Former senior adviser of the 2020 Bernie Sanders campaign David Sirota asks why “Working-class people pilfering convenience-store goods is deemed ‘looting,’” while “rich folk and corporations stealing billions of dollars during their class war is considered good and necessary ‘public policy.’” He compares the amount of value transferred unjustly from business owners to working-class people via looting (small) with the amount of value transferred unjustly from working-class people to business owners via the regressive tax cuts of the Trump administration (very large). Perhaps it is wrong to loot, but business owners still end up better off than those who loot their businesses via their “theft” of working-class wealth. Just because that latter wealth transfer occurs through official channels does not make it moral just as the former wealth transfer is not immoral merely because it is illegal.

Some even go so far as to say that rioting and looting are necessary for real social change to occur. Rather than appealing to the moral sensibilities of those in power, these people take a the political realist approach and seek to make the cost of reform less to these people than the cost of continuing the status quo. Self-interestedly, then, the powers that be will influence the political agenda to induce reform. Arguably, rioting and looting works to this end: looking again at the article from E. L. Quarantelli and Russell R. Dynes, we can see extreme protests raged after the assassination of MLK Jr. and less than a week later, major civil rights legislation was passed. Afterward, the frequency of large scale rioting and looting drastically decreased.

On the other hand, rioting and looting can backfire: the powers that be can stop the rioting and looting by enacting reform, but they can also stop it by increasing police repression of protestors and minorities. After the Civil Rights Movement and all the extreme protests that came along with it, there was backlash with the election of Richard Nixon who campaigned on “law and order,” whose administration oversaw the Kent State shooting of thirteen unarmed protestors, killing four, and whose domestic policy chief John Ehrlichman was quoted as saying “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people.” This idea is commonly known as “the activist’s dilemma.” The evidence suggests that extreme protest actions can enact social change and diminish public support for a protest’s cause. It is paradoxical, but makes some sense if one thinks of change as being enacted by those in power, whose interests are not identical to the population at large.

Looting and rioting are extreme responses to extreme injustices. The murder of George Floyd is an unacceptable symptom of a policing system that is based on “domination” rather than the consent of the governed. It is unjust that more black people are killed than white people than would be expected given the share of each in the population. More importantly, though, it is unjust that unarmed people are being killed by police in broad daylight without trial. Something needs to be done to rectify these injustices. Ideally, change could be instituted by peacefully persuading people but given how these injustices have persisted despite decades of peaceful persuasion, there is reason to question whether more extreme protest measures are justified. At the very least, those who choose to engage in extreme protests such as by rioting and looting are forgivable. There is good reason to think that extreme protests are even justified. And, it may even be that looting and rioting are necessary for real social change. The activist’s dilemma, however, gives us reason for pause.

Ultimately, protest is a chaotic activity by nature, prompted by the rage that stems from injustice. Rather than focusing our ire on those who react imperfectly to those injustices, we ought to focus on the circumstances that prompt people to act in ways that may make things worse rather than better. No matter how many TVs are stolen, no matter how many windows are broken, it is hard to compare these property losses to the loss of human life that comes from the unjust and racist oppression of the people by the government in a country that prides itself on originating such ideas as “liberty and justice for all.”

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Who is Welcome at Starbucks?

Image of the Starbucks logo

Most Starbucks customers have spent a good number of non-paying hours in Starbucks stores—waiting for a friend, writing a paper or grading one, staying warm, or just chilling. And most regular customers will admit to an occasional purchase-free visit to the store just for the purpose of using the bathroom. But when two black men in Philadelphia went to a store in Rittenhouse Square for a business meeting and asked for the bathroom key, having ordered nothing first, it was only two minutes before an employee called 911. The police showed up minutes later, handcuffed the two and put them in a squad car. Only after nine hours at police headquarters, with Starbucks declining to press trespassing charges, were they released.

Continue reading “Who is Welcome at Starbucks?”

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Police Officers or Immigration Officers? The Dilemma of Responding to ICE Warrants

Photograph of a police officer leaning against a police car

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of our discussion questions, check out the Educational Resources page.

On February 22, Wilson Rodriguez Macarreno called 911 because he thought that someone was breaking into his car in the  Seattle suburb of Tukwila. After the police apprehended the suspect breaking into his car, Macarreno was detained by Immigration and Customs Enforcement. He was handcuffed and driven to an ICE field office without being told the reasons for his detainment. According to the Tukwila, Washington police officers, there was a warrant for Macarreno from immigration authorities. According to his lawyer, Macarreno came to the United States illegally from Honduras around 15 years ago to escape a life of gang violence. Close family members and friends of his had died as a result of the violence, so he made his escape to the United States. Macarreno has lived in the United States since and has three children that are legal citizens. Continue reading “Police Officers or Immigration Officers? The Dilemma of Responding to ICE Warrants”

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“Broken Windows” Policing and the Role of Police

What does it take to make people feel “safe” in their communities? Proponents of police reform have struggled to find a middle ground between the legal and physical protection of the implicated and the interests of communities with high crime rates. Policies like New York City’s infamous “stop and frisk” laws have been proven to both increase arrests that become convictions as well as target people of color, while independent policing models implemented in Native American, First Nation and other Indigenous populations have enabled these people’s legal sovereignty but left internal populations at serious risk.

Continuing police reform efforts all seem to beg the question: just what do we expect of the police?

Continue reading ““Broken Windows” Policing and the Role of Police”

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Prosecuting Betty Shelby

So far in 2016, 714 people have been shot by police, 174 of which were black. This means that 24% of people shot and killed by police were black despite the fact that only 13.3% of the United State’s population is black. Race, therefore, is a crucial lens through which we examine policing. A new lens was added, however, with the shooting death of Terence Crutcher on September 16.

Continue reading “Prosecuting Betty Shelby”

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What Happened at the Forum?

UPDATE: This article has been altered to include more eyewitness accounts.

The protesters of two weeks ago have sparked significant campus discussion. At the forum held in the late afternoon after the initial day of protests, many of the students in attendance expected to talk through the issues of the hate group that came to campus that day. These students were then confused when the forum went in a different direction. Some of the confusion may have arisen as a result of the fact that many students weren’t aware that there were two major events that took place on that day, not just one. A full picture of what happened on that first day of visits may help to explain why the forum took the direction it did.

What appears to be one issue (the protests led by Brother Jed and his group) is actually two. The first issue is the hateful message promoted by the visiting group that caused emotional distress for many on campus. However, there is an important second issue: the response by Greencastle and Indiana State police to some students of color who took part in the counter protest movement against Brother Jed’s group.

Brother Jed’s group, Campus Ministries USA, spoke prejudicially against many different groups. They called female students “whores” and said the following: “blacks are still slaves,” “blacks and gays worship a different God than us,” “it is not natural to put your penis in a rectum,” “carpet munchers keep your tongues to yourself,” and “militant feminists are ruining the world.” Their messages targeted almost every student on our campus, and every student has a right to be upset about them.

The second issue began after six women from Feminista! began a peaceful counter protest and were eventually joined by many other groups including: Omega Phi Beta, AAAS, Student Government, Lambda Sigma Upsilon, Sigma Lambda Gamma, etc. Individual protesters also came to show support.

The police, in an effort to protect students from lawsuits and jail time if they were to commit an act of violence against the protesters, eventually detained one black student. He was protesting peacefully and had not committed any such act of violence. Soon after, a white student threw hot coffee at the protesters. The student was taken away with a hand behind her back and escorted back to her dorm room.

Shortly after, a black student was angered by one of the protesters. When the student became visibly agitated, a group of staff stepped in to support him. One of the staff members involved, Yug Gill, stated, “[The student] had already begun to calm down and wanted to be left alone when the police officer entered the staff bubble around the student. [The student] did not resist the police officer.” The policeman slammed the student to the concrete followed shortly after by a staff member of color who was trying to de-escalate the situation. The police officers used their knees to pin them down and the student was placed in handcuffs. Neither of the detained men had committed a violent act.

The disparity between the police’s response to the detained men of color and their response to the white student who threw the coffee is a one clear factor in the outpouring of anger, grief and confusion at the evening forum. It is also clear how this issue is uniquely a racial one.

With this picture of the events it is reasonable to see how students present at the protest and who witnessed the detaining of their classmates and friends understood the forum to be on the subject of the unfair detaining of people of color by the police. It is also reasonable to see how students not present would have expected the forum to be regarding Brother Jed’s group and their hateful messages. Neither expectation of the forum was wrong.

What is wrong is accusing students who wanted to discuss racial disparities in policing that day of “hijacking” the forum and arguing that it wasn’t the time or place to discuss race issues. It is wrong to pretend that we only have space in our campus discussions for one issue at a time and to continuously prioritize whichever is more comfortable.

I hope that we can create a culture of listening at DePauw where we stop and listen when we are faced with something uncomfortable rather than shutting it down. I hope we can create an intentional community where we listen and trust each other’s experiences. Learning these skills is essential to healing divides that exist on campus.

Greisy Genao, Yug Gill, and Vivie Nguyen helped write this post and provided all firsthand account of the protest on 9/23/15.