Back to Prindle Institute

Do Police Intentions Matter?

photograph of armed police officer

Imagine if it became widely-reported that police officers had been intentionally killing Black Americans for the expressed reason that they are Black. Public outrage would be essentially universal. But, while it is true that Black Americans are disproportionately the victims of police use of force, including lethal force, it seems unlikely that these rights violations are part of a conscious, intentional scheme on the part of those in power to oppress or terrorize Black citizens. At any rate, the official statements from law enforcement regarding these incidents invariably deny discriminatory motivations on the part of officers. Why, then, are we seeing calls to defund the police?

The slogan “Defund the Police” has been clarified by Black Lives Matter co-founder Alicia Garza on NBC’s Meet the Press: “When we talk about defunding the police, what we’re saying is, ‘Invest in the resources that our communities need.’” The underlying problem runs deep: it is rooted in an unrelenting devaluation of communities of color. Rights violations by police are part of a larger picture of racial inequality that includes economic, health, and educational disadvantages.

The sources of this inequality are mostly implicit and institutional: a product of the unconscious biases of individuals, including police officers, and prejudicial treatment “baked into” our institutions, like the justice system. That is, social inequality seems to be systemic and not an intentional program of overtly racist policies. In particular, most of us feel strongly that the all-to-frequent killing of unarmed Black citizens, though repellent, has been unintentional.

But does this distinction matter? A plausible argument could be made that the chronic, unintentional killing of unarmed Black men and women by police is morally on a par with the intentional killing of these citizens. Let me explain.

Let’s begin with the reasonable assumption that implicit racial bias, specifically an implicit devaluation of Black lives, impacts decisions made by all members of our society, including police officers. What is devaluation? Attitudes toward enemy lives in war throws some light on the concept: each side invariably comes to view enemy lives as less valuable than their own. Even unintended enemy civilian casualties, euphemistically termed “collateral damage,” become tolerable if the military objective is important enough. On the battlefield, tactical decisions must conform to a “tolerable” relation between the value of an objective and the anticipated extent of collateral damage. This relation is called “proportionality.”

By contrast, policing is intended to be a preventative exercise of authority in the interest of keeping the peace and protecting the rights of citizens, including suspected criminals. Still, police do violate rights on occasion, and police officials operate with their own concept of proportionality: use of force must be proportional to the threat or resistance the officer anticipates.

Ironically, rights violations usually occur in the name of the protection of rights; when, for example, an officer uses excessive force to subdue a thief. Often, these violations are regarded as regrettable, but unavoidable; they are justified as the price we pay for law and order. But, in reality, these violations frequently stem from implicit racial biases. What’s more, the policy of “qualified immunity” offers legal protections for police officers and this disproportionately deprives Black victims of justice in such cases. This combination of factors has led some to argue that police authority amounts to a form of State-sponsored violence. These rights violations resemble wartime collateral damage: they are unintended consequences deemed proportional to legitimate efforts to protect citizen’s rights.

Now consider the following question posed by philosopher Igor Primoratz regarding wartime collateral damage: is the foreseeable killing of civilians as a side-effect of a military operation any morally better than the intentional killing of civilians. Specifically he asks, “suppose you were bound to be killed, but could choose between being killed with intent and being killed without intent, but as a side-effect of the killer’s pursuit of his end. Would you have any reason for preferring the latter fate to the former?”

Imagine two police officers, each of whom has killed a Black suspect under identical circumstances. When asked whether the suspect’s race was relevant to the use of force, the first officer says, “No, and I regret that deadly force was proportional to the threat I encountered.” The second officer says, “Yes, race was a factor. Cultural stereotypes predispose me to view Black men as likely threats, and institutional practices in the justice system keep the stakes for the use of lethal force relatively low. Thus, I regret my use of deadly force that I considered proportional to my perception of the threat in the absence of serious legal consequences.”

The second officer’s response would be surprising, but honest. Depictions of Black men in particular as violent “superpredators” in the media, in movies, and by politicians, are ample. Furthermore, the doctrine of qualified immunity, which bars people from recovering damages when police violate their rights, offers protection to officers whose actions implicitly manifest bias.

In the absence of damning outside testimony, the first officer will be held blameless. The second officer will be said to have acted on conscious biases and his honesty puts him at risk of discipline or discharge. Although the disciplinary actions each officer faces will differ, the same result was obtained, under identical circumstances. The only difference is that the second officer made the implicit explicit, and the first officer simply denied that his own implicit bias was a factor in his decision.

Where, then, does the moral difference lie between, on one hand, the foreseeable violation of the rights of Black lives in a society that systemically devalues those lives, and, on the other hand, the intentional violation of the rights of Black lives? If the well-documented effect of racial bias in law enforcement leads us to foresee the same pattern of disproportionate rights-violations in the future, and we do nothing about it, our acceptance of those violations is no more morally justified than the acceptance of intentional right-violations.

That is, if we can’t say why the intentional violations of Black rights is morally worse than giving police a monopoly on sanctioned violence under social conditions that harbor implicit racial biases, then sanctioning police violence looks morally unjustifiable in principle. That is enough to validate the call to divert funding from police departments into better economic, health, and educational resources for communities of color.

Pope Francis, Edward Gallagher, and Just War Theory

photograph of armed soldiers in file

In his remarks during a trip to Japan, Pope Francis denounced not only the use, but also the mere possession, of nuclear weapons as morally unacceptable. While this has been Pope Francis’ position throughout his tenure as Pope, it marks a change in the Vatican’s official position toward nuclear weapons from the era of Pope John Paul II, at which time the church merely denounced the actual use of nuclear weapons. Neither of these comments are motivated by a general principle of pacifism on the part of the Catholic Church, which both currently and historically has supported the existence and use of military force. The contemporary Church recognizes war as legitimate only in the context of national self-defense.

Relatedly significant controversy has attended President Donald Trump’s meddling in the case of Navy SEAL Edward Gallagher, who was tried and acquitted of war crimes. The idea of a war crime can itself seem perplexing as to many it is intuitive that the point of war is simply to win quickly and by whatever means necessary. How do nations like the United States, which has actively pursued military means of executing its international agenda, square their activities with idea of a war crime? Are institutions like the United States and the Catholic Church contradicting themselves, or is there actual principle at work?

A good way to understand this is to look into the specific provisions of so-called Just War Theory, the roots of which are in the work of famed (and Catholic) philosopher Thomas Aquinas in his Summa Theologicae. Far from pacifism, Just War Theory advocates that there is a way to enter into, conduct, and conclude wars which is not merely morally excusable but wholly justified. Nor is this sort of thinking limited to the Catholic tradition. In the Muslim tradition, the concept of jihad is one which prescribes with whom it is morally acceptable to go to war and how it is permissible to prosecute such a war. Similar sentiments can also be found in the writings of the Confucian and Mohist schools of philosophy in Ancient China as well as in Ancient Roman concepts of the laws that govern conduct among nations.

For the sake of simplicity and brevity, let’s stick with Just War Theory. A ban on the use of nuclear weapons would come under the heading of jus in bello, the part of Just War Theory that deals with what counts as prosecuting war in a morally justified fashion. Accounts of the aftermath of the use of nuclear weapons by the United States against Japan in 1945 are harrowing. Those people who survived the initial explosion suffered from extensive and horrible burns as well as a lifetime of health problems due to exposure to intense levels of radiation. These aspects inefficiently achieve the licit goals of military action as allowed by Just War Theory, namely to incapacitate a wrongly aggressing force without excessive damage to civilians and non-military infrastructure. Further, nuclear weapons in general create the possibility of nuclear fallout, which is the transmission of radioactive material throughout the atmosphere by weather patterns. Importantly the spread of nuclear fallout is not in the direct control of those who deploy nuclear weapons in the first instance. Hence the area and number of people affected is indiscriminate, with no clear way of controlling collateral damage.

Both of these features of nuclear weaponry make them a means of conducting war that is arguably male in se, in the terms of Just War Theory. This means that it is a method that is inherently bad, regardless of who uses it and how. Examples of methods that are treated as mala in se without controversy are slavery, pillaging and raping, group punishment as well as chemical and biological weapons (e.g., mustard gas and weaponized infectious agents). Nuclear weapons are not banned, but the similarity of the effects that they have to chemical and biological agents has led many to advocate for disarmament and an international ban on the possession, use, and development of nuclear weapons.

Not only are certain methods of killing and incapacitating enemies and civilians forbidden in Just War Theory, so is certain treatment of prisoners of war. The war crimes accusations against Edward Gallagher concerned the murder of an Islamic State prisoner of war. In general, prisoners of war (and otherwise incapacitated combatants), are not allowed to be killed, tortured, or humiliated. Unlike criminal prisoners, prisoners of war are not being held as a means of punishment for their actions. Even where the captured military personnel are responsible for actions considered international crimes, the ground personnel of the opposing military are not considered legitimately empowered to execute punishment. Here another aspect of Just War Theory enters the picture, jus post bellum, which concerns appropriate behavior upon the conclusion of war. Any prosecution for war crimes must be done by with respect for due process, including full court proceedings, within a court with the appropriate jurisdiction.

Just War Theory attempts to carve out a middle path between two monolithic alternatives. On the one hand there is pacifism, which argues that all violent, military action is morally unacceptable. On the other hand there is so-called realism about war, which argues that war is not immoral but beyond morality. However every nation belonging to any international political or governing body (at least in theory) subjects itself to rules of warfare meant to limit what are seen as moral excesses in the conduct of an otherwise (possibly) justifiable enterprise. The concept of a war crime in general, and the Catholic Church’s evolving position on warfare in particular, both manifest attempts to stay between the twin implausibilities of pacifism and realism concerning war.

The Castle Doctrine and the Murder of Botham Jean

photograph of entrance to a castle

On October 1st, former police officer Amber Guyger was convicted of second-degree murder in the shooting of her neighbor, Dallas-area accountant Botham Jean. According to Guyger’s defense, she was returning home from work when she entered the wrong apartment; finding Jean inside and, believing him to be an intruder, shooting Jean in (claimed) self-defense. Nevertheless, the prosecution argued that Guyger’s actions were intentional, her contentious history with her victim was suspicious, that it was unlikely she could have been mistaken about her location, and that her training as a police officer should have better prepared her to think rationally under pressure. After only an hour of deliberation, jurors sentenced Guyger to ten years in prison.

A key component of Guyger’s defense was her stated belief that she was in her own home when she attacked Jean. Under Texas law, a defendant can be justified in using deadly force against an assailant if, among other conditions, the person “knew or had reason to believe that the person against whom the deadly force was used…unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment.” Often dubbed the “Castle Doctrine” (after the adage that someone’s “home is their castle”), this concept is similar to so-called “Stand Your Ground” laws elsewhere in the country.

Passed in 2007, the Texas statute is designed to shield a defendant from legal penalties for killing a threat to their person. However, unlike many criminal proceedings, defendants making a self-defense claim must provide evidence that they were reasonably threatened and reacted rationally in the moment. Over the last decade, applications of the Castle Doctrine have ranged from homeowners fighting off armed robbers to the operator of a taco truck shooting and killing a man who had stolen and fled with a jar of about twenty dollars in tip money.

Asserting the Castle Doctrine is no guarantee that one’s defense will succeed – Raul Rodriguez, for example, was found guilty of murder after shooting his neighbor in 2010 during an argument over loud music – but several unusual cases, including Ezekiel Gilbert’s acquittal after killing a sex worker in 2009 and Joe Horn’s infamous 2007 murder of two men in his front yard just months after the rule’s passage (Horn was neither arrested nor indicted by a grand jury) exemplify the potentially problematic nature of the law. Since its creation, homicide rates have increased statewide with many of them evidencing racial bias against non-white defendants.

Philosophically, considerations of how one is allowed to protect themselves tend to emphasize two key factors for justifying an act of self-defense: proportionality and necessity. Proportionality captures the sense that self-defensive actions are only allowed to meet, but not exceed, the degree of threat posed to an agent: so, if someone is about to flick your nose with their fingers, it would violate proportionality if you shot them with a gun. Necessity, however, is simply whether any other option is available to the person considering lethal action; if you’re attacking me and I could either fight you or easily escape, necessity would require me to flee.

The interplay of these (and other) concepts results in several intuitively familiar principles: for example, if a person is able to run away from a threat, then they have a Duty to Retreat (because of necessity); or the Imminence restriction, which allows lethal force (because of proportionality, constrained by necessity) only in cases where threats are clearly about to result in harm.

The Castle Doctrine amounts to a denial of the necessity principle if certain other facts are true. Even if a defendant could feasibly escape from their attacker, defenders of the Castle Doctrine argue that, because of their property rights (for one example), they should not have to flee. Details beyond this vary from case to case; some argue that castle-defenders are also allowed to do whatever they want to a trespasser (on the notion that intruders forfeit all rights by breaking into a home), while others maintain that home-based self-defensive actions are still constrained by proportionality considerations.

Which returns us to the case of Amber Guyger, who (reportedly) thought she was in her own home, but was actually not. Many were surprised to learn that the presiding judge explicitly allowed jurors to consider the Castle Doctrine when deliberating over the case’s verdict; Guyger’s claim that she mistakenly entered the wrong apartment may have seemed unlikely enough to disqualify this as a potential legal shield. Nevertheless, a key element of the ethics of self-defense is often the perceived facts about the case, not necessarily the actual facts – given that self-defense often (though not necessarily always) happens in a momentary reaction without the opportunity for much reflection upon the available evidence. If Guyger somehow genuinely believed that she was in her own home, then there may indeed have been a legal case for applying the Castle Doctrine here.

However, the fact that there was considerable evidence to doubt the authenticity of Guyger’s belief regarding her location was clearly sufficient for the jury to rule against her claim of self-defense.


1 My thanks to Blake Hereth, Adam Blehm, and Stephen Irby for discussions regarding the ideas underlying this article.

Game of Thrones: Dragons, Despots, and Just War

photograph of used Game of Thrones book

** SPOILER WARNING: This article contains spoilers for Game of Thrones up to and including the show’s Season 8 ending.

Game of Thrones, the popular television show based on the book series by George RR Martin, aired its final episode last week. Set in a medieval fantasy world the strength of its appeal is in its exploration of real-world themes of politics, power and war.

For a story infamous for subverting narrative expectations with radical plot twists, in the last two episodes the actions and ultimate fate of Daenerys Targaryen shocked even the most intrepid fans. Hitherto one of the story’s heroines and presumptive savior of Westeros, fans watched in horror as Daenerys chose to burn hundreds of thousands of innocent civilians alive in her quest to ‘build a better world’. What happened? Was this a calculated tactic, and if so, what possible reason or justification can there have been for her to choose the route of extreme violence?

Daenerys Targaryen was one of many contenders for the Iron Throne, the seat of power on the continent of Westeros, and the only one with dragons. In Martin’s fictional world, dragons (which can grow to immense size, and breathe columns of fire so hot it can melt stone and steel) had traditionally been used by the ruling Targaryen family as weapons of war and conquest, but had been extinct for a century prior to events of the story.

As different characters and factions vie for the Iron Throne and the rulership of Westeros, Daenerys Targaryen, living in exile after her father the “Mad King” was deposed by the current ruler(s) during a rebellion, magically hatches three petrified dragon eggs. Already possessed of the belief that the throne belonged to her by right of succession, as her dragons grew to maturity she was also in possession of a formidable military weapon with immense firepower. In a medieval world where weapons of war are swords and arrows, the dragons represent the destructive might of nuclear weapons against the mere capacities of conventional ones.

Despite occasionally displaying the fiery Targaryen temper, Daenerys was to begin with relatively restrained in the use of this significant advantage in pursuing her military goals and achieved her ascendency to ruler of Slaver’s Bay (a region on the continent in which she was in exile) with only sparing use of dragon fire. For most of the story Daenerys seems to be (so to speak) on the right side of history as, in Astapor, Yunkai and Meereen she liberated the large population of slaves and presided over the abolition of the institution and practice of slavery. To this end she was a revolutionary, and styled herself as a liberator and a ruler for the downtrodden on a mission to create a better world.

When she finally turns her gaze to Westeros to retake the Iron Throne even as her advisors, including Tyrion Lannister, implore her to hold back her firepower and not to use her dragons to attack the city of King’s Landing (the seat of her rival, tyrannical and ruthless queen Cersei Lannister and also home to a large civilian population) but to pursue other military options less likely to result in large numbers of civilian casualties, many of her allies (Yara Greyjoy, Ellaria Sand and Olenna Tyrell) encourage her to hit King’s Landing with all of her might.

This is a real ethical dilemma in military tactics. Where one party has a weapon of immense superiority, such as a nuclear weapon, there is a case to be weighed up between using it to obtain swift victory, avoiding a potentially protracted conflict which may eventually lead to a great deal more death and suffering, as against holding back to avoid the possibility of an egregious, even gratuitous, victory born from a one-sided conflict. As such, the debate continues on whether the use of nuclear weapons by the United States on the Japanese cities of Hiroshima and Nagasaki to end WWII was morally justified. One informal, voluntary poll shows that over 50% of respondents believe that it was indeed justified.

Viewers who had followed Daenerys’ ascent from frightened girl to Khaleesi, Mother of Dragons, and Breaker of Chains generally trusted in her, as a flawed but fundamentally good character, to do what was right. But as in the real world, in the world of Game of Thrones, it is not always clear what the right thing is. Even so, one of the things that the Game of Thrones seems to point up is the need for benevolent rulers. When Daenerys responds that: “I am here to free the world from tyrants… not to be queen of the ashes” we seem to instinctively understand that benevolence and indiscriminate violence cannot easily coexist.  

Yet following the failure of other tactics, she finally unleashes the immense firepower of a dragon against the Lannister army, literally incinerating it, and afterwards, presenting the captured soldiers and nobles with a ‘choice’ – to “bend the knee” (accept her as their ruler) “or die.” She executes with dragon-fire those who do not acquiesce. If Daenerys is going to win, if she is going to take the throne and build her better world, she needs some victories – but is this use of firepower, and subsequent refusal of mercy the right thing to do? At this point her advisors, and possibly her supporters, are uneasy.

In our world, the rules of just war have been formulated, and latterly enshrined in international law, in order to regulate, and limit when and how war is waged. Just war theory includes the principles of jus ad bellum and jus in bello.

Jus ad bellum is a set of criteria to be consulted prior to resorting to warfare to determine whether war is permissible, that is, whether it is a just war. This principle has a long history in the western philosophical tradition. In his Summa Theologica, circa 1270 Thomas Aquinas writes: “[we deem as] peaceful those wars that are waged not for motives of aggrandizement, or cruelty, but with the object of securing peace, of punishing evil-doers, and of uplifting the good.” One principle of just war, particularly relevant here is the principle of proportionality which stipulates that the violence used in the war must be proportional to the military objectives.

Daenerys does, in accordance with Aquinas’ stipulation, have as her objective the ‘securing of peace’ and ‘uplifting of the good’. Her attack on the Lannister armies, following the exhausting of other tactics, probably passes the test of proportionality – though executing prisoners of war would contravene the Geneva Convention.

However, in the penultimate episode of the series, the worst fears of those who had counselled her against unleashing the full force of her destructive capacities upon a whole city – civilian and military alike, come to pass. Worse still, this action is not taken as a last resort. Using her armies and dragons she has already overcome the enemy’s military. The city has surrendered and the bells of surrender are ringing out as she begins methodically to raze the city to the ground. In this moment she cedes the moral high ground and loses all the moral authority she had earned as a warrior for justice and liberator of the people. But why does she do this?

Daenerys believes that the end will justify the means. She believes that the good of the new world she wants to build will outweigh the suffering caused by the destruction of the old one. She relies on a consequentialist justification here, but if an action can be justified morally by its consequences, then one must know what the consequences will be, and one must know that the resultant good will be certain to morally outweigh the suffering.

Theoretically, if the death of, say, hundreds of thousands prevented the deaths of millions then it could be justified in consequentialist terms. Many philosophers find in such reasoning grounds to reject consequentialist ethics. The reason no one accepts this rationale from Daenerys is that the magnitude of devastation renders it nearly impossible to see it as anything other than utterly, horrifically disproportionate, and the fact that the city had surrendered renders such a justification moot since the immense suffering can not be shown to have been necessary for the better world she claims to be trying to build. As such, it is hard to avoid the conclusion that it was gratuitous.

If Daenerys actions cannot be justified as a sacrifice in pursuit of “mercy towards future generations who will never again be held hostage to a tyrant” the other explanation is more sinister – and also more realpolitik. In his book on ruling and the exercise of power, Niccolò Machiavelli wrote: “it is much more safe to be feared than to be loved when you have to choose between the two.

Coming to the bitter realization that she was not going to win the Iron Throne nor hold power in Westeros by virtue of the love of those whom she needed on her side, Daenerys knows that if she is to rule, fear is her only pathway to power. She says as much to Jon Snow before the attack on King’s Landing: “alright then, then let it be fear.” As such, she had made her choice before hand and knew that were the city to surrender she would not pull back, as Tyrion urged her to do, but unleash the full force of her fiery might.

Perhaps Daenerys thought that this was the right thing to do, perhaps, cornered, she thought it was the only thing left for her to do. As Cersei Lannister so prophetically said to Ned Stark in Season One “When you play the game of thrones you win or you die, there is no middle ground.” Is this Machiavellian move compatible with the goal of building a better world? Daenerys had wanted to free the world of tyrants, but what is a tyrant but someone who must rule by fear? Sadly the Khaleesi, Mother of Dragons, and Breaker of Chains in the end became what she despised.