Final Thoughts (for now) on Morality & Paramilitary Raids

November 29, 2006

Introduction


[edited to fix broken links and to clarify some vague vocabulary - 10.17am, Nov. 30.]

Earlier this week, I wrote a short series of long posts (here and here) regarding morality, self-defense, and warrant-authorized home invasion, in response to a recent incident in which a really old lady was gunned down after exchanging fire with law-enforcement officers who entered her home “dynamically” in the middle of the night. By mistake. Or gross negligence. Or something.

In any event, I posted a comment over at A Stitch in Haste (here) in response to a pretty-much unrelated occurrence. Suffice it to say, the facts of that case were very different, and my comment was not directed towards Kip’s post, but rather to engage in a little discussion, theoretically. The skinny is: I don’t think that a law officer has a whole lot of moral footing on which to stand when he engages in these raids. Kip disagrees.

I’ll admit that I was impressed with my ability to work a South Park reference and a Nazi prison camp reference in the same post – Kip thinks I’m building straw men. We’ll see. In any event, I respect Kip’s opinion, and we’ve had disagreements before. He always challenges my beliefs, preconceptions, misconceptions, etc., so I don’t want to paint this as any sort of dispute – I’m just trying to lay the groundwork for what is a fairly lengthy post which elaborates and (I hope) clarifies my position. Morality is a tough cookie, and I’ve considered the possibility that they’re both totally wrong acts, that one and one makes two – one does not cancel or validate the other. But if I ever get that far, it’s a topic for another day. For now, I’m maintaining my previous position.

Why they are less justified than the Nüremburg guards


For the record, I don’t think my Nüremburg example is as much of a straw man as Kip would have it. The officers don’t walk into a shooting-gallery, they aren’t walking into the OK Corral, they are forcibly entering a private residence, with guns drawn, and for all intents and purposes, unannounced. I think it’s fair to assume that in all cases where an innocent subject shoots at the officers, it is the fear, confusion and uncertainty resulting not from his own actions, but from the shock-and-awe tactics utilized by law enforcement. The Jews didn’t shoot at the Nazis (except for when they did) because they were physically incapable of doing so – they had been legally disarmed in the years building up to their internment.

The Nazi guards were either doing their job willingly, in which case there can be no doubt about their respective moral positions, or they were doing it grudgingly and against their best judgment and conscience - which itself admits the morality of the actions. The officers who partake in these raids are either doing their jobs willingly, with wanton disregard for the safety of A) themselves, B) their fellow officers, C) any innocents who may be caught in crossfire, and D) the subject of the warrant - or they are forced to do it. Because we have relative economic freedom, I think we can safely deny the latter. The Nüremburg guards were at the mercy of a fascist regime, they at least had the defense of “I had to do it or I would be imprisoned or killed,” and although it is a sympathetic plea, it wasn’t sufficient. Even threat to one’s own life does not justify wanton disregard for morality. On the other hand, police officers are free to change their occupation at will, and they are free to serve (or not serve) on these task forces. When the position is entirely voluntary, and there is no pain of death punishment, the plea commands no sympathy, and the position is far less tenable

The Benefit of the Doubt & Due Process


In all of these knock-and-announce, or no-knock raids, it is important to remember that at the time the warrant is served, nobody has been charged with any crime - much less, convicted - by definition, there isn’t even evidence with which they can be charged! The display of force used against the subjects of these warrants often exceeds that used in the great majority of preventative or abortive police actions - and even that used in apprehending criminals in “hot pursuit.” Most suspects under most circumstances can be “talked down” per se, with the barrel of a gun and a few flashing lights (or flashlights, as the case may be), or the occasional K-9. Most of the time, shots are never fired.

The above are demonstrably hostile situations in the process of escalation, in which catastrophes are usually avoided, and peace returns. In fact, an exponentially greater amount of violence is inflicted upon people in these raid situations - for the purpose of possibly obtaining evidence to later use! This is not even the old libertarian contradiction of “violence for the sake of minimizing violence,” but rather entirely unjustified aggression. There is a qualitative difference between creating a hostile environment with an infinitesimally small margin of error where such circumstances previously did not exist, and a “caught in the act” or “hot pursuit” scenario. The benefit of doubt given to most criminals or suspected, even alleged criminals giving chase, is entirely absent from these knock-and-announce tactics

There is no benefit of the doubt, and great risk of error when we substitute a team of executioners and assassins for due-process and honest policing.

The Good Guys & the Bad Guys


When we realize that most people involved in these raids are precisely those who don’t have a moral prejudice against kicking down the doors of non-violent, small-time alleged offenders, introducing the element of violence to an otherwise docile situation, the real problem begins to come into view: You sneak up on them, and break down their doors quick-like because they might shoot at you — or is the converse true? That people might shoot at you because you’re sneaking around breaking down doors in the middle of the night like a common criminal?

I’m going to make an assumption here that I will later relax, so for the time being, assume that hardened criminals will shoot at cops all the time, whether they identify themselves or not. And also we can safely assume that innocent people will only shoot at cops when they think it’s not the cops. So there are two types of people who shoot at cops: Criminals, all the time; and law-abiders, when identification doesn’t happen. The good guys will never shoot a cop when they identify themselves properly. And to the extent that they fall victim, or that they kill a police officer by mistake, these are false positives, and they sully the test-results of even a perfectly executed warrant served on a terribly evil criminal.

We can relax the above assumptions a little bit - even bad guys don’t always shoot, but when they do, when a cop takes fire whilst serving a warrant on a bad guy, it’s all in a day’s work. The bad guys might – or might not – shoot, regardless of ninja-tactics and high-tech gadgetry employed by the law enforcement. On the other hand, if the officer or an innocent is shot when a warrant is served on the good guy, it is a tragedy of the first order, and one that I argue is nearly entirely avoidable.

“They’re Coming Right For Us!”


We lament the fact that violence and tragedy ensue in these situations, yet they continue to occur. Normal police protocol simply doesn’t require anything even approaching lethal force. So is my South Park analogy really that far off-the-mark? Sure, the bunny-rabbits didn’t have guns, but Jimbo walked right into the forest, looking for something to shoot, and he didn’t care what it was; he was above the law.

Law enforcement creates an environment in which peaceful citizens are likely to take up arms if possible, they are likely (officers wouldn’t be wearing riot gear if they didn’t expect to be shot at) to be “Coming right for [them]!” They’re not walking into a forest where cuddly bunnies are waiting to eat lead, they’re busting into a house with the expectation of being met with bullets! Maybe the homeowner won’t shoot, but law enforcement doesn’t need to give them this benefit of doubt. The doctrine of self-defense guarantees that pointing a gun (or thinking that he’s pointing a gun) at an officer is justification for the application of lethal force. There is no “force continuum” in these situations, only instantaneous acceleration from zero, to guns blazing.

So, the cop has the right to self-defense, and the victim does not. One might argue that the victim doesn’t need to defend himself, because his life is not really threatened, but I would presume one’s reasoning is markedly changed when staring down the barrel of a submachine gun brandished by a masked man kicking down the door in the middle of the night. The bottom line is, the cop doesn’t have to second-guess the man whose house he’s just invaded, who happens to be pointing a gun at him. The homeowner, on the contrary, must always pause to consider who has just kicked down his door – in the event of an actual threat, these few seconds could cost his life.

The “Proof” of the Pudding


And besides, there is no way to determine whether one’s life is threatened in such circumstances:
Presume that Police will always verbally & audibly identify themselves as police.
Given that One must yield to the police
Given that these men breaking into my house declare themselves to be the police.
Therefore these men are police, and I must yield to them.

Post hoc, ergo propter hoc.

The conclusion that “these men are police” does not follow from the premise that “police will always verbally & audibly identify themselves.” The logical missing link here, is that at the time the door is being broken down there exists no premise relating to “these men.” It simply does not follow that anyone claiming to be the police, is in fact the police. Only when the police are claiming to be the police, is the statement true - the statement is not always true. So how does one know the invaders are actually the police? Because they say so, of course!

A fine example of circular reasoning, it is. It very well may turn out that “these men” are, in fact, police - but there is no possible way of determining this ex ante, and there is no valid argument that can be put forth to sustain that mere verbal exchange is sufficient identification. The burden of proof is upon those making the claim. In failing to identify themselves and creating a hostile situation they have categorically denied this responsibility.

And this is the crux of my argument: Even if all police, at all times and without exception, identified themselves, by yelling audibly and clearly – there still exists the very real threat that the persons doing the yelling aren’t from the government, and they’re not there to help. There is no way to eliminate uncertainty, but the undue loss of innocent lives (cops, homeowners, and even alleged criminals) can be severely mitigated – we need only hold people, and governments, responsible for the injustices they bring about..


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