Police-Generated Killings: The Gap between Ethics and Law

Abstract

This article offers a normative analysis of some of the most controversial incidents involving police—what I call police-generated killings. In these cases, bad police tactics create a situation where deadly force becomes necessary, becomes perceived as necessary, or occurs unintentionally. Police deserve blame for such killings because they choose tactics that unnecessarily raise the risk of deadly force, thus violating their obligation to prioritize the protection of life. Since current law in the United States fails to ban many bad tactics, police-generated killings often are treated as “lawful but awful.” To address these killings, some call on changes to departmental policies or voluntary reparations by local governments, yet such measures leave in place a troubling gap between ethics and law. I argue that police-generated killings merit legal sanctions by appealing to a relevant analogy: self-generated self-defense, where the person who engages in self-defense started the trouble. The persistent lack of accountability for police-generated killings threatens life, police legitimacy, and trust in democratic institutions. The article closes by identifying tools in law and policy to address this challenge.

Republican Policing: From Consent to Contestation

“…This article aligns with an emerging trend in the field of contemporary political theory toward subjecting policing to conceptual and normative scrutiny (Del Pozo 2023;Galoob and Monaghan 2023;Heath 2023;Hough 2021;Hunt 2019;Jones 2022;Monaghan 2023a;Nathan 2022). This trend constitutes an important reversal of the unfortunate tendency on the part of political theorists to treat policing as a marginal concern, at least in comparison to "sovereignty, legitimacy, consent, social contract, violence and all of the other concepts regularly used by theorists grappling with the nature of state power" (Neocleous 2021, 46).…”

Policing Disobedient Demonstrations

“…Brennan argues that if defensive violence is constrained by a proportionality requirement, then it will apply to the police as well. 9 See Natapoff (2018) for a discussion of problems with the misdemeanor system in the U.S. 10 See Jones (2021) for a discussion of the police obligation to reduce the risk of deadly force. In earlier work I argue that the police have a variety of special moral obligations (2017).…”

“…11 One only retains the right to self-defense in cases where one is entitled or non-culpable for acting in a way that causes the need for defensive force (Ferzan 2013). Along these lines, Ben Jones has argued that in a range of cases he calls "police-generated killings," the police are blameworthy for creating the need to rely on lethal self-defense, and that the legal code must be modified to hold such officers accountable (Jones 2021).…”

“…This point highlights a further difficulty for negotiated accommodation: sometimes, the protestors are not a cohesive group with shared goals or preferences. This can make negotiation difficult or impossible.15 SeeJones (2021) for a discussion of this problem in the Graham decision. Graham v.Connor.…”