Does the right to self-defense apply against agents of the state?
In August 2017, Richard Hubbard III stopped at a red light in Euclid, Ohio, but his front bumper went a few feet past the white line. The cops pulled him over. That's no surprise: Police in Euclid, Cleveland Heights, and the surrounding cash-strapped towns strictly enforce traffic rules. But officers didn't just give the driver a ticket.
The police demanded Hubbard—a black man—step out of his vehicle. Dashcam footage shows that he calmly complied. Yet one officer immediately spun Hubbard around, bent his arm, and slammed him against his Hyundai. He flipped Hubbard again, punched him in the face, and kicked his groin. Hubbard screamed and put his arms up to protect himself. The other officer joined in.
They threw Hubbard to the ground but continued to punch, hammer, and kick him. When he tried to protect his face, they chanted the informal motto of American police, "Stop resisting!" Even when Hubbard was subdued, prostrate with his hands behind his back and two large officers pinning him down, one officer continued to pummel his skull.
Imagine you witness the whole thing. A thought occurs to you: You're armed. You could shoot the officers, perhaps saving Hubbard's life or preventing him from being maimed and disabled. May you do so?
Below, I defend a controversial answer: Yes, you may. Shooting the cops in this case is dangerous—they may send a SWAT team to kill you—and in many places it's illegal. But it is nevertheless morally permissible, indeed heroic and admirable. You have the right to defend yourself and others from state injustice, even when government agents act ex officio and follow the law.
Normally it's wrong to lie, cheat, steal, deceive, manipulate, destroy property, or attack people. But commonsense morality as well as the common law hold that such actions are permissible in self-defense or in defense of others. The basic principle is that you may use deception or violence when you are not the initial aggressor and when you reasonably believe such actions are necessary to protect yourself or others from imminent, severe injury from an aggressor. You may lie to the murderer at the door. You may smash the windows of the would-be kidnapper's car. You may kill a violent attacker when you reasonably fear for your life.
Now ask: Does it make a difference if the murderer at the door or the kidnapper is a lawfully appointed member of the U.S. government, acting in his or her capacity as an agent?
Discussions of resistance to state injustice often focus on civil disobedience. Think of Henry David Thoreau refusing to pay taxes that would support slavery or the American attack on Mexico. Think of Martin Luther King Jr. and countless other civil rights protesters allowing themselves to be jailed or beaten. Think of unmasked protesters tearing down Confederate statues in the light of day.
Civil disobedience is a public act aimed at social change. A civil disobedient openly defies some law or regulation with the goal of changing the laws or how the laws are enforced. Frequently, citizens engaging in civil disobedience accept punishment, not because they respect the law but because doing so helps ensure outsiders can see they are well-intentioned.
But justifiable resistance needn't aim at changing the law, reforming dysfunctional institutions, or replacing bad leaders. Sometimes, people resist simply to prevent an immediate injustice. If you stop a would-be rapist, you aren't thereby aiming to end the patriarchy, eliminate rape culture, or get the Equal Rights Amendment passed. You're just trying to stop that rape. Similarly, if you shoot Officer Michael Amiott as he bludgeons Richard Hubbard, you're trying to save Hubbard's life, not reform American police tactics, express that black lives matter, or fix Euclid's financial woes.
Resisting the police in this case is an instance of defensive action, not civil disobedience. You engage in defensive action when you use deception, destruction, subterfuge, or violence to stop a wrongdoer from committing an unjust or deeply harmful act.
Don't confuse defensive action with revolution or violent social change. I argue we may defend ourselves or others from immediate threats of injustice. But I don't necessarily recommend we use violence, subterfuge, or deceit to change the form of government, who rules, what the laws are, or how those laws are enforced.
Strategic nonviolence, civil disobedience, protests, and elections are often the most effective ways to induce lasting social change. Violence can be a good way to stop immediate violence, but it's rarely a good way to fix a systematic problem. It is rarely a first resort, though it may not exactly be a last resort either.
However, we shouldn't assume strategic nonviolence of the sort Martin Luther King practiced always works in isolation. Charles Cobb Jr. in This Nonviolent Stuff'll Get You Killed (Basic Books) and Akinyele Omowale Umoja in We Will Shoot Back (NYU Press) both provide strong evidence that "nonviolent" civil rights activism succeeded (as much as it has) only because of earlier acts of violent self-defense. Whites initially responded by beating, killing, and lynching blacks. Armed black militias fought back, sometimes by killing cops or National Guardsmen. Once whites learned that blacks would respond in kind, they turned to less violent forms of oppression, and more blacks embraced the nonviolent tactics with which we are familiar. But the authors argue this nonviolence would have been impossible had blacks not violently defended themselves first.
Here's a philosophical exercise: Imagine a civilian commits an injustice, the kind of injustice against which it's permissible to use deception, subterfuge, or violence to defend yourself or others. Imagine thugs beat up a drunken trucker, the mafia hacks into people's computers and phones, or your neighbor throws people in his basement to punish them for smoking pot. Now imagine the same situation, except the perpetrators are government agents acting in their capacity as such: The police beat Rodney King, the National Security Administration hacks your phone and email without a warrant, or the sheriff arrests you for pot possession. Does that change things?
Most people think it does. But that's puzzling. According to the prevailing view, our rights to life, liberty, personal autonomy, property, and happiness can disappear by political fiat. My neighbors can eliminate my right to defend myself and others by granting someone an elected office. This view holds that defensive violence, deception, destruction, and subterfuge are regulated by different moral principles when it comes to government agents than they are in other contexts.
Most people seem to subscribe to what I call the Special Immunity Thesis: the idea that the set of conditions under which it is permissible, in self-defense or defense of others, to deceive, lie to, sabotage, attack, or kill a government agent is much more stringently constrained than the set of conditions under which it is permissible to deceive, lie to, sabotage, attack, or kill a private civilian.
On the flip side, we have what I call the Moral Parity Thesis: the idea that, very simply, you have the same right of self-defense against government agents as you do against civilians. Officials have no special moral status that immunizes them from defensive actions. When they commit injustices of any sort, it is morally permissible for us, as private individuals, to treat them the same way we would treat private individuals committing those same injustices. Whatever we may do to private individuals, we may do to government officials. We may respond to governmental injustice in exactly the same ways as private injustice.
The Moral Parity Thesis has radical implications. It means you may assassinate leaders to stop them from launching unjust wars. You may fight back against a police officer who arrests you for something that shouldn't be a crime—e.g., marijuana possession or homosexuality. You may escape from jail if mistakenly convicted or convicted of a bogus crime. Your business may lie about its compliance with an unfair regulation and evade excessive taxes. A jury or judge may nullify an unjust statute by refusing to convict those who break it. The Moral Parity Thesis vindicates helicopter pilot Hugh Thompson, who threatened to kill fellow American soldiers to stop them from killing civilians during the My Lai massacre in Vietnam. It vindicates Chelsea Manning and Edward Snowden for sharing at least some state secrets. It vindicates government agents who sabotage unjust efforts from within.
My basic argument is simple: By default, we should accept the Moral Parity Thesis, unless we can find some good reason to believe the Special Immunity Thesis instead. Upon inspection, though, the arguments for the Special Immunity Thesis fall flat. Governments and their agents aren't magic.
Some people think it's obvious why the government and its agents enjoy special immunity. They say that governments, or at least democratic governments, have a special moral power called authority. Authority means that when the government issues certain commands, edicts, regulations, or laws, it thereby creates in the rest of us a moral duty to obey.
To be clear, for a government to have authority, this means you must have a duty to obey its laws because they are the law, not simply because the laws happen to coincide with pre-existing obligations. For instance, suppose I walk around downtown Washington, D.C., shouting, "I, Jason Brennan, hereby command you not to kill people!" Bystanders would indeed have a duty not to kill people, but not because I said so. My "command" is morally inert. But most people think government commands are different. When the government commands you not to smoke pot, you thereby acquire a duty not to do so.
This argument—that governmental special immunity rests upon political authority—has two major problems. One is that there's little reason to think governments have authority, period. The other is that even if governments have some authority, there's little reason to think they have the authority to violate our rights, abuse their power, or cause us severe harm.
You may kill a violent attacker when you reasonably fear for your life. Does it make a difference if the murderer at the door is a lawfully appointed member of the U.S. government?
Philosophers have spent 2,500 years trying, and failing, to justify the idea that governments have authority. But—and this seems to be the consensus in philosophy today—none of the arguments really works. For instance, your sixth-grade civics teacher probably told you that government has authority because of a "social contract." You agree to obey, and the government agrees to protect you. But the social contract metaphor falls apart. Contracts are voluntary, but you never consented to and have no right or opportunity to opt out of the "contract" with your government. Contracts require mutual exchange, but U.S. courts have repeatedly ruled that the government has no obligation to protect you, even if you pay your taxes and obey the laws. Plus, even if you were to agree to a social contract, you'd have no good reason to give up your right of self-defense against government abuse. Even absolutist Leviathan author Thomas Hobbes thought such rights remain with the people.
Other philosophers, such as H.L.A. Hart and John Rawls, say that government authority arises from a duty of fair play. They say your neighbors help provide beneficial public goods. When they do so, since you benefit, you should do your share.
The fair play theory may explain why a person should pay taxes and serve on juries. But it would be bizarre to say, "You benefit from some of the public goods the state provides. In order to avoid unfairly free riding on the efforts of others to provide those public goods, you must not only pay taxes, but you must allow the president to exterminate and forcibly relocate Native American tribes. You must let police choke subdued and handcuffed men to death. You must allow Congress to wage war at will. You must allow the police to arrest you for smoking pot or selling Big Gulps." Those things have nothing to do with paying your fair share, playing fair, or avoiding free riding.
Anyone who wants to defend the Special Immunity Thesis on the basis of government authority has a serious burden. It's not enough to justify a general kind of government authority. One must instead explain why democratic officials have the specific authority to commit severe injustices—the kinds of injustices where it would be valid for us to use violence, subterfuge, or deception against civilians if the civilians were to try to commit them.
Suppose a police officer, following the Fugitive Slave Act, arrests an escaped slave in antebellum America. Suppose I shoot the police officer in order to free the slave. Even if we suppose that the U.S. federal government in the 1850s was authoritative overall, it's implausible that citizens had a duty specifically to let it enforce human slavery. Until I see a compelling argument for a theory that says otherwise, I'd regard it as a reductio of any purported theory of authority that it implies I must let police officers behave in such a way.
Maybe governments have authority over some issues, but that doesn't justify granting their officials special immunity from defensive action. So let's go looking for other possible reasons to believe the Special Immunity Thesis.
Some people say that we should not resist government injustice but use peaceful methods instead. We may vote the bastards out, vote in better bastards, protest, write letters, or post scathing memes on Facebook.
Of course, it's a basic rule of self-defense that we cannot use violence if peaceful alternatives are just as effective; violence is allowed only if necessary. That holds regardless of whether you're defending yourself from abusive police or an abusive spouse. But more fundamentally, this argument misses the point. Remember, defensive actions are about stopping an immediate injustice from occurring, not about altering the rules or affecting who rules. Voting blocs sometimes change bad laws. Protesting sometimes gets a local police department to hire better staff or offer better training. But in the heat of the moment, as Officer Daniel Pantaleo chokes Eric Garner to death, you're not going to save him by writing a letter to a newspaper editor.
Some people say that the Moral Parity Thesis is dangerous, because too many people will bungle it up. According to this objection, the problem isn't with the principle of self-defense; it's that we're bad at applying it. People will mistakenly conclude that they may lie, deceive, or resist police even when they should not. I should keep my mouth shut lest I induce you all to start firebombing Congress.
But if anything, this objection gets the psychology backward. In real life, most people are deferential cowards—all too willing to abide the gassing of Jews, torturing of prisoners, or bombing of innocent civilians because their governments order it. Few people stand up for themselves or others against officials in positions of authority. If anything, proponents of the Special Immunity Thesis should keep their mouths shut, lest they corrupt us even further. People are far more likely to obey Stalin when they should have deposed him than they are to stand up to a cop when they should have backed down.
Still others say that we must not defend against government officials because we have a prohibition against vigilante justice in our society. The idea is that when a stable, workable, and fair public system of justice is in place, we must let it handle criminal justice matters rather than take justice into our own hands.
Fair enough, but also irrelevant. Sure, if the police are saving your neighbor from being mugged, you shouldn't intervene. They probably will handle the situation more competently than you. But if the police ignore or simply cannot stop the mugging, you may intervene. In the case of civil forfeiture—laws that allow police to seize your property on the thinnest of pretenses, and laws that make it nearly impossible for you to recover seized property after the fact—the police themselves just are the muggers. In 2008, the Douglas County, Nebraska, sheriff's department seized $63,530 from a man named Mark Brewer, even though Brewer could show he had obtained the cash through legal means. The officers never charged Brewer with a crime, not even a moving violation. But despite ample proof the money was legitimate, he never got it back. He would have been justified in treating those officers like carjackers.
Others say these ideas are dangerous because governments might respond badly to the resistance. If citizens defend themselves, the state might double down on its oppression.
Indeed it may, though we should be careful in assessing how this affects our duties. Imagine a bully says to you, "If you don't give me your lunch money, I'll beat up two other kids and take theirs." Does his credible threat eliminate your right of self-defense?
If anything, there's reason to think that those worries about potential fallout don't apply so strongly to democratic governments. Sure, police respond to resistance with increased violence and militarization. Most people think it would have been justified, however, to assassinate Mao or Hitler. Yet historically, dictatorships have responded to assassinations by killing civilians and crushing civil rights. When Fanny Kaplan tried but failed to kill Lenin, Lenin unleashed the Red Terror.
In contrast, when democratic leaders are assassinated, not much happens. Four U.S. presidents and 13 congresspersons have been killed, and a few others have been targets. None of these events caused humanitarian disasters or terror purges. The U.S. government has committed and continues to commit many atrocities, but not in response to assassinations. When the IRA murdered Member of Parliament Ian Gow in 1990, the British did not respond by killing innocent Irish citizens, even though the British have a long history of killing innocent Irish people. When Swedish Prime Minister Olof Palme was assassinated in 1986, the government convicted a suspect of the murder, but the conviction was overturned on appeal.
Suppose your neighbor becomes convinced sugar is horrible for you. He threatens to lock you in a closet for 30 days if he catches you with cupcakes. Now suppose the government outlaws sweet treats and makes the same threat. Is there any reason to view these cases differently?
Police officers enforcing the law may think they have no choice. After all, "We the People" make the law, with some help from our duly elected representatives, appointed officials, and various lobbyists. The police promise to enforce whatever laws we hand them.
This view of policing fundamentally misunderstands moral responsibility. It's true that we sometimes ask soldiers, police, bureaucrats, and others to enforce unjust laws. We the People often deserve the blame for creating bad laws. But police can—and should—say no. Better yet, they should lie and say yes but then choose not to enforce the bad laws. Government agents don't relinquish personal moral responsibility by agreeing to wear a uniform in exchange for a paycheck.
Making a promise to obey superiors or to follow legal codes does not relieve us of our moral duties. Suppose I tell my frequent co-author Bas van der Vossen that I promise to heed his commands in exchange for a salary and medical benefits. If he then orders me to hack the neighbors' emails, I don't get to say, "Well, shucks, I promised." Other people's rights don't disappear because I made a deal. Promises to follow orders can constrain our personal freedom, but they cannot override or eliminate our pre-existing moral obligations.
Government agents sometimes work for our benefit. Cops assume a great deal of risk (if not as much risk as lumberjacks, farmers, fishers, roofers, truck drivers, or construction workers, judging by the fatality numbers). Congresspeople, generals, and presidents accept stressful jobs with grave responsibility. We should honor what government does for us. How dare we do any less?
At the same time, officials also take on a greater than normal obligation to protect rather than violate our rights. How dare government agents do any less? And if they do dare to violate our rights, then they—not we—should suffer the consequences.