Deadly Force by Police

Chapter II

Evaluating the Moral Justification of Force in the UK Police

Consequentialism and the Use of Deadly Force Among Police Personnel in the UK

Introduction

Against a backdrop of a democratic society, the use of deadly force by the police in countries such as the UK seems implausible for human rights activists. First, police officers are expected to uphold the human rights of every individual hence, civilian rights are always preserved even in criminal cases where the due process of law is considered to be the golden standard in the judicial system. Thus, threading the line between regulations and policies of the agency as well as the ethical and moral dilemma in the use of deadly force predisposes police officers to question the legitimacy as well as the moral justifications in their use of deadly force.

While several philosophical theorists have argued for different justifications through philosophical theories, the theory of consequentialism appears to be the one that closely justifies the use of deadly force among the police. Using force in policing is often justified by the idea that such force is for the greater good of the public and the society.

Use of Deadly Force and Morality

Before examining the moral and ethical arguments for the use of deadly force using the consequentialist paradigm, let us first examine the important aspects of deadly force and the use of it by the UK police. First, deadly force pertains to the force reasonably capable of causing death or bodily harm (Geller and Scott, 1992, p. 23). According to this definition, an act that can kill should be consumated before it can be considered as a deadly force hence; threats are not considered to be within the parameters of this scope. The use of deadly force falls within emergency situations such as in hostage taking, shooting randomly, pursuance of a police officer of unarrested criminal and other similar incidences (Kappeler, Kraska and Marron, 1995, p. 3).

Consequently, in the UK, police officers are given the discretion to determine if the suspect poses a threat to the police officer or the public. In the pursuit of these suspects, police officers are given the power to use deadly force through probably cause of harm. The courts decide whether the use of deadly force is justified or not and in some cases, police officers are charged because their use of deadly force is considered to be unjustifiable. Hence, there is a very thin line separating the justification of the use of deadly force from an act that is unjustified. The ethical and moral dilemma of police officers therefore rests not only on the regulations of their agency but on their analytical and ethical decision. Thus, the pursuit of the philosophical theory that can best justify the use of deadly force ensues.

The deadly use of force by the police is often defended using justifications and excuses. According to the standard account in ethics, justified action is not wrongful whereas excused action is wrongful conduct for which the police enforcers are not morally responsible, in the particular sense of not being blameworthy for using deadly force. Thus, it is not surprising that the standard account theory in explaining the use of deadly force by the police follows one line: the use of force is considered a justification if it renders the action not morally wrongful, it is an excuse on the other hand if it renders morally wrongful action not blameworthy. This view is captured by the truism that justifications of actions speak to the act itself, whereas excuses speak to the actor. In other words, a justified conduct is considered correct behavior that is both encouraged and tolerated, while excuse is a conclusion that the conduct is undesirable, wrong, and that the use of deadly force is inappropriate.

Two questions regarding this supposed distinction have predominated in the literature. Is wrongfulness established subjectively in terms of the law enforcer's reasons for acting, or is it determined objectively in terms of facts independent of his or her motives and beliefs –whether his or her action in fact produces a net societal benefit or at least produces no socially recognized loss? Put simply, does wrongfulness depend upon deeds or reasons? (Greenawalt, 1984, pp. 1915-1918) The second question is: If wrongfulness is determined subjectively, is it true that the use of deadly force is justified when the act is permissible, or must the use of such force by the police be morally right?

The standard account in ethics has been rebutted by some scholars. According to Berman (2003, p. 9), actions that are morally justified on many theories of moral justification can be short of any defense under the criminal law. Moreover, a legal defense that appears naturally classified as a justification can encompass actions that are not morally justified on any credible theory of moral justification. Thus, if there are any coherent and sound difference between excuse and justification for law purposes, it cannot just imitate the distinction supposed to exist in ethics. This makes the standard account limited in explaining the use of deadly force by the police.

Using force in policing is also justified by its deterring effects. The deterrence argument holds that the UK police officers must use force to discourage other criminals from committing similar wrongdoings. In other words, the use of force sends a message to potential criminals, warning them not to violate the law. Briefly, the deterrence hypothesis suggests that people refrain from doing criminal activities simply because they fear punishment. Furthermore, this argument also holds that fear is what people fear more than anything else, thus using extreme force in UK police would be an effective deterrent. Additionally, this argument further assumes that the effectiveness of the use of force as a deterrent is dependent upon its application and on the knowledge of this fact in the general population. Therefore, the regular use of force in law enforcement and its publicity increase its deterrent value.

In a broad term, the deterrent impact of using force is thought to be a function of certainty and severity. In the first element, it is believed that people do not go against laws if they are sure that their arrest and the subsequent punishment will be light. Also, the deterrent impact of the use of force is a function of its severity, which holds that the more severe the force used, the greater the deterrent effects. However, while deterring impacts of capital punishment have been explored in numerous studies, the deterring effects of the use of force in policing have gained little attention from researchers.

Retribution theory is also often used to explain why UK police officers use force. Basically, this theory partially rests on the Old Testament, calling for “an eye for an eye.” Retribution supporters argue that the force used must fit the crime. This theory holds that those who commit the most heinous or intentional crimes should receive harsh treatments on the grounds that they deserve it. However, critics of the retribution theory emphasize the sanctity of life, usually arguing that there are other better options other than harming offenders.

The Ethico-Moral Principles of Consequentialism: Implications in Use of Force

Consequentialism has been considered as one of the frequently used theories in justifying the use of deadly force by the police primarily because of its consideration of the consequences of a given act. In contrast with other theories that uses the nature of the act itself (deontology) or the goodness of the wrongness of the act or whether it is a good virtue or not (virtue ethics), consequentialism considers the aggregate value of the act based on the summation of its consequences- if it benefits the greater number of people, then it is considered to be morally justifiable. It should be noted that consequentialism has different forms such as the act consequentialism and the rule consequentialism. In this paper both types of consequentialism will be explored.

Proponents of consequentialism such as Jerome H. Skolnick, James J. Fyfe, Vance McLaughlin, and Lawrence Sherman contend that using deadly force is needed and even central in policing. For one, police recruits are constantly reminded in their training that coercive power is an essential element in enforcing the law. Force is used despite warnings from superiors regarding its limitations; thus, the use of force is inevitable (Skolnick and Fyfe, 1993, pp. 37, 95). The use of force is part of the police officers' profession as law enforcers, just as the society needs a legitimate force to maintain peace and order (McLaughlin, 1992, p. 1). Similarly, it is argued that the criminal law has at its heart the use of force just as the control on the legitimate use of force is essential to the nation-state (Sherman, 1982, p. 37).

One of the consequentialist concepts in using force is the notion of the greater good for the greatest number: defending a society is a just war, therefore legitimate (Yoo, 2004, p. 730). Here, any person poised to commit a crime against the society necessarily invokes the right of governing institutions including the police force to enforce security and safety for the greater good of the society. This argument shows that the virtue of the use of force by the police is justified by the preservation of security within the society. The consequence of the use of force by the police would lead to greater security and hence, deterrence of violence which leads to better quality of life for the UK people.

In outlining the history of the UK police force Neyroud (2007, pp. 252-253) argues that the baton-days prior 1980s was not enough to protect public safety against criminals. He cites the case of the Hungerford Shootings and the Thames Valley Police Force where an armed man killed two persons and injured one after a random shooting. The police force was heavily criticized because of the length of time it took for the police officers to respond to calls. The police was also criticized because the police use of firearms was largely focused on protecting the safety of the officers and on preventing fatal shootings, instead of focusing on public safety. Since then, the public expectations of the police and the use of force has been a dilemma for the UK police.

Following the shootings, there was a call for more aggressive approach to enforcing the law. Is the use of deadly force justified? For the Thames Valley Police it is justified because it protects not only the police officers but also public security (Neyroud, 2007, p. 253). Security threats cannot be allowed in a society since they affect the confidence of the public on the police. In the terms of consequentialism, shooting a person who is out to massacre innocent is justified because the death of the criminal would mean sparing the lives of many others, restoring the peace and order needed by the society to properly function.

The morality of people is subjected to a higher authority – the police force represents the society to which social contract is established among its citizens (Kaufman, 2005, p. 24). Regulations are always supported by force – deadly or not, the use of force is legitimate because people who have committed crimes to others and the society ultimately obliterate their human rights. In violating the rights of others and the public, offenders who are subjected to the use of deadly force in essence forego their own human rights (Gentili, 1933, p. 16). Even the United Nations Charter would consider the use of deadly force as the last resort. In many cases judicial and political means are not always responsive in defending its citizens thus, the inherent use of deadly force in self-defense cases are permitted (Yoo, 2004, p. 738).

The use of deadly force in enforcing law is most often applied to cases having extreme nature like murder, firearm robberies, drug trafficking, or massacre of a large number of the population (Parent, 2006, p. 230). Within the consequentialism framework, the consequence of self-defense is morally justifiable because the police use of force is within the boundaries of their discretion – it is more acceptable for the public to accept the shooting of the offender who is about to kill a police officer or an innocent bystander than the police officer or the bystander being killed by the offender (Levy, 2000, p. 28).

In addition, consequentialism justifies the use of force in that its use can deter the incidence of crime for the greater good of society. Consequentialism is basically an agent-neutral term that judges actions based on the value of a decision (Huigens, 2000, p. 944). For example, if a police officer shoots a bank robber who is taking a hostage, he or she is in effect choosing between the life of the hostage taker and the life of the innocent hostage. In such a case, the officer's decision is weighed based on the value of the decision for the persons involved in the crime. Therefore, the officer's predicament is whether to risk the life of the innocent hostage or take action and shoot the offender. While negotiations are first used in this kind of situation, the use of deadly force is an important last resort if all things fail. So long as the officer had exhaustive other means, then, he or she can use a deadly force. This is not in violation with the protocols of police power and regulations in the UK police force.

Just war principles cam also help explain why police officers use force. The just use of political violence in warfare must include the following major elements: a definite justification for killing another human being and stern and specific restrictions upon anyone who is under the hard necessity of doing so. These elements are exhibited “in the use of force proper to the domestic police power” (Ramsey, 1968, p. 144). For this reason, police officers distinguish between the victim, the aggressor, and the bystanders. Although a police officer may accidentally shoot some innocent people, it would never be correct for him or her to enlarge the target and deliberately kill any number (Ramsey, 1968, p. 187).

The justification of such limited use of force is grounded upon social charity, in which everyone is called to love the neighbor by protecting him or her from the other aggressive neighbor who has chosen to become an enemy. While Christians are called upon to also love their enemies, when choice must be made between the offender and the victim, the latter may and should be preferred – even if it would require using force against the offender (Ramsey, 1968, p. 143). In an on-the-spot decision, the police officer must swiftly assess the situation and take the proper action. A number of variables may come into play that laws, restrictions, and guidelines may seem too fuzzy to be useful to the police officer. Thus, the use of force is difficult to control (Skolnick and Fyfe, 1993, p. 38). However, with more and more uniformity and precision, recent laws and guidelines are checking excessive unnecessary force and providing assistance to police officers by warning them that they should not use “unnecessary” or “unreasonable” force. Officers are also admonished to use such force should be only used as a last resort.

Police officers in the UK police force should be cautious in using force. The rule consequentialism requires that the officers consider not only the consequence of their actions; they should also take into account the regulations set out by the UK police force. This means that officers need to study the protocols covering emergency situations where the police officers' discretion is called upon to make a decision whether using deadly force is necessary or not. Act consequentialism, on the other hand, holds that using deadly force is justified only if it is morally right and if the actions maximize the good. Thus, it is important that the consequence of using deadly force would yield greater good than harm.

One important philosophical question would be: On whose standpoint would the consequences be considered as maximized? Of course, the answer would be to the society, which is viewed as the indicator of the goodness or the wrongness of an action. Considering the greatest consequences of using deadly force in policing would be to consider to the fate of the society. For example, if an officer shoots at a person who is in a shooting rampage, the officer would be more or less justified in shooting down the offender to save his self and the innocent citizens and to preserve peace and order in the society.

However, consequentialism reduces the debate to an attempt to predict the likely effects of using deadly force in policing: Will this action produce more good or evil in the long run? Although this is clearly an important question, it is not the most essential question from a moral standpoint (Kaufman, 2005, p. 26). Everyday, commonsense morality is not consequentialist; the morality of actions is debated to be independent of the question of the consequences of those actions. For example, when the ethics of the use of torture are debated, it is not sufficient to argue that torture will result in better results than will prohibiting it. Here, the moral question is whether using torture violates basic moral rules, or human dignity or human rights.

Moreover, every now and then, proponents of consequentialism are giving the impression that embracing the consequentialist standpoint would free people from the need to deal with complicated questions of value and leave them only with questions of fact with which they know in principle how to cope. However, this is not the case: consequentialism do not eliminated questions of value; it is just that they have to be asked, of the states of affairs they bring about and not of actions themselves (Stubbs, 1981, p. 506). The question then is: In terms of what standards are the consequences of the use of deadly force in policing to be assessed as good or bad?

Conclusion

Definitely, it is important to know whether allowing the use of deadly force will make the world safer or will it make the world more dangerous. However, this does not wear out the moral debate on whether the use of force is right or wrong, just or unjust, effective or ineffective. Thus in future undertaking, researchers need to focus on the broader moral question, not just the issue of consequences. Nevertheless, consequentialism remains a strong moral theory. The next chapter will explore how capable are the UK police officers in fulfilling the training and the analytic requirements in order to make a morally justifiable claim or decision.

References

Berman, Mitchell N. “Justification and Excuse, Law and Morality.” Duke Law Journal 53 (2003): 1-77.
Geller, William A. and Michael S. Scott. Deadly Force: What We Know. Washington, DC: Police Executive Research Forum, 1992.
Gentili, Alberto. De Jure Belli Libri Tres (1612), trans. John C. Rolfe. Oxford: Clarendon Press, 1933.
Greenawalt, Kent. “The Perplexing Borders of Justification and Excuse.” Columbia Law Review 84 (1984): 1897-1927.
Huigens, Kyron. “The Dead End of Deterrence, and Beyond.” William and Mary Law Review 41 (2000): 943-957.
Kappeler, V.E., Kraska, P.B. and Marron, J.E. “Police Policing Themselves: The Processing of Excessive Force Complaints.” Paper, Academy of Criminal Justice Sciences, Boston, MA, March 1995.
Kaufman, Whitley. “What's Wrong with Preventive War? The Moral and Legal Basis for the Preventive Use of Force.” Ethics and International Affairs. 19 (2005): 23-30.
Levy, Sanford, S., “The Educational Equivalence of Act and Rule Utilitarianism.” Morality, Rules, and Consequences: A Critical Reader. Ed. Brad Hooker, Elinor Mason and Dale E. Miller. Edinburgh: Edinburgh University Press, 2000. 27-39.
McLaughlin, Vance. Police and the Use of Force: the Savannah Study. Westport, CT.: Praeger, 1992.
Neyroud, Peter. “Use of Force.” Policing 1 (2007): 252-254.
Parent, Rick. “The Police Use of Deadly Force: International Comparisons. Police Journal 79 (2006): 230-237.
Ramsey, Paul. The Just War: Force and Political Responsibility. New York: Scribner, 1968.
Sherman, Lawrence. Ethics in Criminal Justice Education. Hastings-on-Hudson, NY: The Hastings Center, 1982.
Skolnick, Jerome H. and James J. and Fyfe. Above the Law: Police and Excessive Use of Force. New York: The Free Press, 1993.
Stubbs, Anne. “The Pros and Cons of Consequentialism.” Philosophy 56 (1981): 497-516.
Yoo, John. “Using Force.” University of Chicago Law Review 71 (2004): 729-345.

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Deadly Force by Police

Introduction

Use of Deadly Force and Morality

Conclusion

References

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