Does Halacha mandate punishing police officers who use excessive force?
The requirement to utilize the minimal amount of force reflects the idea that violence
is only justified to address the given threat.
By SHLOMO BRODYBORDER POLICE patrol Jerusalem’s Old City.(photo credit: MARC ISRAEL SELLEM)
Alleged excessive force used by police officers continues to make headlines, whether with the Black Lives Matter movement in the United States or questions in Israel regarding police behavior against Arab, haredi and settler protesters.At their core, the controversies raise larger questions regarding the trustworthiness of legal officials and the authority given to them to utilize force when necessary.Judaism recognizes the importance of the government’s role in ensuring people’s physical safety. Rabbi Hanina taught, “Pray for the welfare of the government, for were it not for the fear of it, man would swallow his fellow alive.” Nonetheless, as we’ll see, Jewish law also recognizes that officials may go too far and deserve punishment.The Torah highlights the deep connection between judges and those who will enforce the law. “You shall appoint judges (shoftim) and officials (shotrim) for your tribes in all the settlements....” As Rashi notes, the purpose of these shotrim is to make sure that the judges’ rulings are accepted, even if that means utilizing a rod and stick. As one midrash notes, “If there are no shotrim, there are no judges,” since the former are necessary for the latter’s rulings to be followed.These enforcers should be of the highest character, like judges themselves. In fact, the Talmud asserts that originally they came from the tribe of Levi, and even compares Moses himself with a shoter for bravely killing a violent Egyptian when no one was willing to execute justice. Conversely, the Talmud warns how immoral legal officers can prevent the Great Redemption by not executing justice.Jewish law warns citizens to be respectful of these officers, and that brazenness toward them may be warrant social sanctions such as excommunication or even corporal punishment. Significantly, an officer’s own testimony is deemed sufficient to issue social sanctions, but to punish someone with lashes, other witnesses must testify to the alleged offender’s disobedience. This is a critical requirement, as it raises the bar of admission to regular standards of testimony, making it impossible for the officer alone to indict someone for serious charges of disrespect.As Prof. Michael Wygoda has documented, decisors debated the extent of force that officers may use. Some medieval commentators assert that the officer may go beyond the minimum necessary to quell disobedience or to address the threat. This may reflect the desire to create a strong sense of law and order. Yet the vast majority of commentators believe that the officer is limited to the minimum amount of force necessary. This follows the ruling in the Tosefta that an agent of the court is exempt from damages if he followed the instructions of the judges; if he deviated from them, however, he may be liable. Indeed, as Prof. Saul Lieberman notes, elsewhere the midrash warns the shoter to be careful with his baton so that he won’t find himself on the other end of the stick when punished for using excessive force.The requirement to utilize the minimal amount of force reflects the idea that violence is justified only to address the given threat. A similar limitation is imposed on cases of a rodef (pursuer), in which the Torah mandates killing someone in pursuit of another, but only if less lethal methods are not available. The comparison to rodef is telling: the officer has the systematic right to use force to preserve the peace and fulfill the court’s orders, but should restrain himself, when possible, to the minimum amount of necessary force.If he exceeds those boundaries, may he be held liable for damages or punishment? The Tosefta, in at least one source, seems to claim that intent is critical. If the injury was unintended, the law exempts him from paying damages. Why? For the sake of “tikun olam,” improving the world, since if we did not exempt officers for unintended consequences, no one would want to fulfill this important job. This is an important point because it recognizes that law enforcement can be a violent task and even actions done with the best of intentions can have unintended harmful consequences. Indeed, the Tosefta compares the agent of a court to a doctor, who is also trying to fulfill a mitzvah (in this case, to heal) but may accidentally cause greater harm.Yet the Tosefta goes on to also assert that if the excessive harm was done with intent, then we would hold the officer liable for payment. Later commentators further warn that if the officer acted out of rash anger, he could be held liable, at least in the “heavenly court.”What if the officer unintentionally killed someone, even while acting under the direct orders of the court? According to one source, he would be exiled to a so-called city of refuge like other unintentional killers. Yet the dominant position asserts that we do not give a criminal punishment to court officers in such cases. Whereas Rabad limits this lenient ruling only to cases in which the officer struck under the explicit orders of the court, Maimonides extended it to any reasonable action taken in the line of duty.Applying this framework to the contemporary context, this would seem to indicate that officers should be given immunity if they act within given protocol or, at the very least, within the reasonable confines of the job. Concomitantly, Jewish law recognizes that violent offenses by police officers should be punished in order not to destroy trust in the system. Finding this balance is not always easy but must be achieved to preserve both order and the social fabric.The writer, author of A Guide to the Complex: Contemporary Halakhic Debates, directs the Tikvah Overseas Students Institute and is a presidential scholar at Bar-Ilan University Law School. Facebook.com/RabbiShlomoBrody
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