As I said in my last post, there is less to say about Ferguson than to ask about it. What follows are some of the questions that I think ought to be asked, divided into those pertaining to the shooting, and those pertaining to the protests, the riots, and the official response to them. In this post, I ask the questions without answering any of them, including the ones that I think can currently be answered. In a subsequent post, I’ll venture a few answers. The questions are, of course, far from exhaustive.
The shooting
- The most obvious question to ask is what happened, and how do we know? An article in this morning’s New York Times provides an informative account, but what it describes are the findings of a highly qualified preliminary autopsy report, and an official police timeline. Here is what I regard as the relevant passage:
No matter what conclusions can be drawn from Dr. Baden’s work, Mr. Brown’s death remains marked by shifting and contradictory accounts more than a week after it occurred. The shooting is under investigation by St. Louis County and by the F.B.I., working with the Justice Department’s civil rights division and the office of Attorney General Holder.
I would be suspicious of any rhetoric that tries to do an end-run around this basic, axiomatic fact.
- It’s been alleged that there were “eyewitnesses” to the shooting. How many were there, and what exactly did they see?
- A meta-question about eyewitness testimony: how reliable is it, and how should we assess it in this case?
- A meta-question about police-generated testimony: how reliable is it, and how should we assess it in this case?
- Another set of meta-questions: must we always wait for the verdict in a criminal trial before we offer moral verdicts on a criminal case? After all, criminal trials can last for years—and if appeals are figured in, for decades. Will it only be permissible to discuss Ferguson after the last appeals are exhausted in the last case on the matter? Can’t evidence of guilt or innocence sometimes be sufficiently transparent as to justify a moral verdict prior to any official legal adjudication of the case?
- Is it ever justified to use a weapon against someone who’s unarmed? Is it ever justified to shoot such a person with a firearm?
- It’s been alleged that Michael Brown was robbing a convenience store before he was shot. Did Officer Wilson know this or not? Suppose he did know it. Is the fact relevant to the justifiability of shooting Brown or not? Suppose he didn’t know it. Could it still in principle be relevant?
- The Ferguson police released the video of Brown’s supposedly robbing the convenience store; others, including the Justice Department, have criticized this decision on the grounds that it encouraged rioting. Should information in a criminal case be suppressed simply because it will lead to rioting or violence (and for no other reason)? (Incidentally, what exactly does the video show? Robbery? Larceny? Battery? Police testimony aside, how many of us can be certain that the central figure in the video is Michael Brown?)
- Suppose that the evidence of Michael Brown’s being murdered by Officer Wilson turns out to be slim. Couldn’t it still be the case that he was murdered? How do we deal with the fact that the Officer Wilsons of the world can in principle get away with murder precisely because despite being guilty, evidence of their guilt is so inconclusive?*
- In many courts of law, a police officer’s testimony is regarded as more weighty than an ordinary citizen’s—even when the police officer is accusing the citizen of a crime, and the citizen is supposed to enjoy a presumption of innocence. If we apply that “principle” here, we reach the conclusion that Officer Wilson’s testimony ought to trump that of the eyewitnesses to the shooting. What inference should we draw?
The protests, the rioting, the response
- What, exactly, is the causal connection between the shooting and the rioting?
- Allegations have been made about the pervasive racism of the Ferguson Police Department, and of Ferguson in general. How good is this evidence, and how relevant is it to judging the police response to the protests?
- How much violence has there been, and how bad has it been in aggregate?
- Can it ever be justified to loot, vandalize, or riot? Suppose, for instance, that racism is Ferguson is pervasive, and has gone unaddressed for decades. Suppose, further, that rioting will bring this racism to light. Suppose that rioting is (as a matter of historical fact) the best way of publicizing racism and eliciting a response (cf. the Kerner Commission Report). Is rioting then justified?
- It’s been alleged that the police response to the protests has been excessive. What would a proportional response be or have been? As a conceptual matter, can a proportional response to a threat be insufficient to neutralize the threat?
- It’s been alleged that the police response to the protests has been indiscriminate as between protesters and rioters. Is discrimination possible or feasible? Again, as a conceptual matter, suppose that discrimination is feasible, but makes it impossible to neutralize a threat. Should discrimination be trumped by the need to neutralize the threat, or should the need to neutralize be trumped by adherence to the principle of discrimination?
- Do non-violent protesters have a moral or legal obligation to separate themselves from violent protesters, so as to facilitate the police’s capacity to neutralize the latter? (This question is really a special case of a more general one: do we have a moral obligation to refrain from taking actions that, though legal in themselves, facilitate illegality?)
- Is a curfew a justified response to what is happening in Ferguson? Suppose that it it’s not. Is it justified to defy the curfew? Suppose that it is. If a police officer tries to stop a curfew-violator, is that curfew-violator justified in using force against the police?
- A long-form question: As a historical matter, why have the police become so militarized in the United States? As a normative matter, is there any legitimate reason for militarization? (Reason Papers 36.1 isn’t live yet, but I’m tempted to link to parts of our Waco symposium for this question.)
- Is there a general problem with police non-accountability in the United States, extending beyond Ferguson, and beyond issues of race?
- A deep theoretical question: is there any reason to believe that what happened in Ferguson could not have happened, in substantially** the same way, under anarcho-capitalism? Would anarcho-capitalism have made things better–or worse?
*PS. In asking this question, I don’t mean to be implying that I believe that Wilson is guilty of murder. I mean: ex hypothesi, if he were guilty, evidence of his guilt might still be insufficient to convict him of murder.
** I had originally written “precisely,” but I meant “substantially.”
Policy of Truth 
In the spirit of slow blogging, I have taken my good ol’ time writing a response to this post. Many of your questions are tough, but one seems to have a relatively straightforward answer:
Is it ever justified to use a weapon against someone who’s unarmed? Is it ever justified to shoot such a person with a firearm?
I guess that’s two questions, really.
The basic principle of self-defense would seem to justify whatever action is necessary in order to prevent an attacker from harming you. A weapon, including a gun, might be the best available means to do that. Its use would be unjustified only if some alternative were available that would do less damage to the attacker. By the same token, even if the use of the weapon is justified, its use would involve excessive force if it goes beyond what is necessary to protect oneself.
What makes the shooting of Michael Brown so suspicious is not that simply he was shot when unarmed, but that he was shot six times, including in the head. It’s of course not impossible that he was attacking Wilson, that the first five shots did not stop him, and that Wilson did not deliberately shoot him in the head. Generally speaking, police officers have good aim (or should at least be held to high standards in that respect), but it is easy to imagine how he could have ended up shooting Brown in the head without aiming for it, or unable to aim anywhere else. Not impossible, and as you’ve emphasized, we are not (yet) in a position to know what really happened. I do not think we must wait for legal decisions to be made before forming judgments (presumably in part because our judgment is revisable in a way that a legal verdict that brings punishment as one of its consequences is not). The state of the available evidence certainly doesn’t license the guilty-until-proven-innocent verdict that many seem to have passed, but \it’s awfully fishy.
A further question that complicates cases like these: do police officers have a right to respond to violence with force when that violence is in fact a response to force that the police officers have initiated? As a private citizen, my claims of self-defense ring hollow when I am defending myself against someone who was in fact defending himself against me. Presumably we owe the police (assuming, as I know anarchists would not, that police are not inherently unjust) some deference to their authority, including not resisting their efforts to detain us. But surely, too, that authority isn’t absolute or unconditional; I don’t owe it to the police to do whatever they say, whatever that is (even if I might find it prudent to do so, given that they have the guns). So what makes the difference?
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I didn’t see your comment until after I posted my most recent post on Ferguson today. As I think the post makes clear, we’re agreeing on just about everything.
What I regard as suspicious about Wilson’s shooting Brown is not that Brown was shot in the head, but the number of rounds Wilson used. If Brown was charging Wilson headfirst, that explains why Wilson would have shot Brown in the head (whether he was aiming at the head or not). What needs an explanation is why Wilson shot Brown six times. Admittedly, I have no experience with firearms, but as a citizen, I think I’m entitled to get an explanation for why it took six rounds to disable Brown, even if he was 6’4″. That, I take it, is what we’re waiting for. I agree that the state of the evidence justifies suspicion, but my point is that it doesn’t justify an inference of full-fledged guilt, and many people have begun to speak as though it does. One can entertain a suspicion while admitting that the suspicion is defeasible because there are so many possibilities out there.
This–the refusal to admit that initial suspicions are highly defeasible–is in fact a general problem that goes well beyond this case. Increasingly in American discourse (e.g., employment contexts and many others), people have taken to equating suspicion with guilt, or an arrest with a conviction, as though the sheer fact of generating suspicion or being arrested was an indication of guilt. Many police officers (and others) think that we have a moral obligation not to trigger probable cause, even if the triggering action is itself legal. And many people think that being-arrested is prima facie evidence of guilt. What’s interesting is the role played by probable cause in both inferences, and how ill-understood and under-theorized that concept is.
On your other question: I don’t think the police (or anyone) have a right to respond in self-defense if they themselves have initiated force. If X initiates force against Y, Y lacks a right to respond in kind. Having said that, a qualification: Y’s use of force must be narrowly tailored to stopping or neutralizing (as I like to say) X’s initiation, and no more than that. If Y’s response is narrowly tailored in that way, X has no right to respond. X only has a right to respond if Y goes overboard (even slightly overboard). Put more concretely: if a cop initiates force against you, and you disarm or disable the cop (even by seizing his weapon, assuming you don’t use it yourself), he has no right to respond. He only acquires such a right if you do more than what’s required to respond to him. This is of course an interpretation of the right of self-defense that has its risks, but that’s because contexts of self-defense are themselves so risk-laden.
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I suppose I’m dissatisfied with your answer to the question about when citizens have a right to resist initiation of force by the police because it seems as though the police necessarily initiate force as part of their job. If a cop pulls me over and suspects that I’m carrying drugs, and he takes himself to have probable cause to detain me despite my protest and desire to leave, then is he not initiating force against me (or, just as well for the purposes of this question, the threat of force)? If a cop decides just to pound my face in for fun, I would of course think that I have a right to resist (even if it would be imprudent to try to assert it). But the very nature of police is to be able, for the appropriate reasons, to initiate force against us and detain us against our will. Isn’t it?
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There’s a long answer and a short answer to your question. The short answer is that I don’t think that the nature of (legitimate) police work requires that the police initiate force against us.
The long answer is longer than I can give here, but it has to do with what I take to be the structure and content of rights within a teleological ethic. Rand defines “rights” as “a moral principle sanctioning and defining a man’s freedom of action in a social context.” In other words, a right tells you when you’re permitted to act without impediment, and tells you what you control in the way of your own actions. Since rights can be violated, they have to be enforced, and I’m going to assume ex hypothesi that enforcement requires the existence of police departments with the capacity to search, seize, and detain people when there is probable cause to believe that they have violated others’ rights. Let’s assume that there is some justifiable, determinate account of “probable cause” and that we’re restricting discussion to genuine rights-violations. In that case, I would say that the structure and content of everyone’s rights has to be sensitive to the conditions of enforcing those rights. No one has a right whose structure/content is such as to be violated by the justifiable requirements of the enforcement of legitimate rights. If so, no one has a right to act-freely-of-impediment-when-a-police-officer-has-probable-cause-to-believe-that-one-has-violated-the-criminal-law. When your actions trigger probable cause, your normal right-to-act-freely-of-impediments becomes a right-to-be-granted-procedural-justice-in-the-course-of-law-enforcement.
Regardless of Rand’s demagogic rhetoric about the untrammeled nature of our liberties, the preceding is that I take to follow from (a) a teleological theory of flourishing and (b) rights understood as contextually-sensitive principles. What our flourishing requires is a protected zone of autonomous control. But it doesn’t require a zone that is so wide that it exceeds the rational requirements of enforcing our rights. On my view, there simply are no such rights. If so, when you trigger probable cause, and you’re stopped by the police, they are not initiating force against you. You’re being impeded, but the impediment is not a rights violation or force initiation. And since probable cause refers to the state of the evidence at the time of the search/seizure, it’s compatible with the police’s being wrong. Even if you’re wrongly stopped (in the sense of being stopped [on probable cause] but not being guilty of anything) I would say that there’s no force initiation because there’s no right to violate. Your rights are violated if you’re stopped without a good reason.
Incidentally, on my view, threats of initiated force are initiated force. Your parenthetical on that is correct, but superfluous. Threatened force is sufficient for assault, whether the assaulter is a police officer or an ordinary person.
Your particular example is somewhat more ambiguous, because the person in it is stopped for carrying drugs, and I don’t think drug-carrying violates anyone’s rights. In that case, the police do initiate force. I don’t think any police force has the right to enforce drug laws, and I think that if you can get away with violating such laws, you commit no injustice against anyone if you do (except maybe yourself). I think it’s highly inadvisable to take recreational drugs, and even more inadvisable to try to get away with violating the drug laws by openly defying the police, but that’s a separate issue. Change the example, however, and my point would be that there’s no initiation of force. If you’re stopped for carrying VX nerve gas, the stop is not a force-initiation.
In the genuinely long version of this comment, I’d have to write a whole article on the conception of rights I’m presupposing here. I haven’t said anything in defense of it; I’ve just asserted it. But I think it’s what Rand is really committed to in the way of rights. It’s a far cry from deontological libertarianism (from any libertarianism, actually), and it’s also a far cry from standard-issue Movement Objectivism. But Rand herself seemed to grasp the issue correctly when she wrote about things like patents and copyrights. In those contexts, she defends rights which are robust, but are circumscribed by complex, teleologically justified provisos (e.g., copyright protection or patents with built-in time limits). If you reconceive rights across the board in this way, you get a very different theory of rights than most people associate with Ayn Rand. You get robust rights that are sensitive to (and circumscribed by) their necessary conditions of application. You don’t get a free-floating “right of liberty” that’s incompatible with the police work that’s necessary to protect liberty.
In other words, on my view, Objectivism is a perfectionism that weights liberty highly. It’s not a form of libertarianism. But even if I’m wrong about Objectivism, that’s the view I find defensible.
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That we don’t have a right to do things that enough-frustrate the general enforcement of (legitimate, genuine) rights seems… right. It also seems right that what explains this is that what rights we have is sensitive to what codifying and enforcing a system of rights accomplishes. (Or perhaps what we do or reasonably do take it to accomplish – the rights we have might be different from the rights that we information-ideally would have and the former may be a function of what people reasonably or rationally hold, not simply the facts. Some deep and hard issues, here.) And this, indeed, is a good strong reason against a straight-up deontological libertarianism (that would, for example, tolerate pretty bad general social conditions in an anarcho-capitalist social system as against clearly, systematically better social conditions that required the initiation of force) being correct. The deeper question, perhaps, is why we should accept a teleological view of rights (and perhaps obligation and permission in general) – as opposed to a straight-up, ends-insensitive deontology – and what this comes to.
(One beginning to an answer to this question treats the less-ideal and more-ideal rationality of being strongly motivated not to PHI – as when one takes oneself to be morally required not to PHI – as a function of the less-ideal or more-ideal rationality of participating in and otherwise promoting a social practice of mutual disallowing and not-disallowing (and appropriate responsiveness to such). Because it is less-ideally or more-ideally rational to participate in the relevant such social practice, it is rational to have the “deontological) motivational (and hence action) responses that are part and parcel of such participation. In this way, I think we have (strong “deontic”) reason not to assault someone (who has not assaulted us first) because we have reason to participate in a mutually-regulative social order that requires our being strongly motivated not to thus assault people.)
Here is a big concern I have with your framework, Irfan: you slip from talking about rights-violations to talking about what constitutes the initiation of force as if these were the same thing. It is not obvious that they are. Why aren’t ‘force’ and ‘the initiation of force’ straight-forwardly descriptive concepts, so that the cop might initiate force (in stopping you because you probably, relative to his reasonable beliefs, violated someone’s rights) but not violate your rights in doing so? This is an alternative way of framing things that I find much more intuitive. Though I think the case could be made for my way of thinking about force and its initiation on general grounds that concern the relationship between the (merely) descriptive and the normative/evaluative, right here and now I cannot make this case. In any case, we need some neutral ground for determining which way of framing things here is more faithful to the world.
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I agree with your first paragraph.
I don’t disagree with your second paragraph, except that I don’t think there’s any need to invoke deontology to say what you’re saying.
Re the third paragraph, I’m not totally sure we’re disagreeing. If so, the disagreement might be purely terminological. But let me back up a bit and describe what I take to be the rationale for rights. Assume (maybe ex hypothesi) that we accept some broadly objectivist conception of well-being or flourishing. Assume that that conception entails that we have to exercise our own autonomous rational judgments in order to flourish. And assume that that commitment entails in turn that our flourishing requires individualized zones of control over ourselves and things in the world by which and on which to exercise our rationality. These zones have to be clear, predictable, and robust (let’s assume): there will be some zones such that those zones are inviolable. Finally, suppose that the zones can be circumscribed so that no one is disadvantaged by a given set of zone-delineations. For any X and any Y, both X and Y are made better off by the ideal set of zone-delineations. Once that whole conceptual machinery is in place, I would define both force-initiations and rights-violations as unconsented-to zone crossings (or boundary violations/crossings). All that the phrase “force initiation” adds is the fact that a rights violation initiates an unconsented-to boundary crossing. Once you have all this in place, it becomes a “straightforward descriptive” matter when you have a force initiation (or a rights violation). If the boundaries are well-defined, the question just becomes: were they crossed without consent, yes or no?
We could quibble about the terminology here. There will be cases in which an agent is stopped (or blocked or impeded) by someone else’s actions, and where the stoppage/blocking/impediment is not a boundary crossing. Colloquially we often call those stoppages cases of “force.” But the point is, we need a special terminology for the cases of force I’ve just described, so as to distinguish them from the thousands of sorts of cases where you have A’s unwanted causal influence on B, where the unwanted causal influence impedes B (possibly to B’s detriment, but isn’t a boundary crossing. I don’t think that it’s wrong to use the word “force” to describe the boundary crossings. In its colloquial sense, “force” is an overly broad concept. Consider the phrase “I was forced to…” It’s equivocal as between “someone violated my boundaries,” and “someone’s actions constrained my options.”
Force might have been a straightforwardly descriptive concept if it had clear perceptual referents, but it doesn’t. People sometimes think they can perceptually differentiate force-initiations from non-initiations, but that’s a mistake: punching someone in the face seems, perceptually, like a force initiation, but there is no perceptual way of identifying a case of assault, embezzlement, or even the sort of noise that ought to violate a noise ordinance.
As I see it, the only neutral ground for determining how to frame things is a prior account of the justification for rights, and in my view that prior theory is a virtue-oriented account of well-being. I don’t think we can abstract from that and intelligibly discuss either rights or force. The best argument I’ve seen for the sort of view I have in mind is David Kelley’s article, “Life, Liberty, and Property,” Social Philosophy & Policy 1 (1984).
One final point that I hadn’t mentioned before but needs to be factored in. We don’t live in a regime in which there are institutions that regularize consent to the government. That induces libertarians and anarchists to think that there is no consent to government. I don’t accept that. I think many people do consent to government, think they do, and would expressly consent if they were expressly asked. If that’s so, it’s not clear to me that police work is unconsented-to even when it’s unwanted on a given occasion. If I consent to there being traffic laws, and I’m then stopped for violating one, I may have a temper tantrum at being stopped at that act-token even if I consented to being stopped for acts of that type. Is that consent to being stopped? I’d say it is. Can you consent to being arrested? I think you can. I don’t mean to imply that everyone consents, or that everyone consents to everything, but we have to leave open the possibility that there is some tacit (but actual) consent to government. It’s an exaggeration to think that because my consent to government doesn’t look like my consent to a credit card agreement, I don’t consent at all.
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That’s very helpful. I keep expecting to disagree with you, and here I think I might in some important ways, but I happily accept the structure of your claims about rights as context-sensitive principles required for flourishing and the fact that those principles do not include a right to act-freely-of-impediment-when-a-police-officer-has-probable-cause-to-believe-that-one-has-violated-the-criminal-law, provided at least that the criminal law is itself not hostile to one’s flourishing. I also find the distinction between impediment and the initiation of force helpful. I typically see myself as rejecting the non-aggression principle on the grounds that lack of consent is neither necessary nor sufficient for injustice, so that if force is understood as bringing someone to act contrary to his will, the initiation of force is not categorically unjust. The force/impediment distinction would allow liberty to play a major role consistent with the rejection of robust versions of the non-aggression principle. I suspect that where I would be inclined to disagree is in the weight given to liberty. You observe that the perfectionist Objectivism you’ve outlined is not a form of libertarianism, but it does seem to entail that a fairly minimal state along Lockean lines is a requirement of justice. I’m not convinced that a defensible conception of flourishing wouldn’t at least allow for more robust political arrangements that classical liberals would reject, even it doesn’t see them as requirements of justice (my sympathies with left libertarian and anarchist thought mostly hover around the suggestions for how a substantially just society could be achieved without the state, and so I am agnostic on the issue of whether more-than-minimal arrangements could be required for justice, but I am far more convinced that they are not inherently prohibited by it. But working through that issue would require assessing competing views of flourishing and what is required for it, and the difficulty of resolving debates about that is, of course, the single strongest motivation for deontological liberalism. So I don’t expect to be able to accomplish that any time soon.
Classes have started at Rice, so I’m bound to be much slower in replying over the coming weeks.
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I agree with all of that except this:
I think what it entails is a limited state along Lockean lines, not a minimal one. What’s essential is that the state’s scope and authority be circumscribed by clear, determinate, defensible principles, not that the state have any particular size or cost requirements. What I don’t like about the phrase “minimal state” is the implication that the state has to skimp–that trimming, shrinking, and cost-cutting ought to be our basic attitude toward the state.
I’m open to the possibility that we not only drastically need to shrink the state in some respects, but drastically need to expand it in others, (e.g., legal services, to take one of many items on my wish list). Even if we restrict the state to protecting us against force initiations, I’m inclined to think that it has a lot more work to do than most libertarians or Objectivists think it does. And then we face the additional issues of what counts as a force initiation in the first place, and whether the state must always be restricted to the regulation of force. So it may turn out that however we describe them, we agree that “more than minimal” arrangements are required for justice.
Another disagreement, I guess: though I have some sympathy with left libertarianism, I find anarchism hopelessly implausible.
Classes begin at Felician this Wednesday, so I’ll be slowing down a lot, too. My overarching strategy is to invite a lot of overwhelmingly busy people to blog here, on the premise that if you add up their individually infrequent contributions, you get collectively frequent contributions.
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Just a quick note to dispel the appearance of disagreement: I too find anarchism hopelessly implausible, but I have been awakened by anarchists of the CSS variety and left libertarians of the Bleeding Heart variety from dogmatic slumber in the form of the supposition that the promotion and protection of just social arrangements requires robust state intervention. That’s not at all to say that I’m convinced (especially by anarchism), but simply that I am now considerably more sympathetic to non-state alternatives and to criticisms of state efforts. Nicely, however, that dovetails with my longstanding tendency to accept the quasi-Thomistic principle of subsidiarity. Unfortunately, none of this leads me to any very concrete thoughts about effective political change. So I might be inclined to disagree with you on the level of policy, but so far I’m more or less with you at the more abstract level.
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Understood. I was going to blog this separately when I had time, but here are two semi-pertinent observations from my recent visit to Nicaragua:
For one thing: I was surprised at the degree to which (wealthier) Nicaraguans rely on armed private guards–rather than the police–for security. I don’t know enough about the country to know whether that signals a case of state failure, but the larger charitable organizations and even larger department stores all seemed to be protected by private security forces that were much more police-like than what we’d expect to see in the US. I got the impression that this was in part because there is no real tradition of local government in Nicaragua: there is a national police (Policia Nacional), but no equivalent of local police departments, so that citizens are often thrown on their own devices for things one would expect to be provided by the state.
There’s a private institution in Nicaragua called the comedor. Dictionaries translate “comedor” as “cafeteria,” “dining room,” or even “restaurant,” but that gets the connotations wrong (at least as applied to this particular institution): the meaning of comedor in this context is really something closer to what Aristotle had in mind in the Politics when he praises the Cretan practice of meals in common. A comedor is where one gives (or has) meals in common, except that comedores are essentially private. (The common meals that Aristotle praises are “public,” and in that sense part of the polis.) I think some comedores might get some funding from the Ministry of Health, but in general they are self-sustaining. The ones I visited provided meals (and a home away from home) for poor children.
As someone who started life as a garden-variety liberal Democrat, I probably would have missed the significance of such institutions had I not been exposed to libertarian/anarchist social theory. Incidentally, in case you haven’t seen it before, you might want to check out David Keyt’s “Aristotle and Anarchism” in the 1993 Reason Papers, which offers an Aristotelian rationale for anarchism.
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