Justified and Philosophy

JOHN R. FITZPATRICK

The journalist Radley Balko has for years now been covering the consequences of the War on Drugs and the subsequent changes in what are considered acceptable police tactics. An early example comes to us from January 1992. A team of narcotics officers in Gregg County, Texas, conducted a no-knock raid on the home of Annie Rae Dixon at 2:00 A.M. An informant, according to the officer’s account of events, had purchased crack cocaine from Dixon’s granddaughter.

At the time of the raid, Dixon was suffering from pneumonia, and as we would expect was asleep in her bed. According to Officer Frank Baggett, Jr. as he kicked open the door to Dixon’s bedroom, he lost his balance, and this caused the accidental discharge of his weapon. As a result, a bullet was fired directly into Dixon’s chest. She was dead almost instantaneously. The police found no illegal drugs in her home, no guns, and no evidence of any illegal activity. It also turns out that the narcotics team was performing a raid out of its jurisdiction. Dixon’s home was not in Gregg County but in neighboring Smith County.

Annie Rae Dixon was eighty-four and a paraplegic.

A Damn Shame

An inquest was held. As is often the case in these incidents the police officer, Baggett, was white, the victim, Dixon, was black. The inquest divided along racial lines. A subsequent grand jury declined to press Baggett with any criminal charges. One black county commissioner expressed the frustration of his community to the New York Times as follows: “People can’t accept the idea that an eighty-four-year-old grandmother gets shot in her bed and it’s not even worth a negligence charge.” he said. Balko reports:

Once again, an innocent person died in a drug raid that turned up no drugs, weapons, or criminal charges. Once again, no one was held accountable, and no policies were changed. And so once again, the inevitable message sent to Annie Rae Dixon’s friends, relatives, and community is that dead innocent 84-year-old women are a regrettable but inevitable—and therefore acceptable—occasional outcome in the war on drugs. Annie Rae Dixon was more collateral damage.

The killing of Annie Rae Dixon was justified. Or so the defenders of the no-knock raids would argue. After all, Baggett was just following procedure, and accidents happen.

Time’s Up

As the TV series Justified opens, we find our central protagonist, US Marshall Raylan Givens, searching the patio of a swank, sunny motel. He sees a man sitting at a table. This is the man Raylan has been looking for, so he approaches the man, sits down, and says, “The airport is a good forty-five from here, but I figure you’ll be alright if you leave in the next two minutes.” It turns out that Raylan has given the man twenty-four hours to leave town, and that the twenty-four hours is about up.

The man tells Raylan how much he loves Miami, and how he is loath to leave. He suggests he and Raylan share a meal, and how good the crab cakes are. Raylan’s response: “One minute.” The man seems bewildered. How can Raylan, a law enforcement officer, give him twenty-four hours to leave town or he will be shot on sight? When he tells this to his friends, they suggest Raylan must be joking. Raylan responds: “You tell them about the man you killed, or the way you did it? ’Cause I found nothing funny in that.”

The man asks for some slack. After all, he once was in a position to kill Raylan and he didn’t; does he not deserve some credit? Raylan agrees, which is why he is still allowed to leave: “Thirty seconds.” The man asks how this is supposed to work. Will Raylan gun down an unarmed man? In front of all these people? Raylan scoffs at the idea that he is unarmed, and says: “Twenty seconds.” The man is still puzzled, and Raylan says: “Ten.” As time expires the man pulls his piece, and is outdrawn by Raylan who calmly shoots him three times in the chest, pausing slightly between each shot until the man drops his gun. We later discover that the man is dead.

And the killing is deemed justified. After all, a man suspected of being both a killer and high-ranking member of a drug cartel drew his weapon first. And yet, as with the case of Annie Rae Dixon, but for the use of aggressive police tactics, it is not clear that anyone would have had to die.

Proactive Policing

David Packman has defined proactive policing as follows:

The use of nearly autonomous elite police units that are trained to be more aggressive than regular officers as a response to gang and drug related violence by targeting people they suspect of being criminals before they commit crimes. These units are encouraged to use whatever tactics they can get away with in order to get results, those results being a high arrest rate.

The use of these units and their aggressive tactics is on the increase. And as Radley Balko has argued this cuts against many important American values. Most importantly, many Americans have long supported what is known as the “Castle Doctrine,” the idea that your home is your castle and that you have the right to lawful self-defense against those who would intrude upon it. But as Balko notes, in an age of aggressive police tactics this right may be highly diminished. In the last twenty-five years, there has been a growing militarization of all branches of law enforcement, along with what Balko calls “a dramatic and unsettling rise in the use of paramilitary police units (most commonly called Special Weapons and Tactics, or SWAT) for routine police work.”

It’s becoming increasingly common for these SWAT units to serve warrants against suspected drug dealers and users even when the warrant does not suggest that these individuals are suspected of violent crimes. And these units’ usual tactics include forced, no-knock entry into homes in the middle of the night. One estimate suggests that these kinds of raids are becoming increasingly frequent, and now number over forty thousand.

Balko maintains that these tactics are unnecessary with most nonviolent drug offenders, dangerous to bystanders, and often wrongly subject individuals to the extreme fear—can we say terror?—involved in having teams of what do not appear to be normal police but rather heavily armed paramilitary units invading their homes in the middle of the night. After all, many nonviolent drug offenses are only misdemeanors.

Even worse, these raids can target innocents when police are mistaken as in the case of Annie Rae Dixon. And the costs of the unintended consequences of these raids can be enormous and lead to needless deaths and injuries. Once again, most drug offenders are not violent criminals. But in a country with as many guns as ours, entering other people’s castles is dangerous business, and the resulting gunfire will be dangerous not merely to drug offenders, but also to their children and other bystanders, and even to the police.

The problem is that these aggressive tactics may work well in theory, but in practice they can go horribly wrong. In the opening scene of Justified Raylan’s tactics seems to work. He has provoked the man he knows to be a killer and a drug dealer into drawing first, and this killer and drug dealer’s death seems justified. But we can imagine this scene going horribly wrong. In the scene our villain draws his gun, but is shot before he can fire it. But we can imagine a scenario where our villain fires off a few rounds, and Raylan misses once or twice before dispatching our villain. Now we have a situation where a gun battle has taken place in an urban, target rich environment. And if one misplaced round can kill Annie Rae Dixon in her home, so could several have injured or killed one or more of the many innocent civilians around the hotel’s pool.

But even as Season One of Justified plays out, Raylan’s aggressive tactics have unintended consequences. The head of the cartel finds Raylan’s cold-blooded execution of his lieutenant requires a response. After all, if the police play aggressive one can expect tit for tat from the bad guys. This leads to the gun battle that ends Season One. And this leads Raylan to another aggressive tactic as a response. He kidnaps the cartel head’s wounded niece, hijacks a plane, and flies her to Miami to bargain with her uncle. Only on TV could this work out for the best.

Suspiciously

But the second part of David Packman’s concern is also represented in Raylan’s behavior in Justified. Raylan is often pursuing groups of individuals who have not been charged with crimes, but whom he has suspicions or reasons to believe may be engaged in ongoing criminal enterprises. As usual, those concerned about civil liberties will be concerned about police targeting the eccentric because they act “suspiciously.”

There are many reported cases of police targeting minority youth because they fall under an overly broad profile. One example involved police placing Asian female high-school honor students on a list of potential gang members. Why? Because their baggy jeans and tight tops were purportedly popular with supposed Asian female gang bangers. The largely white and middle-aged gang unit didn’t consider that they might be completely clueless about what teenage Asian girls in general find attractive; this example does give new meaning to the term “fashion police.”

There are several examples of Raylan prejudging groups in the series, but his treatment of the Bennett clan in Season Two is informative. Since he’s right about the Bennetts, his aggressive tactics, once again, seem justified. But it is often the case that Raylan directly or indirectly gets people killed. And there’s an important moral question here. Do we really want to support police targeting and tactics that lead to the deaths of individuals when there is little possibility of the individuals being sentenced to death in a court of law? Do we want our Raylan Givenses and our SWAT teams to be judge, jury, and executioner?

Ricochet

In the final episode of Season Two Raylan finds himself concerned about Loretta. She seems to have a gun, and is headed to the Bennett compound to confront Mags about her father. To gain access to the Bennett compound Raylan kidnaps Dickie Bennett and has Dickie drive him there. On arrival, Raylan confronts Doyle Bennett at the gate, and threatens to blow Dickie’s brains out unless he’s admitted.

A tense Mexican standoff then ensues; Raylan points his pistol at the back of Dickie’s head, and a dozen members of the Bennett crew point rifles and shotguns at Raylan. This ends when one of the Bennett crew, in what appears to be a nervous accident, fires several rounds into Raylan’s car. A ricochet catches Raylan in the abdomen; he falls to the ground and loses his weapon. Doyle cocks and points his pistol at the now unarmed Raylan, and suggests he is about to do what he should have done twenty years earlier. As he is about to fire, a bullet hole magically appears in Doyle’s forehead. He appears to have been shot by a sniper. The explanation ensues when a large number of US marshalls emerge from the woods with SWAT-team armament. What is left of the Bennett crew surrenders. Later, when Mags learns of Doyle’s death she commits suicide.

In retrospect, Raylan appears to be the beneficiary of a highly unlikely outcome. If the nervous shooter had shot differently he would be dead. Ditto the marshall’s service not showing up, or not showing up in time to place a sniper. But the real piece of luck was the stunned response of the Bennett crew to uniformly fail to fire into the woods after Doyle’s death. One nervous round from the Bennett crew, or for that matter one nervous round from the marshalls, would have led to a blood bath.

Means and Ends

We live in a society that seems to glorify proactive policing and aggressive police tactics. And while these tactics can often be “justified,” as Raylan Givens’s shootings are on Justified, lots of people will be troubled with this the-ends-justifies-the-means approach. Many of the actions that Raylan performs are clearly illegal. But we can further ask: are these actions wrong?

David M. Kennedy is a professor of criminal justice, and an opponent of many of the usual aggressive police tactics. In a discussion of street stops he notes that the law regarding search and seizure is crystal clear: when the police stop somebody on the street they are allowed to pat someone down as a check for weapons. This is justified by appeals to officer safety. But that’s it! To go further requires probable cause. But in many crime-ridden inner city neighborhoods, police procedure is to routinely violate the rights of minority young men. This is so common that Kennedy reports officers routinely empty the suspects’ pockets, look through their socks, check their mouths for contraband, and none of this is legal. It’s so routine that Kennedy reports watching an episode of the TV show Cops showing a police officer searching for someone who had stolen some lawn furniture. While searching for the lawn furniture thief the officer runs across a young man he knows, stops him, and goes through his pockets. Not only “totally illegal,” but so routine that the officer will do it: “on TV.”

Someone might want to argue that given the crime rates in these communities the search and seizure law is too restrictive, and prevents effective policing. Perhaps these laws should be changed. But the current law is the current law! Can the police really be justified in breaking it? Do the ends justify the means?

Ethics basically gives us two approaches to answering a question like this: the deontological approach, which requires us to follow rules of conduct that conform to duty, obligations, and rights, and the consequentialist approach which looks at the desirable or undesirable consequences of our actions.

According to deontological ethics, stopping the young man who is clearly not the lawn furniture thief, let alone turning out his pockets, is just wrong. If the police don’t have a moral duty to respect the law, follow its obligations, and respect the rights of citizens, then it would be hard to argue that anyone should. Under this ethical approach Raylan’s playing fast and loose with the law can’t be justified, regardless of any important ends that he might achieve.

Applying consequentialist ethics requires us to perform those actions that will produce the best consequences when the interests of all relevant parties are considered. Under this ethical approach we can at least ask whether kidnapping individuals and holding them at gunpoint is okay, as long as these terroristic threats lead to good results.

The problem for Raylan is that even many who follow consequentialist ethics will wonder, when the police abandon the law so flagrantly, whether they are causing more harm than they are preventing. Raylan Givens leaves in his wake a large number of body bags. Did all of these people need to die? And if not, should we prefer a less proactive style of policing?

According to David Kennedy, much of proactive policing is deontologically wrong, and even from a consequentialist perspective it has not worked. Proactive policing has put a lot of people in prison. A recent Human Rights Watch report tells us that since 1980 the federal prison population has increased over 700 percent and in the last twenty-nine years the state prison population has increased 240 percent. For every 100,000 black men in the country 3,023 are currently in prison. (The number for white females is 51.)

While the murder rate has fallen dramatically for the country as a whole in the last twenty years, in the neighborhoods where proactive policing occurs the murder rates have in many cases gone through the roof. As Kennedy reports, at its height the murder rate for the nation was roughly ten per 100,000, and it is now about half that. But nobody lives in the country as a whole; we all live in specific neighborhoods. So, it turns out that the murder rates for many young black men in the worst neighborhoods have never been higher. In a recent year the murder rate for young black men in one high-crime Rochester, New York, neighborhood was 520 per 100,000. If this is proactive policing working, we can only wonder what its failure would look like.