"Justice Has Not Been Done": Qualified Immunity and the Use of Force in Jewish Law

This source sheet is a preliminary version of two articles I published on these issues.

Here is a link to the first part, which focuses on police bias and the use of force:

https://www.thelehrhaus.com/commentary/justice-has-not-been-done-officer-immunity-and-accountability-in-jewish-law-part-1/

Here is a link to the second part, which focuses on immunity for police officers:

https://www.thelehrhaus.com/timely-thoughts/justice-has-not-been-done-officer-immunity-and-accountability-in-jewish-law-part-2/

Qualified Immunity is a legal doctrine that protects police officers from lawsuits. In the words of the Supreme Court, “Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

In practice, this broad legal standard has served to protect countless abusive police officers from being brought to justice.

Here is a link to one article discussing its consequences:

https://www.usatoday.com/story/opinion/2020/05/30/police-george-floyd-qualified-immunity-supreme-court-column/5283349002/?utm_campaign=qiawareness&utm_medium=Facebook&utm_source=Native+Social&fbclid=IwAR0LkCa7bhRvus8xPBt1jbvpYIZr-WVqGCBoWTXWK_uaZcZUEgbfkm1kdBM

The article points out that Derek Chauvin, the officer who murdered George Floyd, may be immune from prosecution because there is no specific precedent for an officer being prohibited from kneeling on a person's neck long enough for him to suffocate and die.

This source sheet discusses the degree to which officials permitted to exercise force are liable to punishment if is excessive and leads to severe injury or death.

[Discuss U.S. police standards for the use of force vs. those of other countries.]

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1014&context=ihrc

Generally, according to Halakhah, people who damage other people or property are liable even if they did so by accident:

Though a person who hurts another by accident without intent to humiliate another does not have to compensate the victim for their humiliation:

The question is whether this applies to court officials. In talmudic times, there were two specific circumstances under which governing officials could use physical force.

One was when a person violated a prohibition subject to lashes. Before administering them, the court would assess the number of blows the person could receive without endangering them.

The other was when a community member was summoned to court and refused. In such cases, a messenger of the court would use physical force to "persuade" the recalcitrant person to agree to come to court.

But what happens if either of these officials used excessive force and the person became severely injured or died?

The case of lashes is (relatively) simpler: If the person administering the lashes adds on to the set amount of lashes (presumably because he lost count), he has violated a Torah prohibition. If the person dies because of that, he is liable to exile for murdering unintentionally:

But what about the cases of a messenger summoning a recalcitrant litigant to court? If the messenger uses excessive force on a person who dies, does the agent subject to exile?

This opinion in the Mishnah may be speaking about such a case, though it is not completely clear:

However, the Tosefta in Ch. 2 of Makkot seems to disagree with Abba Shaul. (The second chapter of Tosefta Makkot, along with this passage, appears in the Erfurt manuscript version, not in other manuscripts.):

Maimonides understands the Mishnah as speaking about the case of a court emissary beating a recalcitrant litigant and decides the Halakhah in accordance with Abba Shaul:

On the other hand, Ra'avad disagrees with Maimonides and appears to believe that the Mishnah is also speaking about a court agent mistakenly murdering someone when administering lashes:

Many commentators challenge the Ra'avad because a separate Mishnah already speaks about killing a person when administering lashes. However, from Ra'avad's critique it would come out that a court agent beating a litigant COULD be exiled for accidental death, and the idea that he was doing a Mitzvah would not protect him in this case.

Even according to Maimonides, we may still ask whether there are limits on his Halakhah. What if if the court agent realized--or should have realized--that he was endangering the other's life? Would he still be protected from exile? Alternatively, if he realized he was endangering the other's life, it could be considered near-willful murder. According to this possibility, he wouldn't be exiled, though this would be a punishment, since he wouldn't be protected from the deceased's next-of-kin, and wouldn't be able to use it to atone for his grave sin.

Even more complicated is what happens if a person is injured due to excessive force.

The earliest discussion regarding the personal liability of a court agent for injuries is in the Tosefta. Three distinct passages in the Tosefta discuss this issue and each one appears to give a different ruling:

The above passage from the Tosefta suggests that the court agent is exempt unless the he hurt him willfully. Whether or not the agent is liable revolves around the issue of intentional vs. willful damage.

(Footnote: Tosefta Kifshuta Gittin 3:13 understands "shogeg" as a case in which the court officer added unnecessary blows by mistake, while "meizid" refers to a case in which he intentionally added extra blows. R. Lieberman tries to read this understanding into Tashbetz. Such a reading deviates from conventional understandings of these terms when used to discuss damages. As we will discuss later, this understanding cannot be found in the words of Tashbetz himself. Chazon Yechezkel Gittin 3:13 understands "shogeg" and "meizid" conventionally, that is damaging the other person by accident or on purpose.

In contrast, this passage of the Tosefta suggests that the court agent is always exempt from paying, though he still has a moral obligation to pay for any damages:

Finally, this passage suggests that the criteria for liability is whether or not the agent used more force than appropriate given the situation:

These passages seem to each have different criteria for the liability of the court agent. One thing they do have in common is that they all assume some degree of possible liability [even if only moral] for the court agent. That being the case, can they be reconciled with the Mishnah in Makkot that exempts the court agent from exile in the case of accidental death (which Maimonides codifies), or are they more akin to the Tosefta, which states that the court agent [as well as the physician] who kills accidentally is exiled?

Ramban, in his Torat Ha-Adam, discusses the liability of a physician who makes a mistake and harms or kills their patient. Although Ramban doesn't directly address the case of the court agent we can understand from his discussion of the doctor how he reconciles these different passages:

Here is my translation of the Ramban:

This [the idea that the physician is exempt from accidental damages to encourage him to engage in healing] is difficult for me, since we learned in the Tosefta: "an expert doctor who heals with the authorization of the court and damages [and kills the patient] is exiled." Clearly, there are indeed punishments for unintended harm.

It is possible to explain it this way: A doctor is like a judge who is commanded to judge, and if he errs without realizing, he is not penalized at all, as it is stated: Lest a judge say 'why do I need all of this trouble?' Therefore the Tanakh states: 'I will be with you in matters of judgment' since the judge can only proceed based on what he sees. nonetheless, if he errs and it becomes known to [a greater] court that he erred, the judge should compensate the person who lost from his own pocket in ways that he can.

Although if he judges with the court's authorization he is exempt, here too [the physician] is exempt from having to pay in human court. However, he is not exempt in the heavenly court until he pays for damages and undergoes exile for the wrongful death [of the patient] once it becomes known that he erred or caused death.

There is a similar teaching in the Tosefta in Bava Kamma regarding the exemption from damages in human court and liability in the heavenly court: "A skilled doctor who heals with the authorization of the court is exempt from liability according to human standards but his judgment is handed over to heaven. Nonetheless, if he doesn't realize [his mistake], he is not liable at all, just as a judge is completely exempt whether according to human legal standards or from penalty from heaven. This is all provided that he is appropriately careful with human lives and does not damage out of negligence.

This explanation by Ramban is somewhat opaque (as we will see later on, other commentators also have trouble figuring out what he means by his answer). To me, however, Ramban seems to be distinguishing between legal obligation to pay for accidental damage and a moral obligation to pay. To my understanding, Ramban seems to be suggesting that the Mishnah in Makkot saying that the physician and court agent are not exiled is speaking on the level of legal obligation. The Tosefta, on the other hand, is speaking about a moral obligation to undergo exile if and when they discover that they were mistaken.

Similarly, the Tosefta stating that the physician or court agent are exempt in cases of damage is speaking about legal liability, but that, as per the other Tosefta, they have a mandate from Heaven to pay for damages. Presumably, Ramban would say that the Tosefta about being liable if the court agent hit more than necessary is speaking about a case in which the court agent was negligent in the amount that he hit the litigant.

At the very least, I would like to emphasize Ramban's comment that any lack of liability is ONLY when the physician (or court agent) is as careful as appropriate to prevent themselves from excessively hurting or killing the other. In cases of negligence, the court agent and physician would be legally liable and would be exiled (or worse) in cases of wrongful death. Clearly, should the court agent act carelessly (even if he didn't know precisely that the specific action in that scenario was unacceptable), he would be held personally liable.

(Footnote: The Ramban's citation of the Tosefta in Makkot suggests that he holds that a doctor who mistakenly kills his patient is exiled. The Shulchan Arukh in YD 336:1 follows this opinion. Many commentators are bothered by his approval of this law, since the Tosefta groups the law regarding the doctor together with that of the court agent. That being the case, even though Abba Shaul in the Mishnah in Makkot does not specifically speak about a doctor, his logic should dictate that the doctor should also be exempt from exile, since the doctor is also doing a Mitzvah. Many of those who defend the Ramban try to distinguish between the case of the doctor and that of the court agent. For greater discussion of this topic, see Besamim Rosh 386 and Mareh HaBazak VII 108:6 footnote 1.

In his Sefer HaTashbetz, Rabbi Shimon b. Tzemach Duran gives his own reconciliation of these sources and tries to explain what Ramban meant.

R. Shimon b. Tzemach first explains the Tosefta in Gittin as to why there should be a difference between intentional and unintentional damage and the role that Tikkun Olam plays in the ruling. He writes that, really, a court agent and a doctor should really be liable for even unintentional damages, since, generally, unintentional damage by human beings is still liable. However, because the rabbis were concerned that the possibility of paying for unintentional damages would serve as a major disincentive for those who would serve as a physician or court agent, they decreed that these professions should not be held liable in such cases because of Tikkun Olam:

Tashbetz reconciles all of the passages of the Tosefta by saying that they share the same message: the doctor or court agent who damage unintentionally really should be liable for damages. However, in order so as to not discourage them from undertaking these communal needs, the rabbis declared them exempt from having to pay, though they still should ideally pay for such damages as per their "judgment in Heaven." He also equates acting more aggressively than is proper to the situation with willful damage.

Tashbetz's explanation parallels the argument that agents of the state should be granted immunity to prevent them from avoiding a necessary state function (though, again, Tashbetz believes that the court agent still has a moral obligation to pay). That being said, we must analyze which cases he considers "unintentional" and thus subject to immunity and which he considers "intentional."

In my opinion, Tashbetz's equation of "more than appropriate [yoter min haraui lo]" with intentional damage holds the key to understanding these boundaries. I understand haraui lo as appropriate to the situation, or to put it another way, according to protocol. If a situation with a particular litigant would generally call for a particular degree and type of force, the court agent is not allowed to use a greater degree of force. If the court agent diverges from protocol, he is considered to be negligent--and thus legally willful-- towards the person he is correcting. Even if the agent had no direct intent to cause injury or death, his deviation from these general standards means that he is considered a willful damager and thus not protected by immunity.

This standard is quite different from the current standard of partial immunity, according to which police are protected from lawsuit unless their specific actions are demonstrably illegal. Or, to put it another way, the policeman's actions are assumed to be legal until proven otherwise. In contrast, Tashbetz errs on the side of liability, believing that any use of force greater than appropriate makes the agent liable.

Rabbi Meir Simcha of Dvinsk, in his Or Sameiach, makes different distinctions between the Toseftot:

The Tosefta in Bava Kamma chapter 9 (which distinguished between whether the agent struck more than necessary) is speaking about the other four payments, which are more likely to depend on the intent of the perpetrator. By only striking as much as would be typical, the agent demonstrated that he had no particular intent to hurt the litigant, and thus he would be exempt from these four payments, even from the Heavenly perspective.

The Tosefta in chapter 6 (which distinguished between earthly and Heavenly courts) is speaking about general damages, which require a lower standard of intent to make one liable. However, like Tashbetz, R. Meir Simcha puts this Tosefta together with the one in Gittin. Really, the court agent should be liable, even if he hurt the other unintentionally, since humans are liable even for unintentional damage. However, to improve the world and ensure that people would be willing to serve as court agents or doctors, the rabbis decree them exempt from damages. Nonetheless, they still have a mandate from Heaven to pay for damages.

Regarding exile, however, R. Meir Simcha disagrees with Tashbetz's assertion that the father or court agent have a heavenly obligation to exile themselves. R. Meir Simchah instead believes that the Tosefta in Makkot disagrees with Abba Shaul in Mishnah Makkot. Since Maimonides decides the Halakhah in accordance with Abba Shaul, the father and court agent have no obligation whatsoever to exile themselves since they were in the act of doing a Mitzvah when they unintentionally murdered.

He therefore assumes unlike Tashbetz that exile for unintentional murder and money for damages are categorically different in that the Torah protects these "Mitzvah doers" from exile because they are believed to be engaged with Mitzvot. Damages, on the other hand, have no such inherent protections, which is why they are subject to liability (if only on a Heavenly level). Tashbetz, however, assumes that doing these Mitzvot does not create complete immunity even from exile. For him, the court agent is liable for both, if only on the Divine level.

The above sources had discussed liability for unintentional damages. However, should the court agent have an obligation to de-escalate the situation and try to accomplish his task with more minimal force? Could his failure to de-escalate be held against him, even if the specific damage he did was unintentional? What if he had to use physical force but could have used less than he did?

It may be possible to determine the answer to these questions by examining a talmudic passage on Bava Kamma 28a. The context is the Gemara's discussion of whether a person is allowed to take the law into their own hands. For example, if a person steals from me, am I allowed to use physical force to retrieve my possessions, or do I need to use legal means and take the other party to court?

The discussion starts off with a story on Bava Kamma 27b, in which a partner in a well prevents the other partner from using the well on the latter's day:

The Gemara then proceeds to explain that everyone agrees that this debate about taking the law into our own hands does not apply in a case of loss (hefsed). If a person would have lost money or would be hurt by waiting to take the other party to court, then doing so is unnecessary. Instead, the only debate between these opinions revolves around cases in which a person could win all of their money in court, but would have to deal with the hassle of the effort.

Later on within the discussion, the Gemara attempts to prove that one is NOT allowed to take the law into their own hands. The prooftext is a Halakhic Midrash on the biblical passage detailing a wife grabbing the genitals of a man fighting her husband. While the Torah states that the woman's hand is cut off, but the Midrash teaches that it just means that she must pay monetary damages.

The Gemara first presumes that the woman would not have been able to save her husband without grabbing the other man's genitals, and yet she is still liable to pay for her actions.

At the end of the passage, the Talmud answers that if the situation had been that the woman couldn't save her husband any other way, she would be considered an agent of the court [who is permitted to use physical force] and thus be exempt from paying for damages:

In the passage, the Gemara defeats the attempted proof by saying that the Torah only makes the woman liable if she could have saved her husband without grabbing the other man's genitals. However, if she could not have saved her husband in any other way, she is considered to be like an emissary of the court, in which case she would be exempt.

How far can we take this equation between the usage of force and acting like an agent of the court? In other words, the comparison teaches us about the legal status of the woman's actions. But can we also use it to teach us about the boundaries of when a representative of the court is allowed to use physical force?

Just as the woman is only exempt as a court agent if she could not have saved her husband any other way, shouldn't the same apply to a court agent? If a court agent beats someone when he could have accomplished his goals without doing so, shouldn't he be liable for damages as well?

On the other hand, one line in the passage may suggest that a court agent has a greater right to use force than the woman. As some commentators point out, the second derivation from the verse teaches that the words "her hand" come to exclude the actions of the court, which could suggest that a court agent would be exempt in the same situation in which the woman would be liable. If a court agent would be liable when he could have acted otherwise, how would he then have greater legal power than the woman if the woman is also allowed to use force to save her husband when absolutely necessary?

When the Gemara concludes that the woman has the same power as the court when necessary to save her husband, would that reject such an earlier premise by the Gemara?

The commentators wrestle with these textual questions when determining whether the court agent can be held liable when using unnecessary force.

However these other issues play out, Rashi and Tosafot each suggest that using unnecessary force means that justice is not being executed:

Rashi explains that, in the earlier stage of the discussion, the Gemara is using the case of the woman to question both sides of the debate. Purportedly, both sides agree that, in a case of loss, a person can definitely take the law into their own hands. In the case of the woman, her husband is being beaten up, which would definitely be considered a loss. If the case is that the woman had no other way to save her husband and his still penalized for doing so, it would mean that no one ever has a legal right to take the law into their own hands.

The conclusion of the Gemara assumes that the woman would have indeed been able to save her husband without grabbing the other's genitals. Rashi explains that, in such a case, "she is not executing justice." Even if the situation (the husband being beaten) is a case of loss, the fact that she could have accomplished her goals without using force means that she is not even executing justice herself. Justice itself requires a minimal use of force, and using unnecessary force cannot be considered an act of executing justice.

The woman is ONLY executing justice if she had no other choice. Rashi's language suggests to me that using force when unnecessary--even to achieve an honorable goal--does not serve the cause of justice. Or, to put it another way, using unnecessary force is, by definition, not executing justice. If this reading is correct, a court agent would have to pay for damages if he beats a recalcitrant litigant when it wasn't necessary.

Tosafot use an even stronger formulation:

Tosafot makes it clear that justice is incongruous with using unnecessary force.

Even if neither Rashi nor Tosafot directly address the case of the court agent using unnecessary force, their respective formulations suggest to me that an agent using unnecessary force is, ipso facto, not executing justice and thus would be acting outside his capacity as a court agent (making him liable).

Applying these formulations to the police, we would say that the police officer who uses unnecessary is not promoting justice but rather injustice. Such an officer thus cannot be protected from legal liability when he is failing to promote the interests of justice and the state.

Rashi and Tosafot may also be teaching us about something about the usage of the term "justice." Often, we use the term to describe "just" outcomes, like the victim of a robbery getting their money back. Rashi and Tosafot therefore remind us that "justice" does not only require that the outcome of the case is just, but that the process and practice of law enforcement must also be just for us to be able to say that justice is being served.

Shitah Mikubetzet explains Tosafot's statement that the woman's actions were not considered justice. They explain that the woman's liability doesn't stem from the fact that she grabbed the man's genitals without bothering to go to court. Neither is it because the woman's ability to save her husband otherwise renders it a case in which there would have been no loss to her by going to court. Instead, he seems to argue, the woman's liability comes from the fact that she was not acting according to justice. The notion that one can take the law into their own hands means that they are executing justice themselves. The fact that she used unnecessary force means that she failed to execute justice by definition. Again, we see that justice does not just mean accomplishing a just outcome. It also means that the process towards that outcome must be just as well, and the unnecessary use of force renders such actions unjust.

Rabbeinu Asher (Rosh) argues that the Gemara's differentiation between the woman and the court agent could not possibly be coming to absolve the agent when he could have accomplished his goals without using force.

Rosh tries to deal with the Midrashic exclusion of the court agent. We would ostensibly think that the Gemara's exclusion of the court agent from payment should apply to an analogous case to that of the woman. If the case is that the woman could have saved her husband in other ways, the Midrashic exclusion would be teaching that a court agent, on the other hand, is allowed to beat someone even if he could have accomplished his mission without doing so. However, it is inconceivable to the Rosh that the Midrash could be coming to permit the court officer to use unnecessary force. Rosh solves this tension by answering that a case in which the woman could have saved her husband in other ways is more parallel to the court agent who could not have accomplished his mission without violence. According to his understanding of the Midrash, the case in the verse is that the woman could have saved her husband otherwise, and that, for the purposes of the Gemara's discussion, since the woman could have saved her husband without using this degree of force, her case is legally considered to be one where there is no loss involved. Such a case is more legally comparable to the court agent who could NOT have accomplished his mission without force. When the Midrash excludes the court officer from the law that the woman is liable, it is only coming to say that the officer is exempt when he could not have acted otherwise. To explain why these different cases should be analogous, he argues that the woman is so distressed at seeing her husband being beaten that she will use unnecessary force to save her husband, in contrast to the court agent.

It is somewhat unclear how these cases would be parallel, since the woman using unnecessary force and the court agent using necessary force are clearly dealing with different cases. The most likely reading is that, in a situation in which a person is being beaten up, the woman is more likely to use unnecessary force than a court agent. Since the woman is not thinking clearly in that situation, she ends up using force when she could have really saved her husband in other ways. The court agent, on the other hand, is presumed to be more clear headed, and thus capable of de-escalating or using minimal force. This could be because he is not an interested party, because clear-headedness in violent situations is a basic requirement for court agents, or because he would have been trained to de-escalate or subdue an aggressor using minimal force.

Rosh recognizes that people in traumatic situations are capable if not likely to act more aggressively than would actually be necessary to an average observer. It is likely that, in the woman's state of mind, there was no other way to save her husband but to take such an extreme action. On the other hand, trauma or distress is not considered a justifiable excuse for using more force than would actually be necessary.

We should also note Rosh's presumption that the court agent would be clear-headed enough to avoid using unnecessary force. But what if that were not the case? Does the Midrashic exclusion of the court officer teach that he is categorically excluded from having to pay for damages? Such a reading of Rosh is impossibly in light of his words at the beginning of his comment, "Presumably the Torah only permits the court officer to use force when he is unable to save without it." Rosh is thus teaching that the court agent is only exempt when he acts according to this presumption that he will only use force when necessary. Otherwise, the court agent who acts violently due to excessive fear would indeed be held liable.

These legal principles are especially relevant to the topic of police bias and brutality. The idea that police must "make split second decisions" is basically a cliche at this point. Many officers also justify violence by claiming that they were "afraid for their lives." This claim of fear and distress is frequently used to justify police shootings of black men.

An example is the case of Philandro Castille, who was murdered by a policeman in Minneapolis a few years ago. Castille informed the officer that he had a legal gun in his care and was attempting to follow the officer's directions, putting his hand nowhere near the weapon. The the officer's abject fear led him to give Castille contradictory directions, which in turn led to him shooting Castille dead. Afterwards, the officer claimed that he was justifiably afraid of Castille due to the smell of marijuana in the car. If Castille was willing to smoke with his child in the car, the officer said, he would have no hesitation about shooting him with his gun. A trained officer without an ingrained fear of black men would not have become so traumatized and thus would have been able to give Castille the ticket without shooting him.

Based on this reading of Rabbenu Asher, we can create the following legal standards for acceptable force by officers of the state: (1) An obligation to de-escalate and accomplish task without physical force; (2) Any force should be as minimal as possible while still enabling the officer to accomplish their task; (3) Force is only considered necessary if it would be viewed as such by a trained officer with no racial prejudice.

The notion that professional immunity does not cover distress is also expressed by Rabbi Moshe Feinstein in Iggrot Moshe Even Ha-Ezer 4:31. In the context of a larger responsa about testicular surgery and the prohibition of castration, he discusses the degree to which a surgeon could be held liable if the patient is severely injured or dies:

Here is the translation:

Regarding what you took as a given that a physician who accidentally kills the patient is liable for exile--this is not really clear, in my humble opinion. It depends on the doctor's medical knowledge, and his medical obligations towards the patient and the medical practice, his degree of study in that medical practice, as with patience and great examination, whether for the illness at hand or the health of the patient, whether it is possible to perform the surgery for him without causing another illness. Similarly, when giving strong medicine whether it was all done in the proper manner, and if the doctor was an expert fit for this case. [In such circumstances] it is obvious that [the doctor] would be considered someone who [damaged or murdered] against his will [anus], in which case he would not be liable for exile.

Even if there wasn't a great expert [in the particular field] but there was no other physician available and according to his estimation in his wisdom this was the proper medical approach and the people of the town and the relatives gave him permission to do what he thought was right. Since it was impossible to wait until a greater physician would become available, such a physician would also not be liable for exile.

Only if the situation was not pressing and it would have been possible to wait for a greater physician, or if he was the best doctor available but he did not investigate more than his habit at the time, if this was standard medical practice and there was no negligence he would be liable for exile and he would atone through this.

However, if [the doctor's error] was out of anxiety it is considered to be like negligence, even if it seemed to him at the time that further investigation was not necessary. In such a case, he would be exempt from exile because exile would not be sufficient for him.

Although this is not clear in the words of our rabbis regarding the doctor it makes logical sense in my humble opinion.

In this passage, R. Feinstein states that if the doctor fails to make the proper decision out of anxiety or nervousness, their actions are considered negligent and thus borderline willful. That such a doctor would not be liable for exile is because exile does not atone for willful or borderline willful murder.

We see from this passage that, despite the pressure of the life and death situations, professionals are expected to keep a clear head and are not excused for anxious perceptions when they are not indeed true. Further, in such cases, they do not receive immunity.

We can certainly apply this expectation to police officers. Granted, unlike physicians, the police officer's life is theoretically in danger (though many studies have found that there are many jobs statistically more dangerous). Despite these personal dangers, it is reasonable to expect police officers to approach the situations they encounter professionally. Viewing a person or suspect more dangerous than they would seem to an unbiased trained professional (especially due to race) should also be considered a state of needless fear. Such a perception leading to severe injury or death should thus also have this same status of negligence bordering on willfulness.

Later on, we will explore possible sources that would seem to allow for greater degrees of fear by those who perceive their lives to be endangered.

Nemukei Yosef on Rif, Bava Kamma

Rabbi Yosef Ibn Habib, in his Nemukei Yosef on the Rif, finds a different source for arguing that the court officer is liable for using unnecessary force:

Here is the translation of the passage:

One Hundred Strikes--if he is unable to save by any other means other than hitting, and when hitting one time would not [be sufficient] he can strike him a hundred times and be exempt. Thus we learn that a court agent has this same legal ability with regard to someone who refuses to abide by the court's judgment. For if you do not say [that the same applies to the court agent], how could the partner be given permission to do this? Is he more powerful than a court agent?

We would have thought that Rav Nachman's instruction of "hundred beatings" means that he is advocating even excessive force. Nemukei Yosef refuses to accept that possibility as an option. Instead, he interprets the well case as being one in which that specific amount of beatings would be absolutely necessary. He also equates the partner's ability to strike with that of the court agent. If the partner is able to use such force for his own needs, a court officer should certainly be allowed to use such force against a person who refuses the court's orders. It is striking that Nemukei Yosef uses this equation to argue that the court officer is no more allowed to use unnecessary force than the well partner. Even the court agent should not be allowed to strike any more than absolutely necessary.

Even if and when there is no alternative but to use physical force, there is still an obligation to keep it as minimal as possible. This point is made explicitly by Rabbeinu Asher:

Rosh compares the the right to use force in Bava Kamma 28a with the right to use deadly force as expressed in the Gemara Sanhedrin 74a:

If the pursued kills their pursuer when they could have saved themselves by using a lesser degree of force, they are guilty of murder and eligible for the death penalty.

Rosh uses this passage to argue that, even when the woman, the court agent, or anyone else must use force to accomplish their goals, they have an obligation to minimize the degree of force used as much as possible.

Later, we will explore the Mishneh LaMelech, who limits the scope of this source.

To be sure, not everyone agrees with Nemukei Yosef and Rosh's argument that court officers can only use force when absolutely necessary.

The medieval legal authority Rabbeinu Yerucham, in his Sefer Meisharim (Netiv 31:2), writes that the court agent does not have any such limits. Even if he would have been able to accomplish his mission without violence, he would still be exempt from any damages:

Here is a translation:

However, the court agent is able to strike someone who refuses his orders regarding someone who raises his hand to strike another in the marketplace. This similarly applies to any place where someone refuses the orders of a court agent and the agent strikes him or damages his property. The agent is exempt even if he could have saved [accomplished his goals] in another manner.

Rabbi Yosef Karo, in his commentary to the Tur, cites this teaching by Rabbeinu Yerucham:

Beit Yosef quotes Meisharim to say that a court agent is allowed to strike a person to achieve his goals even if they could have been reached without the use of force. He then quotes Nemukei Yosef who equates the ability of the court agent to strike a recalcitrant litigant with the person in the well story who is allowed to strike his partner "even a hundred times."

As we learned in the original passage, Nemukei Yosef does indeed equate the court agent and the well partner in being allowed to use force. Nemukei Yosef also qualified that, for both their use of force is only acceptable when it is absolutely necessary. Beit Yosef's citation of Nemukei Yosef does not include this point.

It is therefore somewhat unclear whether Beit Yosef meant to contrast Nemukei Yosef's opinion on unnecessary force with that of Meisharim. If that is the case, then Beit Yosef would just be citing both positions on the matter without taking any sides. If, however, Beit Yosef was specifically omitting this dimension of Nemukei Yosef's opinion (and was only citing Nemukei Yosef to demonstrate an explicit source for the court agent's ability to strike another person), it would mean that Beit Yosef is deciding the law to be in favor of Meisharim against the views of Nemukei Yosef, Rosh, and other Rishonim.

This ambiguity regarding Beit Yosef also extends to the Shulchan Arukh as well. Despite quoting Rabbeinu Yerucham approvingly in his Beit Yosef, R. Yosef Karo never cites this opinion in his Shulchan Arukh. Instead, it is Rama instead who includes Beit Yosef's citations in his gloss to the relevant passage in Shulchan Arukh:

Like Beit Yosef, Rama cites both Rabbeinu Yerucham and Nemukei Yosef as sources for the idea that the court agent has the authority to strike someone who fails to abide by his commands. In contrast to Beit Yosef, Rama never explicitly mentions Rabbeinu Yerucham's opinion, though he does not do so for Nemukei Yosef either. It is therefore not completely clear what Rama's opinion is on this matter.

It is S'MA, in his commentary to Shulchan Arukh, who uses the citation of Rabbeinu Yerucham to spell out that the court agent can use force even when not absolutely necessary:

Some try to cite Shevut Yaakov 180 as a source for an agent not being responsible for damages even when he uses unnecessary force.

Shevut Yaakov responds to a case in which a court agent mercilessly beat a person who had been refusing the court's orders. While the agent may have gone overboard the manner in which he struck the other does not typically cause damages. Yet, in this particular case, the person who was beaten was injured and sued the court agent for damages:

Shevut Yaakov

Shevut Yaakov reads BK 28a as differentiating between the woman and the court agent to say that the court agent would be exempt in a case in which the woman would be liable. This must be speaking about a case in which one would have been able to accomplish one's goal without force. While the woman would be liable, the Midrash's exclusion of the court agent comes to teach that the court agent would be exempt even when he could have accomplished his goals without using force. Shevut Yaakov uses this reading as a prooftext for Beit Yosef's citation of Rabbeinu Yerucham.

However, he afterwards cites Nemukei Yosef who had argued that even the court agent is liable for using unnecessary force, and notes that this understanding fits well with the conclusion of the discussion, which equates the woman with the court agent when she cannot save her husband otherwise.

Afterwards, he raises the possibility that the Gemara's exclusion of the court agent from liability may only be speaking about the payment for embarrassment. Only for this payment would the agent be exempt for using unnecessary force, but he would remain liable for the other four payments. He closes out his discussion of this point by saying "vetzarikh iyyun," that it requires further investigation. In other words, Shevut Yaakov does not really conclude that the court agent should be exempt for using unnecessary force.

Shevut Yaakov concludes that the court agent in this case is exempt, but for a different reason. He argues that since the manner in which the agent struck the other does not normally cause bodily injury, the officer had no way to know that he was injuring him, the officer should be exempt.

It comes out from Shevut Yaakov's responsa that the officer is not necessarily given any greater license to use force than other people. It is only when the officer reasonably assumes that his force would not cause significant damage that he would be exempt. This should be differentiated from a case in which an officer knows that his action will injure another but does it anyway.

That being the case, it is impossible to read the Shevut Yaakov as being a real support for Qualified Immunity for police officers.

Rabbi Issr Wolf, in his Sha'ar Mishpat (Choshen Mishpat 8:2), argues more definitively that the court officer has no right to use unnecessary force.

Rabbi Wolf's main argument comes from one layer of the Gemara's discussion about the wife on BK 28a. The Gemara had argued that the woman is only liable if she could have saved her husband without grabbing his assailant's genitals, but not if she had no other way. The Gemara then questions this assumption by quoting the Midrash that the verse in the Torah about the woman comes to exclude the case of a court officer, who would be exempt. If it is really the case that the woman is exempt should she have no other way to save her husband, the Midrash that differentiates between the woman and the court officer should have made that qualification exempting the woman in such a case.

Sha'ar Mishpat uses this challenge to argue that the court officer is also liable if he uses unnecessary force. He argues that, at this stage, the Gemara must be making this assumption about the court officer. Had this not been correct, the Gemara's question would have fallen apart. If both the woman and court officer are liable for using unnecessary force, the Gemara would be correct to ask why the Midrash never explicitly qualifies the liability of the woman to cases where should could have saved her husband by other means. If, however, the court officer would be exempt even when using unnecessary force, there would have been no need for the Gemara's challenge. The Midrash excluding the court officer would have been used to teach that while the woman is liable when she could have saved her husband otherwise, the court officer would still be exempt in such a case.

If the woman and the court officer have would be treated differently under the same circumstances, it would have made sense why the Midrash never bothered to explicitly make such a limitation. After all, the case of the woman would have been unnecessary force, and the exclusion of the court officer would serve to exempt him for cases of using unnecessary force. He therefore argues that the Gemara never entertained the possibility that the court officer could be exempt for using unnecessary force.

According to R. Wolf, the Gemara's conclusion saves the premise that the woman and court officer are equal by making this equation explicit. In his reading of the conclusion, the Midrash is agreeing that the woman and the court officer are treated the same, since, when the woman has no other way to save her husband, she is acting like a court officer. When the woman uses unnecessary force, she is liable, but the exclusion of the court officer is itself excluding a case in which such force is necessary. In such a scenario, the woman's usage of necessary force is the legal equivalent to that of a court officer.

Sha'ar Mishpat uses this argument against Rabbeinu Yerucham. Rabbeinu Yerucham himself had not tried to support himself with any quotation of the Gemara. R. Wolf believes that his position is coming from the Midrashic exclusion of the court officer. If the court officer and woman are both liable for using unnecessary force, the exclusion of the court officer does not make sense. On the other hand, R. Wolf argues, the challenge stage of the Gemara would exclude such a reading.

After supporting himself with the previously cited Nemukei Yosef (who also excludes the possibility that the court agent is allowed to use unnecessary force), R. Wolf uses Sanhedrin 74a similarly to the Rosh. The Gemara there cited Rabbi Yonatan ben Shaul who rules that one is not allowed to kill a pursuer if using such deadly force is unnecessary. Someone who could have stopped a pursuer with non-deadly force but kills him anyway is guilty of murder and liable to the death penalty.

If a woman using necessary force to save her husband is acting as a court agent, certainly the same could be said for a person who saves another from being murdered. Yet, even to save the life of the potential murder victim, one is prohibited from using any force greater than necessary. The same, R. Wolf argues, should certainly apply a court officer dealing with less serious cases.

R. Wolf concludes his argument by citing Ketuvot 100a, which speaks about the court selling property on behalf of orphans. If they mis-value the property they are selling, their sale is void. Since they err in judgment regarding basic facts, their agency on behalf of the orphans is invalid and therefore void.

He argues that "this should certainly be the case here [in which a court officer uses unnecessary force and damages], for there is no mistake greater than here, since it was possible for him to save by other means and he damaged the property of his fellow needlessly and is thus liable to pay." His language of "mistake" [ta'ut] is somewhat unclear in this context. Usually "ta'ut" is used in the context of error, not when a person chooses to use excessive force. I believe this language could thus include a court officer who fails to think clearly and thus mistakenly thinks that using force is necessary to fulfill his task, when really he could have accomplished it without force. This mistaken analysis of the situation, even if under the pressure of the moment, is still considered a mistake.

Further, his comparison to the court serving as agents of the orphans is also striking. In the Gemara in Ketuvot, the fact that the court erred means that they were not actually serving as proper agents of the orphans. To extend this analogy to the court messenger, his severe error in judgment would mean that, when using excessive force, he is not acting as an agent of justice. The same could be said of the police officer who, due to bias, views a person of color as more threatening than they actually are and thus uses excessive and unnecessary force. Such an officer is also making a severe error of "fact" and is thus not acting as a proper agent of the state.

This reading of his analogy begs the challenge that the Toseftas discussed earlier seemed to state that the court agent is exempt from damages (if only in human court) when damaging a person by mistake. It is notable that R. Wolf (though other sources as well) don't cite the Toseftas in the context of their discussion of the court agent who uses excessive force.

I believe that it is possible to argue that the immunity for accidental damage granted by the Tosefta Gittin is speaking about a different type of accident than that discussed by Sha'ar Mishpat. In my understanding, the accidental damage discussed in the Tosefta is when the court agent uses the correct amount and type of force, yet mistakenly administers it in such a way that it hurts the other in ways he didn't intend. In such a case, the Tosefta grants immunity for such accidents since, when dealing with force, such things will happen despite the best of intentions.

In the "ta'ut" hinted at by Sha'ar Mishpat, the court agent is mistakenly assesses the situation and the person he is dealing with, whether neglectfully or even accidentally. The court officer court perceive the person he is dealing with as either more "threatening" or more "hardened," leading him to mistakenly think that a greater degree of force is necessary. This type of mistake is considered more egregious, such that the court agent is not even considered to be acting as an agent of justice. That being the case, the agent would not be covered by the immunity granted by Tosefta Gittin. Such a case would be more comparable to the Tosefta in Bava Kamma stating that if the court agent hit more than necessary he would be liable. According to this analysis, police officers would be required to assess the situation and the subject they are confronting through the lens of an unbiased professional. Failing to do so and using unnecessary force would mean that they are not acting as true agents of the law and thus liable for damages.

R. Wolf suggests that his argument against Rabbeinu Yerucham could be why R. Yosef Karo neglects to mention his opinion in the Shulchan Arukh. In his opinion, the Halakhah, even according to the Shulchan Arukh, follows Nemukei Yosef and not Rabbeinu Yerucham.

Excessive Force Out of Fear: The Argument of the Mishneh LaMelekh

Earlier, we argued that police officers should be expected to remain calm relative to the situations they face. That being said, many argue that, due to the dangers they face to their lives, it would be understandable for them if, in the heat of the moment, they use excessive or deadly force. As we noted when discussing the Rosh, it is understandable that those confronting dangerous situations would find it difficult to have the presence of mind to minimize their usage of force. In the case of the Rosh, he argued that the woman's distress does not excuse her when she uses unnecessary force.

We will now explore sources that give a greater degree of legal weight to those who face imminent danger. and are thus unable to minimize their use of force. We will discuss these sources and the degree to which they can be used to exonerate police officers who use deadly force when they feel their lives are in danger.

Earlier we brought up the Gemara Sanhedrin 74a, which argued that even when life is in danger, the person who stops the pursuer must do all that is possible to preserve his life. If someone capable of stopping the pursuer with non-deadly force kills him anyway, they are guilty of murder and liable to the death penalty.

Maimonides cites this opinion, though modifies it such that the person who needlessly kills the pursuer would not actually face the death penalty:

Ostensibly, this prohibition of needlessly killing the pursuer should apply even to the person whose life is being threatened. Rashi notes this explicitly:

However, Mishneh LaMelekh, one of the commentaries on the Mishneh Torah quotes the Rivash to argue that the Gemara's prohibition does not apply to the person being pursued. Since they are so distressed from the danger to their life they cannot be expected to think clearly enough to avoid using deadly force:

Many question this opinion based on the following passage on Sanhedrin 49a:

Although Avner was being pursued by Asahel, he was nonetheless obligated to save himself without killing him, if at all possible. That he neglected to do so made him liable to vengeance by Yoav. The Gemara would therefore seem to contradict the Mishneh LaMelech.

Rabbi Yosef Shaul ben Aryeh Leibush Netanzon, in his Shoel UMeishiv (Third Edition 3:49) defends the Mishneh LaMelech by distinguishing between who starts the conflict. In Sanhedrin 49a, Avner is the one who initiates the conflict between Shaul's and David's men. For this reason, Avner is responsible for limiting his use of deadly force if possible. That he did not do so made him liable for death. However, Shoel U'Meishiv explains, this responsibility does not apply to someone confronted by another. In this latter case, the person who is threatened in the first place is rightfully in such a state of dread that he is not expected to limit his use of force.

Shoel UMeishiv Third Edition, 3:49

This distinction begs the question of what would be considered an initiation of the conflict. What would happen if, due to bias, they perceive a suspect as being threatening to their lives and shoot them dead when they could have subdued them in other ways? Further, how would this apply to police officers considering that they have a legal right to intervene when they see the law being broken?

Rabbi David Fried (personal correspondence) believes that when a biased person perceives a threat that isn't really there, he would still be considered the initiator according to the Shoel U'Meishiv. that there is a threat but there is not really one. If an unbiased person would not have felt endangered by someone, the shooter would be considered the initiator no matter how threatened he felt.

The question is whether this could be applied to police officers. On the one hand, police officers have a legal right and obligation to intervene when necessary, which means that the officer would not be considered an innocent bystander who starts a conflict. In the case where he legally intervenes and a suspect attacks him, he might be considered exempt by the standards of the Shoel Umeishiv.

On the other hand, if the officer perceives a person of color as being a suspect due to bias, it is possible that he would not be considered to be acting as a legal agent of the law. In such a case, he should be considered like a person who initiates the action and is thus liable even if, because of the encounter, he becomes afraid for his life and uses unnecessary deadly force.

Rashi, as interpreted by Siftei Chakhamim, accepts the position of the Mishneh LaMelekh but still requires one to minimize deadly force, despite the heat of the battle:

Siftei Chakhamim argues that Yaakov was afraid of fighting against Eisav because he was afraid of the possibility killing others needlessly. Yaakov is not concerned about having to kill Eisav, because, if Eisav tries to kill him, he has a right to kill Eisav. Instead, Yaakov is concerned about the possibility of killing Eisav's soldiers. Those men would not be chasing after him but rather others in Yaakov's family. Since they would not be trying to kill him specifically, Yaakov would have an obligation to use as minimal force as possible and avoid killing them. What frightens Yaakov is the possibility that, due to the heat of battle, he may end up using deadly force to save his family members when he could have really saved them with more minimal force.

Siftei Chakhamim never mentions the possibility that Yaakov would be obligated to use minimal force to save himself from Eisav, suggesting that he agrees with the Mishneh LaMelekh. At the same time, Yaakov is afraid of the possibility that he would use deadly force unnecessarily to save others.

This explanation is striking in that it acknowledges the difficulty of minimizing force in violent situations. Despite the pressure of the situation, Yaakov would still be responsible for using excessive deadly force.

Granted, Halakhah does not inherently limit the court agent in his use of force. As long as the degree of force is essential to accomplish his task, Halakhah does not place any direct limit on the amount of necessary force he can use:

These sources, as well as the well case, suggest that there is no requirement of proportionality for the use of force. As long as the mission or need cannot be filled without that specific amount of violence, there is no inherent limit on how much one can use.

Nonetheless, most of the other sources we've seen suggest that there is a requirement for officers of the law to use a minimal amount of force when discharging their duties.

The Relationship Between Police and the People

These questions regarding the use of force also obligate us to think more deeply about the relationship between law enforcement and the people they are obligated to protect.

The Gemara in Sanhedrin hints at the need for extreme care regarding the use of force in enforcing the law:

Those using the rod and the strap are also considered judges, and they are instructed to be vigilant about their use of the rod and strap.

But in what way?

Rashi understands it as an instruction that judges should make sure to use the rod and strap enough such that the people have adequate fear of the law:

Rashi emphasizes the need for officers of the law to instill fear of the law, albeit for sincere purposes.

Tosafot take the opposite approach, arguing that the officers must be ever careful to NOT provoke terror in the people they serve:

Those enforcing the law must be careful not to be too harsh on the people and instill fear. Instead, they must be as patient with the people as possible.

In contrast to Rashi, who emphasizes the need to express authority, Tosafot requires that they act as patiently as possible. For Tosafot, there is no value to making people afraid of the law. Instead, true moral authority comes from showing patience and care.

We hope that this attitude by the police towards Black people and other people of color can divert from the Rashi approach of instilling terror and move towards that of Tosafot. Enabling love of the law will engender greater respect than fear of its representatives. This will enable all citizens to better respect the rule of law.