Reimagining A Future With Less Policing Means Asking Tough Questions About the Powers We Assign To Law Enforcement
As criminal justice reformers take steps to defund police departments and limit qualified immunity, it’s important to consider the role of universal and special duties in policing.
Eric Kennedy Jul 15, 2020
This piece is a commentary, part of The Appeal’s collection of opinion and analysis.
On May 27, the mother of Regis Korchinski-Paquet, an Afro-Indigenous woman, called 911 in Toronto, Canada. She asked for help taking her daughter, who she said was experiencing distress, to the Centre for Addiction and Mental Health. Police responded to the call. While an investigation is still underway about what transpired in the apartment after they arrived, the outcome was tragic: Korchinski-Paquet fell to her death from the balcony of the apartment.
Since Korchinski-Paquet’s death, much of the public attention has focused on a horrific question: Was she pushed from the balcony by a police officer? Yet, this question is too simplistic. While determining whether Korchinski-Paquet was murdered is important, her death alone is sufficient evidence of a tragic failure in the response to this call for help. Taking this failure seriously—and others like it, from George Floyd in Minneapolis to Martin Gugino in Buffalo, New York—means asking tough questions about the powers and duties that we assign to law enforcement agencies.
Universal Versus Special Duties
In the study of disaster and emergency management ethics, we examine different types of duties that apply within society. A “duty” refers to an ethical or moral obligation that we owe to each other. Duties can be separated into two broad categories: universal duties, which apply to everyone in all contexts, and special duties, which are specific to a particular societal role or situation.
Many laws are based on universal duties. Laws prohibiting murder or assault are built upon the notion that everyone, regardless of their social standing, economic resources, educational background, racial identity, or any other factor, has a responsibility to uphold a particular ethical code. These duties apply in all times and all places and, importantly, to all members of our community.
By contrast, special duties or obligations arise because of the particular positions we inhabit within society. Firefighters, for instance, are saddled with the duty to enter dangerous situations to rescue others. These special obligations are accompanied by training (e.g., how to extinguish fires), tools (e.g., rescue equipment), and context-dependent permissions granted by society (e.g., the ability to block roads, break down locked doors, or enter private property to aid those in need). It’s critical to explicitly acknowledge this social contract: Firefighters are given public resources and context-specific permissions precisely because we also grant them special duties to fulfill the collective good, no matter how stressful the situation.
In other words, being a firefighter provides no cover for also being an arsonist. Burning something without consent or setting fires to harm others are violations of universal duties. And, when firefighters are granted permission to use fire to fight fire as a result of their special duty to protect the public—such as helping set prescribed burns to reduce forest fire risks—they are held to an exceptionally high standard for careful conduct (much higher than we’d expect, for instance, of the average person lighting a campfire). In some cases where a prescribed fire “got away” and did damage, congressional inquiries have been launched to spur changes to practices and procedures.
Special Duties and Policing
Universal and special duties also exist in the context of public safety and policing. As above, police officers have universal duties to avoid murder, assault, intimidation, and other anti-social behaviors. They are also granted remarkable permissions by societies around the world, such as carrying weapons in public, using force, and even being allowed to escalate situations (such as arresting someone for failing to accept their proclamations or deciding what counts as “resisting”). But these permissions are tied to a high bar of special duties: Because police have been asked to serve the collective good in such difficult situations, they are given astoundingly wide permissions to fulfill those obligations.
Consider the functions that we might ascribe to a public safety agency in an ideal world. It would de-escalate violent situations and ensure the safety of all those involved. It would be called upon to help those in crisis find peaceful resolution, to ensure that the roads are kept safe for all users, and to participate in the process of administering justice. Through political maneuvering, consolidation of power, and, at times, historical happenstance, police have become the agencies responsible for these tasks. In maintaining this arrangement, however, we collectively assign law enforcement agencies with a heavy burden of special duties: de-escalation, creative conflict resolution, and the development of safer communities.
Yet, this is a dramatic inversion of how policing is actually practiced in the real world. In practice, qualified immunity institutionalizes lower standards and duties for officers than members of the public. Officers who attempt to fulfill their special duties by de-escalating rather than using force are sometimes terminated from their employment. This helps to explain increasingly prominent calls for the defunding of police: Advocates don’t reject the need for interventions in difficult and dangerous situations. Instead, they question whether police agencies and officers actually fulfill the special duties society ascribes to them—de-escalation, conflict resolution, and community building—or whether these goals might be best fulfilled by other groups or institutions.
In turn, another question also emerges: Is the best path forward one of reform, in which we adopt policies to address pervasive and systematic failures to fulfill these special duties, and redesign the institution of policing from the ground up? Or is it one of abolishment, where these duties and powers are apportioned out to other agencies (paramedics, social workers, highway aid groups, or others) that don’t have the power to punish? Neither of these answers is perfect. Reform risks an incrementalism that fails to acknowledge the magnitude of the challenge, the botched response to protests that has failed at both universal and special duties, and the broad distrust that has built over time. But, abolishment and reapportionment risks passing these special duties to other organizations that also have complex histories of mixed effectiveness and distrust.
What Could This Look Like?
Twenty-five months before Korchinski-Paquet died, a different Toronto police officer, Constable Ken Lam, was confronted with a violent and frightening situation, but fulfilled his special duties. Ten people had just been killed, with over a dozen injured by a van plowing through pedestrians on Yonge Street. Lam got out of his car and engaged the driver, who repeatedly pretended to draw a weapon and point it at him, and even charged Lam.
Yet, in the face of these attempts to incite a violent response, Lam de-escalated. He turned off the siren of his police cruiser to communicate more clearly. He defused the situation, ultimately subduing the suspect without so much as a strike of his baton. In the face of being goaded into violence, he embodied the special duties of policing: to seek a peaceful end to a dangerous situation and a conclusion that would allow a full investigation and trial rather than a body bag.
The presence of special duties, of course, doesn’t guarantee that every situation has a perfect outcome. However, it does mean that the duty holder—in this case, the police—have an obligation not just to fulfill universal duties (to not assault or kill), but also to find creative solutions to avoid violence. These failures of universal and special duties are part of what makes the images of law enforcement emerging from protests across the United States so disturbing, from assault with vehicles to pushing protesters into the ground. Making matters worse, the officers nearby in nearly all of these situations appear to fail their duties just as seriously by not holding their colleagues to this higher standard.
As we reimagine how agencies ought to respond to different public safety needs, we should consider the special duties and permissions afforded in each context. Mental health crises require specialized expertise in de-escalation rather than lethal force; wildlife incidents are best served by biologists and ecologists; and highway safety likely demands a combination of service patrols that aid motorists, independent investigators who evaluate why an incident occurred, and urban planners who turn these findings into safer streets.
Whoever is accorded responsibility for these difficult tasks will undoubtedly be put in dangerous, heated, and risky situations. Yet, this is precisely why emergency responders should have weighty special duties—not qualified immunity—in the first place. In becoming a police officer or emergency responder, you are agreeing to enter these heightened, stressful, and dangerous situations and to resolve them in a way that keeps everyone safe, no matter how difficult a task that might be. Emergency responders, whether police or their replacements, must be held to both universal and special duties, rather than lower standards.
Eric Kennedy is an assistant professor of disaster and emergency management at York University in Toronto, Ontario, Canada.
Support The Appeal
If you valued this article, please help us produce more journalism like this by making a contribution today.