David Polsky
EDITORS’ NOTE: For Part 2 of this article, see here.
The murder of George Floyd by a police officer in May of last year has awakened many white Jews to the experiences Black people and other people of color have faced when encountering the police.[1] Many studies have documented that police are more likely to stop Black people,[2] arrest them,[3] use force against them,[4] and kill them.[5] Police using unnecessary force–especially against Black people–are unlikely to be held accountable.[6] There are precious few examples of police officers spending time in prison for killing white people, let alone Black people.[7] Even officers facing charges are rarely indicted, let alone convicted.[8]
Those who do face charges are given wide latitude to claim self-defense, even when it is likely that their biases led them into their confrontations to begin with.[9] For example, the confrontation leading to Michael Brown’s death at the hands of Darren Wilson began when Wilson stopped Brown for the rarely enforced crime of jaywalking. The criteria employed by courts is whether another reasonable officer would have used force in their given situation, not whether a reasonable officer could have avoided the situation to begin with through de-escalation or other means.
Since May, many Jews have joined in the numerous protests against police violence and racism. Those participating have cited Tikkun Olam and “tzedek tzedek tirdof,”[10] as well as the Torah’s many commands about protecting the stranger[11] among other reasons for participating as Jews.[12] As admirable as these motivations may be, I believe that halakhic sources can make a unique intellectual contribution to Jewish thought about these issues.
Although the organized police force is a modern development, there is one figure that played similar functions in classic Jewish texts, the sheliah Beit Din, literally the agent of the court. This court officer was charged with administering lashes to violators of certain Biblical commandments.[13] He was also sent to enforce monetary rulings, collect debts,[14] return stolen property,[15] serve divorce papers,[16] and bring recalcitrant litigants to court.[17] The court agent may have also been specially empowered to save someone being assaulted.[18] Clearly, the court officer was permitted to employ force when necessary.[19] [20]
Before going further, I should mention that rabbinic literature does not align with any particular ideologies regarding the police. In a number of ways, rabbinic teachings regarding the authority of the court officer and his right to use force was anything but liberal.
Police reform advocates believe that the use of force must be proportional to the crime and/or situation.[21] For them, it is unreasonable to use force against suspects who are stealing or violating property rights without creating any risk of bodily harm. Talmudic sources, however, place no such limitation on the use of force by court officers or civilians. Bava Kamma 27b tells the story of a man who owns a well in partnership, and uses his hoe to beat up his partner when the latter uses it on the former’s day. Rav Nahman responds to the story by saying that since the owner would not have been able to recoup all of his financial losses in court, he would have been permitted to beat his partner even a hundred times with his hoe![22] Rabbi Yosef ibn Habib, in his Nemukei Yosef,[23] uses this story to prove that the court officer must also be empowered to use force, since he should have no less rights to use force than a civilian. That being the case, it appears to be taken for granted that there are no inherent limitations on the use of force in property disputes. A recalcitrant husband who refuses to grant his wife a divorce is beaten until he changes his mind, no matter how many blows it takes.[24]
Similarly, talmudic sources accept that it is permitted to use violence against anyone who disrespects a court officer. The Babylonian sage Rav would flog anyone disrespecting a messenger of the rabbis.[25] This prescription is echoed by the Jerusalem Talmud,[26] and accepted by later halakhic authorities.[27] Although it is unfortunately common for police officers to arrest people for insulting them, doing so is officially considered a violation of free speech.[28] Needless to say, this acceptance of violence to protect the authority of court officers would not be included in any police reform proposals.
It would therefore be anachronistic to try to fit rabbinic attitudes towards the use of force into contemporary ideological categories. Furthermore, the rabbinic and halakhic sources I explore are not monolithic. For these reasons it is important to analyze these sources in their full depth.
In this paper, I will discuss two main issues:
- De-escalation and the minimization of force. To what degree are law enforcement officers expected to de-escalate to accomplish their aims without employing violence. When they have no choice but to use force, are they expected to keep that usage of force to a minimum? If and when they use unnecessary force, can they be held liable for damages? Is using unnecessary force justified by its ends?
- Immunity for causing damage, injury, and death. What is the reason for such immunity and to what degree is it comparable in scope to the doctrine of qualified immunity? (This issue will be addressed in part 2, which will be published shortly after this part.)
This paper seeks to analyze the sources and differing classical rabbinic and halakhic voices regarding these and other questions. Examining and discussing them will hopefully ground and enrich Jewish discussion regarding these important issues.
The Use of Force by the Court Officer: The Case of Bava Kamma 28a
Does the court agent have an obligation to de-escalate the situation or accomplish his task with more minimal force when possible? 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? Most of the halakhic discussion surrounding the use of (non-deadly) force by court officers stems from Bava Kamma 27b-28a.
In order to properly understand the subtle arguments made by commentators and halakhic authorities, I quote the relevant sections and summarize them in depth. 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, can the victim use physical force to retrieve their possessions, or do they need to take the other party to court?
The discussion starts off with a story on Bava Kamma 27b, in which two partners share a well. As part of their partnership, they alternate days on which they draw from a well. One day, the partner whose day it was finds the other using it. The partner entitled to that day beats the other with a hoe. Afterwards, that partner comes to the Amora Rav Nahman to ask whether he had done the right thing by taking the law into his own hands. Rav Nahman responds that he could have even beaten the other partner a hundred times for taking his day. Rav Nahman further explains that everyone agrees that if waiting to take the other party to court would entail a tangible loss (aside from the time spent), a person definitely has the right to take the law into their own hands.[29]
This story serves as a lead-in for a general debate about the right to take the law into one’s own hands. According to Rav Yehudah, one is not allowed to take the law into their own hands unless one suffers a tangible loss by going through the legal process. Rav Nahman, on the other hand, argues that one is allowed to execute justice themselves since going to court to extract any money is a cumbersome process.
In the course of this discussion,[30] the Gemara attempts to prove that one is NOT allowed to execute justice on their own:
Here is a breakdown of the stages of this talmudic discussion:
- The Midrash on Deuteronomy 25:12 teaches that a woman defending her husband by grabbing the assailant’s genitals pays money.[31] This seems to apply even if the woman had no other means to save her husband.[32]
- (Defense): No, the Midrash only makes her pay when she could have saved her husband by other means. If she had no other way to save her husband she would have been exempt.
- (Challenge to this resolution): The Midrash on Deuteronomy 25:11 exempts a court officer from having to pay damages. If it were really the case that the woman is exempt when she has no other way to save her husband, why didn’t the Midrash make this distinction as well?
- (Resolution): The Midrash that exempts the court officer is also coming to exempt the woman when she has no other way to save her husband. When faced with such a situation, she is legally considered a court officer and thus exempt as well.[33]
Four themes relevant to police bias and violence emerge from the commentators’ discussions of this passage: The obligation to minimize force, that unnecessary force is incongruous with justice, the degree to which law enforcement officers are expected to remain level headed, and the question of whether officers have a greater right to use unnecessary force than regular citizens.
A General Obligation to Minimize Force
Very often, police have no choice but to use force to detain a subject or prevent a crime. However, police also frequently end up using more force than necessary. This issue leads us to an ambiguity in the talmudic passage we studied, as it never specifies whether a person using justified force is still obligated to minimize it. Rabbeinu Asher (Rosh)[34] makes this principle explicit. He argues that even someone justifiably using force has an obligation to minimize it. Rosh supports this assertion from Sanhedrin 74a regarding the right to kill a person who is trying to kill another (Rodef). Rabbi Yonatan ben Shaul there posits that even a person saving another from a Rodef can only murder as a last resort. If they can disarm the Rodef by attacking their limbs or use other means of non-deadly force they are obligated to do so. Should they kill the Rodef anyway, they are guilty of murder and even eligible for the death penalty.[35]
Rosh argues that if one is obligated to minimize the use of force even to save another’s life, one should certainly be obligated to minimize their use of force in less deadly scenarios. That being the case, someone who must strike a person to save another is not allowed to hit the perpetrator any more than absolutely necessary. If they do so they would be liable.[36] Although Rosh in this passage does not connect this liability for excessive force to the court officer, he offers an important principle in assessing the use of force.
Executing Justice Through Unnecessary Force is Not Justice
Rashi’s explanations of the passage offer important food for thought regarding unnecessary force and the execution of justice.[37]
Regarding the Gemara’s conclusion, Rashi comments that “she did not execute justice.”[38] This terse line requires explication to appreciate his understanding of the talmudic discussion, as well as its philosophical and legal implications.
In the Gemara’s conclusion, it is indeed permitted for a person to take the law into their own hands; the Torah’s case is one in which the woman could have used other means to save her husband. This answer begs the question of why the fact that she could have used other means should make a difference. Clearly, the woman saw her husband being assaulted, and she therefore had to take some sort of action. That being the case, if the woman is able to take the law into her own hands, she should be able to save her husband by any means, even if such means is not inherently necessary.
Rashi therefore comes to explain that the woman’s use of unnecessary force means that she did not actually execute justice. The ability to take the law into one’s own hands presumes that the person employing force is executing justice, albeit outside of court. However, if and when someone uses unnecessary force, it means that the person is not, in actuality, executing justice.
Rashi also hints at a larger message about justice. Executing justice does not merely require the achievement of a “just” outcome. Executing justice requires acting justly, or acting in a way that furthers the cause of justice. A core stipulation of executing justice requires that any violence in its name be absolutely necessary. If a person employs unnecessary violence it by definition means that justice has not been executed. It can thus be said that using unnecessary force is, ipso facto, not considered an “act of justice.”[39] [40] The question of whether this same standard would apply to officers of the court, and not merely civilians taking the law into their own hands will be addressed in the next section.
Police Officers Accountable for Bias Even When Under Duress
While the murder of George Floyd prompted outrage and white awareness of police bias, most examples of police violence due to bias are not as explicit. Many of them are the result of police assessing people of color and their behaviors as more threatening than they would have had it been a white person.
For example, Tamir Rice was a 12 year-old boy playing with a toy gun. The police officer who shot him judged him to be a threat to human life in a matter of seconds, even though Rice was not pointing his gun at anyone in particular.[41] Many activists noted that it is a common bias for Black children to be seen as being older (and more threatening) than they really are, a bias that is potentially deadly when held by a cop.[42]
Philando Castile was driving with his family when he was pulled over by a cop. Castile, who had a gun license, informed the officer of such. The officer acted nervously, giving Castile contradictory instructions. Despite Castile’s attempt to comply, the officer shot him several times, killing him.[43] When testifying in his jury trial, the officer stated that he became deathly afraid of Castile since he was able to smell marajuana. The officer said he felt that if Castile would smoke marajuana with his children in the car, he would think nothing about shooting him.[44] Though difficult to prove in any individual case, it is doubtful that the officer would have felt that same sense of dread if the same facts were the case with a white father.[45]
From these incidents and many others, it is evident that unnecessary police violence is often the result of implicit bias on the part of police officers. This implicit bias of unreasonable fear and suspicion of Black people prevents them from properly assessing the threats at hand and realizing that they can de-escalate. In many of these cases, such police bias is unconscious, as they may not “have a racist bone” in their body.[46] Nonetheless, such ingrained perceptions, even if unintentional, have deadly implications.
The dangers of police violence resulting from fear-based racial bias should help us to appreciate Tosafot Ha-Rosh on this passage.[47] His comments relate to the stage in the Gemara where the Midrash excludes the court officer from liability. Since the Midrash is contrasting the court officer with the wife, the Gemara uses this distinction to argue against the woman being exempt should she have no other way to save her husband.
Tosafot Ha-Rosh notes that the midrashic exclusion of the court officer seems to assume that the court officer should be exempt when the woman would be liable in an equivalent case. He therefore faces the implicit question that, if the woman and the court officer are treated the same according to the law, what is the midrashic exclusion of the court officer coming to do? For example, if the Torah (and by extension, the Midrash), is speaking about a case in which the woman is using unnecessary force, shouldn’t the Midrash’s exemption of the court officer be teaching us that the court officer is exempt even when he uses unnecessary force?
Although faced with this suggestion from the Gemara, Tosafot Ha-Rosh cannot conceive that a court officer could possibly be exempt should he use unnecessary force. Instead, he writes, the Midrash’s exemption of the court officer must be speaking about a case in which he had no choice but to use physical force. The problem with this assumption is it does not seem to parallel the case it is being contrasted with. If the Torah’s case of the woman’s liability is one in which she would have been able to save her husband without grabbing the other man’s genitals, the equivalent case regarding the court officer is also one in which he could have accomplished his task without force but did so anyway. If so, the midrashic exemption of the court officer would teach that he should be exempt even when using unnecessary force.
Tosafot Ha-Rosh answers that the case described in the Midrash is one in which there is no loss for going to court.[48] Tosafot Ha-Rosh describes a case in which the woman and the court officer respond to the same situation in different ways. The woman responds by using unnecessary force, while the court officer would only use force when absolutely necessary. Despite their differing reactions, the fact that they are responding to the same situation enables the Gemara to compare them. According to Tosafot Ha-Rosh, the woman strikes her husband’s assailant without necessity “because she is distressed [bahulah] by her husband being beaten, which is not the case with regard to the court officer.”[49]
Tosafot Ha-Rosh’s language is quite opaque. Why should the woman’s unnecessary force be considered parallel to the court officer’s use of necessary force? Why should the woman’s distress serve to differentiate them? I believe the best way to read this cryptic answer is that he is describing how the woman and the court officer react differently to the same situation.
According to Tosafot Ha-Rosh, what the woman and the court officer share is the same situation in which a man is being beaten up but he can be saved with minimal force. In such a scenario, the woman is so distressed by seeing her husband being beaten that she overreacts and grabs the other man’s genitals even though she could have saved her husband by de-escalating the situation or stopping him in other ways. Although it is understandable, given the situation, for the woman to use excessive force in the heat of the moment, the woman is nonetheless considered liable.
The court officer, on the other hand, is expected to remain calm. His clear-headedness enables him to use minimal to no force. If he does end up using force, it is only because the situation has demanded it and he would have been able to save the victim without it. We, therefore, safely assume that because the officer is able to remain calm in the heat of the moment, he is able to keep any use of violence to a minimum.
Tosafot Ha-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 Tosafot Ha-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 Tosafot Ha-Rosh is impossible 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.” Tosafot Ha-Rosh is thus teaching that the court agent is exempt specifically when he acts according to this expectation that he only uses 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. Excessive fear and distress when confronting Black people cannot be used to protect officers from liability. The commentary of Tosafot Ha-Rosh suggests that, whether or not the officer handling the situation can control his biases and emotions, he is still responsible for them and should be held liable if he cannot. It also suggests that the standard for use of force and de-escalation should depend on how a trained and unbiased professional would react to and handle the situation.[50]
Based on this reading of Tosafot Ha-Rosh, we can create the following legal standards for acceptable force by officers of the state: (1) An obligation to de-escalate and accomplish the task without physical force if possible; (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.
Is An Officer of the Law Liable for Using Excessive Force?
While Tosafot Ha-Rosh appears to assume that a court officer who uses unnecessary force should be liable, Nemukei Yosef[51] appears to come closer to making this case directly. He connects the authority of the court officer to use force with Rav Nahman’s permission to strike a hundred blows in the well story. On the surface of the story, there is no indication that Rav Nahman’s allowance of force is limited in any way. However, Nemukei Yosef’s belief that unnecessary force is wrong leads him to read Rav Nahman’s permission of a hundred blows as applying only when the partner refuses to abdicate before the hundredth blow. Otherwise, Nemukei Yosef believes, there is no way Rav Nahman would give permission to someone who could have protected his rights without employing violence. Relating the story back to the court officer, Nemukei Yosef argues that 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 cannot be that a regular person should have a greater ability to use violence against a partner who refuses to desist than the court officer has to compel a person to accept a court ruling. Nemukei Yosef’s equation between court officer and civilian rights to use force would thus suggest that the court officer’s authority to use force is no more expansive than for the civilian. Just as the civilian can only use force when absolutely necessary, the same is true of the court officer.[52]
The one medieval sage who explicitly argues for the right of a court officer to use unnecessary force is Rabbeinu Yeruham.[53] Without giving a proof he asserts that a court officer has the right to use force against a person who refuses to abide by the court’s rulings. This right to violence applies even if the court officer could have accomplished his goals without using force.[54]
Shulhan Arukh[55] does not cite Rabbeinu Yeruham, while Rema[56] does. However, he only quotes Rabbeinu Yeruham as saying that a court officer is allowed to strike someone who refuses to obey the court’s rulings. He does not bring up the issue of whether the court officer is able to use force even when he could have used nonviolent means to maintain adherence to the court.[57]
Two latter-day rabbinical authorities who discuss this issue more specifically are R. Jacob ben Joseph Reischer (Shevut Ya’akov) and R. Yisrael Issur ben Zev Wolf (Sha’ar Mishpat). In their respective responses to this issue, the two rabbis come from differing approaches to Bava Kamma 28a’s distinction between the woman and the court officer.
Shevut Ya’akov[58] 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 recalcitrant person does not typically cause damages. Yet, in this particular case, the person who was beaten was injured and sued the court agent for damages.
In response, Shevut Ya’akov first points to Bava Kamma 28a. As noted previously, it cites the Midrash that differentiates between the woman and the court officer. Earlier, we raised the issue of how the Midrash is distinguishing between the two of them. The exclusion of the court officer from the verse about the woman would suggest that the court officer would be exempt in the exact same case in which the woman would be liable. If it is speaking about a case in which the woman could have saved her husband without violence (as per the conclusion in the Gemara), wouldn’t that mean that, under the same circumstances, the court officer would be exempt? Shevut Ya’akov initially agrees with this argument and posits that the court officer should indeed be exempt from liability even when he uses unnecessary force.[59] Some use this initial assessment to cite Shevut Ya’akov as a source for the notion that the court officer is exempt even when he uses violence unnecessarily.[60]
However, Shevut Ya’akov then cites Nemukei Yosef, whom he understands the way I suggested above, that even the court agent is liable for using unnecessary force, and notes that this understanding fits well with the conclusion of the Gemara’s 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.[61] Only for this payment would the agent be exempt for using unnecessary force, but he would remain liable for other damages. He closes out his discussion of this point by saying “ve-tzarikh iyun (it requires further investigation).” In other words, Shevut Ya’akov does not really conclude that the court agent should be exempt for using unnecessary force. He does conclude that the court agent in this particular 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 going to injure him, and thus should be exempt.
What emerges from Shevut Ya’akov‘s responsum is 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 Ya’akov as being a real support for immunity for police officers.
R. Yisrael Issur ben Zev Wolf, in his Sha’ar Mishpat (Hoshen Mishpat 8:2), argues more definitively that the court officer has no right to use unnecessary force. His main argument comes from one layer of the Gemara’s discussion about the wife on Bava Kamma 28a.
As we noted earlier, Bava Kamma 28a argued that the woman is only liable if she could have saved her husband without grabbing his assailant’s genitals. This assumption was then questioned through the Midrash, which stated that the Torah exempts a court officer from liability. If it is really the case that the woman is exempt had she no other way of saving her husband, the Midrash that differentiates between the woman and the court officer should have explicitly made that distinction.
At this stage, Sha’ar Mishpat argues, the Gemara must be assuming that the court officer would also be liable for an unnecessary use of force. If 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. In other words, the whole reason why the Gemara is bothered by the Midrash’s lack of specification is because it is assuming that the woman and the court officer have equal standards. He therefore argues that the Gemara never entertained the possibility that the court officer could be exempt for using unnecessary force.
According to R. Yisrael Issur, the Gemara’s conclusion defends 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. The midrashic exclusion of the court officer is coming to teach that he is exempt when using force is necessary. Thus, the woman’s usage of necessary force is the legal equivalent to that of a court officer, and they are equivalent regarding unnecessary force as well.
Sha’ar Mishpat uses this argument against Rabbeinu Yeruham, who had argued that the court officer should be exempt even when he could have accomplished his goals without using force. Rabbeinu Yeruham himself had not cited any prooftext from the Gemara. R. Yisrael Issur believes that his position is coming from the midrashic exclusion of the court officer. R. Yisrael Issur’s understanding of the Gemara, though, excludes such a reading.
After supporting himself with the previously cited Nemukei Yosef (whom he also understands to exclude the possibility that the court agent is allowed to use unnecessary force), Sha’ar Mishpat uses Sanhedrin 74a similarly to 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 deserving of death.
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 when saving the life of the potential murder victim, one is prohibited from using any force greater than necessary. The same, Sha’ar Mishpat argues, should certainly apply to a court officer dealing with less serious cases.
R. Yisrael Issur concludes his argument by citing Ketuvot 100a, which speaks about the court selling property on behalf of orphans. If they misvalue 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, though I believe he is suggesting that using unnecessary force reflects an error in judgment. This language would thus include a court officer who mistakenly thinks that using force is necessary when it is really not. This mistaken analysis of the situation, even if under the pressure of the moment, is still considered a mistake.[62]
Further, his comparison to the court serving as agents of the orphans is also striking. In Ketuvot 100a, the fact that the court erred means that they were not actually serving as proper agents of the orphans. Extending this analogy to the court officer, he may mistakenly assess the situation and the person with whom he is dealing, whether neglectfully or even accidentally. 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. 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. Yisrael Issur suggests that his argument against Rabbeinu Yeruham could be why R. Yosef Karo neglects to mention his opinion in the Shulhan Arukh.[63] In his opinion, the Halakhah, even according to the Shulhan Arukh, follows his read of Nemukei Yosef and not Rabbeinu Yeruham. That being the case, the court officer is bound by the same standards regarding the use of force as a civilian.
Conclusion
With the exception of Rabbeinu Yeruham, the preponderance of rabbinic and halakhic sources assume that even the court officer is obligated to minimize his use of force and employ it only when he has no other alternative. Although the court officer has no less of a right than a regular citizen to use force, Tosafot Ha-Rosh expects that his experience and professional training should make him more clear-headed under pressing circumstances than the civilian would. These abilities would enable him to use alternative tactics like de-escalation to enable him to accomplish his goals without employing violence.
The court officer who fails to meet these expectations and uses unnecessary force violates not only his standards but even the cause of justice. As Rashi suggests, the court officer does not simply enforce justice. His actions are also subject to the criteria of justice as well.
These halakhic sources have important implications for police policies regarding the use of force in the United States. Even white U.S. citizens are more likely to be beaten or killed by police officers than citizens of other Western countries,[64] in no small part because police department policies are much more permissive regarding the use of force than other developed countries.[65] The U.N. Code of Conduct states that police officers “may use force only when strictly necessary and to the extent required for the performance of their duty.”[66] In the U.S., however, use of force policies often fail to require de-escalation or exhausting other means before using force.[67] The Use of Force Project (created by Campaign Zero, a police accountability advocacy group) has found that police departments with more restrictive use of force policies have a lower rate of police killings than other departments.[68] Police use of force policies more informed by Halakhah would therefore reduce the rate of police violence committed against United states citizens.
[1] I thank Rabbi Yosef Gavriel Bechhoffer, Rabbi Ysoscher Katz, Rabbi Dr. Alan Brill, Rabbi Dr. Shlomo Pill, Rabbi Eliezer Finkleman, Terrell Mims, Keith Neely, and Shlomo Radner for their helpful comments. I would especially like to thank Rabbi David Fried for the many hours he spent working with me in preparing this article for publication in The Lehrhaus. Any errors, however, are the responsibility of the author.
[2] https://www.cnn.com/2019/03/21/us/police-stops-race-stanford-study-trnd/index.html.
[3] https://abcnews.go.com/US/abc-news-analysis-police-arrests-nationwide-reveals-stark/story?id=71188546.
[4] Richard A. Oppel Jr. & Lazaro Gamio, “Minneapolis Police Use Force Against Black People at 7 Times the Rate of Whites,” New York Times (June 3, 2020). Also see https://slate.com/news-and-politics/2019/05/chicago-police-department-consent-decree-black-lives-matter-resistance.html.
[5] https://www.usnews.com/news/articles/2020-06-03/data-show-deaths-from-police-violence-disproportionately-affect-people-of-color. Also see https://www.vox.com/identities/2016/8/13/17938186/police-shootings-killings-racism-racial-disparities.
[6] https://www.washingtonpost.com/nation/2021/04/04/when-police-kill-people-they-are-rarely-prosecuted-hard-convict/.
[7] https://www.newsweek.com/walter-scott-ruling-very-rare-expert-says-741493. One of the few recent examples of a police officer facing significant prison time for unjustified shooting was in 2017 when a Muslim officer by the name of Mohamed Noor shot and killed a white Australian woman in Minneapolis.
[8] An illustrative example is that of Tamir Rice, a 12 year old Black boy in Cleveland playing with a toy gun who was shot within two seconds of the officer arriving on the scene. The Cuyahoga County prosecutor’s office convened a grand jury only after a tremendous outcry. Usually prosecutors try their best to indict. In this case, the Cuyahoga County prosecutors claimed impartiality, even challenging expert witnesses testifying that the officers’ actions were reckless. Needless to say, the officers were not indicted. More recently, the grand jury that failed to charge Breonna Taylor’s killers did so in part because the prosecutor never recommended charges against them.
[9] Based on the U.S. Supreme Court case Graham v. Connor (1989). The court decided that officers may use force when another reasonable officer would have done so in a similar situation.
[10] Deuteronomy 16:20.
[11] Like Exodus 23:9 and Leviticus 19:33-34.
[12] Also see an argument for police accountability based on a Midrash by Rabbi Aryeh Bernstein, https://www.youtube.com/watch?v=vsaCayrb-HY.
[13] Rashi on Makkot 8a, s.v. “U-shliah Beit Din” and Rashi on Makkot 22b, s.v. “Im Meit.”
[14] Bava Metzia 113a. The Gemara there debates whether the court agent has special permission to enter a debtor’s home to collect collateral (in contrast to the lender, who may not).
[15] Bava Kamma 104a.
[16] Gittin 29b.
[17] Rashi on Kiddushin 12b “De-metza’er Sheliah De-Rabanan.” Also see Maimonides, Laws of Murder, 5:6.
[18] Bava Kamma 28a compares the court agent with the woman who sexually assaults a man who had been beating up her husband. Tosafot HaRosh (idem. s.v. “Liflog”) uses the language of “saving” regarding the court agent, suggesting that the court agent could be charged with saving a person being beaten up by another.
[19] Bava Kamma 28a. Nemukei Yosef on Bava Kamma 27b proves this from a story there about the right of a regular person to use force to protect himself against loss by someone who hadn’t been acknowledging his claim. If a regular person enjoys the right to use force in such circumstances, the court agent certainly has the right to use force against someone who doesn’t listen to him. Also see Beit Yosef on Tur Hoshen Mishpat 8:16 and Rama on Shulhan Arukh Hoshen Mishpat 8:5.
[20] Also see this article by Rabbi Yaakov Ariel for other halakhic sources for the authority of a modern day police force: https://www.toraland.org.il/%D7%A7%D7%98%D7%9C%D7%95%D7%92-%D7%A1%D7%A4%D7%A8%D7%99-%D7%94%D7%A8%D7%91/%D7%91%D7%90%D7%94%D7%9C%D7%94-%D7%A9%D7%9C-%D7%AA%D7%95%D7%A8%D7%94-%D7%93/%D7%A1%D7%99%D7%9E%D7%9F-%D7%99%D7%96-%D7%9E%D7%A7%D7%95%D7%A8-%D7%A1%D7%9E%D7%9B%D7%95%D7%AA%D7%94-%D7%A9%D7%9C-%D7%94%D7%9E%D7%A9%D7%98%D7%A8%D7%94/?fbclid=IwAR0gHcezsluBRCiPrwCl1e7lAmJjYCP4z7YKKUjiNxDkrz0Z4oQaE6PFFvo . I thank Rabbi Dr. Alan Brill for directing me to this source.
[21] https://static1.squarespace.com/static/55ad38b1e4b0185f0285195f/t/5deffeb7e827c13873eaf07c/1576009400070/Campaign+Zero+Model+Use+of+Force+Policy.pdf.
[22] As Rabbi Ysoscher Katz pointed out to me, this statement is likely a bit of a hyperbole. At the same time, it reflects a wide latitude to use force, whether there are five blows or one hundred.
[23] Bava Kamma 27b.
[24] Bava Batra 48a. Also see Maimonides, Laws of Divorce, 2:20.
[25] Kiddushin 12b. Although it is possible to translate “menagid” as excommunicate, halakhic authorities like Rambam (Laws of Forbidden Intercourse 21:14), Tur (Hoshen Mishpat 8), and Shulhan Arukh (Hoshen Mishpat 8:5) assume that it refers to lashes.
[26] Kiddushin 3:8.
[27] Tur Hoshen Mishpat 8; Bet Yosef on Tur Hoshen Mishpat 8:16; Shulhan Arukh Hoshen Mishpat 8:5.
[28] https://www.vox.com/2015/6/29/8862819/can-i-insult-police.
[29] See Rashi s.v. “Be-makom” for how going to court in the well case would have entailed a loss for the partner.
[30] Bava Kamma 28a.
[31] The verse itself speaks about two men fighting each other and the wife of one of them protecting her husband by grabbing the genitals of the other. Although the literal reading of the verse commands that the woman’s hand be cut off, the Midrash interprets it as requiring monetary compensation to the victim for embarrassing him.
[32] Most commentators (like Rashi, s.v. “Be-she’einah”) assume that, since the woman’s husband is being beaten up, the woman would lose a great deal by waiting to take the assailant to court. Even if the woman would recoup the full value of her husband’s injury in court, her husband would have still been greatly injured. That being the case, the source is seen as a challenge to Rav Yehudah’s opinion as well. However, See Ra’avad (s.v. “Ta Shema”), who raises the possibility that the husband is not being beaten seriously, which would mean that there would be no real loss to the wife by waiting to take the perpetrator to court. According to this understanding, the Gemara is only challenging Rav Nahman’s position.
[33] Many contemporary talmudic analysts use the Gemara’s equation between the woman and the court officer to argue that it informs us about legal underpinnings of the ability to take the law into our own hands. According to this view, those who take the law into their own hands have the status of court officers when they do so. For example, see Kuntresei Shiurim (Jerusalem, 1996), # 15, beginning on p. 135a.
[34] Rosh, Bava Kamma 3:13.
[35] Although a simple reading of the talmudic passage suggests that the such a person would be liable for the death penalty, see Maimonides, Laws of Murder 1:13, which rules that the court would not actually impose the death penalty in such a case. I have written a discussion of this talmudic passage along with the opinion of Mishneh La-Melekh, Laws of Bodily Injury 8:1, and their implications for police shootings out of alleged self-defense, which I hope to publish at a later date.
[36] Presumably, the amount for which they would be liable would be the difference between the degree of damage incurred and the amount of damage that would have been created if they used a minimal amount of force.
[37] Rashi’s statements can be better appreciated in the context of his explication of the Gemara’s earlier stages. In Bava Kamma 28a s.v. “Be-she’einah,” Rashi explains that, in the first step of the talmudic discussion, we are assuming that the woman had no other way to save her husband from being beaten than to grab the perpetrator’s genitals. Taking the perpetrator to court would therefore entail a loss; she would not want her husband beaten, even if they were compensated by the court. Rashi further adds that since the woman could not have saved her husband through other means she was acting according to the dictates of justice. Despite these two reasons to exempt the woman, the Midrash would be teaching that she is nonetheless liable. The woman’s liability even under these circumstances would thus prove that one can never take the law into their own hands, even in cases of loss.
As we will see more clearly from the next Rashi, the categories of “loss” and “executing justice” are really two separate categories with differing criteria. According to Rashi, a situation would be considered a case of loss if one would lose anything tangible (like money or the health of one’s husband) by going through the standard legal process. This is separate from the issue of whether the use of physical force is considered executing justice. A person snatching money owed to them would highlight this distinction. If they would not have been able to obtain the money to which they were entitled through the legal process, it would be considered a case of loss that would justify taking the law into one’s own hands, even according to the stricter opinion. However, snatching money is very different from beating up another person. Employing violence of this nature requires that it be absolutely necessary. Without this condition, it is considered as if justice was not executed properly, even if it results in the money going to the right person.
[38] Bava Kamma 28a s.v. “Ki-she-yekholah.”
[39] Tosafot Bava Kamma 28a s.v. “Lo” use similar language to Rashi, saying that “since [the woman] was able to save [her husband] by other means, it is not even justice”. See also Shitah Mekubetzet Bava Kamma 28a s.v. “Lo.” Shitah Mekubetzet cites an anonymous commentator known as Gilyon who explains Tosafot’s statement that the woman has not even executed justice. He explains that Tosafot’s words serve to respond to the following scenario: Instead of immediately responding to her husband being beaten up, the woman decides to go to court and follow their instructions. The court then instructs the woman to save her husband by using physical force. Without Tosafot’s words, we may have thought that the woman would be exempt. According to the opinion that we can take the law into our own hands even without the need to prevent a loss, the woman should be exempt since she went to court and followed their instructions. We would have assumed that using unnecessary violence is not considered a loss because she could have solved the issue by going to court. Her coming to court would thus negate that issue. Tosafot’s language therefore teaches us that since the woman’s use of force was unnecessary, she would still be liable. As he puts it, executing justice on our own “applies specifically when someone acts according to the law. However, here, since she would have been able to save [her husband] without [violence], she has not even acted according to justice. Therefore, she would be liable in such a case.” This explanation suggests that using unnecessary force is a separate issue from that of whether there is tangible loss. He also differentiates between going to court and acting according to justice. His approach thus reinforces my reading of Rashi, namely that employing unnecessary force is separate from the issue of loss and that means the act cannot be considered an act of justice.
[40] A similar idea is expressed by R. Hayyim Soloveitchik in Hidushei Rabbeinu Hayyim HaLevi Al HaRambam, Hilkhot Edut 20:2. R. Soloveitchik discusses the case of a court that had erroneously administered lashes to a person due to false testimony. He argues that lashes given under false pretenses are not considered to have been administered on behalf of a court. Such lashes are legally akin to one person striking another outside the sanction of law. See also Gilyonot Hazon Ish ad loc. I thank Rabbi Yosef Gavriel Bechhofer for directing me to these sources.
[41] https://www.theguardian.com/us-news/2014/nov/26/tamir-rice-video-shows-boy-shot-police-cleveland.
[42] https://www.washingtonpost.com/news/wonk/wp/2015/12/28/why-prosecutors-keep-talking-about-tamir-rices-size-36-pants/. See also https://www.apa.org/pubs/journals/releases/psp-a0035663.pdf.
[43] https://www.ramseycounty.us/sites/default/files/County%20Attorney/Exhibit%201a%20-%20Traffic%20Stop%20Transcript.pdf.
[44] https://www.ramseycounty.us/sites/default/files/County%20Attorney/Yanez%20BCA%20Interview%20Transcript%207.7.16.pdf.
[45] Admittedly, it can unfortunately be difficult to prove racial bias in criminal cases that require the legal standard of “beyond a reasonable doubt.” Unless the officer used explicitly racist language or has obtainable racist social media posts (which is also unfortunately quite common https://www.cbsnews.com/news/police-officers-nationwide-alleged-racist-violent-social-media-posts-plain-view-project-2019-06-07/ ), it can be difficult to obtain a criminal conviction. However, in civil cases, which require just a “preponderance of evidence” (i.e. more likely than not), it is significantly easier to prove racial bias. For example, if an officer acted arbitrarily and only enforced the law against a member of a protected class or if they showed reckless disregard for their rights, they would have violated civil rights law. I would like to thank Shlomo Radner for providing me with this background in civil rights law.
[46] https://www.newsweek.com/oklahoma-police-officer-fired-racist-facebook-lands-new-role-1462559. See also https://www.nydailynews.com/news/national/police-officer-fired-writing-racial-slur-uniformed-selfie-article-1.2810211 .
[47] Tosafot Ha-Rosh Bava Kamma 28a, s.v. “Liflog”; also quoted in Shitah Mekubetzet, ibid.
[48] As discussed previously, Rashi (at least in the concluding stage) suggests that unnecessary force should be liable because it is not even considered an act of justice, and separate from the issue of whether there would be a tangible loss by proceeding through the justice system. Tosafot Ha-Rosh, on the other hand, seems to assume that unnecessary force is connected to the concept of loss. Because the woman could have saved her husband without grabbing the other man’s genitals, it means that she would not have suffered a loss by avoiding this behavior. Unnecessary force remains connected to the issue of loss, in contrast to Rashi.
Rabbi David Fried pointed out that Tosafot Ha-Rosh’s focus on loss appears to make it a criteria for whether or not one may take the law into their own hands. This would seem to assume the opinion of the Amora Rav Yehudah, who believes that one can only take the law into their own hands when going through the legal system would entail a loss. This would differ from all other accepted halakhic authorities who follow Rav Nahman’s opinion that one can take the law into their own hands even if going through the legal system would not entail a loss (Shulhan Arukh Hoshen Mishpat 4:1).
I believe the most likely explanation is that Tosafot Ha-Rosh is working within the Gemara’s question. According to most commentators, the Gemara initially assumes that the husband being beaten is considered a case of loss. This would mean that the Gemara’s argument is that one cannot take the law into their own hands even in a case of loss. The discussion thus poses a challenge even to Rav Yehudah’s opinion (see Rashi on Bava Kamma 28a s.v. “Be-she’einah”). Since the challenge is even to the opinion that one can take the law into their own hands in a case of loss, Tosafot Ha-Rosh is explaining how, according to the conclusion of the Gemara, there is really no loss involved since the woman could have defended her husband through other means.
Another possible solution is that Tosafot Ha-Rosh believes that there are two conditions to a situation being considered a case of loss. One is that the person would suffer an undue burden by working through the legal system. The accepted Halakhah is that this criteria is not necessary in order to take the law into their own hands. However, there is another condition of loss that the person is unable to accomplish their goals without using force. According to Tosafot Ha-Rosh, even Rav Nahman (who otherwise posits that one can take the law into their own hands even if there is no loss involved) would agree that a person cannot use force if they can accomplish their goals without it. Thus, even Rav Nahman agrees that this type of loss is absolutely necessary in order to be able to use force.
[49] Here are the words of Tosafot Ha-Rosh in their original: הא לא קשיא דכולה בדליכא פסידא מיירי והיינו דכותה שליח בית דין דאינו יכול להציל כמו היא יכולה להציל לפי שהיא בהולה על הכאת בעלה מה שאין כן שליח בית דין.
[50] 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: “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.” 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. Obviously, unlike the doctor performing surgery, the police officer puts his own life on the line in the course of duty. Nonetheless, it is still possible to assess the degree to which officers exhibit excessive distress when working in communities of color.
[51] Nemukei Yosef on Rif Bava Kamma 12b, in the pages of the Rif.
[52] On the other hand, it is also possible to read Nemukei Yosef as saying that the court officer cannot have any less authority to use force than a regular person. According to this reading, it is still possible for the court officer to have a greater right to use force than a regular person and thus be able to use violence even when not absolutely necessary. It is possible that Beit Yosef Hoshen Mishpat 8:16 also reads Nemukei Yosef this way.
[53] Sefer Meisharim, Netiv 31:2.
[54] Beit Yosef Hoshen Mishpat 8:16 cites Rabbeinu Yeruham without explicitly stating whether or not the Halakhah follows this opinion.
[55] Hoshen Mishpat 8:5.
[56] Ibid.
[57] However, see Me’irat Einayim (SMA) on Shulhan Arukh Hoshen Mishpat 8:25. SMA there fills in the citation of Rabbeinu Yeruham to say that the court officer is exempt even when he could have accomplished his mission without employing violence.
[58] Shevut Ya’akov 180.
[59] Shevut Ya’akov uses this reading as a prooftext for Beit Yosef‘s citation of Rabbeinu Yeruham. Interestingly, Shevut Ya’akov never mentions Rosh’s approach to this question.
[60] For example, see Otzar Mefarshei Ha-Talmud, Bava Kamma 28a.
[61] See Rashi on Bava Kamma 28a s.v. “Perat.”
[62] Cf. Tosefta Kifshuta on Gittin 3:13. R. Lieberman is interpreting the Tosefta’s teaching that the court officer who injures someone unintentionally (be-shogeg) is exempt, while the court officer who injures intentionally (be-meizid) is liable. He 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. My reading of Sha’ar Mishpat would disagree with R. Lieberman’s assertion that a court officer should be exempt in such a case.
[63] Sha’ar Mishpat never addresses Rema’s citation of Rabbeinu Yeruham. It should be noted, though, that his citation never mentions Rabbeinu Yeruham’s opinion that the court officer is exempt even for unnecessary force.
[64] https://theconversation.com/why-do-american-cops-kill-so-many-compared-to-european-cops-49696. Also see https://www.joincampaignzero.org/problem.
[65] https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1014&context=ihrc.
[66] https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1014&context=ihrc.
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