David Polsky
EDITORS’ NOTE: For Part 1 of this article, see here.
Qualified Immunity in Halakhah[1]
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. In Part 1 of this article, I discussed the excessive use of force police officers employ, especially against communities of color. To attempt a halakhic approach to police violence, bias, and accountability, I discussed talmudic and halakhic discussions regarding the use of force by a court officer (sheliah Beit Din). It was his job to execute court judgments, administer punishments, and compel recalcitrant litigants to testify. I argued that three ideas emerged from the commentators and halakhic authorities’ discussions of the court officer: (1) Agents of the law are required to minimize their use of force. If they can accomplish their aims without using force they are obligated to do so. (2) Those who knowingly use unnecessary excessive force are not legally acting as agents of the law; enforcement of justice itself must be just. (3) Officers of the law are expected to remain calm and level-headed enough to be able to recognize when and how they can accomplish their aims without using force.
In this section, I will discuss the degree to which Jewish law grants officers immunity from damage or death caused by their usage of force, whether authorized or not.
Police who use unnecessary force according to existing policies are highly unlikely to face lawsuits because of qualified immunity. This legal standard dictates that police officers cannot be held personally liable unless they have violated “clearly established” rights based on existing case law.[2] Thus, officers can knowingly use unnecessary force without being held liable unless previous case law specified that such actions are prohibited. These laws and policies enable police officers to use unnecessary deadly and non-deadly force without facing consequences other than losing their jobs under extreme circumstances.[3]
The issue of immunity is essential to discussions of police reform because qualified immunity exempts police officers from personal liability for violating constitutional rights if, at the time of the violation, the victim’s constitutional rights were not “clearly established.”[4]
Qualified immunity does not require officers to have acted reasonably to the situation or to have been acting in good faith. In other words, it is not necessary for them to claim that they felt that their actions were necessary, appropriate, or even legally permissible in the moment. As long as it is not “clearly established” that they are violating a constitutional right, they will be exempt from civil liability. This legal standard preventing accountability creates a serious moral hazard for police officers since they have little reason to fear being held accountable when using excessive force.[5]
It is understandable that police officers should be granted some degree of legal protection. Since the nature of their job requires using force, it would be difficult for them to do their jobs if they were constantly in fear of lawsuits. Such a fear would discourage many qualified people from becoming police officers. On the other hand, if immunity is extended too broadly, officers are encouraged to behave recklessly and endanger the lives of citizens in general and people of color in particular, as is the case now.
As I will demonstrate, rabbinic sources do grant the court officer immunity so as not to discourage anyone from performing this communal function. At the same time, I will argue, the immunity he enjoys is of a smaller scope than the qualified immunity standard in US law.
The Rabbinic sources on immunity for court officers deal with two separate issues: accidental death and bodily injury. A person who unintentionally kills another is never liable to the death penalty. The exact consequences depend on the degree of negligence involved. If the death caused is completely unanticipated and beyond anyone’s control, it is considered “o-nes,” or against one’s will. In such a case, there are no consequences for the perpetrator.[6] If the death caused was unintentional but more foreseeable, the perpetrator is liable to exile. In the times of the Temple, they would have been exiled to one of the cities of refuge in the land of Israel until the death of the High Priest.[7] If they leave the city beforehand, the family of the victim would have the right to kill them.[8] When a person kills through negligent disregard for the another’s life, it is considered comparable to wilful murder (karov le-mezid). In such a case, the murderer does not have the right of protection by fleeing to the cities of refuge, and the victim’s family still has the right to kill the murderer.[9]
While an accidental killing would normally entail one of the above consequences, Jewish law grants immunity to those who are permitted or authorized to use force. For example, the Mishnah considers disciplining a student to be a Mitzvah. Therefore, if, while doing so, a teacher accidentally kills the student, the teacher is exempt from exile.[10] Similarly, if a court officer is administering lashes to a person convicted by the Beit Din and the person receiving them dies, the court officer is exempt from exile. On the other hand, the court officer who accidentally lashes the convict even once more than the prescribed number is exiled if the convict dies.[11] One would therefore expect that a court officer who accidentally kills a recalcitrant litigant should also be exempt. However, there are seemingly contradictory sources on this.
In Mishnah Makkot 8a, Abba Shaul states that a court officer who accidentally kills is exempt from exile because he was performing a Mitzvah. It is not clear from Mishnah Makkot 8a, however, what exactly the court officer was doing. While many opinions interpret Abba Shaul as speaking about the court officer who administers lashes,[12] Maimonides[13] interprets him as speaking about a court officer trying to get a recalcitrant litigant to come to court.
Tosefta Makkot 2:5[14] seems to contradict such an interpretation. It teaches that a court officer who strikes another with the court’s permission is exiled if he accidentally kills the one he struck. Despite the Tosefta contradicting Maimonides’ interpretation of the Mishnah, he nonetheless rules in accordance with the opinion of Abba Shaul over the anonymous opinion in the Tosefta. According to those who interpret Abba Shaul differently from Maimonides, there is no source for the idea that a court officer who beats and accidentally kills a recalcitrant litigant is exempt from exile.
There are three other passages in the Tosefta regarding immunity for court officers. These passages, however, relate to civil liability for damages. Before examining them, we must appreciate that, generally speaking, people are liable even for unintentional property and personal damage.[15] Immunity thus serves to exempt court officers and others from personal and property damages for which they would otherwise be liable. These passages discuss not only court officers but also doctors who accidentally injure their patients,[16] teachers who accidentally injure the students they discipline, and other professions.
The first relevant passage in the Tosefta (Gittin 3:13) states that “an agent of the court who strikes with the permission of the court and unintentionally damages is exempt, but [if he does so] intentionally, [he is] is liable–an enactment to improve the world.” Although the court officer who unintentionally injures someone he disciplines would ordinarily be liable, the rabbis decreed that the court officer would be immune from such damages. The suggested reason for the exemption is that court officers are a communal necessity, and being personally liable for accidental damages would make qualified people less likely to serve in such positions. On the other hand, the sages never grant immunity for cases of willful damage. It is not completely clear from this passage what the parameters of “unintentional” and “wilful” damage are. For example, is it considered “unintentional” if the court officer used unnecessary force but did not intend to injure the other party? What if he was reckless? We will attempt to explain these terms shortly.
The second passage in the Tosefta (Bava Kamma 6:5) teaches that, “If an agent of the court beats a person with the court’s permission and damages them, he is exempt from damages in human court but his judgment is handed over to Heaven.” In contrast to the first Tosefta, there is no distinction between intentional and unintentional damages. Instead, it distinguishes between liability for damages in court vs. a moral obligation to pay the damaged party.
The third passage in the Tosefta (Bava Kamma 9:3) states, “An agent of the court that beats a person with the court’s permission and damages is exempt. However, if they beat the person more than what was appropriate, they are liable.” This Tosefta also omits any distinction between intentional and unintentional damage. Additionally, the meaning of “appropriate” for these purposes is ambiguous.
Relatively few later authorities reconcile the passages regarding the court officer specifically.[17] However, each of the four baraitot we cited from the Tosefta also states a parallel ruling regarding immunity for doctors. It is therefore possible to extrapolate many rabbis’ approaches to immunity for court officers from their rulings on immunity for physicians.
Ramban
The first halakhic authority to attempt to reconcile these seemingly contradictory sources is Ramban in his Torat Ha-Adam.[18] In the relevant passage, Ramban speaks about the degree to which immunity is granted to physicians who accidentally harm their patients. He argues that the Torah grants immunity to the physician so that qualified doctors don’t withhold treating patients out of fear that they could be held liable for accidental damage and death. By extrapolation, the need to encourage qualified people would also apply to the case of the court officer. Few people would want to serve such an important communal role if they could be held liable for killing or damaging accidentally.
Ramban then cites Tosefta Makkot 2:5[19] as an implicit challenge to his assertion. If the physician is granted immunity for error, why does the Tosefta teach that a physician who accidentally kills their patient is exiled? Ramban answers by distinguishing between a moral, “Heavenly” obligation and a purely legal one. The physician who injures or kills accidentally is not legally obligated to pay or go into exile. They are nonetheless morally obligated to pay for damages if and when they realize the harm they have caused. Similarly, even though the court would not force the doctor into exile for accidentally killing their patient, they have a Heavenly mandate to exile themselves.
Many commentators are bothered by the fact that Ramban’s answer seems to contradict Abba Shaul’s teaching in Mishnah Makkot (8a) that the court agent, teacher, or father who accidentally kill while beating are exempt from exile because they had each been in the act of performing a Mitzvah.[20] Many latter-day commentators prefer the explanation of Besamim Rosh.[21] Besamim Rosh and others posit that there is a subtle distinction between the case of the physician and those of the court officer, et. al. The physician who heals their patient is indeed performing a Mitzvah. However, the physician is only doing a Mitzvah if and when they are actually healing the patient. If, however, they are harming the patient–even accidentally–they are not really performing a Mitzvah and thus not protected from exile. This is in contrast to the court officer, whose beating of the recalcitrant litigant is inherently considered a Mitzvah irrespective of its effectiveness. Since the court officer, et al. are inherently performing Mitzvot they are protected from exile according to Abba Shaul. The physician, on the other hand, is not inherently performing a Mitzvah and is thus exiled.[22]
I would like to suggest that examining Ramban’s analysis of Mishnah Makkot 8a[23] may provide an alternative perspective to these questions.[24] Ramban, it must be noted, understands the court officer case differently than Maimonides. As mentioned previously, Maimonides believes that Abba Shaul is speaking about the case of a court officer compelling a litigant to obey the court. Ramban, however, understands him as speaking about a court officer administering lashes who accidentally kills the person receiving them despite administering the court’s recommended number of lashes. In such a scenario, Ramban explains, the court officer is exempt because he had been doing a Mitzvah. The court officer administering lashes is observing the court’s very specific instructions, as every single lash had been explicitly commanded by the court. On the other hand, the court officer using force to compel the recalcitrant litigant is in part using his discretion regarding the amount of force necessary and acceptable to do his job.[25] There is thus no indication that Ramban believes a court officer executing other forms of justice would be exempt from exile.[26] Applying this principle to the police officer would mean that the officer could also be deserving of exile for killing a suspect, even if the death was accidental.[27]
Arukh Ha-Shulhan’s Understanding of Ramban
Another approach to Ramban is suggested by Rabbi Yehiel Mikhel Epstein in his Arukh Ha-Shulhan.[28] Arukh Ha-Shulhan believes that the primary distinction suggested by the baraitot from the Tosefta is whether the physician acts negligently or does his due diligence in examining and executing the best course of action. While this is his primary distinction, he applies it differently between cases of death and those of damage.
If the physician (or, by extension, court officer) acts irresponsibly and the patient dies, the physician is liable to exile. On the other hand, he suggests, if a patient dies or is injured due to normal error, the physician is not liable to exile and is exempt from financial liability, even from a Heavenly perspective.
In contrast to Besamim Rosh and others, Arukh Ha-Shulhan rejects any distinction between the physician and the court officer. As he puts it, “why would [the physician] be any worse than the father striking his son or the teacher striking his student–who are exempt from exile?”[29] As long as the physician is acting in good faith, they are performing the Mitzvah of healing others even if they should err and accidentally wound or kill their patient. The physician would thus be exempted from exile according to Abba Shaul no less than the court officer, the father, or the teacher.
According to Arukh Ha-Shulhan, there is a better way to reconcile Abba Shaul with Tosefta Makkot 2:5. The Tosefta, which makes the physician and court officer liable to exile, is speaking about a case in which they act negligently. Their negligence means that they were not performing a Mitzvah and thus not eligible for Abba Shaul’s exemption. Under those circumstances, the court officer and physician would both be liable to exile. Since Abba Shaul and the Tosefta are speaking about different cases, the two sources do not contradict each other.
Arukh Ha-Shulhan applies this distinction to cases of damage as well, though with a subtle distinction. When the physician (or court officer) inadvertently causes damage or injury, they have no financial obligation whatsoever, not even a moral one, provided they were not in any way negligent. If, however, the physician or court officer were negligent, they are still immune from financial liability, but have a Heavenly obligation to provide financial compensation. The fact that even the negligent physician is only liable from a Heavenly perspective implies that, according to Arukh Ha-Shulhan, grant of immunity by Tosefta Gittin 3:13 for unintentional damage extends even to cases of negligence. Only if the court officer or physician intended to injure would their actions be considered willful [meizid] and thus liable for damages.[30]
Arukh Ha-Shulhan’s otherwise broad extension of financial immunity for the negligent physician or court officer could be comparable to qualified immunity. One subtle distinction between the two would be that qualified immunity makes the officer liable when they engage in an act of force that they should know–by virtue of it being “clearly established” by prior case law– is prohibited. Arukh Ha-Shulhan’s distinction seems to revolve around whether or not the court officer intended to cause harm. One may think that Arukh Ha-Shulhan’s exemption is even broader than the doctrine of qualified immunity. However, I believe that it is safe to assume that Arukh Ha-Shulhan would make the court officer liable should the officer use force that he should know is illegal.
Tashbetz
In his Sefer Ha-Tashbetz,[31] Rabbi Shimon b. Tzemach Duran attempts his own synchronization of the seemingly contradictory sources. Tashbetz reconciles the divergent Baraitot by arguing that they share the same message: the doctor or court agent who unintentionally damage should really be liable. However, in order to not discourage them from undertaking these communal functions, the rabbis exempted them. Nonetheless, they should ideally pay for such damages as per their “judgment in Heaven.”
Tashbetz‘s explanation parallels the argument that agents of the state should be granted immunity to prevent them from avoiding a necessary state function. On the other hand, Tashbetz believes that there is still a moral obligation for the court officer to pay. That being said, we must analyze which cases he considers “unintentional” (and thus subject to immunity) and which he considers “intentional.”
According to Tashbetz, the court officer’s (or physician’s, etc.) damage is considered “unintentional” even if he mistakenly acts more aggressively than necessary. As long as he meant to act properly and professionally, the damage caused is still “unintentional” and the Rabbinic enactments for the benefit of society would render him exempt.[32] According to Tashbetz, the term “unintentional” [shogeg] in the Tosefta is referring to the court officer’s actions. Although the court officer failed to minimize his use of force, his mistake was in unintentionally choosing the wrong course of action.
However, Tashbetz qualifies, if the court officer, et. al. knowingly uses more force than is appropriate for the situation [yoter min ha-raui lo], “his damages would be considered intentional and he would thus be liable.” Even if the court officer did not intend to injure, his knowing use of unnecessary force renders any damage “intentional” and opens him up to personal liability. Although Tashbetz seems to expand the definition of “unintentional,” he still requires a good faith effort to minimize force.
In certain ways, his ruling parallels qualified immunity. Since the court officer hadn’t known that he was acting improperly, he is considered to have acted unintentionally, making him exempt. However, there are significant differences between the two. Although Tashbetz exempts those who mistakenly act more aggressively, he nonetheless requires a good faith effort to minimize the use of force.[33] An example would be the officer who employs force that he believes is the minimum required to accomplish his aims while failing to realize at the time that a lesser degree of force would have also done the job. This is fundamentally different from qualified immunity, which permits the officer to use a degree of force he realizes is unnecessary as long as his conduct did not violate a right that had been “clearly established” by prior case law. That is, qualified immunity exempts a police officer from civil liability who knowingly uses excessive force as long as previous cases had not already determined that a constitutional violation had arisen out of similar facts and conduct.
Hazon Yehezkel
Rabbi Yehezkel Abramsky, in his Hazon Yehezkel on the Tosefta, reconciles the baraitot of the Tosefta similarly to Tashbetz.[34] Unlike Tashbetz, however, Hazon Yehezkel has different parameters for “intentional” and “unintentional.” As we discussed earlier, Tashbetz believes that the court officer who mistakenly deemed an act of force necessary is still called “unintentional” and therefore exempt. Hazon Yehezkel, however, considers such a case to be one of intentional damage. A court officer may only use the minimal amount of force necessary to achieve his mission. Even so, it may be difficult to avoid causing inadvertent damage or injury despite his best efforts. For this reason, the court officer requires immunity to be protected from any unintentional damages.[35] This immunity, however, would not extend to cases where the officer misjudged how much force was necessary. In such cases, he is not given immunity and he is thus personally liable.
This standard is quite different from the current standard of qualified immunity, according to which police are protected from lawsuits unless their specific actions are “clearly established” to be illegal. According to qualified immunity, the police officer is essentially presumed to be immune from liability until proven otherwise. In contrast, Hazon Yehezkel errs on the side of liability, believing that any use of force greater than appropriate makes the agent liable.
Conclusions on Immunity in Jewish Law
We examined a cluster of baraitot in the Tosefta as well as differing approaches taken by halakhic authorities to integrate them. As we have seen, all of them agree that there is no immunity for the court officer who knowingly uses unnecessary force. As discussed previously, this standard greatly differs from that of qualified immunity.
The approaches differ, however, regarding whether a court officer could be liable for a case in which he mistakenly believes that using force is necessary when it is not. According to Arukh Ha-Shulhan, the court officer would be exempt from being held liable in an earthly court as long as he had not acted willfully.
In my opinion, there is a difficulty with his approach. It is hard to believe that Tosefta Gittin 3:13 would include negligence in its immunity for unintentional damage by court officers, etc. If the purpose for the immunity is the betterment of society, it is unlikely that the rabbis would want to make the court officer liable for intentional damage, yet create no disincentive for acting negligently. If the rabbis were concerned about the moral hazard of immunity for willful damage, the same should apply to negligence as well.[36]
According to Tashbetz, the court officer’s scope of immunity is narrower. For Tashbetz, the court officer must make a good faith effort to minimize his use of force in order to enjoy immunity. His opinion is similar to Arukh Ha-Shulhan in that Tashbetz grants immunity to the court officer who damages or injures due to a good faith error in judgment that force is necessary. One difficulty with this understanding is that Tashbetz’s understanding of the phrases shogeig and meizid in the baraitot do not match their conventional usage. While they are normally used to describe whether the result of one’s actions is accidental or willful, Tashbetz understands them as referring to the court officer’s decision to use force in the first place, even if there was no specific intent to damage.
Therefore, in my opinion, the simplest explanation (peshat) of these baraitot is the approach of of Hazon Yehezkel, who limits immunity to cases in which the court officer correctly chose the minimum use of force necessary for the situation but accidentally damaged or injured despite his best efforts (and is therefore rabbinically exempted for liability). Unlike Arukh Ha-Shulhan or Tashbetz, Hazon Yehezkel does not apply immunity when the court officer mistakenly uses force, even when done in good faith. Instead, the court officer is expected to choose the best course of action and recognize when force is necessary and when it is not.
Integrating the Texts on Immunity with Bava Kamma 28a
In part 1 of this article, we looked at Bava Kamma 28a, discussing whether the woman defending her husband and the court officer would be liable for employing unnecessary force. Both that text and the texts we’ve discussed here deal with the degree to which a court officer can be held liable for injuring. It is therefore perplexing that, to my knowledge, no commentators or halakhic authorities compare these two groups of texts with each other.[37] If the court officer is granted immunity for damages, why do none of the halakhic texts based around Bava Kamma 28a cite the baraitot we examined? Even if these texts cover different aspects of the court officer’s liability, it is nonetheless perplexing that no traditional sources seem to raise the possibility that they are connected with each other. It is therefore necessary to explain why halakhic authorities never sought to integrate them.
I think that the best explanation is based on Hazon Yehezkel’s distinction between necessary and unnecessary force. The court officer is only granted immunity when he is employing necessary force. If and when the court officer uses the minimum amount of force necessary to accomplish his mission, his actions are covered by immunity. When his actions are deemed necessary and he does not intend to create damage or injury, the baraitot grant him immunity from liability. The Tosefta’s immunity for accidental damage applies specifically when the court officer acts with the appropriate amount of force but does so in a way that causes unintentional damage. In such a case, the Tosefta grants immunity for these accidents since damage and injury are inevitable when the court officer uses justified force. If court officers could be held liable for damage beyond their control, few qualified candidates would choose to serve in that capacity. Immunity thus protects the court officer from personal liability for the inevitable damage or injuries that his job requires.
On the other hand, should the court officer use unnecessary or excessive force, he does not qualify for immunity. Even if the court officer had no specific intent to harm, he is not protected by immunity and thus is personally liable. An officer who realized (or one who should have realized) that such force is unnecessary and uses it anyway is not deserving of legal protection. These legal principles are suggested by Tosefta Bava Kamma 9:3 stating that if the court agent hit more than necessary he would be liable.[38] The rabbis only sought to protect those who employ force responsibly. The reason for immunity–the need to encourage good people to serve as court officers–thus would not apply, as there would be no need to encourage such people to serve in such roles.
Further, to borrow the formulation of Rashi (cited in part 1), the court officer who uses excessive force is not serving the cause of justice. From that perspective as well, the use of excessive force is not deserving of the immunity granted to those serving as bona fide agents of the law. This legal principle should also apply to accidental deaths caused by agents of the law. In my understanding, any immunity granted by Abba Shaul to the court officers is inapplicable to cases in which they knowingly use excess force. By doing so, they cease to be serving in that capacity. Therefore, the court officer who uses excessive force has no protection for having performed a Mitzvah.
If these interpretations are correct, Jewish Law only grants immunity to officers who minimize their use of force. In sharp contrast to the doctrine of qualified immunity–which makes no such demands for de-escalation or the minimization of force–Jewish Law requires agents of the law to serve as true agents of justice or else face personal accountability.
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 recent case of Second Lt. Caron Nazario perfectly illustrates the pall of intimidation that police cast over people of color. On December 5th, 2020, Caron Nazario, a Black and Latino officer in the armed forces, was wearing his uniform while driving through Petersburg, VA before being pulled over by Windsor, VA local police for a minor traffic violation. With guns drawn, the police commanded him to get out of the car. Because of the many instances of police shootings of people of color, Nazario said, “I’m honestly afraid to get out of the car.” One of the officers responded, “yeah, you should be.” Later, after Nazario asks “what’s going on?” the same officer responds with, “What’s going on is you’re fixing to ride the lightning, son.”[39]
Police inducing this sense of terror in people of color does anything but engender respect for the law. This idea is suggested by Sanhedrin 7b, which hints at the need for extreme care regarding the use of force in enforcing the law:
“And I charged your judges at that time…” (Deuteronomy 1:16)… Rabbi Yoḥanan says: [Moses urged the judges:] With regard to the rod and the strap, be vigilant.[40]
What sort of vigilance is the Gemara referring to here? Rashi[41] 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. According to Rashi, the officers must be vigilant in instilling fear of the law, provided that it is for sincere purposes.
While some may think that the terror induced by police amongst many people of color fulfills Rashi’s interpretation, I would argue that even according to Rashi, the conduct of many police officers towards communities of color is unacceptable. Enough racist behavior and statements by police officers has been uncovered that it is reasonable to question whether the fear they instill is really “for the sake of Heaven.” Aside from the issue of intent, one can argue that disparities in policing towards communities of color does not engender fear of the law itself, only of the officers claiming to enforce it.
Tosafot,[42] on the other hand, take the opposite approach to Rashi, arguing that the officers must be ever careful not to provoke terror in the people they serve. According to Tosafot, the officers “should not cause the community excessive fear of them.” Rather, “they should be patient with the community.”[43]
For Tosafot, there is no value to making people afraid of the law. Instead, true moral authority comes from showing patience and care. As I have argued over the course of this article, true representation of the law requires officers to minimize their usage of force and for officers of the law to be held accountable when they fail to meet such standards.
We hope that this attitude by the police towards the Black community and other communities 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 for its representatives. This will enable all citizens to better respect the rule of law.
[1] I thank Rabbi Yosef Gavriel Bechhofer, Rabbi Ysoscher Katz, Rabbi Dr. Alan Brill, Rabbi Dr. Shlomo Pill, Rabbi Eliezer Finkelman, 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.thoughtco.com/qualified-immunity-definition-and-examples-5081905. Prof. Joanna Schwartz of UCLA points out that Qualified Immunity rarely ever serves the supposed purpose of protecting public servants from paying out of pocket for their violation of citizens’ rights. Since police officers are almost always indemnified, 99.8% of the dollars paid to victims of police civil rights violations are paid by governments. (https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-89-3-Schwartz.pdf ).
[3] Many police union contracts make it difficult to fire police officers even under these circumstances. See https://www.joincampaignzero.org/contracts.
[4] https://www.law.cornell.edu/wex/qualified_immunity.
[5] Practically speaking, qualified immunity prevents police officers from personal liability in most cases. This is because it is very difficult for victims of police brutality (or their families) to prove that a right was “clearly established” at the time that the violation occurred. For more background on Qualified Immunity, the “Bound by Oath” podcast produced two episodes discussing it: https://ij.org/sc_long_podcast/season-2-ep-3-the-bubble/ and https://ij.org/sc_long_podcast/ep206/
[6] Maimonides, Laws of Murder and the Preservation of Life, 6:3.
[7] Idem. 5:1. However, see ibid. 5:3 regarding non-Jews who are not resident aliens.
[8] Idem. 5:9-10.
[9] Idem. 6:4. Although these laws no longer apply after the destruction of the Temple, the categories still provide insight regarding the degrees of moral culpability for murder.
[10] Makkot 8a.
[11] Makkot 22b. For each person sentenced to lashes, the court assesses the number of lashes they are capable of receiving without endangering their lives (Makkot 22b). Lashes are no longer administered nowadays since it requires a special type of ordination that is no longer extant.
[12] Rashi, Makkot 8a, s.v. “U-sheliah Beit Din,” Raavad’s criticisms of the Mishneh Torah, Laws of Murder, 5:6. Hidushei Ha-Ramban Makkot 8a s.v. “Yatza” also seems to follow this interpretation.
[13] Laws of Murder and the Preservation of Life, 5:6.
[14] MS Erfurt.
[15] Bava Kamma 26a. Regarding damage that is completely beyond one’s control, see Tosafot on Bava Kamma 27b, s.v. “U-Shemuel,” and Ramban on Bava Metzia 82b, s.v. “Ve-atah.”
[16] For a broader discussion of immunity for physicians, see “Medical Malpractice in Jewish Law” in Rabbi J.D. Bleich, Contemporary Halakhic Problems, Vol VI (Ktav, 2012), available at https://www.sefaria.org/Contemporary_Halakhic_Problems%2C_Vol_VI%2C_Chapter_5_Medical_Malpractice_and_Jewish_Law?lang=bi.
[17] Probably because medical malpractice was more relevant to daily life than court officers striking others.
[18] Kitvei Ha-Ramban (Chavel ed.) Vol. 2, 41-42.
[19] See Beur Ha-Gra on Shulhan Arukh Yoreh Deah 336:6, who asserts that Ramban had been citing the Tosefta in Bava Kamma. However, Or Same’ah, Laws of Murder and Preservation of Life 5:6, assumes that Ramban is working from the Tosefta in Makkot. Considering that the Tosefta in Makkot does not appear in all manuscripts, it is likely that Gra’s version of the Tosefta did not include it.
[20] See Or Same’ah, Laws of Murder and the Preservation of Life, 5:6, who is more bothered by the fact that Ramban never specifies that he is deciding against Abba Shaul.
[21] Besamim Rosh 386. Similarly, see Hazon Yehezkel Bava Kamma 9:3 (Hiddushim) and Mareh Ha-Bazak VII 108:6 footnote 1. Many scholars have challenged the attribution of Besamim Rosh to Rabbeinu Asher, arguing that it is a forgery (for example, see https://seforimblog.com/2005/10/besamim-ros/). Or Same’ah’s and Hazon Yehezkel’s agreement with this answer makes it worthy of citation no matter the identity of its author.
[22] Besamim Rosh argues that Ramban is not really deciding against Abba Shaul, who never actually mentions the physician. Ramban teaches that it is specifically the physician who is liable to exile, not the father, teacher, or court officer. In contrast to these other three, Abba Shaul does not apply their exemption of Mitzvah performance to the physician. Even though Tosefta Makkot also rules that the father, teacher, and court officer are subject to exile, Besamim Rosh believes that Ramban follows Abba Shaul, who teaches that they are exempt.
[23] Ramban on Makkot 8a, s.v. “Ha Ditnan Yatza.”
[24] That Ramban never brings up that the Tosefta in Makkot may argue for Besamim Rosh’s conceptual understanding.
[25] Admittedly, the same could be said regarding the father using force to discipline his son in Mishnah Makkot 8a.
[26] Granted, it is not clear how Ramban understands the court officer case in Tosefta Makkot.
[27] None of the discussions of Ramban that I have seen make this distinction. It is likely that they did not see any difference between the specific command to administer lashes and using appropriate force in the heat of the moment. From their perspective, the court agent’s use of force would be a Mitzvah either way.
[28] Arukh Ha-Shulhan Yoreh Deah 336:2.
[29] Ibid.
[30] Arukh Ha-Shulhan’s grant of immunity for negligence may be more qualified in scope than it would seem at first. This limitation is suggested by a seeming challenge to Arukh Ha-Shulhan from Tosefta Bava Kamma 9:3, which states that the court officer, physician, et. al. who use more force than appropriate are liable for damages. If the physician or court officer are not liable for negligence, how could they be liable for acting more aggressively than necessary? It therefore seems that Arukh Ha-Shulhan would qualify his ruling that the negligent are given immunity from damages. Such immunity only applies when the physician or court officer act negligently when healing or striking a recalcitrant litigant. However, if the doctor or court officer deliberately chooses a more aggressive course of action than necessary, they would be liable. Even if they do not directly intend to cause harm, their use of unnecessary force is considered intent to damage or harm, rendering them liable. Such a distinction may exempt the court officer from typical human error while still protecting against more egregious violations. It would also limit the degree to which Arukh Ha-Shulhan’s rulings are comparable to qualified immunity. Even if the court officer does not know that his specific actions are prohibited, he may still be liable if it can be shown that he knew (or should have known) that his greater degree of force was unnecessary.
[31] Sefer Ha-Tashbetz 3:82.
[32] Here is the language used by Tashbetz: ונרא’ שזה הוא פירוש שוגג ומזיד שאם עשה הראוי לו והזיק פטור דה”ל שוגג אם לא לעשות מלאכ’ כראוי בשגגתו. R. Saul Lieberman (Tosefta Ki-fshutah Gittin p. 840) also reads Tashbetz this way.
[33] See Rabbi Shmuel Wosner, Shevet Ha-Levi 4:151, who makes a similar qualification in Tashbetz. Shevet Ha-Levi addresses a case in which a dentist operated on the wrong tooth. R. Wosner argues that Tashbetz only grants immunity when the physician has done all they can for the patient but they are unsuccessful. However, if they were careless in any way there is no grant of immunity. Shevet Ha-Levi goes further and argues that even if the dentist drilled the wrong tooth because his hand slipped, he would still be liable unless the accident was completely beyond his control.
[34] Hazon Yehezkel, Tosefta Gittin 3:13 (Biurim), s.v. “ve-hizik.”
[35] Hazon Yehezkel, Tosefta Bava Kamma 9:3 (Biurim), s.v. “Ve-khulan.”
[36] Another question is whether it is even possible to differentiate between negligence and willful damage. For example, see Arukh Ha-Shulhan Hoshen Mishpat 307:3.
[37] Rabbi Saul Lieberman in his Tosefta Ki-fshuta on Tosefta Bava Kamma 9:11 (p. 99) cites Bava Kamma 28a in the course of his discussion of the Tosefta. However, he does not explain how Bava Kamma 28a fits together with the baraitot.
[38] Tosefta Bava Kamma 9:3.
[39] https://www.nytimes.com/2021/04/10/us/caron-nazario-windsor-police-virginia.html.
[40] Translation from Koren edition: https://www.sefaria.org/Sanhedrin.7b.14?lang=bi&with=all&lang2=en.
[41] Rashi on Sanhedrin 7b, s.v. “Va-atzaveh.”
[42] Tosafot on Sanhedrin 7b, s.v. “Te’hei Zariz.”
[43] Translation mine.
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