Police operations and homicide

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By MARTIN MAGNUS PETIZ*

A parallel with the violent police operation in Guarujá and the reflections motivated by the film Oppenheimer

Between July 28th and August 2nd, Operation Shield was launched in the municipality of Guarujá, State of São Paulo. Around 600 civil and military police were mobilized with the aim of capturing those suspected of involvement in the death of police officer Patrick Bastos Reis, shot in the chest on the night of July 27th. So far, there are records of 16 deaths and 58 arrests.

Residents of Guarujá accused police officers of torturing and killing an innocent man in the region, threatening more innocent deaths in local communities to obtain the location of the suspects. The governor of São Paulo, Tarcísio de Freitas, celebrated the result, calling the deaths in clashes between police and suspects a “collateral effect”.[I]

In view of the continuity of the Operation and the celebration of its results obtained so far with a high number of deaths – the Operation is already the second most lethal in the history of the Military Police of São Paulo, behind only the Carandiru massacre, with 111 victims[ii] –, there are two considerations about the relationship between the use of state force and death.

First: the value of security only makes sense if integrated with the value of justice, that is: the means employed by police interventions must be just as much as the ends for guaranteeing security. Second: when public authorities kill unjustifiably in the face of the demands of justice in the name of a “greater good”, what could be considered the exercise of the legitimate power of the State to guarantee security becomes “homicide”; what was once a “police operation” becomes a “slaughter.” And that includes deaths resulting from the disproportionate use of force. Brazil does not even admit the death penalty as a penalty, so that, even if these people had a prior conviction, such a measure would be inadmissible without the imminent risk of life by the police.

 

1.

Security is a basic asset for the realization of a good life. We all need security to be autonomous, and there is no doubt that criminal law is a fundamental institution for guaranteeing this value.

Punishment tends to mix elements of deterrence and retribution, although Aristotle saw in the application of the law not only the retribution of damage, but also the reestablishment of civic friendship that guarantees the unity of the political community. But the fact is that the primary role of the penalty is to repay an offense and dissuade potential offenders from committing the same offense in the future.[iii] The proportional application of the penalty is a matter of justice.

Despite the inconveniences it may generate for the realization of the value of security, justice is the value that is superior to it and gives it intelligibility. As we do not live in a society of angels, we have to live with injustice due to the action of others: we are subject to physical harm, robbery and theft, deceit and fraud, due to the imprudence or malice of third parties. Therefore, criminal law continues to be necessary, as long as the erratic nature of the human being does not transform itself into divine perfection.

However, if we applied only the criterion of deterrence to justify criminal law, the injustice generated by the State would be unjustifiable for any rational agent. John Rawls proposed an imaginary example to understand the importance of criminal justice: if the penal system were based on the institution of “telishment” – which we could translate into Portuguese in the sense of something like “finger-durismo” –, we could conceive of the practice of punishing an innocent person whenever the authorities thought that doing so would be good for the interests of society. The institution would maximize the principle of “in doubt for the company” that circulated in the Brazilian legal environment recently.

In addition to the panic that each one would feel of “being the next one to be taken” by the “snitches” even without having done anything wrong, the implementation of snitching would simply end the logic of punishment. No one would know whether whoever was punished did so for doing something wrong, or just because it was the authorities' will to punish him. The idea of ​​action and responsibility would be lost. “Acting licitly” would be a statement devoid of sense, as it would make no difference to the judgment of the agent by law.[iv]

Therefore, deterrence is subject to principles of impartiality in the application of justice. Hence arises the principle of legality in its penal version, the adage nulla poem sin lege. There is no way to dissuade an agent from an action that he does not yet know to be illegal. Therefore, an action can only be assessed as lawful or illicit before pre-established rules. Deterrence by criminal law presupposes legality and retribution as basic principles of punishment.[v]

In view of this, any killings carried out by State police forces without good justification – the direct threat of death by the police officer – must be considered an act of homicide. If occurrences of deaths without justified threat are confirmed in the Operation as reported by citizen Cláudia*[vi], we can only call the operation by its proper name: slaughter, massacre or act of private revenge by State agents. None of this is tolerable in a rule of law. Mandating the use of cameras on police uniforms would help to rule out such reports, if they were really unfounded. The “public faith” of police officers cannot serve to cover up human rights violations with an absolute presumption of veracity. Faced with the constant denunciations of police actions in such operations, the presumption of legality of the operation should be reversed in the Criminal Justice as a way of removing the "finger-durismo" from our right.

 

2.

In the movie Oppenheimer (2023), director Christopher Nolan shows a tragedy in two acts. In the first act, he shows how the great physicist J. Robert Oppenheimer (1904-1967) coordinates the construction of the atomic bomb by the USA in unfavorable circumstances – the Nazis were eighteen months ahead in research, he says when the Manhattan Project starts – , with the aim of preventing Nazism from reaching such power before the Allies. The physicist believed that, once the Allies obtained the bomb, the Nazis would not use the bomb even if they managed to produce it, and thus would have their power contained.

In the second act, Christopher Nolan shows the great anguish generated in the physical face of the use of the bomb in Japan, which generated about 110 thousand deaths, adding Hiroshima and Nagasaki – civilians, for the most part. The film depicts how President Henry Truman's (1884-1972) advisers chose cities knowing the bomb's absurd reach. The risk of causing mass civilian death is weighed against practical considerations of the cost of continuing the war. An invasion of Japan would likely be very costly in terms of US casualties, which could be avoided with the use of the bomb. Oppenheimer was on that board, and he gave the go-ahead for its launch.

The film ends with Oppenheimer's realization that he had contributed to a possible end of the world via nuclear war – after all, the Cold War had begun. At one point, Truman welcomes Oppenheimer to the White House, and tries to relieve him of guilt over the atomic catastrophe; or rather, Truman confesses his guilt: “no one will remember who made the bomb; I dropped the bomb [on Japanese civilians].”

Truman's confession does not erase Oppenheimer's guilt, which marks the film even his beautiful dialogue with Einstein in the final scene about the destructive power he collaborated to build through physics; but it does justice to Elizabeth Anscombe (or GEM Anscombe) (1919-2001), Oxford philosopher and professor of philosophy at Cambridge (1970-1986) who set the stage for English-speaking analytical philosophy in the 1950s. Her fascinating biography – personal and intellectual, given that Anscombe was also one of the intellectual heirs of Ludwig Wittgenstein (1889-1951), perhaps the greatest philosopher of the XNUMXth century, having collaborated to publish his literary testament – ​​was resumed in a recent book by the historian of philosophy Benjamin JB Lipscomb.[vii]

In the book, the author narrates Anscombe's protest against the granting of the title of Doctor Honoris Causa to Truman by the University of Oxford in 1956. The title was granted against very little opposition – only Anscombe and the philosophers Iris Murdoch (1919-1999) and Philippa Foot (1920-2010) (along with her husband), co-protagonists of the book, voted against. Anscombe was furious: his colleagues would be admitting that the intentional and deliberate killing of civilians by the State is justified according to the purpose that such action is intended.[viii]

Anscombe was a major critic of what he called “consequentialism”: the theory that every action is good as long as its consequences are good. According to Anscombe, such a position was pernicious because it justifies literally anything. It would not make sense, therefore, even to state that “killing innocents is an unjust act” in itself.[ix] If killing innocents meant the end of a just and costly war, then the action of dropping an atomic bomb on hundreds of thousands of civilians would be justified.

Anscombe was a staunch Catholic, but she was not a pacifist. His theoretical text in reaction to Truman's nomination was "war and murder”, of 1957. In it, Anscombe claimed to consider it obvious that modern Western society is less savage with the use of force by the State than it would be without such use. Society always has recalcitrant agents who do not respect the law at all and demand the intervention of criminal law. And it is not always possible to stop the recalcitrant before reaching the point of using violence. There are cases in which war and the state of necessity justify the death of the other. The big question is knowing who and when the use of force at that level is justified. In war, the power to kill is justified to the extreme, and the risk of killing innocents is also maximized.[X]

Another doctrine that Anscombe attacked in the field of philosophy of practice was the “double effect doctrine”, which was an implication of the moral theory of consequentialism. It dictates that only the consequences foreseen by the agent could be imputed to him for purposes of responsibility and description of an action. For Anscombe, this doctrine would be absurd: no one can push someone off a cliff without intending to kill the person just because "the thought didn't occur to him." In the act of homicide, Anscombe advocated including in the sphere of application of the concept every case of death caused to innocent people under circumstances that could be foreseen by a rational agent in those conditions.[xi], which reminds our institute of criminal law of eventual fraud.

Based on the rejection of these theses considered by Anscombe as “corrupting”[xii], she completely rejected the Allied action of “obliterating entire cities” to win the 2nd War.[xiii] People whose mere existence and activity takes place within a State considered “non-innocent” in a war does not justify their indiscriminate death, even if the war is fair. These people are innocent and it would be murder to kill them, not a just exercise of war.

 

3.

Anscombe claimed to have known a "Catholic boy" who was appalled by the claim that innocent civilians were killed in Hiroshima and Nagasaki by the bomb by "an accident."[xiv] In Brazil, we have the constant feeling that marginalized populations continue to suffer similar “accidents” in police operations in large centers. The death of civilians by an atomic bomb is as much a “side effect” of war as the torture and premeditated murder of innocents is.

Under the pretext of the “war on drug trafficking”, Homeric police operations such as Operation Shield are carried out every month in the country, at a high cost of lives – for the police and for the communities. The constant deaths of poor and black people in these operations should be covered under the presumption that the State is responsible for homicide whenever it cannot justify the imminent full threat of police death without the use of violence, especially now that the technology is available. of the cameras on the uniforms.

Obliterating an entire city with the most destructive weapon built up to 1945 by human beings was definitely a case of homicide – or an unjust war. Police operations have to be analyzed on a case-by-case basis, but the general principle to be applied in their assessment (assuming that combating trafficking is a “just war”) should be the same as Anscombe outlined for judging US actions in World War II. World, as a matter of justice: even if it is possible to legitimize the use of force with a legitimate aim of guaranteeing public security, this end does not justify any police action, and circumstances reasonably foreseeable by the State must be taken into account in accountability of police officers.

After all, the presumption of innocence and the criminal principle of legality are matters of justice, respect for which confers rationality on the application of law. Without this, legal authority degenerates into the imposition of mere brute force, typical conduct of police and totalitarian states. [xv]

*Martin Magnus Petiz is a Master's student in Philosophy and General Theory of Law at the University of São Paulo (USP).

Notes


[I] 16 dead in 6 days: what happened in the police operation in Guarujá. BBC News Brazil, 2023. Available at: https://www.bbc.com/portuguese/articles/c2x54ynjzx4o

[ii] MONCAU, Gabriela. Massacre in Guarujá reinforces the role of the police in the black genocide, say researchers. Brazil of Fact, 2023. Available at: https://www.brasildefato.com.br/2023/08/03/chacina-no-guaruja-reforca-papel-da-policia-no-genocidio-negro-afirmam-pesquisadores

[iii] See HART, HLA Prolegomenon to the principles of punishment. In: HART, HLA Punishment and responsibility: essays in the philosophy of law. 2nd ed. Oxford: Oxford University Press, 2008, p. 4 and ff.

[iv] RAWLS, John. Two concepts of rules. The Philosophical Review, v. 64, no. 1, p. 3-32, 1955, p. 11-12.

[v] Ibid., p. 6-7.

[vi] “Cláudia* arrived at the protest [against the deaths in the Operation in Guarujá] a few hours after burying her uncle, killed by the PM last Friday (28). Evandro da Silva Belém, known in the hood as 'Meu bom', was 35 years old. According to his niece, he was picking up rubble when police arrived. Some ran away. He no. 'He didn't run because he didn't owe anything. They dragged him into an alley and killed him. He left behind two daughters', said Cláudia, showing her arm with goosebumps when talking about her uncle. 'You mean that because we're poor, we have to be treated that way?', she is indignant. 'It's not an operation, it's oppression', he sums up.” MONCAU, Gabriela. 'It's revenge': residents of Guarujá and social movements denounce executions and ask the police to leave. Brazil of Fact, 2023. Available at: https://www.brasildefato.com.br/2023/08/02/e-vinganca-moradores-do-guaruja-e-movimentos-sociais-denunciam-execucoes-e-pedem-saida-de-policiais.

[vii] LIPSCOMB, Benjamin JB The women are up to something: how Elizabeth Anscombe, Philippa Foot, Mary Midgley, and Iris Murdoch revolutionized ethics. Oxford: Oxford University Press, 2022.

[viii] Ibid., p. 156-157.

[ix] ANSCOMBE, GEM Modern moral philosophy. In: ANSCOMBE, GEM (Ed.). The collected philosophical papers of GEM Anscombe. Vol. 3: Ethics, religion and politics. Oxford: Basil Blackwell Publisher, 1981, p. 31-33.

[X] ANSCOMBE, GEM War and murder. In: ANSCOMBE, GEM (Ed.). The collected philosophical papers of GEM Anscombe. Vol. 3: Ethics, religion and politics. Oxford: Basil Blackwell Publisher, 1981, p. 52-53.

[xi] Ibid., P. 54.

[xii] LIPSCOMB, Benjamin JB The women are up to something: how Elizabeth Anscombe, Philippa Foot, Mary Midgley, and Iris Murdoch revolutionized ethics. Oxford: Oxford University Press, 2022, p. 158-159.

[xiii] ANSCOMBE, GEM War and murder. In: ANSCOMBE, GEM (Ed.). The collected philosophical papers of GEM Anscombe. Vol. 3: Ethics, religion and politics. Oxford: Basil Blackwell Publisher, 1981, p. 58.

[xiv] Ibid., P. 59.

[xv] I am grateful for critical comments by Caio Tolentino and Gilberto Morbach on a provisional version of this text.


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