Eric Garner: A Police Force to be Reckoned With

Are Police Above the
Law?

Rabbi Micha Cohn

On July 17, 2014, Eric Garner died in the New York City borough of Staten Island after Daniel Pantaleo, a New York City Police Department (NYPD) officer, put him in a chokehold while arresting him, and was subsequently fired. Video footage of the incident generated widespread national attention and raised questions about the appropriate use of force by law enforcement. In this article we will examine if law enforcement officials have a dispensation for unintentionally causing death, and what the parameters are.

The Mishnah in Tractate Makkos (8a) exempts a Shliach Bais Din, an emissary of the court, from going
into exile for unintentional homicide. The agent of Bais Din
was performing a mitzvah, and as the Mishnah explains, there is a dispensation from exile
for accidental homicide that occurs while performing a mitzvah. The Rishonim dispute in what
capacity did the agent of Bais Din cause death. According
to the Rambam (Rotzeiach
5,6), the emissary of the court was forcing a person to appear
before Bais Din. Rashi and the Ra’avad understand that the Shliach Bais Din was administering makkos (flogging), and unintentionally gave more than
the prescribed amount.

In 1830, Rabbi
Moshe Sofer, the Chasam Sofer, was asked to give
direction after a tragic incident (Shu”t Chasam Sofer OC 177). A
young housemaid had fainted and her mistress panicked.  She ran to get some whiskey to help revive
her. In the rush the mistress mistook a bottle of petrol for whiskey. Thinking
it was whiskey, she poured the petrol into the mouth of the housemaid killing
her. The mistress turned to the Chasam Sofer to instruct her as
to what form of atonement (Kaparah) she needs for this
terrible mishap.

The Chasam Sofer cites the abovementioned Mishnah as his primary source. He raises an important
question regarding the opinion of the Ra’avad. If the emissary of
the court gave too many makkos why should he be
exempt from punishment? Rabbi Sofer explains, the emissary must have become
confused with the number and thought he had not given the proper amount when he
actually had. Although the actual hit that killed the person was not a mitzvah, since the beginning of the emissary’s actions
were a mitzvah and sanctioned by Bais Din, he still has this dispensation.

Based on his
understanding of the Ra’avad, the Chasam Sofer offers insight into this incident. When
the mistress ran to get whiskey, she was clearly involved in a mitzvah, and is therefore comparable to the emissary of
Bais Din. Therefore, even if she could have possibly
been more careful she has the same dispensation as the emissary of the court
who became confused and gave too many makkos. The Chasam Sofer
concludes that she is not considered responsible for the death of the housemaid,
but she should do some form of teshuvah because this
terrible mishap happened at her hands.

A contemporary ruling from Rabbi Shmuel Wosner
(Shevet HaLevi 4,151) about dental malpractice illustrates this point. According
to Halacha, a doctor has a similar dispensation as an agent of the court. Therefore,
if he accidentally injures in the course of treatment he is not obligated to
pay. Nonetheless, Rabbi Wosner ruled that a dentist who accidentally drilled
the wrong tooth is fully obligated to pay. He explains that the doctor’s
favorable position in halacha is only when he damages in the actual course of
treatment. Drilling the wrong tooth is not considered in the course of
treatment and he has the same responsibilities as a layman.

From these sources we can learn that an agent of Bais Din, a doctor,
or law enforcement official that causes damage or death in the course of doing
his legitimate duties may not be held liable. However, this is only if the
initial action that lead to harm was justified. In the case of the Chasam Sofer , the
mistress had legitimate reason to get whiskey to revive the girl, as it was
apparently considered a proper way to revive a person who fainted. Conversely,
if she should have run to get a doctor and instead decided to use whiskey, then
the Chasam Sofer might have held her liable for mistakenly bringing petrol. Similarly, in
the case of Rabbi Wosner, the dentist never should have drilled that tooth and
is not considered one who is ‘involved in a mitzvah’. On the other hand, if while working on the
proper tooth the dentist drilled too deep, Rabbi Wosner would seemingly rule
more leniently. 

These same concepts could be applied to the use of
force by law enforcement officials. Similar to the emissary of Bais Din, law
enforcement officials should have a favorable halachic status if they
unintentionally caused death, but only if they were following proper
procedures.  Therefore, if death
accidentally occurred while the officer was using an appropriate form of force,
even if he could have been more careful, the dispensation of mitzvah would apply.
However, if the officer had no permission to use that form of force in a given
situation, he loses this dispensation and is fully responsible for an
inadvertent homicide.