"Police and the Ethics of Lying" Why? Radio episode with guest, Luke William Hunt.

10:44PM Apr 7, 2024

Speakers:

Jack Weinstein

Announcer

Luke William Hunt

Keywords:

police

lie

police officer

deception

case

dishonesty

law

talking

person

society

prerogative

fraud

people

philosophy

discretion

act

philosophical discussions

justified

power

constraint

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Hi, I'm Jack Russell Weinstein. Welcome to why philosophical discussions about everyday life. Today we're discussing police and the ethics of lion with Luke William hunt. Every time I think about the police, I get angry. Whether it's perusing Reddit reading scholarly books or just seeing them gather on the street. I find myself furious at how powerless they make everyday people. I suppose this is only natural. Ever since camera phones became the norm we have seen case after case of officers being caught lying about their own actions and others. They've been filmed planting evidence bullying and even killing. This certainly aligns with my own experience. It's becoming ever harder for me to believe in the police. As it was for other people, my own frustrations intensified after the police response to the Black Lives Matter movement. Whatever it may have become. Black Lives Matter initial message was simple. Please stop killing people of color. This should not have been a controversial ask the police shouldn't want to kill anybody. But they in their advocates reacted thoughtlessly and exactly opposite of how they should have. Instead of listening and learning. They claimed that blue lives mattered more than black. And then an officer is justified in using deadly force pretty much anytime they were afraid. They even redesigned the American flag substituting the red white and blue for the black white and the thin blue line. Now lots been written on this not the least of which is about the false equating of someone's job being a police officer. With someone's racial identity being black, no one is born police. However, what is most relevant to the moment is the bald faced lie that critiquing the police is somehow anti American, that it's not a democratic citizens right, if not their responsibility to challenge those who assert power over us. Blue Lives Matter lies when it tells us that the police have moral authority and their critics do not. Today's episode is about the role of deception and dishonesty in policing and following our guest, we're going to ask under what circumstances it's okay for the police to lie. Is it moral to inform suspects that there is incriminating evidence when there isn't? Is it ethical to mislead people during an interrogation? Is it acceptable to go undercover? can we justify planting evidence on a suspect because knowing that they are guilty is very different than being able to prove it. Lying is a core tactic and law enforcement. We're here today to ask whether it's stay this way. But before we go there, I'd like to ask about a different kind of lie, a larger, more amorphous one that is harder to pin down. The claim that police officers are worthy of our trust simply because they're police officers, and that all of them have society's best interests at heart, even when they bend or break their own rules. In today's world, I don't think this attitude passes muster. A democratic society functions only when its citizens have faith in its institutions. We have to believe that justice will prevail. Police are the first line of defense if our lives are in danger if our property is being stolen if our homes are under threat, we all need to have confidence that when we call for help, those who respond will resolve the problem, not do even more damage. We also have to be sure since nothing is perfect, that when things do go wrong, there's a higher authority to whom we can appeal. If the police make a mistake if they arrest the wrong person or search without a warrant. If a cop is having a bad day and acts too aggressively, then the police chief or the courts or our Congress member will come to our aid. But we don't have this either. Police protect their own and punish those who complain our legislators listen to special interests instead of their constituents are overburdened courts are run by idiosyncratic judges who mete out punishment based on their own personal commitments. Even the Supreme Court seems tainted by justices accepting unreported gifts and acting out their loyalties to the political party that appointed them. Who can we rely on when each of our checks and balances are themselves corrupt? All of this is to say that maybe we'd be okay with police lying during an interrogation. If we knew that the rest of the system protected us from law enforcement overreach. Maybe we trust undercover officers if they knew that they'd face punishment for planting evidence or trapping innocent bystanders. In other words, maybe lies are only defensible when there are exceptions not enorm and deception is only justifiable when it exists on a foundation of transparency. I want all of you to keep these possibilities in mind as our discussion today jumps back and forth from the big questions to the small, from the philosophical principles to the examples that we parse. Justice always has one foot in the large abstractions and one in the real world particularity. It does not tell us whether it's okay to lie in general. Instead, it gives us methods by which we can determine whether it's okay to do so at this time, in this place by these people. And for this length of time. If we are aware of what could be, then we can be open minded while still acknowledging the anger that so many of us feel in the face of American policing. If we acknowledge that there might indeed be a place for lying in law enforcement, then we can say with more conviction that these instances must themselves be governed by rules. If police are allowed to lie, then they should do so with significant oversight, oversight that is not only trusted, but trustworthy. We can only have faith in lying when we have faith in the system. And we can only have faith in the system when it returns our trust. And now our guest, Luke, William Hunter is associate professor of philosophy at the University of Alabama. He has a law degree and as a former FBI agent, he's the author of three books on police ethics, most recently, police deception and dishonesty, the logic of lying. This is Luke second time on why radio he joined us back in 2018. One his first book came out, Luke, welcome to why.

Hi, Jack, it's a pleasure to be here. I'm thrilled to be back with you again.

To our listeners. If you'd like to participate, please share your favorite moments from the show and tag us on social networks. Our handle is always at why radio show rate us on iTunes, Spotify, your preferred podcast platform so that others can find the show and listen to all 15 years worth of episodes for free, as well as our sister show philosophical currents at our website. Why Radio show.org. And as always, the show could only happen with your support, we exist solely on listener contributions. So please click donate in the upper right hand corner of our website to make your tax deductible donation through the University of North Dakota alumni foundation portal. Alright, Luke, I guess I want to start off by asking your reaction to my initial comments. Am I Am I being a drama queen? Am I out of step with with everyone else by being as angry as I am?

No, I don't think so. I definitely don't think you're alone in this. And I mean, I think one of the most telling points about that is simply look at what some of the policies that are being suggested, with respect to policing. I mean, right now, and in recent years, we've heard a lot of talk about not only defunding the police, but actually abolishing the police. So if that's not a sign that people are very upset with just not just police, individual officers, but the institution as a whole. I'm not sure what is one of

the things I don't understand, and maybe you can explain this to me in terms of how police see themselves. I feel like someone should come out the Police Chiefs Association, or even the president united states and say, we expect police to be better than everyone else. We know you're good drivers, but you should you shouldn't speed one mile an hour over the limit, you shouldn't litter you should call everyone, Mr. or Mrs. Or whatever is appropriate. You should always be the perfect citizen. Why is it that police see themselves as having permission to break the law, as opposed to having the moral responsibility of being the ideal follower of it?

Yeah, so So first of all, I think your motivation is right, I think we should expect more and a lot from the police. And the reason for that is they of course have such an immense amount of power over us. And I guess, you know, why is it that they feel they're permitted to break the law. And one thing about that is, and this is comes to a surprise to some people, and this is relevant to our discussion we'll get into about deception and dishonesty, is that the police are sanctioned, they have legal authority to break the law in many cases, so So right, so the police are trained to, for example, do undercover drug operations to sell illegal drugs as a way to enforce the law. So they're given permission. They're sanctioned to do these things. And so I think when you have that widespread, have permission to break what would otherwise be the law that sort of infects the entire mentality that well, we can do what we want as long long as our ultimate goal is to enforce the law. And so I think there's some of that going on and to be to be quite frank, I mean, the courts have sanctioned a lot of these things. So when we think about the way police officers are able to lie, the various extensive undercover operations they engage in courts have, unfortunately, fortunately, given the police a pretty pretty wide discretion there.

You wrote a second book which slipped under my radar, otherwise, I would have had you on the show sooner. It's called the police identity crisis, hero, Warrior guardian. To the police believe their own hype. Do they see themselves as heroic figures? Or is there more of a sense that the day to day drudgery makes them feel more like civil servants, then the guardians of our of our democracy?

I think that's right. I think the police very much see themselves as heroic warriors out to battle evil. And let me let me give you one example of that, that your listeners might find interesting. This is a very common way to describe the police role. When I was at the FBI Academy in Quantico, we were taught that society is divided into three segments. So first of all, you have most people, which are the sheep, right. So that's all of us. We basically go about our lives doing what we're supposed to do, but we're sort of naive with respect to the threats out there. The next category in society is the the wolves right. So that is the the bad people, the people engaging in criminality and preying on the, on the sheep. And then finally, the third category in society is the Sheepdog, right. And that's who the police are supposed to be. The sheepdogs are out to go after and do battle against these wolves, to protect the innocent, naive sheep who, frankly, don't have a clear understanding of how dangerous society is. And so when you tell police officers, I mean, again, it's it's a simple metaphor, but when you when you frame policing in that light, that you are set apart from society, you are on this special mission to read society of the evil wolves, it does a couple of things. So one, it distinguishes you. So instead of thinking of yourselves as a civil servant, that is a part of community serving the community. It makes you set apart from the community sort of an exclusive position. And then the other thing it does it, it causes you to think about your mission as a police officer or law enforcement officer, as very individuated. You're doing things in this sort of heroic persona, rather than working in conjunction with the community. Of course, we see this fleshed out more concretely, when we think of the way that police have been portrayed as as warriors. Right. So that's a very common identity in the police institution. And I can say more about that as we move forward. But the short answer to your question is that I think this heroic persona is alive and well in policing.

There are two things that come to mind when I hear that metaphor. The first is the fact that sheep are dumb. Right there, right? Very stupid animal. Right? And, and it feels like that, that justifies keeping the truth from us or manipulating us because even if we knew the truth, it's not just that we're naive, it's that we can't handle the truth. And the second thing is, is is it makes me think about and I love this word, propaganda. It makes me think that these television shows like Brooklyn nine nine was very, very funny, constantly depicting the police officers as being smarter, being more aware, being more resilient than us that how much pressure is there on the police, or, or law enforcement in general, to make sure that we know our place and that not only we're aware that we're sheep, that we need to act like sheep?

So I think there is a to two parts there very, I very much agree with assessment that decided that sheep are dumb or clueless. And I think there's there's something to that. This metaphor is intended to suggest, right, that people just don't get it that most people are not capable of doing the things that police officers have to do. They're not capable of taking a life or putting their life at risk. And maybe that's true may get stopped. But one thing I'll raise here is that the vast, vast majority of policing is not like that. So this image of policing is this very dangerous job in which people are constantly risking their lives. It's just not accurate. Now, certainly I don't want to deny that policing can be very, very dangerous and sometimes ends tragically, on average, I think the numbers we have for law enforcement deaths per year, the line of duty is something like 150, something along those lines. And I think about half of those are cases in which there's some sort of felony or criminal issue going on. So the numbers are actually much lower than you think. And that the second point of your, your question is, to what extent is this used to control us? I mean, that's, there's something there too, because one of the most important things, I think, to a lot of police officers is to sort of command authority, and to make sure that people are following the rules. And the issue with that is, is sure we often are have to do what the police say. On the other hand, we have rights, and sometimes invoking our rights involves pushback, right? If if we request or compel the police, to protect, to make sure they're doing their job in a way that's consistent with our rights, we have to voice that. And sometimes that is viewed right, as resistance. That's not always the case. If so, if a police officer comes in your door to your door without a warrant, and you deny entry, right? Because they don't have a warrant. That's your right. That's your Fourth Amendment right. And if the police thereafter, Miss mislead you by saying they have authority that that's when you get into some of these deceptive situations, they're using the discretionary power to mislead you to say, well, actually, I have authority, but we have to invoke our rights. And people don't always quite understand that having a right means exercising it and standing up for it.

And you bring up this dichotomy, which you also discussed in the book, which is part of what happens in the face of this deception, is that authority just gets converted into power. And so you're not, you're not faced with the police officer at the door who is is a legitimate representative of the government anymore. You're facing a bully who can make it look like you did something wrong.

No, I think that's exactly right. And there's been several cases recently that have have illustrated that very point. So So one that is quite recent, and went all the way up to the United States Supreme Court is Thompson B. Clarke. This is a 2022 case. And in that case, you had a couple living with their infant child. And I believe, one of the couples, a sister or something like that, that had some cognitive issues, made a phone call to the police and said, Hey, there's child abuse of this infant in the house. And so when the police do get to the home, with no more evidence than that, they go to the door without a warrant. And they say, Look, we hear there's child abuse in the house, the husband answers the door, he says, I don't know what you're talking about. There's nothing like that going on in here. So ultimately, what the police do is they misrepresent their authority to enter the house. They physically barge into the house, and a quite an aggressive, violent arrest. I think they they handcuff the guy to the ground or something along those lines. And they ultimately end up taking him to jail charging him with obstruction of justice and various things like that. Come to find out, there was absolutely zero evidence of abuse of the infant nothing more than diaper rash. And very mysteriously, the charges against this guy were dropped without any any sort of notification or anything. And what it appears is that when the police barged into the house, very likely without justification because they had no warrant or probable cause that I'm aware of. They charged this person with various crimes to cover up that sort of misrepresentation of power. Right. And in this case, the ultimate ruling went in favor of the man whose rights were in violation. But these kinds of things are not particularly uncommon. There's always some way to come up with a charge to cover your tracks. Unfortunately, we have to hold our police officers to a higher standard, right so when they make a mistake, they have to acknowledge that and Steak and not cover their tracks with some sort of bogus charge.

So, the other element of that sheepdog metaphor is really important, because you build a lot of your theory on a social contract model means that society is an agreement between equals that, that where people have reciprocal rights and responsibilities, but she can't sign contracts. I mean, if if, if we're so stupid that we don't know what what's going on in the world, then how can we be considered participants or parties in the contract? And so just just does that mean that that the idea that the police are operating under is that really our consent is irrelevant? And that it's basically up to them to decide how best to act in our names as opposed to them? Yeah,

I think that's a really interesting question. And I do see how that metaphor could be construed as perhaps a conception of the citizenry as being someone that are a group that needs sort of paternalistic treatment, right. So the police, the state are here in this very paternalistic way, you don't understand what the risks are. So we have to sort of do this, regardless of what you think. And that's just completely contrary, as you mentioned, to the sort of foundational principles of liberal societies like the United States. So the basic idea is that, of course, we're consenting members to the social contract were moral agents who have the capability to reciprocate, we have human dignity, and because of that, we ought to be governed according to the rule of law, not sort of this pretense of law, and not simply by the discretion of state officials, such as the police, who get to sort of exert their power and authority on us as they see fit. So I think you're exactly right, this this model, or this sort of cultural idea of the police officer is set apart. And sort of looking over the citizenry in this very paternalistic way. It's just inconsistent with the fundamentals of our political morality.

When we get back from the break, I want to start talking about truth and lying and I want to introduce the concept of good faith that plays a very, very important part in your theory. But for the moment, you're listening to Luke, William hunt and Jack Russell Weinstein on why philosophical discussions about everyday life, we'll be back right after this.

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you're back with why philosophical discussions about everyday life. I'm your host, Jack Russell Weinstein, we're talking with Luke William hunt about police and the ethics of lying. And I may have told the story on the show before and it might even have been the last time Luke was here. So I apologize if I'm repeating myself, but remember, when my daughter was about 14 years old, she had a friend spending the night and the friend had an allergic reaction to something and it was very, very scary, and we called an ambulance. And the ambulance came, but along with the ambulance came a couple police officers, and we weren't paying attention. We didn't invite them into the house. There was no particular reason for them to be there. And I found out later that while we were in the kitchen with her friend and the emergency responders, one of the police officers, had my daughter sequestered and was trying to get her to admit that they had been doing drugs, which they hadn't and that infuriated me still infuriates me and it also feels like something that they shouldn't be allowed to do, which is question a 14 year old outside of the awareness and the knowledge and the presence of their parents. And when I was reading Luke's book It allowed me to put a term on what I experienced, which was the police officer was acting in bad faith. They were there, allegedly in order to help and allegedly in order to save someone's life, but what they were really doing was trying to trap someone into saying they were guilty of a crime. First of all, what is good faith or bad faith mean? And why is that so important to honest dealings with the police?

That's a that's a great example. And it's a great question. And the first point I'll make about good faith is, is that this is a term that comes from contract law, right. So just think about any sort of typical contract between two people. The basic idea is that the core value of any contract is good faith. And so what that means is roughly a disposition of honesty and contractual relations. And this will include say, how agreements are reached, and then importantly, the faithful adherence to the scope, the purpose and the terms of the agreement. Now, why is something and contract law that you might typically associate with business relevant to the police? Well, we've already talked about this a little bit, but I think there are two important points here. So one, we just before the break, talked about the social contract. And if we think about governance in terms of the social contract, then it stands to reason that norms of bargains, whether the bargain is voluntary, whether the state is adhering to its into the deal and not exceeding its authority. That's irrelevant, right? So are they operating in good faith in terms of this abstract idea of the social contract? The second way to think about this is a much more concrete, practical example. So when a specific person has an interaction, an encounter with a specific police officer, and they're having a conversation about rights duties, maybe the police officer wants information, maybe the police officer wants the person to do something, are they being upfront with each other? Is the police officer giving that person their options in good faith? So they have an accurate understanding of their rights, the sort of risks they might be subjected to what their options are? And if the answer is no, in both of those scenarios, then I think we have an act of bad faith and the police deviating from what they've been asked to do.

You wrote in the book, this question, which feels both exactly on the nose, and a little naive, you're right, if you cannot, if you cannot trust the police to tell you what conduct is, and is not a violation of a particular law, who can you trust? And yeah, it's it's, it's, it feels naive, because we know that you can't trust the police and right back, but but it's exactly on the nose, because they are the people who are supposed to know the law the best. And there is another consequence, that leads to this destruction of the reciprocal relationship between I'll call them civilian or police non police is, I know what that police officer looks like, I will never forget, and I will never help that police officer. As long as I live, I will talk to that person, they will not be allowed in my house unless they have a warrant. And what we learned is that we cannot trust the Grand Forks police. And so I guess, slipping into the question of lying and not lying, is this a irredeemable cycle, they lie or manipulate, so we don't trust them. And because we don't trust them, we're not going to be honest. And since we're not going to be honest, they're going to lie to try to manipulate us to get the truth, which means we know we're being manipulated, and therefore we're going to lie even harder, and with more resistance, and it's just going to escalate over and over again, are we stuck in a vicious cycle that we can't escape? Unfortunately,

it does feel like we're in a vicious cycle. So one kind of analogy to political philosopher philosophy. Some of your listeners might be familiar with you think about Thomas Hobbes. He's a famous modern political philosopher. And he wrote about this idea of a state of nature and another state of nature, basically, the absence of political authority. You're in a constant state of war because you can't trust the other person. You have no reason to believe that they're going to tell you the truth. And it really feels like that we're almost in a state of nature today, or at least some communities with respect to the relationship with the police. Both eyes have this sort of stance of anticipation that the other person is going to breach what they're supposed to be doing. So you have a real failure of, or no meeting of the minds because you can't trust the other side. And I think there's really something to that. Hobbes is

a really good example. Because what Hobbes sets up is a scenario in which we're so afraid of other people, that we choose an absolute authority to make all decisions for us. And there's a lot of subtle justifications for it. But the way that I was explaining to my students is the core of Hobbes's theory is it's better to be afraid of one person than everybody and write this. And because with one person, you know what's going on. And so, I think we've gone down that rabbit hole, because now people are afraid of their neighbors, but they're also afraid of the police who are supposed to protect them from their neighbors. And right. And so I guess the question that we have to ask now is, does this mean that lying is inevitable, and therefore permissible in things like interrogations in things like questioning of suspects and things like trying to get into someone's house to see if they have they have drugs or not? Have we reached a point where the system is corrupt enough that we are in a state of nature, we are in the War of, of all, against all and houses, terms, and therefore, the police are now justified to lie? Because that power is better than nothing?

Yeah, that's a great point. And let me start off the answer here with some maybe some some bad news. And, and and maybe I can, you know, turn this to a little bit of an optimistic direction. So first of all, I think the one reason the way we got here is because the police institution is thinking about short term goals rather than long term goals, right? So the analogy here is probably, you know, maybe in the war on terror, for example. So a short term goal is to use lots and lots of drone strikes, right? Because that's going to immediately in some threats, well, there's a lot of collateral damage and a lot of fallout, and perhaps in terms of a long term strategy. You're exacerbating the problem, you're creating more enemies, you're creating more sort of potential terrorists. Maybe that's controversial view. But I think there's something to that. And so if we're thinking about this, in terms of a long term goal, it will make a lot more sense to have an institution that's steeped in honesty and good faith to promote a sort of long term relationship and partnership with this society. So let me let me answer if this is just a cycle we can get out of Well, unfortunately, the courts have helped the police out on this a lot. So when we start thinking about some of the tactics you mentioned, for example, deceptive and dishonest interrogations, the courts have interpreted confessions to be admissible, as long as they are, and I'm going to put this in quotes voluntary. Now. That means under the the courts interpretation, that you can still have a voluntary confession, even if the police show you fake evidence, even if, for example, the police pull out prints and say this, or these are your prints, and no prints were found. Or if the police say, Hey, someone implicated you, even if that's completely false, or if the police say, Oh, by the way, what you did is not a legal problem. So tell us about it, even if what you did was actually against the law. And this just flies in the face, in my view of any understanding of what a voluntary statement is, if we have a contract that's based on fraud, of course, in some strict sense, I consented to the contract, but obviously, it's not a binding contract, because I was defrauded, there was a material misrepresentation. That good news that I promised is this, there has been a little bit of movement to push back on some of these tactics. So for example, a few states have increased citizens rights beyond say constitutional protections by for example, prohibiting the police from lying to minors during an interrogation. You would think that would be obvious. There's all these famous cases like the Central Park Five I've well received these terrible results. But there is some slow movement to push back on some of the egregious cases. And you know, in my view that should be expanded even more. But but but there is some hope if we think about legislation that could scale back some of these discretionary uses of power.

And this is where the philosophy has come in. And this is where the positive aspects of your book are really important. And by positive, I don't just mean optimistic, I mean, your actual claims, because the first thing we have to recognize is that legality and morality are not the same thing. So that when you say, the Supreme Court ruled this or that, it doesn't mean it's right. It doesn't mean it's good. It just, it's just a matter of fact. So what you're trying to do for a big chunk of the book is come up with a theory, and a method by which the police can determine whether this is a moment when it is or isn't acceptable to lie. And the core of that is what you call the prerogative power test. Without without getting too technical. Can you tell us what that is? And, and why it's so important for us to have a method like that? Yeah,

sure. Sure. I can and, and so a couple of points here, you're exactly right, of course, that just because, you know, a court holds something doesn't mean that that's necessarily the right thing, or the moral thing. And well, you know, you might say, well, who's to say what's moral and immoral? Well, the show actually,

I always say that, that we are, that's, that's why Iran, why radio, you declare it?

Well, that's right. Well, well, let me say something that hopefully it's not very controversial. And it's not so mysterious. Well, what about political morality? Right? So we live in a liberal society, and I'm not referring to anything in terms of politics here, I just mean a theory of governance. So for example, when you think about liberalism as a political theory, right? We simply mean that we're committed to the rule of law, to treating people as free and equal, perhaps some conception of human dignity. So just because a court holds a particular way, if it is, in fact, inconsistent with those things, for example, it's not treating people as a moral agent. That is a way to say that it's immoral, because it's inconsistent with our norms of political morality. Okay,

so now I'm going to interrupt you, before we get to the specifics of the prerogative power test, and ask you to elaborate on what you mean by inconsistent with our political morality, because what you're doing here is you're looking for some sort of some sort of point that we can look at that says, Oh, hold on, stop. We've reached it in consistency here. That means the argument doesn't work anymore. What do you mean by inch consistent with our political morality? Sure,

great. So let's think about the grounds for criminality or holding someone criminally liable. We only do that if there are three things in place. One, there's a mens rea, or a guilty mind a mindset, one to a voluntary action, and three, a connection with those two, if you don't have those things in place, we typically don't have criminal liability. Now, what that suggest, it doesn't just suggest, I mean, it's, it's it's embedded in what what those points mean, is that people are construed as moral agents. We only hold them responsible if they acted voluntarily, right? That's just a cornerstone of our justice system. So if we think about that word, voluntary, well, what does voluntary mean? It means that what you're doing or what you're saying, if it's a confession, is not the result of any force, you haven't been compelled to do it by being beaten or something. But not only that, what you say or what you do is not the result of say fraud. Right? If again, if I'm defrauded, anything I say or do is not truly voluntary. So if some of these examples we've talked about, of confessing is based on fraudulent evidence, phony evidence, fraudulent statements, the statement, in spite of what the court may say, doesn't seem to be truly voluntary. And that is the sort of thing that's inconsistent with our political morality to treat people as moral agents who are capable of responsibility and voluntary action. And I think we've deviated by that from that by allowing the police to engage in what I would describe as sort of fraudulent deception and dishonesty. So some deception dishonesty, that rises to this high level of fraud.

So we as a society are committed to the idea that human beings are free and equal and participatory in democracy. And when the police treat us, other than that, it's violating the core of who we think we are. And that should make the police stop and step back and say, Hey, wait a second, I'm not treating this person as free and equal. I'm not treating this person, as a citizen, I'm not treating this person as someone with rights. Let me stop, let me catch my breath. And then let me move forward. And so then what in theory they should do is look at look at their little pamphlet that describes the prerogative power test and say, Does this meet condition? 1234? So what is the prerogative power test? And why is it so useful for a society of free and equal people? Yeah,

so that's a great question. So I certainly didn't just pull this prerogative test idea out of thin air, it's steeped in what we've been talking about this sort of liberal form of governance. And the basic idea comes from John Locke, which a lot of your listeners will know is hugely influential to our country, and the sort of political morality of our country. And it basically says this, it says the executive, and you can think of the executive broadly, has a prerogative power to act and in some cases, in rare cases, even act and use discretion to deviate from the law. And these are these very extreme situations. So an example from history might be, say, Lincoln in the Civil War, when Lincoln had to go to extreme, take extreme measures to keep the country together. But if we think about police power as sort of derivative from this broader executive power, we can come up with some constraints, right, that are found in sort of locking in philosophy. So one would be something like a purpose constraint, if the police are going to engage in then some sort of deception that's on par with fraud, but it needs to be for the public interest, right? Obviously, not for personal gain. Second, it needs to be consistent with what I would call a Prudential constraint, consistent with any sort of legislation that's already out there. So you don't want to go contrary to the legislature, if that is relevant. And then third, and this is perhaps where it might get a little bit controversial. If you're going to engage in deception, that's fraudulent, in my view, and then I think the tradition we come from that view, there needs to be an emergency and acute threat of harm that you're trying to address in order to deviate from the law in a way that requires fraud. Finally, and this is central to the liberal tradition, there's a person who constraint that I that I would set forward even in an emergency, even if you're you have an acute threat of of harm, the police ought not do some sort of deception or dishonesty, that's going to be an affront to one's personhood, for example, do something that would degrade another person, humiliated another person. And so those four constraints, I think, provide a framework not a bright line test for thinking about when these high level cases of deception and dishonesty that are on par with fraud might be justified. Yes.

So let me take a step back. Let me try to tie it all together. And then and then you tell me if I've got this, right. And then maybe we can talk about some of those examples. So okay. The liberal Tradition holds that government is only legitimate when it's based on the consent of the government, that people have to agree to be governed by this person. And what that means is that the government has the prerogative to act it's it's in their role to act either by themselves or their agent, their their ministers or what have you. And so the police as an agent of this authority, they use their prerogative to act they use this prerogative to stop people and to stop crimes and to do all these things. And so then the question is, do they have the prerogative to lie? And your answer is, they only have the prerogative to lie if certain conditions are met first, that it's for the public good or something like national security. Second, it's not in violation of a particular law. Third, that it's an emergency meaning you have to act now. And fourth, that it doesn't violate what it means to be a person in a political society. So what you're doing, if I understand it correctly, is you're looking at the core of that agreement between the people who have said add that it's okay to be governed. And you're saying the nature of that agreement gives us the conditions under which we can lie, we have to take that agreement seriously. And in doing so, we then can pull out the criteria that we can look at to determine whether it's okay to lie, because we're still really just talking about the agreement. And what we've agreed to do. Is that a fair interpretation of what you're trying to what you're saying? That's

absolutely right. That's absolutely right. And and, you know, this idea of the executives prerogative power, it's based in part on the idea that even in a society steeped in the rule of law, the executive has to have some discretion, right? You have to, for example, the police have to make decisions about who to pull over for a speeding ticket and who not because if they didn't do that, that's all they would do. And the problem is when the police use their discretion, in a way that perverts the law that exceeds the sort of the nature of the social contract, they're using their power in a way that's inconsistent with the agreement you just described. And I think, you know, deception and dishonesty, it's impossible to root that out, in every instance, because all of us engage in some degree of deception. But what we can do is focus on those cases in policing that rise to the level of fraud. Why? Because as we've been talking about, just think about it in terms of a contract, whenever you have fraud, there's a clear breach of the contract, it's no longer a valid contract. And so by analogy, when the police engage in deception and dishonesty that is on par with fraud, that is a seems like a plausible place to draw the line when the police are engaging in such egregious deception, that it defrauds one of their rights that are inherent in that agreement that you just described.

So let's try some examples. Um, so So tell me how we would use this, this approach and this test to In response, the fallen police officers are on the side of the highway, they see a car go by run by driven by teenagers that has a Snoop Dogg's sticker on it. And we know that Snoop Dogg is big on marijuana. So they say there must be pot in that car. They pull them over. But it's not illegal to have a Snoop Dogg sticker. That's not permission to search your car. So the police have to come up with a more legitimate excuse to justify pulling them over. Is that okay?

So, legally, the Supreme Court has said that pretextual stops, as you just described is okay. I think, morally in terms of our political morality, it clearly seems to be not the case. What you've just described is the police using their discretion, which is in general justified in a way that perverts the law. So instead of using their discretion, consistent with sort of the the tenants we've been talking about, they say, well, Snoop Dogg. I don't like that. I think it might be associated with the drugs. I don't have any other evidence beyond that. But I'm going to use the pretext. They were going a little bit over the speed limit to pull them over. And the reason I would say that that's inconsistent, at least under the the framework that we've just described, is this well, is in the public interest. You could say yes, in the sense that, you know, we have drug laws, and that sort of thing, no issue with the Prudential constraint, but where we do run afoul for sure is the emergency constraint. What is justifying that deceptive pretext? And in this case, we have something like, oh, maybe they're smoking marijuana. And and that certainly does not rise to the level of an emergency, where there's an acute threat of harm, that would allow the police to engage in deception that sort of defrauds people have their right to drive along the highway with a Snoop Dogg sticker.

It but in the retelling of the story, you added something that I didn't say that I think is the key to my question, which is, you said, Oh, they were going a few miles over the speed limit. And therefore they use that as a pretext. are the police allowed to lie and say they were going over the speed limit when they weren't suppose they weren't doing anything illegal at all? So there is no pretext? are the police allowed to lie and say, well, they were going 56 and a 55. When in fact, they were going 54 to 55.

So they would not be that would not be legal to say that, you know, you were speeding when you were, in fact, not speeding. Now. I don't think there's any legal basis for that or moral basis for that. Absolutely not. Do we think those things occur? I'm sure they have occurred. But I don't think that would be legal or moral.

So let's take another example. This is a version of of something you said before, but but I'd like to, again, have some details on it. The Central Park Five, five teenagers who were found guilty of brutal rape that they did not commit. And in the process of getting the the teenagers to confess, they told the teenagers that or they told one teenager that His fingerprints were found on the clothes, I believe, and they were. So how do we use your test to determine whether it's okay to you call that you call them the book, test Elian, to tell them that their fingerprints were found when they weren't? Would that first? Would that pass the legal test? And second, would it pass your moral test?

Yeah, so great point. And so, so test the line a little bit different. Just one point that that would be like when you're testifying in court, and you lie, but to the question, the Central Park Five case, it's a fascinating case, it's a tragic case on all around a horrific crime victim that was just brutalized. And then we also have these five teenagers who were interrogated for hours and hours and hours. And as you mentioned, it was not just the lie about the physical evidence, there was also a lie about well, you've been implicated, you've been your bodies are saying you did it, that sort of thing. They've confessed. And legally, the answer is yes, it's okay. So the court has has stated going all the way back to I believe the case is Fraser because the vs cup, that the police are permitted to use these sorts of false facts to make things up to bring in physical evidence. And that's not sufficient to make that confession involuntary. Again, I think that's completely misguided and doesn't make a lot of sense when you think about what voluntary means, morally, under the prerogative power test. I think it's, I think it's more complicated. So I'm going to dispense with the purpose and the Prudential constraint, because I don't think those are big issues. But when you think about the emergency constraint, and the person that constraint, it's not clear. I mean, of course, we have a serious crime here a horrific crime. The question is, is that sort of deception dishonesty that's on par with fraud, justified, because there's the belief that there is an acute threat of harm that is necessary to resolve? Right, then. And I'm not sure that that's the case. I mean, people can disagree on on that. Here's what I would rather I have in mind. So instead of the Central Park Five case, suppose you have a suspect in an interrogation room. Let's say it's the brother of your primary suspect, in a kidnapping case. And the kidnapper is at large, they have a minor victim who is in serious, serious danger, and you have the brother in an interrogation room. Time is of the essence, there is an acute threat, that if you don't find this, the suspect and the child, really soon, something terrible is going to happen. So in that scenario, even if the death deception and dishonesty is on par with fraud, it strikes me as reasonable for the police to engage in that sort of tactic. Because you have a life that is on the line, you have an acute threat of harm that the police are trying to prevent, you know, really quickly, I think this is consistent with sort of the classic example from from Immanuel, Immanuel Kant, who some of your least listeners may be familiar with some of them not, but a very short version is. Kant is a moral philosopher and he says, you know, if a if a murderer shows up at your door and looking for a victim and the victim happens to be hiding in your house, then you should not lie, right? Because honesty is so important. Now, I think that's absurd. And I think you should lie in that case. And I think what we have in the past Apple just gave about a kidnapper at large is sort of a murderer at the door example. You have a kidnapper that has a child out there, and you have to find where they are. So this lie this fraud is justified to save a life in the same way a lie would be justified if you had a murderer at your door looking for someone hiding in your house.

So Kant holds the position that it is never okay to lie, no matter what you're saying. You're not holding that position that there are certain circumstances when it's okay to lie. One of the conditions one of the necessary but not sufficient conditions is that it's it's an emergency. So you can't lie to make your job easier. You can't lie to fudge some facts, you can't lie to scare the suspect. You can lie when it's an emergency when there's imminent harm. Otherwise, if it makes your job harder, that's what you get paid for. Is that right?

That's exactly right. And this just goes to that issue that short term versus long term goals. Yes, short term, it may make cases more difficult, long term, the goal is to sort of rehabilitate the police institution. So it's a more trustworthy institution. And so it functions more efficiently. And in a way that's more consistent with the relationship with the community. So I absolutely think that those cases of deception dishonesty that are equivalent to fraud should only be reserved or should be reserved only in those cases, in which there's that high standard to be met that meets those requirements that's consistent with the basic tenets of our tradition, including cases in which there's an emergency.

So you say early on in the book, you say that what you're looking for, is, is good faith, policing, and good faith is the rule of that deception and dishonesty are the rare exceptions, right, that that that it does happen, but it doesn't happen very often. And it's justified. So I guess the question that I have for you now, pulling back to your own experience in law enforcement, and I'm sure that there has been discussions in your books with law enforcement personnel. Do you think that there is an audience in the law enforcement world that will at least hear you out that is open to the ideas, at least in theory that you're putting forth? Or are we beating our head against against a wall? And it's okay, we're philosophers. It gets us tenure. Right? I mean, is there an appetite for police reform in police circles?

That's a great question. So. So a couple of things. So one thing when I say, I want to scale back deception, dishonesty, I want to focus on the cases I'm talking about are the ones that rise to what I would describe as fraud, right. So when a police officer goes into an interrogation room, and feigns interest in the person's well being, and acts sort of like a buddy, that's deceptive, but I'm not sure it would would meet the requirements, what we describe as fraud, right? So it's impossible to rule out all deception and dishonesty. You know, the example of you know, if a police officer goes into an interrogation room and feigns interest in the suspects, well being acts, you know, sort of like their buddy, that's deceptive. But I'm not sure that rises to the level of fraud. So it wouldn't be realistic for me to argue that all deception is should be prohibited. But the kind of deception that rises to fraud is important, because that's when it is inconsistent with one's rights. When you're defrauded. You have your interest in rights taken away from you. So it hopefully, it's not too radical to think that that would be a way to, to sort of scale back police power. Is this this is our traction in law enforcement circles. Well, I'm skeptical of reform from within. On the other hand, as we started off the show, there are these movements to defunded abolish, and it seems like we're going to have to have some kind of reform if we want to move past these very, very extreme movies to get rid of the police altogether. And as I said, there are some movements to scale back police power, states have taken the initiative to prohibit police from lying to minors and interrogation rooms. So I think there's some hope in some of these areas.

Do you think that there is a hierarchy of trust within our society? Are the Feds trusted more than the local Police write movies often have the FBI show up and they see much more professional and they see much more by the book. And and is that is that the case? Would you have a more disciplined and legal actor, consistently legal actor in an FBI agent than you would with a local sheriff?

That's a great question. So I think there is that perception, right. And there are reasons for that perception. So if you think about a local sheriff, for example, um, there's certainly many good sheriffs out there. It is a political position, often, oftentimes, where they're elected. And you know, they're sort of their own little king or queen in that particular area. So there's certainly oftentimes less oversight. So in that regard, the FBI, for example, as a law enforcement officer, has much more oversight, a lot more requirements in terms of admission. So there is something to that. On the other hand, I will say this, that perception may be shifting. The FBI in particular has been politicized quite a bit in recent years. And I think the trust is, is weakening there. But maybe even a bigger point is that the FBI, just like other law enforcement agencies, are trained in deception and sourness tactics, right? So they're trained, for example, to engage in surveillance to run informants to run undercover operations to interrogate people. All of these things on the investigative side of policing involves sort of this inherent deception and dishonesty. So it's there across the board, in spite of the fact that historically the FBI has probably been given a little more deference.

This may be the last question and might be a little bit of an unfair question, but it's it's nagging at me and, and it's it's falling, I suppose someone came along and said, Look, you're treating this as people are lying out of a tactic, and out of, of, of a particular situation a particular need. But what we're dealing with is a character trait, that a lot of police officers are just vicious by nature that, for example, the amount of of domestic violence in police marriages is disproportionately high. And bullies end up becoming police officers as as they often do prison guards that think like that, and it's not an issue of tactic. It's an issue of the kind of person that law enforcement attracts. How do you respond to that? How do you respond to someone who says that this is a character issue pulling out, I guess, the threat of virtue ethics, this is a character issue, not an act issue, because you have to get people with the right frame of mind and the right moral inclinations, as opposed to just people who can follow a rule and figure out the criteria for a test.

Yeah, that's a that's an excellent question. And I think there's definitely something to that, I think, to the extent that policing, for example, is steeped in this idea of a warrior identity, people who are drawn to the idea that you can be a warrior, are perhaps not best suited for the police role, because that is completely inconsistent with the idea of policing. Just because the police has the authority to use force or even deadly force certainly does not mean that the police role is steeped in sort of being a lawyer. We've talked about that. That's, that's certainly a problem. So I think there's definitely something there. And that gets to this sort of, you know, the benefits that come with a job, the sort of training they get, on the other hand, in terms of, you know, actions, the police are afforded this immense amount of discretion. Right. And that, I guess, is where there's some overlap. You can choose when to use deception, dishonesty, and when not to based on this prerogative power. And, you know, one of the goals of my project is to try to rein this discretion in, to have some parameters on how this discretion works, so that we don't have these bad actors with sort of a, an open, open ticket to just sort of do whatever they want when it comes to the law enforcement power.

And it's taken you so far, three books to make that argument, right. This is this is this is a complex project that you're engaged in that deals with people Political morality in your first book and, and character and social roles in your second, and now the role of truth and honesty and integrity. And in the third, is this a project that you can finish that that you see walls around? Or do you think that this is a project? That is, you're just going to keep having to talk about this? As long as you're doing this kind of work? Yeah,

and the reason for that, and I guess it's twofold. I think it's an important topic. One, two, maybe three reasons to I do have some experience in law enforcement. And so you sort of write let you know, that three, there are different angles to look at these issues, right. So it's a complex problem. And there are three different angles to do that, to look at these issues. But I think it's going to keep coming up. There's more and more work on philosophy and policing. And a lot of what we see right now, is not so much focused on the sort of problems I've worked on, say, philosophical puzzles about these investigation tactics. A lot of people are considering the footprint of the police, right? How, how big the police president should be in American life, for example. And so we continue to have those debates. And I feel like for the most part, I've had a chance to have my say, and I feel pretty comfortable with where things are in terms of my work. But there are certainly many, many questions that are outstanding, and there are great people doing work. So that gives me hope. And one thing I do want to mention is, you know, the reason I'm doing this work, or one of the reasons is because I think policing is such an important issue in public life. And despite what others have have argued that the police institution ought to be abolished or drastically defunded. I think policing is inevitable in a political society. Because there are always going to be emergency situations that require just policing. And so my goal is not to attack, you know, the police institution, but to call it when I see it when there are problems, to raise those problems and hopefully, encourage reform efforts in the police institution, because I want the police institution to be more trustworthy, I want it to be more effective. I want there to be better relationships and better partnerships with the community. Those are the things I think we should be striving for.

Well, that leaves a lot on the table for future discussion and a lot for folks to think about. So, look, William hunt, thank you so much for joining us on why a second time. It's

always a pleasure. Thanks so much for having me on. Jack.

You have been listening to Jack Russell Weinstein and Luke William hunt on why philosophical discussions about everyday life. I'll be back with a few more thoughts right after this.

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You're back with why philosophical discussions about everyday life. I'm your host Jack Russell Weinstein, we were talking with Luke William hunt, about police and the ethics of lying and this is going to seem like a non sequitur. But I want to talk for a second about stand up comedians, there's there's a lot of complaints right now that it's that it's so hard to do stand up comedy because the audience isn't receptive and, and the kids are easily offended and and the people who are saying this are the people who make the most money. And I want to say to all of them, you're making $20 million a special, your job is supposed to be hard. And that's what I want to say to the police to who might hear this and say, Look, if you take away our tool for of lying, then our job is going to get that much harder. It's going to be that much more difficult and so much slower to catch the bad guys. And what I want to say is, that's what it means to assume someone is innocent until they're proven guilty. That's what you're paid for. That's why you're given qualified immunity. That's why you have the discretion in the field because we expect you to do a hard job at The core of this issue is the question How do we respect persons or individuals in a liberal society? How do we respect people when they have rights when they have responsibilities when they have obligations when we treat them as agents? And Luke's answer is, we respect them by only lying to them when it's absolutely necessary, when it's for the public good, when it's not against the law, when it respects their agency, and when it's an emergency, if those four conditions aren't met, you should not be allowed to lie as a police officer. That's a lot. It's strict, but it's justifiable philosophically, by the moral and political tradition that we all inherited, if you believe in the Constitution. If you believe in the right to resist if you believe in the notion of limited government, then lying is a central question in policing, because the person who gets to lie has more power than the person who was lied to. And there's something fundamentally immoral about that inequality. With all of that said, if you've been listened to this episode on Sunday evening on Prairie Public, please know that a longer version with almost 30 more minutes of discussion is available online and as a podcast visit why radio show.org To listen or subscribe for free. For everyone else rate us on iTunes and Spotify to help spread the word about the show. Follow us on all the usual social networks our handle is always at why radio show and please help us continue broadcasting by making your tax deductible donation at y Radio show.org. Click donate in the upper right hand corner to go to UND alumni donation portal. We exist solely on the money you provide. Thank you yet again to Luke. The folks at Prairie Public especially skip would our long suffering engineer I'm Jack Russell Weinstein signing off for why radio thanks for listening as always, it's an honor to be with you.

Why is funded by the Institute for philosophy and public life? Prairie Public Broadcasting in the University of North Dakota is College of Arts and Sciences and Division of Research and Economic Development. Skip wood is our studio engineer. The music is written and performed by Mark Weinstein and can be found on his album Louis soul. For more of his music, visit jazz flute weinstein.com or myspace.com/mark Weinstein philosophy is everywhere you make it and we hope we've inspired you with our discussion today. Remember, as we say at the institute, there is no ivory tower