When Officers Are ‘Just Following Orders,’ Remember Where We’ve Heard That Before

Also known as the "Nuremberg defense," executing orders is no excuse for moral failure.

Two weeks ago, two police officers in Buffalo, New York were caught on camera shoving an elderly Black Lives Matter protestor named Martin Gugino to the ground. The injured man collapses out of the frame, we hear a loud smack as his head hits the pavement, and the shaking camera pans back to reveal an unmoving body, blood pouring out of his ears. One of the officers takes a step back, possibly to help the now unconscious protestor, but the other officer — later revealed by savvy Twitter users to be Aaron Torgalski — holds him back as he reaches for his radio. The other 20 or so officers on the scene seem to barely register what has happened, and continue walking.

The video quickly went viral and the two officers directly involved were suspended without pay. Then, in protest of the suspension, all 57 of their fellow officers in Emergency Response resigned ”in disgust” from the special squad.

The 57 officers’ explanation? “They were just executing orders.”

Apart from the obvious instance of the bystander effect, another socio-psychological study may give some insight as to why the Emergency Response unit — and other police departments in other incidents — continues to defend their colleagues despite the very clear evidence of police brutality and backlash from the public, including calls for resignation and a criminal investigation from New York Governor Andrew Cuomo.

In the mid-20th century, two American researchers hypothesized the following: “It appears that a soldier’s ability to resist is a function of the capacity of his immediate primary group (his squad or section) to avoid social disintegration.”

The case study was about Nazi soldiers.

By 1943, the German army was starting to lose on the Eastern Front. Despite knowing this, their soldiers continued to fight what was now clearly becoming a losing war.

The researchers Edward Shils and Morris Janowitz explain the cognitive dissonance (which didn’t yet exist as a concept) this way:

“When the individual’s immediate group, and its supporting formations, met his basic organic needs, offered him affection and esteem from both officers and comrades, supplied him with a sense of power and adequately regulated his relations with authority, the element of self-concern in battle, which would lead to disruption of the effective functioning of his primary group, was minimized.”

Without even adding the question of ethics to the mix, the study suggests that the benefits of being part of such a tightly knit primary group vastly outweigh whatever motivations an individual might have for leaving his group. In the Shils and Janowitz study, these other competing motivations included physical isolation from the group, familial ties and primary group disintegration, and the demand for physical survival.

For the Buffalo Emergency Response squad, the same principle holds true. Even in the case of an obvious ethical wrong (shoving an elderly civilian into the sidewalk) and fighting a losing war (as many activists and some political leaders are now calling for a total abolition of the police force), the police will continue to defend their own. Especially on the level of their primary group, or squad.

As Shils and Janowitz said, “As long as he felt himself to be a member of his primary group and therefore bound by the expectations and demands of its other members, his soldierly achievement was likely to be good.”

No matter the facts — 1,098 people shot dead by the police in 2019 — so long as an officer has their emotional needs met by their squad, there is no incentive to leave, even if they start to question their own morality. Morality just doesn’t seem to matter as much as feeling part of a group. Shils and Janowitz found that “the values involved in political and social systems or ethical schemes do not have much impact on the determination of a soldier to fight to hold out as long as possible.”

Another lens with which to look at the Buffalo incident is one that their own Emergency Response team elucidated: “They were just executing orders.” Perhaps they don’t recognize that this is an example of “the Nuremberg defense.” During the Nuremberg trials, military tribunals held after World War II, Nazi officials and collaborators used this defense. Needless to say, it did not work.

The guidelines set by the United Nations’ International Law Commission in 1947 preemptively addressed the possibility of Nazis using this defense, saying, “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

It’s been reported that Gugino, the veteran peace activist, has a fractured skull and has been unable to walk since the assault. While sociology might help us understand why the Buffalo Emergency Response team stands in solidarity with their so-called teammates, the choice to support police brutality is an absolute moral failure on their part.

Header image by Erik McGregor/LightRocket via Getty Images.

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