License to Kill

The debate on the use of force by the police has resurfaced in recent years. On the one hand, activists from working-class neighborhoods denounce an increase in police violence and a “license to kill” granted to the police, and call for stricter supervision of the use of police force. On the other hand, police unions and right-wing and far-right parties claim that the police do not have the legal means to defend themselves and protect the population in the face of increasingly serious threats, and demand a “presumption of self-defense.” Although they have not obtained such a presumption, in 2017 the police were granted a significant extension of the conditions under which they can use lethal force: the law of February 28, 2017 authorizes the police to shoot, after warning, at potentially dangerous fleeing people.

Vanessa Codaccioni’s latest work, Self-Defense: Security-related homicides, racist crimes and police violenceallows us to understand the origins of this debate and the developments that led to this extension of the right to use police weapons. Through a socio-history of self-defense from the 1970s to the present day, the historian specializing in penal institutions proposes to rethink the questions related to self-defense, in favor of a socio-history attentive to its legal and political uses.

The central thesis of the book is this: self-defense is a cause of criminal irresponsibility “granted to some individuals to the detriment of others because of their social characteristics” (p. 37). It benefits the murderers with the most resources and capital (white middle-class men), when their victims belong to the most marginalized and criminalized social groups (the working classes from post-colonial immigration).

Three things make this book original. First, it traces the history of self-defense through the actors who politicized this concept from the 1970s onwards, namely pro-repression groups on the right and the far right. Then, it analyzes the social and racial dimensions of self-defense, and shows how the profile of the killers and victims influences the categorization of a murder as an act of self-defense. Finally, it analyzes the role of the State in reducing so-called defensive murders, and shows that the measures taken to limit the self-defense violence of individuals have been accompanied by measures extending the scope of self-defense for the police.

Politicization of self-defense

To analyze the politicization of self-defense from the 1970s, V. Codaccioni focuses on the association “Légitime Défense”, created in 1978, and composed mainly of right-wing police officers, lawyers and judges. In a context of increasing attacks on property, the emergence of concerns about “insecurity”, and an increase in racist speeches and violence, the association will, for fifteen years, denounce the State’s inability to ensure the protection of people and property, and promote an extension of the right to self-defense and increased repression of delinquency. Made up mainly of members of the support committee for Brigadier Marchaudon, convicted of killing Mustapha Boukhezer in 1977, it defended, between 1978 and 1992, around thirty perpetrators of fatal violence, arguing that they were committed in self-defense.

Legally, a person can only be considered to be acting in self-defense if the violence they use is necessary and proportionate to protect themselves or others from an unjustified attack on their physical integrity. The association Légitime Défense calls for legislative reforms that would abandon the condition of proportionality, put the defense of people and property on an equal footing, and recognize all violence committed by police officers during an intervention as self-defense. Its actions helped to impose the issue of self-defense on the political and media agenda in the 1980s and 1990s.

Who kills? Who is killed?

The sociological characteristics of the killer and the person killed are decisive in the definition of a crime as committed in self-defense, both by pro-repression activists and by the courts. V. Codaccioni explains that “the politicization of self-defense cases is made possible by this very particular configuration where the perpetrators of homicide do not correspond to the ordinary profile of delinquents and criminals, while their victims, those injured or killed, are part of populations that are continually marginalized, repressed or racialized, and that some designate in turn as “thugs”, “vermin”, or “scum”” (p. 126).

First, self-defense is predominantly male. Of the 34 cases studied in the book, all the victims are men, and only one perpetrator is a woman, a baker who shot a man who allegedly tried to steal a croissant. By contrast, women killing abusive partners is almost never considered to be in self-defense.

Second, the racial dimension is central. In the cases politicized by Légitime Défense between 1978 and 1992, almost half of the victims were young men from Maghrebian immigration. This is part of two decades particularly marked by racist crimes against Maghrebis, since between 1971 and 1989, more than 200 Maghrebis were killed for racist motives in France (p. 158). Furthermore, these decades mark the emergence of the discourse linking immigration and delinquency, and in particular attacks on property, which allowed the association Légitime Défense to present these cases as opposing “honest people” and young people from immigrant backgrounds (and therefore perceived as delinquents). For V. Codaccioni, “the invocation of self-defense serves in many cases to mask the racist nature of the homicides committed and to give them a rational and legal justification so that they remain unpunished” (p. 156).

Third, the invocation of self-defense depends on the class characteristics of the perpetrators and victims. The perpetrators of murders presented as cases of self-defense are predominantly shopkeepers and law enforcement professionals, such as security guards and police officers, and the victims are predominantly from the working classes.

These characteristics allow pro-repression activists to reverse the figure of the victim, by presenting the perpetrator of the murder as the victim and the person killed as the offender. In the media and in court, the perpetrators are presented as “Mr. Everyman”, victims of both delinquency and the state’s inability to protect them. In contrast, the people killed are presented as violent and delinquent. This inversion of the figure of the victim is made possible both by racist discourses that conflate immigration and delinquency, and by police practices that make young people from immigrant backgrounds and working-class neighborhoods their main target.

In the judicial procedure, judges or juries therefore judge “at the same time, a crime and an offence, a perpetrator of homicide on the one hand, (and) a supposed burglar, thief, a killed aggressor on the other” (p. 232). This double judgment allows us to see, in a particularly clear way, what Michel Foucault calls “the differential management of illegalities”, the idea according to which illegalities which are the work of the working classes (thefts, pilfering) are harshly repressed while illegalities which are the work of the bourgeoisie (fraud, tax evasion) are the subject of accommodations and arrangements with the law. This tolerance with variable geometry according to the class and racial origin of the offenders is particularly visible in cases of self-defense. Of the thirty cases studied, only a quarter result in the perpetrators being sentenced to prison, a rate well below the acquittal rates in homicide cases.

Restrict private self-defense; invest in state self-defense

In the 1980s and 1990s, in a context of increasing defensive murders, the French State took measures to reduce “excesses of self-defense”. The most important measure was the imposition of restrictions on the sale and carrying of so-called “self-defense” weapons. At the same time, the legislature more strictly regulated the right to self-defense, and the State implemented policies to reduce the feeling of insecurity: promotion of preventive measures against attacks on property, encouragement of the use of the police to manage attacks on property, generalization of insurance. These measures resulted in a decrease in so-called self-defense murders from the 1990s onwards.

If the State seeks to limit the defensive use of weapons by individuals, it will, in the same movement, give more defensive means to the police. As early as the 1980s, the idea was put forward to extend the legitimate defense of police officers beyond what is authorized for private individuals, by aligning the regime of use of police weapons with that applicable to gendarmes. This demand remained marginal until the 2000s, both within the police and in the political field, but it would be regularly put back on the agenda, by right-wing and far-right deputies, and by the Alliance Police Nationale union. Successive governments rejected the idea, due to the dangerousness of the use of weapons in an urban environment and the risk of arbitrary fatal violence.

But following the terrorist attacks of 2015, and in a context of a proliferation of security laws, laws were passed that aligned the regime of the use of force by police officers with that of the gendarmes, and significantly expanded the power of police officers to use weapons. Police officers can now shoot, after two warnings, to stop people or vehicles trying to escape them and “likely to commit, in their flight, attacks on their life or physical integrity or that of others” (Law of February 28, 2017). They can also use their weapons to prevent the repetition of “one or more murders or attempted murders that have just been committed” (Law of June 3, 2016). Similar laws had already been put in place under the Vichy regime and during the Algerian War, but they are unprecedented in peacetime.

V. Codaccioni’s book helps to explain the historical path that led to a significant extension of police powers in the name of “state self-defense” in the context of the fight against terrorism. By showing that restrictions on the defensive use of weapons by individuals went hand in hand with state overinvestment in state self-defense, it helps to understand both the decline in racist and security-related murders since the 1990s, and the recent increase in fatal police violence.