Guilty! A Halachic Analysis

This week, former Minneapolis police officer Derek Chauvin was handcuffed and taken into custody after a jury found him guilty of murder in the death of George Floyd.

While Chauvin was sitting on Floyd, with his knee on the neck of Mr. Floyd, there were other officers and other bystanders around. Should they have done something? What would you have done if it was your own son or daughter, chalilah, under Mr. Chauvin’s knee? What would be the halachah?

What follows is the recommendation and the halachic discussion about it.

What They Should Have Done

Bystanders should have divided up into four groups.

• Some should have approached the officer and declared, “Sir, you are under citizen’s arrest. You are killing this man. You must cease and desist immediately. We are not assaulting you. We are placing you under citizen’s arrest because you are not listening to us in stopping the attempted murder of this person.”

• Others should have approached the other officers and said, “Officers, we are placing this police officer under citizen’s arrest. Please help us. We are not assaulting him and you know deep in your hearts that what he is doing is wrong. Please assist us. It is your duty.”

• A third group should have called other officers or a senior officer by phone to the scene.

• The first group of bystanders should then have physically removed the police officer from Floyd.

The Reader’s Reaction

It is anticipated that the reader’s reaction might be: “Never have I heard such naiveté! The officer will draw his gun and shoot the bystanders who approach. You are foolish.”

Perhaps. But wouldn’t you do this to save your own child or brother? Wouldn’t you place yourself at somewhat of a risk to save someone else?

The Yerushalmi

The Talmud Yerushalmi in Maseches Terumos (8:4) records the following incident:

Rabbi Ami was kidnapped by robbers. Rabbi Yochanan said: “All we can do is prepare his burial shrouds.” Rabbi Shimon ben Lakish said, “Either I will kill or be killed. I will go and rescue him with force.” He went and convinced the kidnappers to release him.

According to this Yerushalmi, there appears to be a debate on this idea between Rabbi Yochanan and Rabbi Shimon Ben Lakish as to whether or not there is an obligation to risk one’s life in order to save the life of another.

It is also possible, however, that Rabbi Shimon ben Lakish was just reaching for a higher moral standard—but one that is not obligatory. Let us now look at two different views or understandings of this Yerushalmi.

The Hagaos Maimonius’s View. Rabbi Meir ben Yekusiel HaKohen, a 13th-century Rishon who was a student of the Maharam of Rothenberg, writes (Hagaos Maimonius, Hilchos Rotzeiach 1:14): “He is in violation of ‘do not stand idly by your brother’s blood.’ The Yerushalmi concludes that one is obligated to save another, even if one must place himself in possible danger.”

Rav Yosef Karo, in the very end of his commentary on the Tur Shulchan Aruch (Bais Yosef, C.M. 426) writes that the reasoning of the Hagaos Maimonius is that this one will surely die, while the other is only a safek (a doubt), and “whomsoever saves one life, etc., it is as if he has saved an entire world (see Sanhedrin 37a).” The implication of Rav Karo’s view is that even if the risk involved amounted to fifty percent, there would still be an obligation to save the other.

The Netziv in his He’Emek She’eilah (129:4) cites a fascinating Tosfos in Niddah (61a d”h “Atmarichnu”). There were residents of the Galil in northern Eretz Yisrael about whom rumors went out that they had killed someone. These residents came before Rabbi Tarfon. They requested that he hide them, because they were afraid of the authorities.

Rabbi Tarfon explained to them (according to Rashi’s explanation) that if he refused to hide them, they would be caught and exiled. But on the other hand, perhaps the rumors are true, and then it would be forbidden to help them. Tosfos points out that even if there is no personal danger, Rashi’s view seems to be that one must always be concerned for the truth of rumors. Tosfos seem to dismiss Rashi’s interpretation and adopt the explanation of the Sheiltos D’Rav Achai that Rabbi Tarfon’s concern was that if it was true that they killed someone and that he had hid them then he might lose his head to the Caesar.

The fact that the clause of “if it was true that they killed someone” was added indicates that if it were not true, then there would be an obligation to save them regardless of the risk.

The Radbaz’s View. Rabbi Dovid ben Zimra, also known as the Radbaz, was asked (Responsa Vol. V #218 or Vol. III #627) about an evil king who captured a relative of one of his financial advisers who was bad-mouthed by his anti-Semitic peers. The financial adviser had escaped but got word that the king will kill his relative if he does not agree to sacrifice his own limb. The Radbaz responded that one is not halachically required to make such a sacrifice but that doing so would be a middas chassidus, an act of piety. He further writes that the principle of “derachehah darchei noam—her ways are ways of pleasantness” could not obligate one to forfeit a limb. The Radbaz continues that if giving up his limb endangers his life, he is a chassid shoteh, a holy fool.

We see that the Radbaz’s view is that if there is [at least a significant percentage of] an element of risk, then one should not do it. This is in contrast with the view of the Hagaos Maimonius.

The author of the Minchas Chinuch (Mitzvah 296:32) poses the following question: The entire obligation of saving the life of the other is based upon the principle of “Lo sa’amod al dam rei’acha—do not stand idly by your brother’s blood.” If so, when there is a chance of danger, this is considered safek pikuach nefesh, and one is exempt from fulfilling the mitzvah! How is this any different than any of the other mitzvos in the Torah, where a life-and-death danger sets that mitzvah aside? Clearly, the Minchas Chinuch is siding with the view that there is no obligation to save when there is a danger.

Rav Shmuel Rozovsky, zt’l, (1913–1979), a rosh yeshiva in Ponovezh, a leading gadol ha’dor, a talmid of Rav Shimon Shkop in Grodno, and rebbe of both Rav Gershon Edelstein and Rav Asher Arielli, gives the following answer (Zichron Shmuel 65:22) to the Minchas Chinuch’s question.

The Gemara in Bava Metziah 62b discusses the case of two people walking in the desert with one of them possessing enough water for the survival of only one of them. Ben Petora darshened: It is preferable that both of them drink and die, and let neither one of them see the death of the other. Until Rabbi Akiva came along and taught: “And your brother shall live with you,”—your life takes precedence over the life of the other.

Rabbi Rozovsky explains that this means “your certain life” takes precedence, but not “a possible danger to your life.” Rav Rozovsky answers the question on the Yerushalmi, but this does not mean that he holds that this is the final view.

Conclusion

Is there an obligation to place oneself in certain danger in order to save the life of another? No less an authority than the Mishnah Berurah (O.C. 329:19) writes, citing the Pischei Teshuvah (C.M. 426), that although one is not obligated to place his life in danger, if one is overly concerned then he himself will end up in such a danger himself! [One wonders whether Martin Niemöller was aware of this Pischei Teshuvah.]

Rav Shmuel Vosner, zt’l, in his Shevet HaLevi (Vol. VIII #87) writes that when there is a clear majority of a percentage that he will end up saving the life of the other and not dying, then he is obligated to do so.

It is this author’s view that if one embarks upon the three or four steps listed in the beginning of this article, the vast majority of the time one will not lose his life. Avoiding this action would possibly fall under the idea of being “overly concerned” mentioned by the Pischei Teshuvah—and the bystanders should have intervened in the manner mentioned above.

May Hashem Yisbarach bring us peace in this country and across the world. 

The author can be reached at yairhoffman2@gmail.com.

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