Dear Reader,

A month ago in this space I addressed the concept of “supererogation.” As I explained:

Supererogation, per moral philosophers and ethicists, is the performance of an act above what duty calls for; it is good but not morally required; it is worthy of praise, but its non-performance is not a cause for criticism. A supererogatory act is morally optional, but is typically impressive and tends to involve some sacrifice or hardship for the person who performs it.

 I went on to say that classic examples of such conduct include “stories of good Samaritans who had no duty to help others in distress but went out of their way to do so.”

 This week my thoughts have swung back hard to this notion and, more specifically, the expectations we should have for bystanders who come upon strangers in distress. As a legal matter, there are almost no jurisdictions in the United States that obligate people to help others in an emergency, whether it’s a car accident victim or a drowning swimmer. While all states give some measure of legal protection to good Samaritans who do offer help, only three states (Minnesota, Rhode Island, and Vermont) impose a broad requirement of rescue in the first place.

This is an excerpt from the Minnesota statute: “A person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that the person can do so without danger or peril to self or others, give reasonable assistance to the exposed person.” A violation, however, is a just petty misdemeanor. 

Now, how should we consider these questions as a moral matter? To answer, we can begin by considering two bystander scenarios that are rightly receiving a lot of attention this week. They are an aching study in contrasts.

The first involves the senseless attack on a 65-year-old Asian American woman on West 43rd Street in Midtown Manhattan, on her way to church. A viral video shows surveillance footage shot from a camera inside a luxury high rise on that block. What it depicts shocks the conscience. A petite figure is walking on the sidewalk past the building. A much larger man abruptly kicks the woman hard in the stomach. She crumples to the ground. Then the man kicks the woman hard in the head at least three times before wandering off.

It is awful to watch; it makes you sick to your stomach. But even more shocking perhaps is the reaction of at least three bystanders in the lobby of the building, reportedly two security guards and a third-party vendor. They do nothing. They don’t spring into action; they don’t render aid; they don’t appear to call for help. Even worse, as the woman lies there on the sidewalk, one of the men slowly goes to the open lobby door and closes it, as if to punctuate the point that this is not their problem.

Did those men have a legal duty to render help? What about a moral duty? Condemnation, in any event, was swift. Thousands of people on social media, along with public officials like the Mayor himself, rebuked these cold-hearted bystanders. The company that manages the condominium tower suspended the two security guards, “pending an investigation in conjunction with their union.” One wonders what the union’s position will be.

The other bystanders in the news are now witnesses in the trial of Derek Chauvin, who is charged with murdering George Floyd. These bystanders are made of different stuff. The people called by the prosecution to describe what they saw and felt the day Floyd died, to a person, tried to help and regret they could not do more. The testimony is suffused with trauma and guilt and good Samaritan spirit.

This is the teenager who shot the video of Chauvin with his knee on Floyd’s neck: “It’s been nights I stayed up apologizing and apologizing to George Floyd for not doing more and not physically interacting and not saving his life.”

Off-duty firefighter Genevieve Hansen testified about all the actions she would have taken to help Floyd if allowed: call for help, check for a pulse, open his airway, begin chest compressions if needed. Hansen broke down in tears. “I pleaded. I was desperate to help.”

Another bystander witness, Charles McMillian, also broke down, sobbing uncontrollably as he was shown video from an officer’s body cam. 

Donald Williams, an MMA fighter, spoke compellingly about his experience. As he watched the way cops were treating Floyd, Williams asked himself, “Should I involve myself?” He explained that he was “battling with himself to stay on the curb.” And then he called 911. When asked why, he said, “Because I believed I witnessed a murder.” 

Indeed, so many bystanders, in the words of the prosecution, “called the cops . . . on the cops.” 

They weren’t able to save George Floyd. A police officer with mace and a gun prevented that. But they wanted to, and they tried. And they are stricken with grief that they failed. Whatever the law has to say about a duty to render help, these are the human impulses we laud and applaud. These are the kinds of neighbors we want. These are the kinds of citizens we need. These are the everyday role models who can teach us to stitch together a strong fabric of community that protects every member, values every life, and fights every injustice.

My best, 

Preet

In Body Image

The Vaccine Passport Debate

By Sam Ozer-Staton

As COVID-19 vaccines become more widely available across the country, a long-simmering debate around privacy, technology, and surveillance has bubbled to the surface: should there be “vaccine passports”? 

The concept of an immunity passport is not new; the issue has been debated, including in these pages, first in the early days of the pandemic, and then again in December as the vaccine first became available to vulnerable groups. 

Vaccine passports are commonly understood as a two-part system: some form of digital certification that a person got vaccinated, and a database that authorities can easily access in order to grant that person entry to a certain place or event (plane flights, office buildings, sporting events, concerts). 

As I wrote in December, shortly after most major airlines unveiled an early vaccine verification program called CommonPass, “[T]he technology that will track who has been vaccinated represents a familiar double-edged sword: an effort that is in the clear interest of public health could also facilitate a significant escalation of the surveillance state.” 

Back then, high-profile civil liberties advocacy groups were ringing the alarm about the potential for immunity passports to exacerbate existing inequalities. In an op-ed published in December, the ACLU’s Esha Bhandari wrote: “An immunity passport system would divide workers into two classes — the immune and the non-immune — and the latter might never be eligible for a given job short of contracting and surviving COVID-19 if an immune worker is available to take the slot.”

Civil libertarians have long argued that cutting-edge technologies can too often lead to increased surveillance, and that surveillance, in turn, can be used as a tool to harm society’s most vulnerable. In December, Alexis Hancock and Hayley Tsukayama of the Electronic Frontier Foundation wrote: “We must make sure that, in our scramble to reopen the economy, we do not overlook inequity of access to the vaccine; how personal health data in newly minted digital systems operate as gatekeepers to workplaces, schools, and other spaces; and the potential that today’s vaccine passport will act as a catalyst toward tomorrow’s system of national digital identification that can be used to systematically collect and store our personal information.”

Yet almost overnight, an argument that had been championed by ostensibly progressive organizations has been taken up by conservative political and media figures. In a press conference on Monday, Florida Governor Ron DeSantis said: “We are not supporting doing any vaccine passports in the state of Florida. It’s completely unacceptable for either the government or the private sector to impose upon you the requirement that you show proof of vaccine to just simply be able to participate in normal society.” 

DeSentis is not alone. Other high-profile conservatives have made vaccine passports their latest target in the broader culture wars around pandemic restrictions. Rep. Marjorie Taylor Greene, the conspiracy theorist who has voiced support for QAnon, called vaccine passports “Biden’s mark of the beast,” adding that any company that requires one is engaging in “corporate communism.” 

But the Biden administration has made clear that it opposes a nationalized vaccine database. On Monday, White House press secretary Jen Psaki told reporters that “there will be no centralized universal federal vaccinations database, and no federal mandate requiring everyone to obtain a single vaccination credential.”

Earlier in March, White House COVID-19 advisor (and guest of Stay Tuned) Andy Slavitt echoed the concerns of civil libertarians, telling CNBC: “The public will be more reluctant to get vaccinated if they feel like the government, the federal government is playing too much of a role in that.”

But if the federal government has promised that it will remain on the sidelines, states and private companies have dived headlong into the project of creating vaccine passport programs. Just this week, New York released the first state-backed vaccine passport, the Excelsior Pass, which IBM built using blockchain technology. The digital certificate allows people in the state who have been vaccinated or recently tested negative for COVID-19 to download their health records onto a smartphone app that displays a QR code, which can be scanned by participating venues to verify their status. Walmart, along with every major airline, have been working on similar programs. 

Public health experts have argued that vaccine passports could be an essential tool in allowing the country to open back up. Some even support the kind of centralized database that the Biden administration has said it will not create. “Ideally, everything should have been coordinated at a national level,” Bruce Y. Lee, a professor at the CUNY Graduate School of Public Health and Health Policy, told Recode. “One of the concerns about the passport is that people will still move forward to try and do this, but then you might have all these different businesses or organizations trying to do things, and you can’t really [make] heads or tails [of] how reliable they are.”

What do you make of the recent debate around vaccine passports? Do you see them as a helpful step towards re-opening, or a dangerous threat to civil liberties? Can the interests of public health and individual liberties be effectively balanced? 

Let us know what you think by writing to us at [email protected]

In Body Image

Listen to Doing Justice on Apple Podcasts, Spotify, or wherever you get your podcasts. You can now binge the entire six-part series, which chronicles the cases that most challenged and inspired Preet during his time as U.S. Attorney for the Southern District of New York. 

Listen to Stay Tuned, “The Law is a Tutu,” featuring  Preet in conversation with  Dahlia Lithwick, a senior editor at Slate and one of the nation’s top experts on the Supreme Court. And don’t miss the bonus for Insiders, where Lithwick discusses the drawbacks of specialization in the law, and what it felt like when Justice Samuel Alito called her “some hack.”

Listen to Third Degree with Elie Honig. In the latest episode, “The Battle Over Voting,” Elie discusses the new Georgia law restricting voting rights and the possibility of HR.1 — the sweeping piece of federal voting rights legislation — passing the Senate.

Listen to Note from Barb, “It’s Raining in Georgia.” 

Listen to CAFE Insider, “Minnesota v. Derek Chauvin,” where Preet and Anne break down the start of the Derek Chauvin trial, including the effectiveness of the opening statements, the strength of the arguments made by the prosecution and defense, and the impact of presenting video evidence and expert testimony.

FOLLOW:

Daniel Dae Kim, an actor who has starred in Lost and Hawaii Five-O, has become an outspoken leader in calling out anti-Asian hate. Follow him @danieldaekim.

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That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.

Edited by Tamara Sepper

The CAFE Team: 

Tamara Sepper, Adam Waller, Sam Ozer-Staton, David Kurlander, Noa Azulai, Jake Kaplan, Jennifer Korn, David Tatasciore, Matthew Billy, and Nat Weiner.