We're moving pretty far away from the law and policy of
firearms regulation. But recall that the test for lethal self-defense
(or defense of others) is generally a reasonable belief that "such force
is immediately necessary for the purpose of protecting himself against
the use of unlawful force by [the attacker]." "Necessary" to avoid
death doesn't mean you're 100% certain that without the lethal
self-defense, death will result; but surely the standard is more than
just *some* risk of death. There are several hundred thousand attempted
rapes in the country each year, but less than 1% of them lead to the
victim's death from homicide, and I suspect only a tiny fraction lead to
the victim's death from AIDS. The reason women can use lethal force to
defend themselves from rape is that they're entitled to do so even just
to avoid the risk of rape itself, and not to avoid a substantial risk of
death. This is even more true as to use of lethal force to defend
against robbery or burglary.
More broadly, as I mentioned before, some states do impose a
duty to rescue on bystanders, even ones who haven't created the risk to
the victim -- and it is as to those states that the question which began
the thread (do armed citizens have a stronger legal duty to rescue
because they are armed?) is most relevant. There too the original post
was in error.
This having been said, I agree with the bottom line that, even
when a duty to rescue (which generally means rescue without risk to the
rescuer) exists, an armed bystander has no extra legal obligation, since
his armed status would only make a difference in those cases where there
is risk to him. But my broader point is that people should be careful
on the list in making categorical legal assertions that may prove to be
misstatements of the law.
Eugene
> -----Original Message-----
> Sent: Wednesday, November 22, 2006 1:57 PM
> To: Volokh, Eugene
> Cc: List Firearms Reg
> Subject: RE: Fw: Duty not just to rescue but to defend
> implicit in militiaduty
>
> Yes, I was simplifying, but I don't think overly so.
>
> I thought the question was what special legal obligation
> existed, for an armed individual by reason that he is armed
> under a [legal] "duty to rescue".
>
> Yes, I did know that the potential for grave bodily harm,
> kidnapping, etc.
> justified the use of deadly force -- it is a question that
> has much perplexed me how to distinguish that potential for
> grave bodily harm from a genuine threat to life -- especially
> in the circumstances where rapid decisions are needed with
> incomplete information.
>
> I would be doubly perplexed if I knew a violent act was being
> committed and had certainty that there was no risk of death
> (how I would know that is a mystery) and my only possible
> response would be to offer deadly force that could lead to
> death. That might be legal, but wouldn't be moral.
>
> Yes, I can imagine that a 6' 4" man beating a 5' 5" man (or
> woman) with his fists without really intending to kill, but
> personal weapons (fists, feet, . .
> .) are used in more murders each year than so-called assault
> weapons. So, if I were to observe such a beating, I don't
> think I could conclude there was a threat of grave bodily
> harm and not threat to life. Even rape presents the risk of
> death from AIDS, not to mention the possibility of death from
> the force used.
> And, if I were to observe a kidnapping, please tell me how I
> might reasonably conclude that murder would not be the end
> result? (Yes, I might know murder wouldn't be the end result
> if I knew the parent was the kidnapper, but what would be the
> sense of offering deadly force against a parential kidnapper
> and what would be the legal "duty to rescue" in such a case).
>
> It is possible that unwise statements by people to police
> after they used deadly force against a violent criminal might
> require the benefit of the other provisions of the law that I
> find hard to imagine. Still, in all such cases, I suspect
> that an armed person could be in legal trouble for
> intervening in what appears to be a violent attack if they
> didn't issue a warning to stop the attack before actually
> shooting an attacker (certainly for liability reasons if no
> other). The moment a warning is issued, the person has
> alerted a violent actor.
> At that moment a risk is created to the person issuing the
> warning. So, an armed person has the "risky" escape clause.
>
> Sadly, we've seen that even police officers have no legal
> "duty to rescue"
> (Warren v. District of Columbia, DeShaney v. Winnebago County
> Department of Social Services, Balistreri v. Pacifica Police
> Department) and some states have precluded lawsuits for
> police failure to prevent crimes.
>
> How can a physical confrontation be required by a "duty to
> rescue" law that has the "risky" escape clause? If there was
> a "duty to rescue" law without that clause one would expect a
> successful lawsuit against a negligent police department.
> Has there been?
>
> I thought the question was what special legal obligation
> existed, for an armed individual by reason that he is armed,
> under the [legal] "duty to rescue". If there exists a legal
> obligation, I can't think of it.
>
> I can think of many non-legal obligations, however. That is
> how it should be.
>
> Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>:
>
> > Folks: The purpose of this list is to provide helpful
> information to
> > list members for the purposes of their academic work.
> > It's thus especially helpful if people's comments focus on
> subjects on
> > which they have expertise. At least, if people want to express
> > tentative opinions on subjects on which they don't have expertise,
> > they ought to flag their opinions as tentative opinions,
> rather than
> > just making flat assertions that others on the list might
> erroneously
> > think are indeed accurate.
> >
> > Consider, for instance, the item below. To begin with,
> use of deadly
> > force is not always illegal unless someone's life is in danger.
> > In most states, it's permissible to use deadly force to prevent not
> > just death but rape, kidnapping, or serious bodily injury. In many
> > states, it's permissible to use deadly force to stop
> robbery; in some,
> > to stop residential burglary; in at least one, to stop
> theft. Nor do
> > those states simply presume that people who are being
> raped, robbed,
> > or burglarized are also feeling a threat to their lives --
> while this
> > might be one of the reasons why the law allows deadly force in such
> > situations, the laws apply even when the defendant candidly admits
> > that he felt no threat to his life, but was only reacting to some
> > other crime.
> >
> > Second, it is just not the case that "legal 'duty to rescue' is
> > limited to cases where you are somehow responsible for the
> conditions
> > that placed the life in peril." Generally speaking, the duty also
> > applies when you have a special relationship (e.g., parent-child or
> > spouse-spouse) with the victim, plus a few other situations. And,
> > most relevant for our discussion -- it's the item that prompted the
> > article that started the discussion -- several states do impose a
> > broader duty to rescue on everyone (subject to various constraints,
> > such as the duty's not applying when the rescue would be risky).
> >
> > Now perhaps the poster knew this, but if that's so,
> then the post was
> > a pretty substantial oversimplification, to the point that
> it was, I
> > think, mistaken. And if the poster didn't know this, that
> highlights
> > the dangers of making flat assertions about what the law is without
> > sufficient expert knowledge of this area of the law. In
> either case,
> > posts such as this make the list less useful rather than more.
> >
> > The list custodian
> >
> > > I thought the question of an armed individual "duty to
> rescue" too
> > > narrow for just a discussion in the legal context since "duty to
> > > rescue" laws explicitly exclude the "duty"
> > > when acting would place your life in danger (even Jewish law has
> > > similar exclusions
> > >
> http://www.daat.ac.il/daat/kitveyet/assia_english/kirschenbaum.htm ).
> > >
> > > Since use of deadly force (e.g., threating some one with a
> > > gun) is illegal unless someone's life is in danger,
> unless you were
> > > in the situation of relative safety and viewed an attack
> endangering
> > > the life of a third person, you would have no legal "duty
> to rescue"
> > > by threatening deadly force. Even in those circumstances, legal
> > > "duty to rescue" is limited to cases where you are somehow
> > > responsible for the conditions that placed the life in peril.
> > >
> > > So, if we are limited to legal questions, the
> circumstances for an
> > > armed private person having the legal "duty to rescue"
> > > should be limited to cases where the person has created the peril
> > > somehow -- perhaps by knowingly allowed thugs to use his property
> > > for illegal activities and an attack is made by one of
> those thugs
> > > on his property. Then, if he sees this attack while he
> is armed, he
> > > might have the legal "duty to rescue" if he can do so from
> > > conditions of relative safety.
> > >
> > > In a nut shell, if you are armed and close enough to an
> attack that
> > > your life is in peril, you can legally respond to protect
> your life
> > > (or not if you want), if you are far enough from an
> attack that your
> > > life is not placed in peril by your respond, you still
> have no legal
> > > "duty to rescue" unless you are responsible for the circumstances
> > > leading to the life being placed in peril.
> > _______________________________________________
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>
>
>
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