I agree entirely that allowing retaliatory killing (which is
what I assume C.D. refers to as "vigilantism") is entirely different from
allowing defensive killing. But why is it different? Not because defensive
killing involves a target who had made a choice to break the law - that's
equally present in both situations (or equally absent, when the killing turns
out to be reasonably mistaken).
Nor is it because allowing defensive killing is simply the
withdrawal of positive protection - that too is equally present in both
situations.
Nor is it because of the police power - why wouldn't allowing
retaliatory killing be an "unorthodox police power" as well?
Rather, the difference is captured in the second paragraph
below, and it has come into American law as a matter of long-standing
tradition, a backdrop against which the Constitution was enacted and should be
understood. So what makes various forms of self-defense defenses permissible
isn't just that they are exercises of "police power," or withdrawals of
positive protection, or triggered by individual choice. It is that the
provision that the government may not deny people "life" without "due process
of law" implicitly embeds the understanding that allowing certain kinds of
killings (but not necessarily all killings) is consistent with that provision.
Finally, note that some forms of lethal self-defense, such as
Texas' allowance of certain kinds of killings to recapture property, do not
"prevent equivalent harm to an innocent victim"; I take it that this is part of
what the article that triggered this exchange is speaking against (though it
doesn't necessarily follow that the article is correct on this score).
Eugene
From: C D Tavares [mailto:[email protected]]
Sent: Wednesday, May 08, 2013 10:09 PM
To: Volokh, Eugene
Subject: Re: New approach
The debate here is following the old shibboleth of confusing self-defense with
vigilantism. I haven't overlooked the point that Eugene consistently couches
his hypotheticals so that some law or other allows an offender to be killed at
ay time, by any person. This is consistent with vigilantism, not self-defense.
The essence of self-defense is that it is in the moment, unavoidable, and
prevents equivalent harm to an innocent victim. Yes, the victim can be
considered merely an "accuser," but he is also an eyewitness, a first
responder, and in immediate peril. The due process dance occurs later, when a
jury decides whether the victim's perception that he was in immediate and major
peril was a reasonable one.
The second paragraph below simply argues mens rea -- a traditional dividing
line between a crime and a tort. Though the "innocently mistaken victim" and
the insane may not be guilty of a crime, they are usually found civilly
responsible for an unjustifiable homicide, and so still pay a social price.
A more cogent question would be, what (other than voter disgust) stops states
from enshrining ANY unorthodox police power provision in their state
constitutions? Certainly there are a lot of state powers that have no
counterpart at all in the federal constitution. Under what provision or hat
authority would a federal government intervene and nullify such a change?
On May 8, 2013, at 9:48 PM, "Volokh, Eugene"
<[email protected]<mailto:[email protected]>> wrote:
I'm not sure what authority there is for the proposition that
private choice is the equivalent of due process. For instance, I don't think
that a rule that says "a person can kill anyone who he chooses to commit a
particular crime can then be killed at will by anyone" - i.e., the punishment
of outlawry but without due process to determine that the person has indeed
committed a crime - would satisfy due process on the theory that the outlawed
person has chosen to commit the crime. Choice can lead to punishment
(including, historically, outlawry) through due process. I don't think it's
ever been seen as a substitute for due process.
But beyond this, we know that force, even lethal force, can be
used in self-defense even against people who haven't chosen to commit a crime -
people who, it turns out, did nothing wrong but were killed out of a reasonable
mistake by the defender, or people who are so insane that they can't be seen as
having made a choice at all (even under the narrowest historically accepted
definitions of insanity). So I don't think choice as such is doing the work
here.
Eugene
From: Olson, Joseph E. [mailto:[email protected]<http://hamline.edu>]
Sent: Wednesday, May 08, 2013 8:06 PM
To: Volokh, Eugene
Cc: C D Tavares; Firearms Reg, List
Subject: Re: New approach
But, IIRC, in every state some act reasonably perceived as criminal (usually
assault) by the decedent is required before self-defense becomes an option.
The initiating CHOICE is that of the decedent, not the defending victim. That
choice is the equivalent of due process. The decedent is in total control of
his acts. He "brings the consequences" upon himself. Both the state and the
defender are reacting to that free choice.
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