pageok
pageok
pageok
State Constitutional Self-Defense Cases:

Continuing with how the state constitutional right to self-defense has indeed been asserted -- sometimes successfully -- in various kinds of cases:

Criminal Law: A few cases have used state constitutional self-defense rights as guides for determining the scope of permissible self-defense in criminal cases. For instance, Ohio courts relied on the Ohio "defending life" provision to recognize an exception to bans on felons' possession of firearms when the felon picks up a gun to stave off an imminent threat. Likewise, a California court relied on the California provision to clarify the longstanding principle that self-defense is unavailable when the defender is the one who started a deadly fight, a principle that has sometimes been imprecisely cast as an exception for cases of "mortal combat." The jury had been instructed -- in the language of the applicable statute -- that "a person claiming [self-defense] if he were the assailant or engaged in mortal combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed"; the court concluded that this instruction was unconstitutional:

The right to defend life is one of the inalienable rights guaranteed by the constitution of the state. It is plain that if a person without fault is assailed by another and a mortal combat is precipitated, to require the former to attempt to withdraw before killing his adversary is to require the very thing that may prevent him from defending himself at all. The instruction is quite capable of the interpretation that although the defendant was without fault and the deceased was the aggressor, yet, if they were engaged in a mortal combat, it was the duty of the defendant to endeavor to withdraw before killing his adversary, although he had reason to believe, and did believe, his life was in imminent danger, and that to attempt to decline further struggle would increase his peril and probably enable his adversary to kill him. Such, of course, was not the intention of the learned trial judge in giving the instruction nor, probably, of the legislature in enacting the law, but it is capable of such interpretation and may have been so interpreted by the jury.
Similarly, a 1913 Colorado decision relied on the constitutional status of the right to defend one's home in rejecting a husband's claimed right to enter another's house to bring back his estranged wife. Bailey's sister had fled her abusive husband and came to stay at Bailey's house. The husband came to Bailey's house; Bailey demanded that he not come in; the husband came in, and Bailey shot him. Bailey was convicted of murder, in a trial at which the court instructed the jury that a husband
had a right to enter, in a lawful manner, the house ... of any person ... for the purpose of talking with and procuring his said wife to leave the said house, and had a right to use such reasonable force and persuasion as was necessary to induce her to ... come back to her home with him; and no person ... had a right to interfere with him in the exercise of such reasonable force or persuasion.
The Colorado Supreme Court reversed the conviction partly because this instruction "would destroy the moral, constitutional, statutory and common law right of defense of habitation."

Civil Liability: One case, Kentucky Fried Chicken of California v. Superior Court, relied on a state constitutional right to defend property to hold that a shopkeeper's agents have "no duty to comply with a robber's unlawful demand for the surrender of property," even when the robber is threatening a patron's life. [There are also other opinions on this question, but they focus on nonconstitutional self-defense or defense-of-property principles rather than a constitutional guarantee.]

Employment Law: Several cases have relied on state constitutional self-defense rights in concluding that an employer may not fire employees for acting violently when the violence was committed in reasonable self-defense. In the course of deciding whether firing an employee for his actions constitutes tortuous "discharge against public policy," courts often look to whether the state or federal constitutions protect that conduct against governmental retaliation. Such constitutional protection is not necessary or sufficient for the tort to be recognized, but it is relevant to the decision.

Dilan Esper (mail) (www):
One case, Kentucky Fried Chicken of California v. Superior Court, relied on a state constitutional right to defend property to hold that a shopkeeper's agents have "no duty to comply with a robber's unlawful demand for the surrender of property," even when the robber is threatening a patron's life. [There are also other opinions on this question, but they focus on nonconstitutional self-defense or defense-of-property principles rather than a constitutional guarantee.]

Anyone who wants to know what a bad decision that was-- the majority literally valued property rights as more important than people's lives!-- can read the law review article I co-authored with Greg Keating on abusing duty.

Let's just say that I don't think KFC is the case you want to latch onto in arguing a generalized right of self-defense.
7.16.2008 7:55pm
Clayton E. Cramer (mail) (www):

Anyone who wants to know what a bad decision that was-- the majority literally valued property rights as more important than people's lives!-- can read the law review article I co-authored with Greg Keating on abusing duty.
Was this a robbery? Then we already know who valued property more than people's lives: the robber. He is in no position to whine that property rights are more important than people's lives.

At least the robber is putting his own life on the line when he endangers others. Dilan, you are doing something far worse: you are creating an intellectual justification for why robbers should be allowed to threaten others with injury or death in order to steal their property.

This is why I find liberalism detestable and criminal in nature.
7.16.2008 10:51pm
DaSarge (mail):
Washington also has a constitutional right to protect one's property. State v Vander Houwen, --Wn.2d --, -- P.3d --, 2008 WL 383769 (Wash.).


... -- the majority literally valued property rights as more important than people's lives!


Well, that is just the issue, isn't it? Why is one more important than the other?
7.16.2008 10:51pm
DaSarge (mail):
Here is a summary of the KFC case:

In this case, Kathy Brown sued Kentucky Fried Chicken for medical treatment, lost earnings and emotional distress, saying that a clerk's stalling actions during a holdup led her to believe she would be shot. But the court ruled that merchants have no duty to comply with an armed robber's demands to protect the safety of store patrons. Justice Marvin Baxter, writing for the majority, said that imposing such a duty on shopkeepers would be "contrary to public policy as it would encourage similar unlawful conduct" by other would-be stickup artists.

OK, tell me how the court valued property more than life?

Why must the law be that the victim must always capitulate? Most victims of robbery have little enough to begin with. Why must they passively accept the robber's demand?

Once violence is threatened (i.e., the difference between robbery and theft), why is the robber's life more important than the victim's? Why should the victim be denied the right to use the same force in his defense that was used to victimize him?
7.16.2008 11:04pm
Bama 1L:
I'm kind of surprised to see Professor Volokh citing KFC and some commenters lining up behind it. KFC stands for the proposition that the property-owner can do no wrong. You want to let robbers walk right into your store? Go ahead. You want to stand there and do nothing while they pull guns on your customers? Hey, do what you want. The customer's life has whatever value you assign to it, and if it's less than the amount in the register, down she goes. You have no duty.

Why is this a loser for self-defense enthusiasts? Think of the Trolley Square situation. The property owner declares a gun-free zone but does not provide meaningful security. Some wacko brings a gun in and starts shooting people. Looking forward, the way you could convince another property owner to drop the gun-free zone is through civil liability, but KFC says point-blank there can be none.

KFC does cite a state constitutional self-defense provision, but that's just the court trying to anchor its policy preference--in this case, for business owners and against ever requiring compliance with robbers' demands--in text.

Maybe the court was right; maybe allowing liability in such cases would lead to more such crimes. But if I'm ever in the plaintiff's shoes, I want that register emptied!
7.16.2008 11:59pm
Ryan Waxx (mail):

Several cases have relied on state constitutional self-defense rights in concluding that an employer may not fire employees for acting violently when the violence was committed in reasonable self-defense...


Kind of a hollow guarantee when the employer can fire the employee anyway for possessing the means to act violently in reasonable self-defense.
7.17.2008 10:56am
AKD (mail):
They are correct in that it would encourage criminals to target places of business when customers are likely to be present. My preference would be for the business not to be robbed at all while I am present. My second preference would be to have the means to defend myself if necessary. After those two, I would generally like for the proprietors to not "do something stupid," but I'm not sure how I could put that down into law in a clear way. There are certainly circumstances in which submitting to a criminal might increase the danger to customers. "Give him what he wants and he'll go away" is not always true.
7.17.2008 11:02am
Ryan Waxx (mail):

But if I'm ever in the plaintiff's shoes, I want that register emptied!


Would you prefer that there be a greater chance you get put in those shoes, if a robber knows that threatening you guarantees him the cash?
7.17.2008 11:11am
Cousin Dave (mail):
Eugene, I'm aware of a case from Florida in the mid-'80s in which a shopkeeper, charged with murder for setting a man-trap, successfully persued a jury nullification defense. A shopkeeper in Miami had a store (I don't remember what kind of store it was) which had been repeatedly burgled. The burgulars were entering through an air vent shaft, and had defeated several attempts to close off the shaft to human entry via grates and such. So the shopkeeper set up an electrified screen in the shaft. The next attempted burgarly resulted in the perp being electrocuted.

I don't recall all of the details of the defense, but it relied on showing that the Miami PD had taken no action to investigate the previous burgularies, and showed little apparent concern for combating crime in general in the neighborhood. The defense advanced the theory that breakdown of law and order in the area had left the defendant with no alternative to he action he took. The prosecution, needless to say, was aghast at this, and maintained that the law was the law and that the defendant's guilt was clearly evident given the defendant's own testimony.

The jury returned a not-guilty verdict. Jurors interviewed agreed with the defense that law and order breakdown had left the defendant to his own devices.
7.17.2008 12:18pm
Ryan Waxx (mail):

The prosecution, needless to say, was aghast at this, and maintained that the law was the law and that the defendant's guilt was clearly evident given the defendant's own testimony.

Suprising that the judge resisted the temptation to put his thumb on the scales and disallow such testimony as irrevelant.
7.17.2008 1:21pm
Bama 1L:
Ryan Waxx:

If someone pulls a gun on me so that a store clerk will hand over some money, the clerk had better either:

1. Hand it over; or,

2. Take the guy out, I hope managing not to splatter too much blood on me.

In KFC, as least as the court decided it, the clerk just stood there for a bit and mumbled something about needing to get a key from the back. No, not acceptable. Then the clerk handed over the money after the plaintiff screamed at him. So the robber still got what he came for!

Again, the problem with KFC is that it ratifies whatever policy the business wants to have. Disarm customers, don't provide adequate security, and do whatever pops into your head when a robber comes in--no liability!
7.17.2008 4:46pm
Dilan Esper (mail) (www):
Bama 1L summarizes the problem nicely. The fact pattern of KFC is not the situation where you want to recognize a "right" of self-defense that really means the right to protect your property (and a very small amount of it, i.e., the change in the cash register!) even if it comes at the expense of your business inivitees' lives.

As I said, if you want the longer version of the analysis, read Abusing Duty. It's a great article, if I do say so myself.
7.17.2008 5:53pm