The Right to Defy Criminal Demands: Introduction

Just finished a draft of this article, which took 6 years to complete. I decided I would serialize it here. You can find the PDF with all the footnotes. As there are still many hours to work on it, I’d be interested in your reactions. All posts will be available here as soon as they appear.

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Craig wants Danielle to comply with his demands by implicitly or explicitly threatening criminal retaliation if she does not. Craig’s threats of crime are, as is the norm, dangerous for Danielle, and others innocent bystanders.

Is Danielle required to follow the law’s demands by the legal system, or face civil liability for negligent injury or nuisance or criminal punishment for disturbing the peace and reckless endangerment? Is Danielle allowed to ignore Craig’s requests, even if it means that there is a greater chance of harm to others?

In many situations, these questions may arise:

  1. Danielle’s abortion clinic was firebombed by citizens who wanted it to close. It is being sued in the name of neighbors. They claim that it causes nuisance to their neighborhood and they fear future attack.[1]If Danielle wins, it means she has a legal obligation to follow the demands of the arsonists (at least up to the point where she moves to a location that is more costly for her and less convenient to patients).
  2. In fact, the clinic was attacked once more. Those who were injured or their neighbors sue for negligence in increasing such risk. It is possible to sue any business that has a controversial reputation, like a synagogue or church; an animal experimentation center; a political group; or a bookstore selling books that contains the Mohammed cartoons and other materials that are highly offensive to some.[2]
  3. The robbers are stealing from a store. Danielle is a shop employee who refuses to comply with the robbers’ demands for her to turn over cash. To make matters worse, they also injure a client to emphasize those demands. The customer sues the store, claiming the employee’s actions foreseeably increased the risk of the injury.­­­ If the customer wins, that in effect means that Danielle had a legal duty to comply with the robber’s demands.
  4. Craig demands ransom from Danielle and kidnaps Danielle’s employee. Craig kidnaps Danielle and demands ransom. Craig executes Craig’s employee. Danielle is sued by the family of the employee for negligence. She claims that she had a legal duty to pay the ransom.
  5. Danielle is joined by her co-protesters who carry signs degrading religions. Craig, along with a few of his friends, start to throw things at protesters. To keep things from getting out of control, police ask protesters to move on.[3]If they refuse to comply, we will threaten them with criminal prosecution for breaching the peace or resisting a legal order.

This problem can also occur when Craig does not expressly demand that Danielle do anything, but Craig isn’t asking Danielle to.

  1. Danielle moves in a flirtatious manner with her lover, right in front of Craig, who Danielle know is jealous. Craig shoots his lover. Danielle’s family sue Craig for wrongful death. Craig claimed that Danielle created an injury risk by making Craig angry.[4]Their prevailing meaning would be that Danielle had an obligation to follow Craig’s implied demands to not show romantic affection to others.
  2. Danielle allows her niece to stay with her because Craig, her violent ex-husband, is running. Craig visits Danielle to threaten Danielle and his niece, while the gardener becomes caught in the middle of the action. Danielle’s family sues the gardener for wrongful Death. They claim that her actions caused injury to Craig by foreseeably angering Craig.[5]

A version of the problem comes with “duty to withdraw” which thirteen states recognize in self defense cases. And the less specific “duty to comply” which seven states recognize. These “duties” aren’t intended to threaten criminal punishment and civil liability for refusing criminals’ demands. X“In the duty to conform.” However, the “duties”, however, do not allow a victim to refuse to comply with specific demands. She is therefore legally deprived of the right to use lethal force for self-defense if necessary.

  1. Danielle is seen dancing in an edgy bar scene with a lover, just before Craig, her ex-husband. Craig commands them to stop. But they do not. Craig attempts to knife Danielle but Danielle shoots him in self defense. Danielle is arrested. This is because Danielle violates state law which prohibits the use of deadly force in self defense.[t]he actor knows that he can avoid the necessity of using such force with complete safety … by complying with a demand that he abstain from any action which he has no duty to take.”
  2. Danielle must leave the area where she is lawfully staying because of a racist mob. Refusing to comply, she is assaulted with deadly force. She defends herself, but is later prosecuted for failing to flee.[6]

My view is that all these cases involve tension between two strategies to deal with the threat of retaliatory aggression. The other approach could be called “the” Immediate pragmatism approach:

  • A criminal may threaten to retaliate against a lawful act, which is unfortunate. X.
  • To be a part of this reality, you run the risk of being hurt.[7]
  • This pragmatic concern also has a moral component. The innocent bystanders are entitled to not be unreasonable endangered.
  • Even the innocent victims of threats have an obligation to reduce such risks.

We might also consider the reverse approach. right to defy criminals’ demands approach:

  • Anyone has the right not to be bound by criminals’ requests (or expected desires of criminals), which in essence would constitute implied demands.
  • By threatening criminal, civil, and self-defense liability to criminals, the law should not intervene on their behalf.
  • This moral concern also has a practical component. The law could give legal force to criminals’ unlawful demands.
  • Innocent bystanders shouldn’t have any claim on innocent victims. This would make it impossible for victims to follow criminals.

This right to resist has been recognised in some cases, but not under the same name. Some situations have denied the right. Others are not sure.

This Article will attempt to map the rights and authority that are available for it. It is the first time that I have attempted to connect these areas. This will allow me to more clearly see the principles that underlie the right.

But I believe that such a right, when considered in balance, is sound. In general, people should be able to assert their rights in the face violent threats and the risk that such defiance creates. Contrary to a claim often made against the duty to retreat, the question isn’t so much letting people preserve honor or reputation or “manliness,” but letting them preserve liberty—freedom from domination by criminals—and the dignity that comes with such liberty.[8]Some people may feel that the cost of liberty and dignity is too steep and they should limit their use to help innocent citizens or to stop criminals from getting away with it. However, whatever the bottom line may be we must acknowledge the costs of such safety-first approaches.[9]

If our actions cause danger to others, then we must often stop those activities. These hazards should not be passed on to our friends and neighbors. For example, if our commercial property attracts vermin and they then move onto neighbor’s land, there is nothing we can do to stop them. We might need to shut down the shop or relocate to an area with no neighbours.

If our business attracts criminal enemies, they may try to make us stop working. In this case the criminals pose a risk to their neighbors. If our actions are a cause for criminal harm to others, it is an issue that all citizens should be aware of. The law has the responsibility to stop crime. This is done primarily by deterring or incapacitating criminals. The law arming police and our neighbours to punish us in criminal cases is a way of giving criminals an extra weapon.

Legal system does not need to be concerned about the impact of incentives on animals (e.g., garbage dumps must move to attract rats; this will make rats more likely to go to them), but should consider how this impacts on human behavior. If abortion clinics are forced to close, or have to relocate because arsonists threaten their lives, this would encourage such people. Not having to act to protect animals doesn’t harm our dignity in the way that complying with criminal demands from humans does.

This will be explained in greater detail by me. Part I discusses the possible rights to defy criminals in negligence (Part II), nuisance (Part II), criminal laws generally (Part III), as well as duties to retreat or comply (Part IV). Part V discusses possible limitations to the right of defiance. Danielle’s behaviour may still be considered criminal if it is independently wrongful (e.g. fight words) and if it is designed to provoke violence (e.g. one possible reason for a restricted duty to retreat); it is legal, but not constitutionally protected; it is unreasonable. Perhaps, even though Danielle’s conduct may not have been legally punished, there should be a less severe penalty for those who are provoked.

Finally, Part VI will ask whether it’s legitimate for the law to require expensive precautions against threats, short of requiring compliance with criminal demands—for instance, by requiring threatened people or institutions to hire armed guards, put up physical barriers, or warn visitors or neighbors of the threat.[10]Because they aren’t seeking to enlist the government on the side the criminal threater, I believe these precautions won’t be as harmful as it sounds. But courts and legislatures need to be careful about imposition of such obligations because the threaters can use the law system to impose massive amounts on victims. That is even more true when it is a duty not to warn. This may make victims uncomfortable and cause people to avoid them.

[1]These are the basic facts. McBrayer v. Governors Ridge Off. Park Ass’n, Inc., 860 S.E.2d 58 (Ga. Ct. App. 2021), which resulted in a $1.5million verdict for the neighbors. The court of appeals overturned the verdict. This case was brought to my attention by several law professors, including myself and advocacy groups. I requested a amicus brief.

[2] Cf. Charlie Hebdo Shooting: Belgian Bookstores Selling Magazine Sent Warning Letters; Muslim Leaders Condemn New Magazine Issue, ABC News (Australia) (Jan. 14, 2015, 1:08 PM) (“‘I recommend that you do not spread these cartoons of our beloved Mohammed in this despicable Charlie Hebdo magazine, at the risk of reprisals against you and your horrible business,’ the letters said ….”).

[3] Look! Bible Believers v. Wayne County, 805 F.3d 228, 239 (6th Cir. 2015) (en banc).

[4]Based on Hurn v. Greenway, 293 P.3d 480 (Alaska 2013); Also see Touchette v. Ganal, 922 P.2d 347 (Haw. 1996); Starr v. Gregory, No. 56-2004CA-000161, 2005 WL 5213002(Fla. Cir. Ct. Polk Cnty. Ct. Polk Cnty. Oct. 19, 2004; John C.P. Goldberg & Benjamin C. Zipursky, Invoking wrongdoing at Tort: The Restitution (Third),’s unfortunate embrace of negligent enabling, 44 Wake Forest L. Rev. 1211 and 1217 (2008) (“A woman knows her ex-boyfriend is violently jealous, along with his regular appearances in a local bar. But she is willing to take a friend along for a beer at the bar. Her ex-boyfriend can show up at her house and pumme her date. She will be held responsible. [under the Restatement (Third) of Torts.”).

[5] Cf. Rojas v. Diaz, No. B144346, 2002.WL.1292996 (Cal. Ct. App. June 12, 2002).

[6]These facts are the basis of Laney v. United States, 294 F. 412 (D.C. Cir. 1923). This issue may arise with single racist attackers. See, for example, Commonwealth v. Benoit (892 N.E.2d 314, 327) (Mass. (2008) (concluding self-defense in such cases was not possible).

[7]The threat of being attacked by a violent force, such as the two previous examples, could pose a danger to innocent people who may be caught up in the fight when they respond or any subsequent cycle.

[8]This principle would apply to tortious claims as well. Let’s say the abortion opponents of example 1 don’t firebomb the clinic, but rather libel their neighbors. The neighbors then sue the clinic alleging that the clinic’s continued presence was a cause for the libel. I think it is safe to assume that the clinic should not be held responsible. It is possible that there could be libel in this case. (Some libel cases allow lawsuits against an original libeler based on republication by third parties when such republication is “reasonably to be expected,” Restatement (Second) of Torts § 576(c) (1977), but I’ve seen none that allow lawsuits against a nonlibeler whose actions foreseeably lead to libels.) A demand that is merely tortious would not make someone criminal. It could also threaten innocent people in ways for which they would otherwise be legally responsible.

[9]This dignitary right is not a constitutional right in general, except for specific circumstances like speakers refusing to comply with shutdown orders by abortion clinics or doctors. It is, however, a part of liberty I believe the legal system should protect.

[10] See, e.g.Rocky Mountain Planned Parenthood, Inc., v. Wagner, 467 Par.3d 287, (Colo. 2020).