The Right to Defy Criminal Demands: Possible Limits (Part I)

A rough draft has been completed. You have the right to resist criminal demandsArticle, so I decided to serialize it here. As there are still many hours to work on it, I’d be interested in your reactions. You can view previous posts as well as any new ones, when they become available here.

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So far I have shown that I believe the law recognizes at least some defying rights. However, not all cases are the same and it is not possible to defy every law. Let me suggest a few circumstances that could lead legislatures and courts to refuse such a rights (whether or not it is soundly).

[A.] Independent Wrongfulness

Some behavior can be deemed so shady that it is acceptable to have it suppressed with the threat of (however legal) private violence. One classic example is the “fighting words doctrine”: Personal insults to face that present a risk of violence in retaliation can be considered breach of peace. The law demands that the person causing the insult must comply with the threat of “don’t name me that” or they will punch him.

However, this shouldn’t be considered a prohibited “hecklers veto” since such insults to face are not only potentially harmful but also comparatively valuable.

[S]These utterances do not constitute an essential part of any discussion of ideas and have such little social value that they are essentially a step towards truth. Any benefit from them can be clearly outweighed in the interest of order and morality. Refusing to use epithets and personal abuse does not constitute communication of opinion or information. Its punishment would be a crime under the Constitution.

Although the fighting words doctrine has been criticised, some courts still uphold fighting words convictions. Maybe it needs to be scrapped. It does show how courts can limit the right to defy to avoid situations in which the defiant act may be deemed to be at most borderline illegal, regardless of the possibility of retaliatory violence.

[B.]Purpose of Provoking Violence

Sometimes the law can also be used to condemn actions that are not in accordance with the law. Particular purpose You can trigger violent retaliation. According to the Model Penal Code, deadly force is not allowed for self defense if the actor provoked violence against him in the same situation. This is a widely accepted view in the United States. Craig may have demanded Danielle, his ex-girlfriend, stop seeing her new boyfriend. Danielle could then deliberately appear in Craig’s presence in an attempt to make Craig attack her and shoot him. This would not be legal self-defense.

Danielle could defend herself if she was just doing her normal business and Craig did not threaten to stop her from going ahead. This is at least for the 43 states which do not have a duty to follow negative requests. Craig’s exact purpose of provoking this defiance, which is otherwise legal, makes it a banned plan to cause Craig’s death.

This is also suggested in cases which generally disapprove of the “heckler’s veto”. Those cases suggest that “intentionally provoking a given group to hostile reaction”—seemingly in the sense of speaking with the specific purpose of provoking violence—might be punishable, even though knowingly producing such a reaction is not.

For reasons that I have already stated, I am skeptical about purpose-based testing, particularly when it is related to speech restrictions. But it does appear that courts at least sometimes distinguish knowingly accepting a risk—even a near-certainty—of attack (which does not strip one of the right to resist or to defy) from purposefully bringing about the attack (which does strip one of such a right).

[C.]Magnitudes of Intrusion on Liberty

When the criminal demands are not too severe, it is possible for law to create a duty under certain circumstances. This likely explains why some states recognize a duty to retreat, fewer recognize a duty to comply with negative demands, and only one recognizes a general duty to comply with positive demands—and that limited to minor demands.

A brief departure from a location (which may not be your home, work or vehicle in other states) can sometimes be seen as an imposition. A criminal may demand that you do more.[1] And we see that explicitly set forth in the North Dakota duty to avoid rule, which bars the use of lethal self-defense only if “it can be avoided … by … conduct involving minimal interference with the freedom of the individual menaced.”

This could also be why we just talked about the Objective Inciting an attack could deprive someone of their right to self-defense, even though the mere act of doing so might be considered a crime. Information A likely attack would not. Restricting things that are done with the specific purpose of provoking violence is a minor restraint on liberty: Despite the restriction, Danielle would remain free to do all she would have normally done in the absence of Craig’s threats; Craig’s threats wouldn’t deprive her of any of her legal rights; she would simply be required not to do something that she couldn’t legitimately do in any event—orchestrate a plan aimed at killing Craig.

This explains why some critics have been made of the Kentucky Fried Chicken For instance, Justice Mosk’s disapproval:

[Under the majority’s rule]A business owner is Never required to subordinate any of his own property interests—no matter how insignificant the object and no matter how slightly it is jeopardized—to his customers’ safety—no matter how many they are and no matter how gravely they are threatened. This is an unsound conclusion.

An establishment might not have to give up other valuable rights such as the right to run a controversial business, the right to do abortions or distribute blasphemous imagery, the right to not pay a ransom of a million dollars, etc. However, a few hundred bucks to a robber is not a major deal, according to the theory.

As I have already stated, I am inclined to question this approach. I consider it a grave violation of liberty and dignity to force you to comply with even the most minor criminal demands. Even when the defiance poses some dangers to innocent bystanders, or, in the case of the duty to retreat to the criminal, to criminals, the law should not be used to enforce such demands. However, judges and legislators may not be able to defy certain situations.[ce]”of what the crime victim has been forced to do.

[1]Some affirmative commands can be imagined as being comparatively minor impositions. (In the words of Model Penal Code Commentaries, they are “trivial” and more preferable than recourse to lethal force. If the duty must be applied generally (because[t]Mediating between the two [the trivial impositions and the outrageous ones is]Consider it impractical” and one may conclude that there is no duty to obey positive demands. Model Penal Code and Commentaries § 3.04(d), at 60 (1985).