Possible Limits on the Right to Defy (Part II)

Just finished a draft of my manuscript. The right to defy criminal demandsArticle, so I decided to serialize it here. Since there is still time to make changes, I would love to get your feedback and suggestions. Here you can view previous posts as well as any future ones.

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In earlier posts 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 offer some more examples of circumstances that could lead legislatures and courts to refuse such a claim (whether it is soundly or not).

[D.]How Constitutionally Protected is the Defiant Conduct?

Some examples include people who insist on engaging in behaviour that is constitutionally protected from government restrictions. These could be the following: an abortion clinic refusing closing; a bookstore refusing sales of blasphemous book; a speaker not responding to hecklers’ demands; Simone Greenway showing romance to Carrie Randall Evans (indeed in Greenway’s home); or maybe allowing her niece to stay with her at Kentucky Fried Chicken. These cases might be the strongest reason to invoke a right for defiance. However, the right should not extend to legal and constitutionally protected behavior.

However, I do not believe that this is right. For example, it might not be constitutionally permissible to sell fur, or perform animal experiments for medical research. If such behaviour was outlawed by the democratic process, then all would be required to adhere to these legal restrictions. But it doesn’t follow that the fur store or the medical research facility should have to close—or face legal liability for staying open—when the demands come not from the law but from the lawless. As long as we do what is legally allowed, it’s not in our best interest to cave to criminal demands. We all have an interest not to create additional legal incentives for criminals to demand more.

[E.]Unreasonable defiance/Foreseeable Harm

Many situations that defiance can be considered “unreasonable” or the dangers resulting from it are possible to restrict the freedom to do so. Mabel Ganal, Simone Greenway and Kentucky Fried Chicken were charged with unreasonably refusing to obey the robbers’ demands. Daniel McBrayer was also accused of creating unreasonable risks to the neighbors of his abortion clinic. Laws of negligence require unreasonableness, foreseeability and liability.

The criminal cases—disturbing the peace prosecutions of people whose speech provokes violent hecklers, or the loss of the right of deadly self-defense on the part of people who fail to retreat or comply with demands—might likewise have an implicit “unreasonableness” dimension: For instance, the duty to retreat doesn’t include a duty to retreat when doing so is unsafe. All of those situations have predictable consequences, including the refusal to comply, retreat or shut down.

A juror could rule that reasonable defiance does not include cases in which the harm can be foreseen, and therefore the right to defy should only apply. This could be argued at the very least in respect of defiance of requests that are backed up by a threat of imminent or highly likely violence. Kentucky Fried ChickenInstead of a future threat of retaliation, (as in), Touchetteor the case involving an abortion clinic). Indeed, one school of thought in torts cases is that many disputes—normative and not just factual—ought to be resolved through case-by-case balancing by juries. This was an integral part of the argument made by the dissent. Kentucky Fried Chicken v. Superior Court“The question of whether or not the restaurant has breached its terms” [its duty of care]The jury will decide if the jury can determine if the bankier refused to comply with the initial demands.

The premise behind this article states that refusing criminal demands must not be viewed as unreasonable. When weighing the cost of negligence, it is important to consider the dignity of having to submit to criminals’ wills. The law must conclude that such legal costs are not legally allowed. It should also be left to the discretion of the jury.

Tort law is well-aware that judges should make certain decisions regarding duty. For example, in exceptional cases where a countervailing principle, policy, or theory warrants denial or limitation of liability in a specific class of cases, the court can decide that the defendant does not have a duty, or that an ordinary duty of reasonable care must be modified. The rule allows for the court to decide whether certain types of behaviour should be exempted from tort liability. This is done “as an individual matter under duty” and the basis of the determination will be a court’s formulation of general social norms. This Article has been argued by me that individuals should not be viewed as being “responsible” for obeying criminals.

[F.]Protection of Special Relationships

However, sometimes people feel an obligation or moral responsibility to fulfill criminals’ demands. This is especially true when parents are trying to protect their children. One hears of stories where mothers willingly consent to their daughters being raped. We might also expect that people will sometimes comply with criminal requests to safeguard someone they are in a special relationship with, particularly if it is something less terrible.

However, regardless of what one believes is right, it doesn’t mean that this should be viewed as a moral obligation or a personal emotion response. A parent should not be considered legally obligated to obey criminal requests to protect their child. However, legal pressures in this situation would likely have little impact on a parent’s decision, as emotional responses would prevail. This holds true of all relationships, regardless what legal significance. In some cases, store owners have a duty to provide reasonable protection for their customers. My opinion is that the KFC The court and others that followed it were right in stating that the duty to prevent criminal activity doesn’t include the duty to follow criminals.

Likewise for another kind of special-relationship-based duty, the psychiatrists’ duty (recognized in many states) to reasonably protect third parties from foreseeable violent attack by the psychiatrists’ patients. A psychiatrist might have to inform the potential target of the possible threat from a patient. A psychiatrist might have to attempt to commit the patient. The psychiatrist should not be obliged to comply with the patient’s requests. Lawrence Moore, the psychiatrist, is an example of this. Tarasoff) had been told by Prosenjit Poddar (the patient), “I’ll kill Tatiana Tarasoff unless you tell me I’m Jesus”—or “I’ll kill Tatiana Tarasoff unless you renounce Jesus”—that should not create a legal obligation on Moore to give in to that threat.

Only ransom money funders and guards who were hired specifically to do so may be exempt. A ransom insurer that has offered to pay ransom for kidnapping is considered to have given up the right to refuse to pay. Likewise, one can imagine a similar deal for security guards or bodyguards, though again that might be limited by public policy (agreements to hand over property, if that’s what it takes to protect the principal, might be enforceable, but agreements to do anything—down to submission to rape or other serious abuse—might not be). However, imposing these obligations should not be considered a criminal or tort matter.

[G.]As Provocation, Defiance Minimizes Attacker’s Guilt

Craig may make certain criminal demands on Danielle. He might demand that Danielle not abandon him, or else he will kill her. She defies these demands and he then kills her. Some courts would use Danielle’s refusal to comply as an argument for reducing Craig’s murder charge from voluntary manslaughter. Some cases also used such “provocation” to reduce the sentence for nondeadly bodily attack.

This has been proposed or done at times with respect to religious or offensive speech. It provides a limited immunity to violent hecklers, an analog for a “heckler’s veto”. After the Supreme Court’s decision on flagburning, many people called for an increase in the punishment for anyone who burns the American Flag. In the same way, State v. ElbayomyA judge reduced the punishment for someone who attacked “Zombie Mohammed”, a parader who marched in Halloween’s parade. This was because the behavior of the parader was offensive and provocative.

According to me, such a downgrading should not be allowed as a matter law. The attacker shouldn’t have to pay more for the threat or attempt to make it real. You have the right not to comply with criminals’ demands. However, you also have the right of equal protection against criminals’ reprisals. Victoria Nourse has a particularly good explanation of the situation regarding voluntary manslaughter.