From UCLA Professor of Law Eugene Volokh,* writing at The Volokh Conspiracy
The Right to Defy Criminal Demands: Introduction
I've just finished up a rough draft of this article (6 years in the making), and I thought I'd serialize it here, minus most of the footnotes (which you can see in the full PDF). I'd love to hear people's reactions and recommendations, since there's still plenty of time to edit it. You will also be able to see all the posts, as they come up, here.
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Craig is trying to force Danielle to do something, by explicitly or implicitly threatening to criminally retaliate if she doesn't go along. And, as often happens, Craig's threatened crime is endangering not just Danielle but also innocent bystanders.
Should the legal system require Danielle to comply with the demands, on pain of civil liability (for negligent injury or nuisance), or even of criminal punishment (for disturbing the peace or perhaps reckless endangerment)? Or should Danielle have, in effect, a right to defy Craig's demands, even if this means a higher risk to bystanders?
These questions can arise in many different situations:
- Danielle's abortion clinic has been firebombed in the past, by people who want it to close or at least to leave town. Neighbors sue the clinic, claiming its operation is a nuisance, because it makes them fearful that future attacks will harm them as well.[1] If the neighbors win, that in effect means that Danielle had a legal duty to comply with the arsonists' demands (at least to the extent of moving to a place that may be more expensive for her, and less convenient for patients).
- The clinic is indeed attacked again, and neighbors or visitors who are injured sue the clinic for negligently increasing the risk of such attack. The same can of course apply to any controversial business or enterprise, such as a church, synagogue, or mosque; an animal experimentation facility; a political organization; or a bookstore that sells books that contain the Mohammed cartoons or other material that highly offends some people.[2]
- A store is being robbed. Danielle, a store employee, refuses to go along with the robbers' demands that she turn over money, so they injure a customer to accentuate 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.
- Craig kidnaps Danielle's employee, and demands ransom. Danielle refuses to pay, so Craig kills the employee; the employee's family sues Danielle for negligence, claiming that she had a duty to pay the ransom.
- Danielle and her fellow protesters carry signs insulting a religion. Craig and a group of his friends start throwing things at the protesters. The police order the protesters to leave, hoping to keep the confrontation from escalating,[3] and threaten to punish them with prosecution for breach of the peace or for resisting a lawful order if they don't comply.
A version of this problem also arises when Craig hasn't expressly demanded that Danielle do something, but rather Craig obviously doesn't want Danielle to do it:
- Danielle dances suggestively with a new lover in front of her estranged husband Craig (whom Danielle knows to be jealous). Craig shoots the lover, whose relatives sue Danielle for wrongful death, claiming her actions created a risk of injury by enraging Craig.[4] Again, their prevailing would mean that Danielle in effect had a duty to comply with Craig's implicit demands not to show romantic affection for others in front of him.
- Danielle lets her niece stay at her home, because the niece is fleeing Craig, the niece's violent estranged husband. Craig comes to Danielle's house to attack the niece and Danielle, and the gardener gets caught in the crossfire. The gardener's relatives sue Danielle for wrongful death, claiming her actions created a risk of injury by foreseeably enraging Craig.[5]
And a version of this problem arises with the "duty to retreat" that thirteen states still recognize in self-defense cases, and the more general "duty to comply with a negative demand" that seven states still recognize. These "duties" don't threaten criminal punishment or civil liability just for defying a criminal's demands (whether the demands are just "leave," as in the duty to retreat, or "stop doing X" in the duty to comply). But the "duties" do provide that a victim who refuses to go along with certain demands is stripped of her legal right to use lethal force in self-defense should such force be required.
- Danielle dances suggestively at a bar with a new lover in front of her estranged husband Craig. Craig demands that they stop, but they don't. Craig tries to knife Danielle, but she shoots him in self-defense. Danielle is then prosecuted, because state law provides that deadly force can't be used in self-defense if "[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."
- A racist mob demands that Danielle leave the place where she lawfully is. She refuses, and she is attacked with deadly force; she defends herself with deadly force, and is then prosecuted because she failed to retreat.[6]
All these cases, I think, involve a tension between two approaches to the risk of retaliatory violence. We might call one approach the immediate pragmatism approach:....
Volokh worked for 12 years as a computer programmer. He graduated from UCLA with a B.S. in math-computer science at age 15....
