Monday, May 13, 2013
Article of Interest: F. Pat Hubbard's The Value of Life: Constitutional Limits on Citizens’ Use of Deadly Force
My colleague, F. Pat Hubbard, has a terrific new article, The Value of Life: Constitutional Limits on Citizens’ Use of Deadly Force (forthcoming George Mason Law Review). Professor Hubbard focuses upon three situations in which the State authorizes citizens to use deadly force: (1) executing a citizen's arrest or preventing a certain type of crime; (2) protecting one's home or automobile pursuant to the Castle Doctrine; and (3) protecting oneself pursuant to "stand your ground" laws. And his thesis is that (1) the State has a monopoly on deadly force; (2) "[i]n our constitutional system of legitimacy, there are limits on the state’s power to authorize the use of deadly force;" and (3) "most states have adopted unconstitutionally overbroad authorizations of the use of deadly force by citizens."Professor Hubbard nicely summarizes the arguments advanced in the article in his conclusion:
First, life is so fundamentally important that all successful nation states have a meaningful monopoly of the legitimate use of deadly force.
Second, because of this monopoly, the only categories of deadly force are: (1) authorized; and (2) prohibited.
Third, the Constitution places limits on the government’s exercise of the monopoly of deadly force.
Fourth, authorizations of deadly force in the context of a citizen’s arrest are unconstitutionally overbroad if they authorize the use of deadly force to implement the arrest where such force is not necessary to prevent death or serious harm.
Fifth, authorizations of deadly force in the context of a forcible intrusion into one’s home are unconstitutionally overbroad if they authorize the use of deadly force where such force is not necessary to prevent death or serious harm.
Sixth, authorizations of deadly force in the context of preventing any burglary, any felony, or a threat to property are unconstitutionally overbroad if they authorize the use of deadly force where such force is not necessary to prevent death or serious harm.
Seventh, authorizations of deadly force in the context of confronting an unprovoked deadly threat in a public place may be unconstitutionally overbroad if they authorize the use of deadly force where such force is not necessary because retreat is a clearly safe option.
Eighth, because of the unfairness of applying a constitutional limit in the context where a citizen has acted in accordance with an overbroad authorization of deadly force, a prospective declaration of unconstitutionality may be appropriate.
As a concrete example, consider the South Carolina case, State v. Duncan. As the Duncan opinion notes, South Carolina's version of the Castle Doctrine provides that "it is proper for law-abiding citizens to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others." Accordingly,
(A) A person is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or great bodily injury to another person if the person:
(1) against whom the deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle...; and
(2) who uses deadly force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred....
(D) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or a violent crime as defined in Section 16-1-60.
(A) A person who uses deadly force as permitted by the provisions of this article or another applicable provision of law is justified in using deadly force and is immune from criminal prosecution and civil action for the use of deadly force, unless the person against whom deadly force was used is a law enforcement officer....
What this means, according to the Supreme Court of South Carolina in Duncan, is that a defendant charged with murder or sued civilly for wrongful death can prevent a trial through a pre-trial motion and proof by a preponderance of the evidence that the elements of the South Carolina's Castle Doctrine are satisfied. And, according to the court, they were satisfied under the facts of Duncan, which were as follows:
According to the statement and testimony of respondent's girlfriend, Jean Templeton, she, the victim, and the victim's girlfriend, Amanda Grubbs, were guests in respondent's house on the night of the shooting. At some point, Grubbs handed the victim a picture of respondent's daughter in a cheerleading outfit and the victim began making inappropriate comments about the picture. Respondent asked the victim and Grubbs to leave.
According to Templeton, the victim left but returned a few minutes later. The victim was opening the screened porch door when respondent exited the front door of the house onto the porch with the gun. At one point, the victim began advancing across the porch and Templeton was "between [the victim] and [respondent]" and was "trying to get [the victim] off the steps and leave." The victim continued to force his way onto the porch. Templeton claimed respondent pointed the gun at the victim and fired. The victim died as a result of the gunshot wound to the face.
Professor Hubbard argues that statutes like the one in
South Carolina go beyond these procedural protections and substantively authorize deadly force in all cases of "unlawful and forcible" acts. Such overbroad authorizations of the right to use deadly force devalue the intruder’s fundamental right to life by totally abandoning the concern for proportionality between the threat and the response to the threat.
Underlying this devaluation of the intruder’s life is an extreme version of two now defunct views. One is the view that deadly force is always allowed to prevent a felony or burglary. The other is the view that, by committing a "serious" crime, a criminal has forfeited his rights vis à vis "law-abiding" people.
these statutes do two things. First, they grant "law-abiding" citizens the discretionary power to choose, with no due process, whether to respond to a nonserious threat either by killing or by using nondeadly measures. Second, they justify the authorization of this discretionary power by a concern that "law-abiding people" have no "fear of persecution" for killing, even though such prosecution will be subject to the requirements of due process, including a right to an attorney and burdens phrased in terms of "innocent until proven guilty" and "proof of guilt and a reasonable doubt," on the issue of whether the killing was necessary to prevent death or serious harm. This interest in protecting persons who use deadly force from fear of prosecution is not sufficiently compelling or essential to justify abandoning the concern for proportionality recognized in Garner and authorizing deadly force in all cases of unlawful forcible entry.
For further analysis of these issues, check out the full article