CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, December 2, 2021

Funk on Self Defense

T. Markus Funk (University of Oxford; University of Colorado School of Law) has posted On the Law of Self-Defense (And Why Transparency About our Value-Judgments is the Missing Piece in Today's Justice Reform Debate) on SSRN. Here is the abstract:
A quick review of the mainstream media and recent scholarly output confirms that the exercise of self-preferential force to fend off a threat (and protect property) is squarely at the center of today’s simmering criminal justice reform debates. Real-world examples – largely tragic ones – triggering this discussion abound. Did Louisville police officers acted within their rights when their bullets hit medical worker Breonna Taylor? Was Travis McMichael acting outside of the legal (and moral) bounds when he, in the course of allegedly effecting a “citizen’s arrest” after a claimed trespass on a Georgia construction site, took unarmed Ahmaud Arbery’s life? Did Neighborhood Watch captain George Zimmerman have the legal right to shoot unarmed black teenager Trayvon Martin? Was Atlanta Police Officer Garrett Rolfe justified when he shot at the apparently fleeing Rayshard Brooks in an Atlanta parking lot? Should Markus Kaarma have been sentenced to 70 years’ imprisonment for shooting a German high school exchange student who engaging in a local tradition of “garage hopping”? And did retiree Joe Horn act lawfully when he used his shotgun to kill two men he suspected of burglarizing his neighbor’s home?

At the risk of noting the obvious, every one of these cases requires the criminal justice system to resolve challenging questions of law, fact, and morality.
But it doesn’t’ require years of legal studies to develop very deeply held views on what the right outcome should be in these cases. Rather, we as humans ultimately look at what we think the fact pattern was and then decide for ourselves what the “right” and “just” answers; and to do so we rely on deeply held, complex belief patterns that are all our own. Even thought this unexceptional observation is little more than common sense, a review of the caselaw, legislative history, and scholarship on self-defense in the U.S. reveals that we, as a rule, fail to take a closer look at nuanced value-judgments we all make when we think about such “just results” in these cases. This lack of a value-centric focus or dialogue is particularly concerning because this is among the most important times in recent history for our justice system to shore up its moral credibility. By having an open and honest dialogue about values that do – and should – ground self-defense, rather than remaining fixated simply on rules and outcomes, we position ourselves to significantly reduce the corrosive role played by hidden normativity and buried baselines. This, in turn, will advance the type of transparent and democratic decision-making necessary if we are to succeed in finally making thoughtful choices among available self-defense options.

Stepping back a bit, the right to exercise self-preferential force is really foundational. The scholarly literature regularly refers to it as “the ancient right” or “the first civil right,” and Cicero famously described self-defense, which he and his contemporaries prized as the ultimate pre-legal civil right, as a “universal natural moral law.” As such, it was thought to be timeless, lack a history, and, consequently, is incapable of being abrogated or otherwise altered. But despite the right’s bedrock status in criminal law, legislators, academics, and every-day citizens alike all have strongly held — and, in fact, often strongly divergent — opinions about when it is legally (and morally) appropriate to exercise self-preferential force. Some (like Robert Schopp and the late Don Kates) favor “tough-on-crime” approaches, according broader leeway to those defending themselves against attacks. Others (like Fiona Leverick and Andrew Ashworth) advocate for a more “humanitarian” construction of the law, providing greater protections even to culpable attackers who threaten their victims with serious injury. What has been lacking, and what this article will provide, however, is a common analytical language and framework from which to discuss cases involving the use of purportedly justified defensive force.

The goal here is to materially advance the patinaed and important self-defense debate. And essential to the objective of achieving a better understanding of self-defense law is the development of a comprehensive, value-based dialogue that applies to self-defense.

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