The Case for Liberalizing the Use of Deadly Force in Self-defense

• Publication year: 1983

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 6, No. 2SPRING 1983

The Case for Liberalizing the Use of Deadly Force In Self-Defense

John Q. La Fond(fn*)

I. Introduction

For at least a century the common law of Washington and of virtually every state in the United States has permitted a citizen to use deadly force in self-defense, but only if he was unlawfully threatened, or appeared to be threatened, with death or serious bodily harm.(fn1) Despite growing public fear of violent crime(fn2) and recent statistics which provide a strong empirical basis for that fear,(fn3) almost no state has expanded the common law right to permit a citizen to use deadly force to resist unlawful violence to his person if he was not threatened with death or serious bodily harm.(fn4) It is no longer clear that the common law's stringent rules limiting the use of deadly force to instances in which the victim's life may be at stake are in accord with a shifting public value system or are sufficiently protective of the individual in these increasingly violent times.

Recently, Washington courts have applied the traditional common law rules of self-defense in several provocative "hard cases" which test the logic and impact of the traditional rules at the margin and which thereby question the continued vitality of the common law formulation.(fn5) In attempting both to preserve the formal doctrine of the law governing the use of deadly force in self-defense and to adjust to changing social conditions, these courts have resolved the tension between rule and reality in a very unsatisfactory manner. As a result of these decisions, the basic common law structure of the rules of self-defense remains formally intact, but the specific content and predictive application of those rules no longer make much sense.

This article will set forth the primary theories which might underlie the right of self-defense: necessity, duress, and personal autonomy. It will then examine the common law and the law of Washington governing the use of force in self-defense and demonstrate that both are grounded primarily in the utilitarian theory of necessity, which has as its primary objective the minimization of social loss even at the cost of harm to individual innocent victims. The article then will analyze the inadequate manner in which Washington courts are resolving difficult cases involving the use of deadly force in self-defense.

Finally, this article will argue that the law of self-defense ought to be grounded primarily in the theory of personal autonomy and, accordingly, that the law should be changed explicitly to permit recourse to deadly force by innocent victims against aggressors whenever necessary to defend effectively against unlawful violence. In addition, it will argue that such a shift in underlying theory and explicit reformulation is not necessarily inconsistent with utilitarian objectives and that, in any event and more importantly, such a shift is necessary to insure that the law is congruent with current public values and affords citizens reasonable assurance of preserving their bodily integrity.

II. Theories of Self-Defense

The right of a citizen to use force, including deadly force, in defense of self has strong historical antecedents in English common law.(fn6) Commentators have noted that different rationales have been suggested to support the right of self-defense and the rules which govern it.

A. Necessity

Most commentators ground the right of self-defense in the common law principle of necessity.(fn7) Though the common law did not articulate the rationale particularly well, necessity is a general authorizing principle which permits an individual under certain circumstances to do what he must, including intentionally causing harm, in order to avoid an even greater harm. Classic examples of this authorizing rationale abound in the literature.(fn8) Thus, the common law at a very early date permitted individuals engaged in self-defense intentionally to cause harm to others in order to avoid the imposition of harm on themselves.(fn9)

Since the doctrine of necessity was essentially based on a utilitarian theory of justice, its overriding objective was to minimize loss to society.(fn10) This objective generated a subset of rules governing the use of force (particularly the use of deadly force) in self-defense that rigidly restricted the availability and the scope of the right.

At common law an individual could use force in self-defense if he reasonably perceived himself to be confronted with the threat of imminent, unlawful force being used against him.(fn11) As a general proposition, he could not respond with deadly force if he was confronted with nondeadly force. The rationale for this limitation was to be found in the rationale of necessity and its utilitarian objective. The common law would permit an innocent victim(fn12) to inflict intentional harm on an aggressor(fn13) but would not permit the purported victim to cause more harm than he himself might have suffered.(fn14) This inherent limitation of a proportional response-i.e., proportional to the harm threatened-insured that no greater harm (such as the death of the aggressor) would be suffered by society than the harm actually threatened by the aggressor (a mere physical battery to the victim).

Common law courts essentially engaged in interest-balancing, weighing the respective interests at risk in confrontations involving force.(fn15) Most courts generally concluded that when possible physical harm to an aggressor was weighed against possible physical harm to an innocent victim, the interest of the victim in physical security should be given preference because he was the "innocent" party.(fn16) Courts in choosing between two interests of essentially equal value (i.e., bodily security of two individuals) weighed the aggressor's interest as of lesser value.(fn17) One strains hard to find much in the way of persuasive analysis by courts as to why the victim's interest in bodily security should be given preference, yet this result seems to be clearly in accord with prevailing social values.

The emphasis on minimizing social loss and its concomitant expression in rule form that an innocent victim threatened only with physical harm cannot resort to deadly force in self-defense necessarily allocated to the victim the risk that his limited response, though proportional, would not be effective.(fn18) Thus, in order to maximize social gain by preserving the life of the aggressor,(fn19) the innocent victim might be required to accept as a personal cost the infliction of physical harm. Distribution of this risk to any particular victim was perceived simply as the inevitable cost of minimizing the net social loss. Of course an innocent victim who suffered such a loss personally, though without an effective private remedy at that moment, did have the prospective (and contingent) public remedy of arrest and prosecution at a later time to vindicate, at least in part, his private interest.(fn20)

B. Duress

Other rationales have been offered to explain the availability of the right to use force in self-defense. Some commentators have suggesed that it may be more properly grounded in the general principle of duress.(fn21) Duress under the common law was a doctrine which excluded a person from criminal responsibility for acts he committed as a result of some form of recognized compulsion which overcame his will.(fn22) An individual who acted under duress acted intentionally but did not make a "true choice" to act, given the pressure to which he was subjected.(fn23)

Thus, intentionally using force to harm another human being in self-defense can be seen as responding under conditions of stress in which the threat to one's self-interest (life or bodily security) inevitably causes an individual to act in a predictable self-defensive fashion. Commentators have suggested that not only is the use of force in self-defense a predictable human response, it is also not deterrable.(fn24)

Whether self-defense is grounded in the rationale of necessity or duress can have important theoretical as well.as practical consequences.(fn25) Most importantly, this choice of grounding may determine whether the act of the victim was "justified" or "excused."(fn26) On the one hand, if the victim's act of self-defense is grounded in necessity and thus is seen as justified, it is considered to be a correct and appropriate social response which society ought to permit, and even encourage. If, on the other hand, it is seen as grounded in duress, an act of violence to another in self-defense is considered as a personal excuse avoiding individual criminal responsibility because of the absence of a necessary condition for criminal responsibility, i.e., the opportunity for true choice.(fn27)

C. Vindication of Autonomy

A perceptive and influential contemporary scholar of criminal law has suggested that the right to use force in self-defense ought to be grounded not in necessity or duress but rather in the vindication of the victim's interest in autonomy.(fn28) Broadly stated, this principle holds that an aggressor's unilateral act of aggression places him outside the protection of the law(fn29) and, more importantly, constitutes a breach of the victim's intimate zone of privacy and personal security.(fn30) Both because the aggressor has by his own action...