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Thread: Losing Self-Defense Rights if You Refuse to Comply with Attacker’s Demands to Abstain

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    Losing Self-Defense Rights if You Refuse to Comply with Attacker’s Demands to Abstain

    "Eugene Volokh • July 29, 2013 6:30 pm

    I’ve long been curious about the “duty to comply with negative demands,” an analog to the duty to retreat suggested by the Model Penal Code (based on the Restatement (First) of Torts) and implemented in Connecticut, Delaware, Guam, Hawaii, Maine, Nebraska, New Hampshire, and New Jersey. (Alabama and Pennsylvania had such a rule, but recently repealed it.) Under this doctrine, a defendant loses the right to use lethal force in self-defense if he knows that

    he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take.

    That always struck me as shockingly broad — read literally, if Vic tells Don, “stop seeing my ex-girlfriend or I’ll kill you,” Don must stop seeing the ex-girlfriend or else lose the right to use lethal force to defend himself against Vic."

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    Regular Member paramedic70002's Avatar
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    Wow.
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    Campaign Veteran skidmark's Avatar
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    States with SYG statutes, and better states that follow the Common Law, permit a person who is lawfully in a place to resist violence and threats of violence without retreating to the point that no further retreat is possible.

    As Dr. Volk has pointed out, there are but a few states that retain statutes setting out a duty to retreat. Case law is replete with examples of just how far a person must go before no further retreat is safely possible. Sometimes it is confused with the situation where there is no imminent threat of death or serious bodily injury involved to justify or excuse the killing. As an example, I walk up to you and say "give me your money", and close in to actually touch chest-to-chest while repeating that demand, without saying anything about a weapon or using my hands to suggest the presence of a weapon (putting a hand in a pocket). You could not legally use deadly force to repel me as there was no imminent threat (unless you can convince a jury about bad breath being truely deadly). Your choices are to stand there, to retreat, or to comply with my demand.

    Many municipalities were plagued with aggressive panhandling that very much looked like what I have just described above. Some, when writing their laws prohibiting such behavior, added sections dealing with a limitation on an escalation of force when trying to repel such behavior. In other words, with such laws in place you could do nothing but dance around to avoid me being "in your face" until I actually touched you, at which you could use physical contact (pushing back, punching) but not the "next level" of impact weapons - no batons, no kubatons. OC spray might or might not be allowed depending on how the laws about it were worded.

    Where Dr. Volk's thesis falls apart is in failing to take into account that refusal to comply is always a possible response. If you refuse to comply with a demand and do nothing else, it falls on the person making the demand to increase the level of force in any attempt to cause compliance. While you may be capable of standing there and suggesting that the person making outrageous demands go and commit probably physically impossible anotomical acts, the demander may not be psychologically willing to merely stand there repeating te demand, and escalate the amount of force used. For the LAC this reduces the size of any buffer zone before suffering whatever attack is made - when the imminent threat surfaces it is most likely too late beccause the threat is carried out before the LAC has any chance to mount a preventive defense - the case of actually having to wait to be punched/kicked/stabbed/shot before responding with deadly force to the threat of being punched/kicked/stabbed/shot.

    Dr. Volk is correct is supposing that a mandatory duty to retreat violates the First Amendment right of association. The problem I see is that darned few defenses are mounted based on that contention.

    stay safe.
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    Regular Member stealthyeliminator's Avatar
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    Quote Originally Posted by skidmark View Post
    States with SYG statutes, and better states that follow the Common Law, permit a person who is lawfully in a place to resist violence and threats of violence without retreating to the point that no further retreat is possible.

    As Dr. Volk has pointed out, there are but a few states that retain statutes setting out a duty to retreat. Case law is replete with examples of just how far a person must go before no further retreat is safely possible. Sometimes it is confused with the situation where there is no imminent threat of death or serious bodily injury involved to justify or excuse the killing. As an example, I walk up to you and say "give me your money", and close in to actually touch chest-to-chest while repeating that demand, without saying anything about a weapon or using my hands to suggest the presence of a weapon (putting a hand in a pocket). You could not legally use deadly force to repel me as there was no imminent threat (unless you can convince a jury about bad breath being truely deadly). Your choices are to stand there, to retreat, or to comply with my demand.

    Many municipalities were plagued with aggressive panhandling that very much looked like what I have just described above. Some, when writing their laws prohibiting such behavior, added sections dealing with a limitation on an escalation of force when trying to repel such behavior. In other words, with such laws in place you could do nothing but dance around to avoid me being "in your face" until I actually touched you, at which you could use physical contact (pushing back, punching) but not the "next level" of impact weapons - no batons, no kubatons. OC spray might or might not be allowed depending on how the laws about it were worded.

    Where Dr. Volk's thesis falls apart is in failing to take into account that refusal to comply is always a possible response. If you refuse to comply with a demand and do nothing else, it falls on the person making the demand to increase the level of force in any attempt to cause compliance. While you may be capable of standing there and suggesting that the person making outrageous demands go and commit probably physically impossible anotomical acts, the demander may not be psychologically willing to merely stand there repeating te demand, and escalate the amount of force used. For the LAC this reduces the size of any buffer zone before suffering whatever attack is made - when the imminent threat surfaces it is most likely too late beccause the threat is carried out before the LAC has any chance to mount a preventive defense - the case of actually having to wait to be punched/kicked/stabbed/shot before responding with deadly force to the threat of being punched/kicked/stabbed/shot.

    Dr. Volk is correct is supposing that a mandatory duty to retreat violates the First Amendment right of association. The problem I see is that darned few defenses are mounted based on that contention.

    stay safe.
    Wow, very thoughtful reply.
    ------
    So, basically, what this boils down to, is that you can enslave anyone, as long as you can prevent them from calling 911 and give them commands that they're unable to keep up with? They'll never be able to legally escalate force beyond what force you use in order to free themselves.
    Last edited by stealthyeliminator; 07-30-2013 at 10:06 PM.

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    Regular Member ()pen(arry's Avatar
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    Quote Originally Posted by stealthyeliminator View Post
    So, basically, what this boils down to, is that you can enslave anyone, as long as you can prevent them from calling 911 and give them commands that they're unable to keep up with? They'll never be able to legally escalate force beyond what force you use in order to free themselves.
    In a word, yes. The fundamental predicate of minority governance is that the aggregate complacency of a populace is greater than the aggregate evil of its governors. As long as you keep punching the poor schlub with his own fist, America will keep saying, "Stop hitting yourself." Why do you think "following policy" is the universal justification for LEO misconduct?

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by stealthyeliminator View Post
    Wow, very thoughtful reply.
    ::bows and blushes::

    So, basically, what this boils down to, is that you can enslave anyone, as long as you can prevent them from calling 911 and give them commands that they're unable to keep up with? They'll never be able to legally escalate force beyond what force you use in order to free themselves.
    http://munchkinwrangler.wordpress.co...-civilization/ (The original, not the plagerizing by Major Caudill.)

    You can persuade me or you can force me. But when I have as much force as you have, we are back to you trying to persuading me. There are times when throwing a two-year-old's temper tantrum (No! No! No! No! ad infinitum) works well - especially when you have the means to make it stick.

    I'm not sure I fully understand your assertion that someone would never be able to "escalate" force. The common law addresses "appropriate level of force" and "force necessary to repel the attack" - although there are some limitations on when you can go all the way to lethal force. If you keep getting up in my face and dance around so that I cannot pass by you, I may, in certain circumstances, be lawful in whacking your shins with a stout stick, or poking you (with a non-sharp stick) in the tummy or chest to cause you to move away so I can pass by. There are no hard and fast rules that will hold for every possible situation encountered that say when A, then B. Study case law and fix in your mind the difference between repelling an attack and punishing an attacker. You can be sure the prosecutor has done that.

    stay safe.
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    Because stupidity isn't a race, and everybody can win.

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    Quote Originally Posted by skidmark View Post
    <snip>

    I'm not sure I fully understand your assertion that someone would never be able to "escalate" force. The common law addresses "appropriate level of force" and "force necessary to repel the attack" - although there are some limitations on when you can go all the way to lethal force. If you keep getting up in my face and dance around so that I cannot pass by you, I may, in certain circumstances, be lawful in whacking your shins with a stout stick, or poking you (with a non-sharp stick) in the tummy or chest to cause you to move away so I can pass by. There are no hard and fast rules that will hold for every possible situation encountered that say when A, then B. Study case law and fix in your mind the difference between repelling an attack and punishing an attacker. You can be sure the prosecutor has done that.

    stay safe.
    Me dancing around where you may not pass without assaulting me is not self-defense. It is you being charged with assault and me being cited for public intoxication.

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    Just a note, Skid: Volokh =/= Volk.

    Eugene is a law professor, Oleg is a photographer.

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    Losing Self-Defense Rights if You Refuse to Comply with Attacker’s Demands to Abstain

    Quote Originally Posted by OC for ME View Post
    Me dancing around where you may not pass without assaulting me is not self-defense. It is you being charged with assault and me being cited for public intoxication.
    Assault is a poor term to use since it doesn't involve actual touch or harm in some states. I am going to assume you mean the version that does involve actual harm...

    It isn't assault if I don't do it with intent or likelihood of causing harm. Otherwise assault would happen on buses, busy sidewalks, elevators, etc., all day every day. So you dance around in my way, I move slowly forward each time you are even a little out of my way. If we touch incidentally I have committed no crime. You can slow me down, but it takes multiple people or an incredibly narrow corridor to stop me from progressing.

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    Last edited by arentol; 07-31-2013 at 09:04 PM.

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    Regular Member tomrkba's Avatar
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    That always struck me as shockingly broad — read literally, if Vic tells Don, “stop seeing my ex-girlfriend or I’ll kill you,” Don must stop seeing the ex-girlfriend or else lose the right to use lethal force to defend himself against Vic."
    I am not sure how this makes sense. Legal wrangling like this is how a moral people become corrupted.

    Vic is the one making the threat of murder over someone he is no longer involved with. He does not make the decisions for the ex-girlfriend and Don has a legal right to see her. Furthermore, he has a legal right to be in that location with the ex-girlfriend. Vic is the one using the aggressive language, not Don. Don has no moral or legal duty to stop seeing the ex-girlfriend simply because someone doesn't like it.
    Last edited by tomrkba; 07-31-2013 at 11:47 PM.

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    Regular Member Maverick9's Avatar
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    Quote Originally Posted by skidmark View Post
    Where Dr. Volk's thesis falls apart is in failing to take into account that refusal to comply is always a possible response. If you refuse to comply with a demand and do nothing else, it falls on the person making the demand to increase the level of force in any attempt to cause compliance. ...

    Dr. Volk is correct is supposing that a mandatory duty to retreat violates the First Amendment right of association. The problem I see is that darned few defenses are mounted based on that contention.

    stay safe.
    If you realized this on your own, you are one smart cookie. Kudos. Great reply over all!

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by arentol View Post
    Assault is a poor term to use since it doesn't involve actual touch or harm in some states. I am going to assume you mean the version that does involve actual harm...

    It isn't assault if I don't do it with intent or likelihood of causing harm. Otherwise assault would happen on buses, busy sidewalks, elevators, etc., all day every day. So you dance around in my way, I move slowly forward each time you are even a little out of my way. If we touch incidentally I have committed no crime. You can slow me down, but it takes multiple people or an incredibly narrow corridor to stop me from progressing.

    Sent from my SCH-I605 using Tapatalk 2
    Assault charges are not lodged as a result of unwarranted "touchings" on buses, busy sidewalks, elevators, etc. This does not mean that a incidental "brushing" is not assault. A cop will charge you, for the purposes of this discussion, with assault due to you incidentally touching him while he is restraining you for officer safety, and your safety by the way, and then shout "STOP RESISTING!!!"

    No, crimianl charges are not being lodged by those we assault is different than me not assaulting.

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