EVEN DEADLY FORCE
FULLY JUSTIFIABLE HOMICIDE
VS.
BARELY EXCUSABLE HOMICIDE
David I. Caplan
From the 1970s to the present; attorney David Caplan's scholarship on the Second Amendment has played an
important part in the intellectual rediscovery of the right to keep and bear arms. This article summarizes Dr.
Caplan's current research on the right to self-defense, which will later be published in a major law review article.
The early common law (13th century and before) drew a very sharp, bright-line distinction between socially desirable,
fully justifiable homicide as opposed to socially undesirable, barely excusable homicide.
Justifiable homicide occurred when the victim of an inherently dangerous common-law felony (arson, stranger burglary,
stranger robbery, stranger rape), or a bystander thereof, resisted the felony. In such cases, the perpetrator of
the felony was considered to be what we call now a "career criminal," a "professional criminal,"
or a "recidivist criminal." The perpetrator of any of these felonies was considered to threaten continuing
grave dangers to the community should he be successful or escape justice and roam at large. Therefore, the felon
had lost his "right to life" by engaging in such conduct, so long as it was clear that the felon had
actually attempted or completed an inherently dangerous felony. Therefore, no showing of necessity other than the
actual perpetration of the stranger attack was needed to justify force, even deadly force, to be used to resist
the felon. Necessity for using deadly force against the perpetrator was presumed in these cases, "even though
not in his self-defence."(Because of the change in word usage, we would say today: "even though not necessary
for his self-defense.")
On the other hand, many later common-law writers, especially those writing after the 16th century, believed that
if (but only if) the felon had clearly desisted and was clearly in flight, then justification for using deadly
force to stop him required a showing of factual necessity. Thus, even according to those later writers, no issue
of "excessive force" (modern terminology) arose until clear flight. Even according to those later writers,
upon a felon's clear flight, the common law not only encouraged but also required the use of force, even deadly
force, if necessary to prevent a fleeing felon from escaping trial. Failure of the victim or bystander to use force
necessary for this purpose was a misdemeanor, punishable by fine and imprisonment.
What I have said concerning the justification rules according those "later common-law writers," regarding
the supposed need of showing factual necessity for using deadly force to effect an arrest, was not supported by
the relevant caselaw. To the contrary, I read and understand differently the settled caselaw, going as far back
as at least the early 13th century and cited approvingly until the middle of the 20th century - including in Coke's
Institutes. My understanding is that once it was clear that an inherently dangerous common-law felony was being
committed, the law presumed the necessity for using force against the felon if and when the felon did not peaceably
surrender OR fled. Immediate flight furnished immediate necessity. The law did not require the victim or bystander
to judge the exact or inexact moment of time at which the commission of the felony ended and the immediate flight
therefrom began. The common law did not set legal traps for innocent victims or heroic bystanders.
For example, the common law did not require that, as soon as murderous bank robbers were in flight from a lucrative
bloody bank robbery, a heroic victim or bystander must not shoot the fleeing gunmen unless ordered to do so by
a police officer who happened to be there. The common law did not want these heroic victims and bystanders to be
punished or, more important, these dangerous felons to escape and prey on other victims.
The public policy encouraging force, even deadly force, to be used against felons in the act of inherently dangerous
felonies - such as arson, stranger robbery, stranger burglary, or stranger rape - included creating "the more
against offendors" rather than terrorizing peaceful subjects of the Crown. It also included the legal principle
that in all these felonies the life of the victim "either is, or is presumed to be in peril" and that
the roles of victim and villain should not be interchanged upon any uncertain facts. The law did not presume that
the precise details of heroic acts could be reconstructed in a courtroom for juries to dissect according to their
emotional prejudices once it was clear that an inherently dangerous felony in fact had been attempted or committed.
Indeed, the common law considered thwarting, resisting or preventing a clear-cut inherently dangerous felony as
"laudable" and worthy of "commendation rather than blame." In addition, the common law considered
the act of using force, even deadly force for this purpose to be "promoting justice, and performing a public
duty" and "for the advancement of public justice. "The common law justification rules were designed
to prevent" wicked men from assailing peaceable members of society, by exposing them to the danger of fatal
resistance at the hands of [their victims]."The dastardly felony by itself created the presumption that (1)
it endangered human life;(2) it required its immediate termination; and (3) it required the immediate prevention
of the escape of the felon.
In some modern and postmodern cases and statutes, the doctrine of factual necessity or even "absolute necessity"
applies to even clear-cut victims of arson, stranger robberies, stranger burglaries, and stranger rapes. An International
Convention, not yet ratified by the United States, adopts this doctrine. As a result, even a clear-cut overt recidivist
career criminal becomes the "victim" and the initial true victim becomes the "actor- [villain]".
Morality turned upside down and inside out! New rules based upon highly theoretical speculations concerning irrelevant
and extreme academic hypotheticals have replaced the wisdom of ancient common-law and Jewish law tested by ages
of experience. (Parenthetically, in both Hebrew and classical Latin, one of the meanings of "religion"
is "law.")
The social policy encouraging deadly force to be used if factually necessary - or according to caselaw, even if
not factually necessary - to prevent the escape of these felons fleeing from the scene was based upon the rational
presumption that a dangerous felon at large threatens the peace and security of society - i.e., the next victims.
Immediate stopping of the fleeing felon, whether actually or presumably dangerous, was deemed absolutely necessary
for the security of the people in a free state, and for maintaining the "public security." Parenthetically,
notice here the striking similarity of concepts and language with those contained in the Second Amendment, and
in Presser v. Illinois, 116 U.S. 252, 264-265 (1886).
Indeed, it has been said that the social policy of the common law in this matter was not only to threaten dangerous
felons and hence deter them, but was also to induce them to "surrender peaceably" if they dared commit
inherently dangerous felonies, rather than allow them to "escape trial for their crimes." The common
law did not want dangerous felons to escape justice. It did not want to enable them to continue to prowl and roam
atlarge. It did not want to enable or empower these criminals to commit yet more dastardly crimes, or to continue
to terrorize the community, or to continue to endanger the public safety and security. The common law considered
as paramount the social objectives of "promoting peaceable surrender" to the legal process and of promoting
public peace, tranquility, and security.
Please rest assured that I am aware of Tennessee v. Garner, 471 U.S. 1 (1985), regarding inherently dangerous nocturnal
burglary of a temporarily empty home albeit temporarily empty. In my opinion, however, based upon my research,
the holding of that case as well as its broad language rely upon some crucial, glaring historical mistakes of fact;
and the case contains critical errors and misconceptions regarding its asserted earlier public policies. Only in
this way did the case result in its criminal friendly ruling. Besides, the ruling in that case does not apply to
civilian arrests.
More fundamentally, why should we punish the innocent victim or bystander (who stands in the shoes of the victim)
for the sins of the career criminal? By what moral or legal principle should we be concerned with the health and
well being of fleeing recidivist criminals at the legal and physical peril as well as expense of their chosen victims
or their happenstance bystanders? These heroic public-spirited victims and bystanders deserve "commendation
rather than blame." The felon takes all-risks of violence resulting from attempts to prevent his escape and
to bring him to justice, rather than to allow him to prowl and roam at large and continue to terrorize the entire
community.
The Lord rejoices at the premature deaths of the wicked and mourns for the premature deaths of the righteous. Why?
Premature deaths of the wicked prevents them from committing more sins, prevents them from killing more righteous
people, and hence prevents the wicked from preventing these righteous people from performing more good deeds; premature
deaths of the righteous prevents them from performing more good deeds and from enjoying proportionately more benefits
in the World to Come. (Talmud, Tractate Sanhedrin, fol. ca. 70.)
The common law encouraged and required even civilians to use force, even deadly force, to arrest and prevent escape
of inherently dangerous felons at, or fleeing from, the scene of the crime - at which times mistakes of stopping
the wrong man would be minimal, as opposed to long times thereafter. The social policy here was to assure that
dangerous felons should not continue to prowl and roam at large and thereby create a constant terror to the people
and danger to the public and social order. Instead, the paramount object comprised promoting the public peace and
public safety, as well as the security of the people. In addition, the policy here was that these felons should
not escape justice.
It is important to note that 14th century cases confirming these rules were approvingly cited as controlling law
by court decisions and common-law scholars many times over the centuries both in England and America - until Parliament
abolished these rules in 1967, and until various times in 20th century America. This extremely unfortunate (in
my opinion) development occurred only after some 19th and 20th English and American commentators (superficial and
error-prone commentators, in my opinion), as well as misguided cases and statutes (again, superficial and error-prone,
in my opinion) confused or even fused the previously clearly disjoint rules governing the fully justifiable homicide
rules discussed above and the barely excusable homicide rules discussed below. More specifically, the new rules
foolishly imported barely excusable "self-defense" rules into fully justifiable rules. The resulting
merger of doctrines was not merely a conceptual mess. The previous disjoinder had been socially very beneficial,
if not absolutely necessary for a rational legal system, in both my opinion and the opinions of many great and
not-so-great 16 through 20th century law commentators.
Parenthetically, the above-mentioned 14th century cases were not the first to lay down clearly the justification
rules. The earliest cases that I have found on the topic go back to the early 13th century (1220-1230).
The rules in force prior to the 13th century are not clear to me - perhaps because the rules were so clear that
no cases arose, or perhaps because the judicial system had not yet been developed, or perhaps because cases were
not reported prior to 1220, or perhaps because courts then felt constrained to go easy on gangs of roving robber
barons, led by noblemen, who may have been as powerful as the King in those unruly, rough and tough, and chaotic
times. (Would you want to go back to those days? For some time, I have felt that the Revolutionaries, as well as
post-Revolutionaries, of the 1960's were the true reactionaries in the classical Latin sense of the term.)
At any rate, I would seriously doubt that the Crown (or especially the Hundred before Henry I) would have punished
either civilly or criminally a (taxpaying) worker, a fighter-soldier (upon whom the King relied for conquest and
lucre), or a cleric (the King's perceived ticket to Heaven? and/or means for instilling awe and fear in the hearts
of the King's subject to keep them in line?) for having dispatched a common criminal. Rather, the Crown (or the
Hundred) would have viewed such a felony-resisting chap as a faithful, valiant, and chivalrous subject, for his
having thereby promoted the King's peace and the public's security (the peace and security of the Hundred).
Many law writers have theorized that the common law developed these justification rules at a time when at the common
law all felonies were punishable by death. These writers therefore conclude that the use of deadly force to kill
a fleeing felon in those days was merely a premature execution of the inevitable judgment of death. The fallacies
with this theory are legion. For example, the fact is that the judgment of death was by no means inevitable:
(1) The felon might escape all punishment through successful flight to areas of the country where felons were in
control;
(2)The felon might be found guilty after capture and trial;
(3)Even after having been found guilty the felon might, and often did, receive a royal pardon as of grace (de gratia)
on condition that he serve in the King's army for two years;
(4) After trial, benefit of clergy averted capital punishment; and
(5) After trial, more often than not the punishment was outlawry and not death.
Besides, common-law judges were diligent in finding all sorts of defects in the indictment in cases where they
thought that capital punishment was not warranted.
Summarizing, from the dawn of the common law the crime victim was assured that resistance to inherently dangerous
felons, including using even deadly force against them, would entail absolutely no penalty whatever. The common
law considered resistance to dangerous felons to be a public duty. By stark and critical contrast, in cases of
homicide in fights or spontaneous disputes where people knew each other or in barroom brawls, the common law laid
down an entirely different set of rules. The common law classified the killing as (barely) excusable homicide,
and not justifiable homicide, even if the killer had retreated as far as he could to a wall, a ditch, or to the
sea.
In what follows, for the sake of clarity I will use the term "self-defense" to denote only (barely) excusable
homicide, as opposed to(fully) justifiable homicide discussed above.
In disquisitions on homicides in which the deceased was NOT a career felon, a famous difference of opinion existed
between Sir Edward Coke and William Blackstone. The difference of opinion involved the question whether the early
common law treated as a felony, punishable by both death and forfeiture, any use of deadly force in barely excusable
"self-defense." In this context, "self-defense" related to using force in barroom brawls or
between people who knew each other, in necessary "self-defense" (that is, after retreat to the wall,
to a ditch, or to the sea). Lord Coke believed that homicide in "self-defense" was punished with death
as well as forfeiture. Here Lord Coke here relied upon the need for 13th century Statute of Gloucester, declaring
that capital punishment was not to be imposed in such cases. Blackstone believed that even prior to the Statute
of Gloucester, the defender suffered forfeiture but did not suffer capital punishment. I recall reading somewhere
that Blackstone and his camp thought that the Statue of Gloucester was needed only for cases of necessary "self-defense"
against a Dane (when Canute ruled England, or a Norman (when William the Conqueror ruled). What comes to mind here
is the frequently appearing "Englishry was presented" and "murdrum" terminology occurring in
pre- and early post- Norman Conquest cases obviously indicating the more serious nature of killing a Dane or a
Norman than of killing an Englishman.
At any rate, Coke and Blackstone agreed that after the Statute of Gloucester the early common law treated "self-defense"
as some sort of crime punishable by forfeiture and imprisonment. In order to get out of prison, the prisoner in
these cases had to obtain a royal pardon, which was forthcoming as a matter of right, and not of grace, after a
lapse of time - the length of the lapse of time, and hence the term of imprisonment, depending upon the degree
of blame as judged by the Crown, or the prison term ending upon voluntarily serving in the Crown's army for two
years, or ending upon payment of a fee to the Crown (bribery? and/or proportional to blame?).All agreed, however,
that UNnecessary "self-defense" - occasioned, for example, by a killing in "self-defense" without
retreat to the wall, to a ditch, or to the sea - was still a capital offense even after the Statute of Gloucester.
It later was called "manslaughter." Also, all agreed that neither before or after the Statute of Gloucester
was killing an inherently dangerous felon on the spot any crime whatever; rather it was considered to be courageous,
praiseworthy, and protective of the entire community.
The rationale for punishing necessary "self-defense" included the following: (1) some degree of blame
should be imputed to both sides of the dispute for having caused or allowed it to escalate; and (2) whoever had
been killed presumably had been a valuable subject of the King's realm. It was a case of fights among equals. Not
so in cases of justifiable homicide! Or today, I may add, in my opinion. And therein resides a basic issue of morality
and jurisprudence (accent on the "prudence").
I believe that much of the difference between the pro- and anti-Second Amendment camps boil down to whether one
likes or dislikes the following principles and propositions.
1. The common law of England and America regarded resisting the commission of a inherently and presumably lethally
dangerous felony not only as "one of the major privileges, particularly as to the use of deadly force,"
but also a duty of citizenship;
2. Such a privilege is socially desirable and indispensable, as well as emotionally comforting; and
3. The common law considered the value of the victim's life to be paramount: the felon had forfeited such consideration
when he decided to engage in his depredations.
I would label the perpetrator of an excusable homicide a "selfish-defender"; and I would label as a "selfless-defender"
the performer of the critically important public service of justifiable homicide. The great common-law commentators,
as well as the not-so-great law writers, characterized justifiable homicide by many phrases of approbation such
as "laudable"; deserving "commendation rather than blame"; "necessary, and in the interest
of the safety and good order of society."
From what appears above, I hope that you will understand that the key to understanding the "origins of 'self-defense'"
includes recognizing the critical distinction between "forcible" stranger felonies for lust or lucre
and disputes or fights between people who knew each other or among barroom brawlers. It is ridiculous to import
considerations underlying the barely excusable homicide rules into the fully justifiable homicide rules. In the
former case we have a fight or dispute amongst equals; in the latter case, between peaceable citizens suddenly
confronted by career criminals.
One of the first, if not the first, writers in English history to champion First Amendment values, namely John
Milton, wrote that a robber should note accorded even the laws of war, since a robber was worse than a "national
enemy."
Just a few days ago, my wife and I took a firearm "training course" given at a South Florida arms show,
the first such "show" that we have ever visited. I was saddened but not surprised that most of the course
was devoted to teaching us when not to shoot, rather than how to shoot. His stated rationale included the repeated
warning that we must always bear in mind that a judge or jury will review our actions with a fine-tooth comb and
with their emotional prejudices, and that the mutually different whims of prosecutors in the twenty-seven different
Florida counties will govern whether we will be prosecuted. Moreover, during the practice shoot, the instructor
directed us to fire one and only one shot. By stark contrast, a firearm "training course" that I took
more than 25 years ago during a visit to West Point emphasized the importance of emptying my firearm in as little
time as possible, with one reloading intervening, for a total of twelve shots. Whom are they trying to protect
these days? Could this change in the law be a potent factor in the burgeoning of violent stranger felonies? English
stranger felony rates before and after the great 24 H. 8 c. 5 would seem to indicate a connection, if for no other
reason than the public attitudes and criminal behavior patterns thereby symbolized and stimulated.