Thursday, February 04, 2010

Threats Versus Physical Violence

By Sherry Colb

In my column for this week, I examine a Kansas Supreme Court decision holding that under Kansas law, permissible self-defense includes only actual violence, not the threat of violence.  This means, in the particular case, that a defendant who threatened to hurt his alleged assailant as a means of self-protection may be prosecuted without resort to a self-defense instruction for the jury.  If the defendant commits no actual violence, in other words, he could not have acted in self-defense.  The column discusses the perversity of this ruling and notes that it effectively illustrates the pitfalls of unthinking "plain meaning" interpretation of statutes.

Here, I want to focus on the difference between violent threats and violent actions, because there are some potentially noteworthy distinctions.  Along one dimension, of course, threats are less harmful than actual violence.  Having an assailant say "I will shoot you if you don't hand over your money" is, by most accounts, less harmful than having an assailant shoot you and then take the money (or, for that matter, shoot you and leave the money behind).

Threats can, however, sometimes accomplish more than physical violence can, and when the "accomplishment" is destructive rather than benign, it might be fair to characterize the threat as "worse" at some level than the violence.  For a simple example, consider how terrorism works.  Terrorism typically involves actual physical violence -- whether that means killing or wounding its victims.  The underlying purpose (or a primary purpose) of terrorism, however, is communicative, expressive, and manipulative, not unlike like the point of a threat.

Take a paradigmatic example of self-defense.  Assume that an intruder has just broken into your home and is holding a knife.  You pull out a gun and point it at the intruder.  Assume that you then threaten to shoot the intruder if he does not vacate the premises.  Your objective is probably not to kill the intruder (otherwise, you would just shoot him).  Instead, you hope to persuade him to believe that he is better off leaving your home than staying and doing whatever it was he originally planned to do.  Your goal in threatening him, in other words, is to manipulate the intruder's conduct.  In your case, of course, your goal is legitimate, because the intruder should leave your home and should never have entered in the first place.

Now consider an act of terrorism.  Assume that the terrorist kidnaps one person from a building in a big U.S. city and then executes the person on video, which he then circulates throughout the world.  The terrorist may well have chosen the individual at random and have no particular interest in having that person die.  The goal of the act has almost nothing to do with the particular individual selected as a victim and everything to do with the audience.  The audience is everyone in the U.S. (and arguably beyond), and the goal is make the audience feel insecure and act in the way that insecure people act (which could include, among other things, authorizing the government to carry out disproportionately violent attacks on loosely related parts of the world).  The message of the terrorism is "You are not safe.  You need to do something to protect yourself from hidden enemies."

Except in unusual circumstances, a terrorist is not able to kill large numbers of people at the same time.  By killing only one, however, or a small number, he manages to do much more than destroy the lives of his victims (who are, after all, a mere "means" to the perpetrator's ends); he accomplishes the goal of making large numbers of people feel threatened and alter their behavior accordingly.  Indeed, with a credible threat, a terrorist could perhaps alter behavior in this way without actually killing or injuring anyone.

Does this make threats worse than actual violence?  Only in the sense that if the alteration in behavior accomplished by the threat is large and destructive enough, it may result ultimately in more violence and suffering than any that the lone terrorist might have inflicted directly.  Seen this way, threats can be more powerful than physical violence and must therefore be considered -- for good and ill -- in that light.


Paul Scott said...

The facts of the case should prove fascinating. It seems unthinkable that in something akin to the scenario you listed above (intruder convinced to leave rather than be shot) that this would even be prosecuted. So something more certainly has to be going on to even get us to the point where we are asking the question "can a threat of violence, as opposed to actual violence, be used in self-defense."

Sam Rickless said...

I enjoyed this post, with which I agree. But might I offer a suggestion about how best to address the issue of statutory interpretation in the Kansas case?

The relevant text reads: "A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's use of unlawful force."

The Kansas High Court majority reads this statute as providing sufficient conditions for the justified use of force, where "use" is taken to mean "use", rather than "use or threaten". The majority concludes that the statute does not provide sufficient conditions for threatening the use of force in self-defense. The minority reads the statute as providing sufficient conditions for the justified threatening of the use of force, on the grounds that "use" in the statute should be understood to mean "use or threaten".

It seems to me that both sides are right about some things and wrong about others, and in particular that the minority has reached the right result for the wrong reasons. The majority is right that "use" does not *mean* "use or threaten". Moreover, the majority is right that the Court should not be in the business of divining the semantic intentions of the legislature here. "Use" means "use" and that's all she wrote. But the statute, as both sides acknowledge, provides sufficient conditions for the *justified* use of force. And what seems obvious, indeed virtually analytic, or so it seems to me, is that if the use of force is justified in self-defense, then the threat of the use of force is justified in self-defense. Thus, the statute entails that threatening to use force in self-defense is justified under the conditions that would justify the actual use of force, not because "use" just *means* "use or threaten", but because "X is justified in using force under conditions C" entails "X is justified in threatening to use force under conditions C".

David Yin said...

Interesting case!

In your example, if a person breaks into your house, and threatens you with a knife, you say that you are both legally able to shoot him, or to threaten him with being shot.

But what if you were in no immediate physical danger (let's say the the entrant had no knife) and shooting him would be an impermissible use of deadly force. Do you think a distinction could be made between being able to threaten to shoot someone when it's also legally OK to shoot them, and threatening to shoot someone when it is legally not OK to shoot someone? In the case you cite, it sounds like the man threatened to break his sister's neck, so I doubt if he actually did so to fend off a slap that the self-defense argument would work.

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