To: Senate Natural Resources Committee
From: Christopher T. Dodson, Executive Director
Subject: House Bill 1319 (Use of Deadly Force)
Date: March 16, 2007
When and how much force an individual can use against another is ultimately a moral issue. Each lawmaker must evaluate House Bill 1319 according to whether it moves us closer to or further from fundamental moral principles found in Sacred Scripture and knowable by reason that have served as a foundation of civil society for thousands of years.
The Bible presents the precept "You shall not kill" as a divine commandment. Those of different faiths or no faith accept the same injunction because the value of all human life. From this precept comes a fundamental principle: No one can claim the right to deliberately kill an innocent human being.
Yet the injunction against killing is rooted in the recognition that all human life is sacred or that all human life has value because of the inherent dignity of every human person. For that reason, a second fundamental principle developed: the determination of guilt and the authority to punish is limited to duly appointed public authorities.
These two principles have guided the development of law in Western society for thousands of years, almost always with the recognition that they are rooted in the unchanging and absolute commandment, “You shall not kill.”
Yet from the beginning, faced with the many and often tragic cases that occur in the life of individuals and society, we have sought a fuller and deeper understanding of what the commandment prohibits and prescribes, particularly in the case of self-defense.
Thomas Aquinas provides the most accepted and definitive treatment of the subject. Aquinas restated the fundamental principle that it is never permissible for a private individual to intentionally kill a person. This injunction applies even in cases of self-defense. A person can, however, use moderate force to repel an aggressor when it is necessary to do so in order to protect oneself or someone for whom the person is responsible. If the use of force meets these conditions, and the aggressor dies as a result, the person is not guilty of murder. The death of the aggressor in such a situation is a double effect. In other words, the death is an unintended result.
Through the centuries, courts and lawmakers incorporated these principles into law. For example, the “duty to retreat” in English common law finds its basis in the necessity requirement, since the use of deadly force could not be viewed as necessary if the person could escape.
Eventually, some jurisdictions, including North Dakota, adopted the “Castle Doctrine,” which removed the duty to retreat in a person’s dwelling or work place. The Castle Doctrine does not necessarily contradict the fundamental principles since it is based on several presumptions applicable 500 years ago. Indeed, something like the Castle Doctrine appears in Exodus 22:1. It states: “If a thief is caught in the act of housebreaking and beaten to death, there is no bloodguilt involved.” The next verse, however, states: “But if after sunrise he is thus beaten, there is bloodguilt.” In other words, killing an intruder at night was permissible, but killing in an intruder during the day was not. Why the difference? Scholars have noted that a person had options in daylight which he or she would not have in the small, lightless, dwellings of that time. So long as options other than deadly force were available, killing was not permitted.
The instructions in Exodus are helpful to us today. The passage in Exodus presumes that fear of imminent death was reasonable in the case of a night break-in because of the existence of conditions, unique to that time, that did not allow retreat, use of moderate force, or determination of the aggressor’s intent. The presumption was not based on the mere fact that the trespass occurred in the home.
Again, the ultimate question is whether House Bill 1319 moves us closer to or further from these fundamental moral principles. We conclude that adoption of the bill would move us away from these precepts for several reasons:
• Deletion of the clause: “The use of deadly force is not justified if it can be avoided” removes the normative standard principle upon which a society should rest;
• Removal of the duty to retreat: (1) eliminates one of the key methods for determining whether the use of force was actually necessary, and (2) diminishes, if not ignores, the fundamental principle that all persons have a moral obligation to try not to use deadly force; and
• The creation of a broad presumption of fear in Section 2: (1) justifies the use of deadly force even when the person’s acts were not, in fact, reasonable, (2) subtly shifts the determination of a transgressor’s guilt or innocence away from the duly appointed legal authorities and to the private individual; (3) creates presumptions based on place and circumstances that bear no actual relationship to whether force is necessary; and (4) sanctions a shift in culture from one expecting prudence and respect for life to one of fear and acceptance of violence.
We urge a “Do Not Pass” recommendation on House Bill 1319.
From: Christopher T. Dodson, Executive Director
Subject: House Bill 1319 (Use of Deadly Force)
Date: March 16, 2007
When and how much force an individual can use against another is ultimately a moral issue. Each lawmaker must evaluate House Bill 1319 according to whether it moves us closer to or further from fundamental moral principles found in Sacred Scripture and knowable by reason that have served as a foundation of civil society for thousands of years.
The Bible presents the precept "You shall not kill" as a divine commandment. Those of different faiths or no faith accept the same injunction because the value of all human life. From this precept comes a fundamental principle: No one can claim the right to deliberately kill an innocent human being.
Yet the injunction against killing is rooted in the recognition that all human life is sacred or that all human life has value because of the inherent dignity of every human person. For that reason, a second fundamental principle developed: the determination of guilt and the authority to punish is limited to duly appointed public authorities.
These two principles have guided the development of law in Western society for thousands of years, almost always with the recognition that they are rooted in the unchanging and absolute commandment, “You shall not kill.”
Yet from the beginning, faced with the many and often tragic cases that occur in the life of individuals and society, we have sought a fuller and deeper understanding of what the commandment prohibits and prescribes, particularly in the case of self-defense.
Thomas Aquinas provides the most accepted and definitive treatment of the subject. Aquinas restated the fundamental principle that it is never permissible for a private individual to intentionally kill a person. This injunction applies even in cases of self-defense. A person can, however, use moderate force to repel an aggressor when it is necessary to do so in order to protect oneself or someone for whom the person is responsible. If the use of force meets these conditions, and the aggressor dies as a result, the person is not guilty of murder. The death of the aggressor in such a situation is a double effect. In other words, the death is an unintended result.
Through the centuries, courts and lawmakers incorporated these principles into law. For example, the “duty to retreat” in English common law finds its basis in the necessity requirement, since the use of deadly force could not be viewed as necessary if the person could escape.
Eventually, some jurisdictions, including North Dakota, adopted the “Castle Doctrine,” which removed the duty to retreat in a person’s dwelling or work place. The Castle Doctrine does not necessarily contradict the fundamental principles since it is based on several presumptions applicable 500 years ago. Indeed, something like the Castle Doctrine appears in Exodus 22:1. It states: “If a thief is caught in the act of housebreaking and beaten to death, there is no bloodguilt involved.” The next verse, however, states: “But if after sunrise he is thus beaten, there is bloodguilt.” In other words, killing an intruder at night was permissible, but killing in an intruder during the day was not. Why the difference? Scholars have noted that a person had options in daylight which he or she would not have in the small, lightless, dwellings of that time. So long as options other than deadly force were available, killing was not permitted.
The instructions in Exodus are helpful to us today. The passage in Exodus presumes that fear of imminent death was reasonable in the case of a night break-in because of the existence of conditions, unique to that time, that did not allow retreat, use of moderate force, or determination of the aggressor’s intent. The presumption was not based on the mere fact that the trespass occurred in the home.
Again, the ultimate question is whether House Bill 1319 moves us closer to or further from these fundamental moral principles. We conclude that adoption of the bill would move us away from these precepts for several reasons:
• Deletion of the clause: “The use of deadly force is not justified if it can be avoided” removes the normative standard principle upon which a society should rest;
• Removal of the duty to retreat: (1) eliminates one of the key methods for determining whether the use of force was actually necessary, and (2) diminishes, if not ignores, the fundamental principle that all persons have a moral obligation to try not to use deadly force; and
• The creation of a broad presumption of fear in Section 2: (1) justifies the use of deadly force even when the person’s acts were not, in fact, reasonable, (2) subtly shifts the determination of a transgressor’s guilt or innocence away from the duly appointed legal authorities and to the private individual; (3) creates presumptions based on place and circumstances that bear no actual relationship to whether force is necessary; and (4) sanctions a shift in culture from one expecting prudence and respect for life to one of fear and acceptance of violence.
We urge a “Do Not Pass” recommendation on House Bill 1319.
