Self-Defense

Arkansas Law Allows Deadly Force Against "Pattern of Domestic Abuse"

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I recently came across this, and thought it was worth noting.

[1.] Generally speaking, you can use deadly force against unlawful attack if you reasonably believe this is needed to avoid the risk of death, serious bodily injury, rape, or kidnapping. In many states, you can also defend against robbery, burglary, or arson. (In other states, you'd need to show that you were reasonably concerned that the robbery, burglary, or arson would pose the risk of death, serious bodily injury, rape, or kidnapping—likely easy in some cases, harder in others.)

[2.] When you're only reasonably worried about lesser harms—such as threats to property (e.g., from theft or trespass) or less serious physical assaults, you can use nondeadly force to defend yourself but generally not deadly force. You can't use deadly force to defend yourself against a slap or a punch, unless you reasonably fear it will lead to serious bodily injury.

[3.] But Arkansas law has an unusual feature, indeed perhaps a unique one, enacted in 1997 (emphasis added):

(a) A person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is:

(1) Committing or about to commit a felony involving force or violence;

(2) Using or about to use unlawful deadly physical force; or

(3) Imminently endangering the person's life or imminently about to victimize the person as described in 9-15-103 from the continuation of a pattern of domestic abuse.

9-15-103(3) "Domestic abuse" [includes] … [p]hysical harm, bodily injury, assault [= purposely created apprehension of imminent physical injury, defined to include impairment of physical condition, infliction of substantial pain, or infliction of bruising, swelling, or a visible mark associated with physical trauma], or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members [including people in a dating relationship, as well as persons related by blood within the fourth degree of consanguinity, and persons who presently or in the past have resided or cohabited together] ….

This isn't limited to domestic abuse that has involved serious bodily harm in the past. It's not limited to spouses or lovers. In principle, it could allow deadly force in a fight between brothers or cousins (or perhaps even just former roommates) who have gotten in "a pattern of" fights in the past, so long as bruises or intended bruises were involved. Likewise, a man could use deadly force if his wife has had a pattern of slapping him in the past (leaving "a visible mark"), and appears ready to do that now (and same with the sexes reversed).

Doesn't seem quite right to me, but in any event it's an interesting and unusual provision, so I thought I'd mention it.

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  1. The statute says that the use has a to be against the continuation of a pattern of abuse, which I read to mean that the pattern needs to already exist—in other words, you’d need to have at least two prior slaps.

    1. Or the prior apprehension of imminent slaps, repeated.

      In Arkansas Alice Kramden could have offed Ralph after the second “To the moon!”.

    2. Indeed — I meant to make that clear, but on reflection I see I hadn’t; I’ve revised the second-to-last sentence to make that clear.

    3. Or emotional abuse. Something as simple as not affirming her.

      This is a really slippery slope…

  2. Interesting legal defense. In the case of domestic abuse, it is common for continued abuse. As some may recall from the OJ case, the first 12 months after separation from a domestic abuser, is very hazardous due to the jeolousy with most domestic abusers. Sometimes the abused cant leave because the abuser will become more violent.

    One unusual point in abusive relationships, is that often the abused is attracted to that type relationship. Most people would consider such an attraction to be highly abnormal though surprisingly, it is common.

    1. Thats one of the biggest unspoken truths. Most everybody knows the poor abused downtrodden chick that if they don’t stick with their boo or aren’t completely making it up somehow manages to land with the same type of person over and over again. Plenty of men of too but nobody gives a s*(t about them. Don’t really have sympathy for this type anymore. At a certain point you gotta let adults do what they want. Some people are just born victims.

      1. It’s actually learned helplessness, not some sort of “oooh, guys who beat women are teh sexy” vibe. Frequent abuse not only physically harms a woman but affects their sense of self-worth; many start assuming they must have done something to deserve this (in the same way sometimes a person who gets cheated on will blame themselves for not being sexy enough or a sufficient sexual partner).

        Honestly, unless you are talking about consensual kinks, there’s no excuse for anyone to be hitting women. So even if a woman is attracted to that sort of man, it is still a man’s responsibility not to hit her. So yes, you should sympathize with battered women.

        1. Hi, Dilan. We are sending the victims of spouse abuse from the shelter, to live at your house for a week. Report.

        2. I don’t know the precise term. But going right out of the starting gate for the bad boy and continually picking the type over and over again while drowning in a sea of far better more stable suitors who would die for you isn’t the first thing I’d use the adjective ‘helpless’ for. In any case history shows , there comes a point where its folly to intervene, whether as a beta male white knight or clumsy government bureaucracy. Its just a mess of their own making they’ll drag you down in. Its sticky reality colliding with the silly notion of gallivanting to the rescue of some damsel in distress. Which is basically the underlying subconscious mentality of most modern male feminists

          I have zero sympathy for the male equivalent. And they have the excuse of government/corpo brainwashing. So why should I feel sorry and rescue you constantly from your own decisions just because you got a vagina in between your legs? If womyn want to be treated like adults then they should start acting like it.

          1. I don’t know the precise term. But going right out of the starting gate for the bad boy and continually picking the type over and over again while drowning in a sea of far better more stable suitors who would die for you isn’t the first thing I’d use the adjective ‘helpless’ for.

            Well given there’s a ton of scholarship on battered women which describes the phenomenon, you should perhaps familiarize yourself with it rather than just opining blind on the issue.

      2. I look at it slightly differently — women make a benefit/cost assessment about potential bedmates. Yes, he may be dangerous and scary, but he also can provide things for her. Physical things, along with emotional things as well — if she has a thug boyfriend, people will be afraid of her as well.

        By shifting the median, we wind up encouraging her to associate with the thug as she is ensured against the consequence while free to enjoy the benefits.

        Women, who are smaller and weaker than men, have made these calculations for thousands of years — we’re just shifting their decisions toward the violent thugs — and away from the not-so-great guy whom she isn’t going to need society to rescue her from.

  3. Given that this law was enacted 24 years ago, there certainly must be data on how often this fact pattern actually comes up. (Or, to be more accurate, how often people are charged and have to rely on this defense . . . not sure how to ever find out how many situations avoided a prosecution due to this law.)

  4. Never underestimate the influence of ‘protecting the ladyfolk’s honor’ on society. That s&*t didn’t go away at all, in fact it is more omnipresent than ever in this age of supposed equality. This law might accidentally help a man out every now and then but make no mistake its one of those types. Its the same reason why sex offenders and even alleged domestic offenders are (often blanket) de facto considered a lower rank of criminal than even murderers.

    In large part because this type of crime is perceived as primarily victimizing (the poor and helpless) female. If it was primarily men being raped or slapped around and everybody knew it, this sort of thing would probably be considered in the same way as scoring that extra stuck candy bar for the price of one at the vending machine.

    1. There is a move in Massachusetts to free all women *convicted* of having murdered a male because of the presumption that he deserved it. They use fancier words, but that’s what it is…

  5. I am relatively strong on the side against stand-your-ground laws but I favor the Arkansas law that allows a threatened spouse of either gender to use force including deadly force against a spouse who is credibly threatening violence.

    Spousal violence is a horrific shame, and no one should have sympathy for a physically abusive spouse.

    1. Why? If your beloved wife was coming at you with a bat vs a slobbering methed up lunatic stranger you’d choose to kill your wife and run away from the stranger? Seems a pretty strange choice to me. But you do you I guess.

      1. AmosArch: Just to be clear, if someone is coming at you with a baseball bat, you will probably be reasonably afraid of death or serious bodily injury (e.g., broken bones), and can use deadly force to stop that whether in Arkansas or elsewhere.

    2. Sidney R. Finkel: I agree that spousal violence is shameful, but not all shameful things necessarily justify the use of deadly force to prevent them. Why should deadly force be allowed even in the absence of a reasonable fear of death, serious bodily injury, sexual assault, etc. in this context?

      1. I don’t disagree with you in theory, but in practice a person under physical attack from a spouse cannot in most case make the determination of whether or not the threatened or actual force is deadly or or serious or sexual or not. Obviously everything has to be decided on a case-by-case basis, but unlike say police shootings which involve strangers where the police have no idea of the violent or lack of violence history of the potential threat, a spouse has intimate knowledge of the potential attacker.

        I am not advocating the use of deadly force where there is an absence of a credible threat. Thus I think if the spouse can make a credible (and I use that word in my post) case that a physical attack imminent I think the spouse should be able to use deadly force to repel the attack.

        But you do point out the problems here, and as us economics profs continually point off, there are always tradeoffs.

        1. . . . we economics profs continually . . .
          (But you’re not an English professor, so you’re off the hook.) 🙂

    3. Sidney, would you include a male who had reason to believe the female would murder him in his sleep?

      Or, as one of my Section 8 clients did, run over him with her SUV in the parking lot of the apartment complex, and then (in front of horrified onlookers) drop the vehicle into reverse so as to run over him three more times. (Maybe it was only two — eyewitness accounts vary as they always will, but she definitely ran over him multiple times, killing him quite dead.)

      And the other side of this is when I was an undergrad. My younger sister had her big brother (me) come in to help her female friends who were dealing with abusive boyfriends, but not a one of these women would lower themselves to go out with me. I had a rusty clunker, not a sports car; a date with me would be to a movie and not to the premiere campus frat party.

      In other words, I wasn’t good enough.

      I can deal with that, and I didn’t help rescue them out of any expectation of sexual gratitude on their parts — I did it because of who *I* am and the type of person whom I am.

      But I categorically wasn’t good enough, didn’t meet the caliber of the men who abused them, but yet they felt it appropriate to ask me to rescue them from them. Years later, I concluded “Whiskey Tango Foxtrot…..”

      1. I’m sure what happened was she went back to help.

      2. “…And the other side of this is when I was an undergrad. My younger sister had her big brother (me) come in to help her female friends who were dealing with abusive boyfriends, but not a one of these women would lower themselves to go out with me. I had a rusty clunker, not a sports car; a date with me would be to a movie and not to the premiere campus frat party.

        In other words, I wasn’t good enough. …”

        Well, isn’t it more likely that all those woman merely accurately ascertained the same aspects of your personality that we all see you display here at this site? And quite understandably thought to themselves, “Is it possible to be in a healthy relationship with a serial fabulist?” And responded accordingly.

        Occam’s razor, and all that. (Is it really a 2020-2021 thing to change the spelling to’ Okkham?’ I saw it spelled only the first way for 4 decades, but have seen 3 different sites spell it the latter way just in the past 4 weeks. Can I somehow blame this on Trump? Or Obama/Hillary Clinton? Either will do.)

        1. “Well, isn’t it more likely that all those woman merely accurately ascertained the same aspects of your personality that we all see you display here at this site?”

          Fair enough, but this was a school that was 65%-70% male, and none of those were good enough either.

        2. It has been Occam or Ockham (but never Okkham) for centuries, named after William of Ockham but first appearing in Latin texts that unsurprisingly used the Latin expression “novacula Occami”.
          In his A History of Western Philosophy Bertrand Russell favored the Occam spelling, but I don’t know whether that was cause or result of its 20th century prevalence.

  6. I can see I will have a really hard time deciphering the newspeak in 2021.
    What in hell is an “intended bruise”?!

    1. Intended bruises is just my (apparently awkward) shorthand for a situation where someone is trying to attack you in a way that would leave a bruise, but fails (e.g., misses). To be precise, the law includes “purposely created apprehension of imminent physical injury, defined to include impairment of physical condition, infliction of substantial pain, or infliction of bruising, swelling, or a visible mark associated with physical trauma,” so perhaps threatened bruise might be more precise: You can take advantage of the law even if you haven’t been bruised in the past, but just been subjected to a purposely created apprehension of bruising.

      1. Medically speaking, bruises are insignificant in that they (a) may or may not appear, (b) bruising is not the medical emergency, and (c) it only appears later.

        While CVA fluid leaking out of your ear is the worst, physical assaults are generally categorized in terms of broken bones and/or concussions and then lesser injuries.

        Depending on a whole lot of factors, I can badly bruise one woman by grabbing her arm as she starts to fall but not bruise another with actual physical abuse. It’s a real issue in child abuse cases because bruising is so very inconsistent.

        Personally, I’d like to see a bit more objective medical standard…

        1. Very valid point. In Dependency Court, it’s incredibly common to have dueling medical experts, with one explaining how a bruise is evidence of abuse and the other expert explaining the 37 innocuous ways one can get the identical bruise. We (lawyers) hate these cases, since justice comes down to a coin flip . . . which particular expert manages to convince this particular judge on this particular day? No one I know feels good about this type of case–even when you’re ending up on the winning side.

  7. In WI, Jacob Blake was a serial domestic abuser shot by police, then a riot broke out. According to the NY Times, women should never call 911 on a black male because it is racist. This Arkansas law is clearly racist because it does not protect black males from being killed by their spouse/domestic partner.

  8. I don’t think a pattern of domestic abuse justifies a freestanding premeditated killing. The domestic abuse victim doesn’t appear to have to be in the middle of domestic violence to justify killing, there just has to be a previous pattern.

    A person in an abuse situation has a responsibility to leave before things come to that. If they are being effectively kidnapped, that’s justification under more traditional standards. But if not, they need to walk out the door and call for help. The fact that this may be psychologically difficult does not justify killing someone for what appears to be as little as mere simple assault without serious injury, even a pattern of it.

    1. Particularly since they have all the VAWA resources available.

  9. “You can’t use deadly force to defend yourself against a slap or a punch, unless you reasonably fear it will lead to serious bodily injury.”

    And how the hell would I know? A first punch can put me on the ground, where I can be kicked to death pretty quickly. Or another person can jump in and join the fun. If I’ve already been punched, I’m going all in. I was taught to keep hitting him until he’s not a threat any more. If that’s fatal to him, tough tittie. I’m not dying to satisfy legal scruples.

    1. JonFrum: I appreciate your point, but the law has taken that view that (1) a punch plus (2) the possibility that maybe, theoretically it might lead to death (or serious bodily injury) isn’t enough to allow the person being punched (or slapped or some such) to just take out a gun or knife and kill the attacker. Perhaps that’s the wrong rule, but it seems to me on balance a sensible one. There are very many simple assaults out there that can leave a bruise or a visible mark; thankfully, only a tiny fraction leads to death, and the prospect of avoiding that tiny risk doesn’t seem to me enough to justify deadly force.

  10. Seldom does any pattern of such abuse leave the abused in a sufficiently detached state to reflect on the intention of a balled fist. That may be the motivation for this law.

    1. MaverickNH: I appreciate your point, but wouldn’t that take you to JonFrum’s position, which seems to be that it’s OK to use deadly force — e.g., a gun or a knife — in any fight, at least by the person who was punched first? Do you think that should indeed be the rule?

      1. I suppose it just moves the decision back to what constitutes a “pattern of abuse”. That should be 1-on-1 abuse, not the 4th person to abuse a single individual or some vague notion of society to blame. I’ll use my daughter’s cookie rule: a cookie is one, two cookies is just that, a few cookies is anywhere between three and the whole sleeve of Girl Scout Thin Mints. Three suggests a pattern in most of our non-statistical lives. So I’ll stick with 3rd time’s the charm for lethal force.

  11. So “spare the rod, spoil the child” could lead to acquittal of spoiled child for killing disciplinarian parent?

  12. In Massachusetts we have “battered woman syndrome” as a judicially-created defense to some crimes.

    1. Actually ALL, they want to close MCI Framingham (the women’s prison) and not replace it…

  13. Likewise, a man could use deadly force if his wife has had a pattern of slapping him in the past (leaving “a visible mark”), and appears ready to do that now (and same with the sexes reversed).

    I don’t see a reason that this wouldn’t apply even if the man also had a pattern of committing and instigating violence.

    IOW, if a man had a pattern of beating his wife, and she had a pattern of fighting back outside the bounds of strict self defense, it sounds like he can beat her, and then kill her to prevent her from fighting back.

    1. The spouse can slap himself and take a selfie, several times. Now, the murder of his wife has legal justification.

  14. I wonder if the law violates the due process clause. Can the state make it legal to kill someone because they are alleged to have committed crimes in the past?

    1. Well, it’s not enough that there be crimes in the past; the law requires a reasonable fear of continued victimization. And in principle, considering attackers’ past behavior in deciding whether victims are entitled to defend themselves against imminent danger strikes me as reasonable (and indeed common). I just think that this particular law is likely mistaken; if the law had said that someone who had been the victim of serious bodily injury from X in the past can assume that X’s new attack will also threaten serious bodily injury, that would be much more sensible.

      1. ” And in principle, considering attackers’ past behavior in deciding whether victims are entitled to defend themselves against imminent danger strikes me as reasonable (and indeed common).”

        I don’t know. The only sense in which it strikes me as reasonable or common is if it’s used to form an inference about the likelihood of future harm.

        But that’s not the case with this law. Here you can use deadly force to prevent a particular harm only if the actor has committed the same crimes in the past.

        Someone losing legal protection for their life without due process is a due process violation.

  15. A brat needs a spanking several times a week. Now, this child can shoot the parent with legal justification. A brat loses his video game privilege several times a week. Now, this child can shoot the parent with legal justification. A brat gets verbally criticized several times a week. Now this child can shoot the parent with legal justification for emotional child abuse. Emotional abuse has a legal definition of, a derogatory statement. For example, a parent tells a child to stop embarrassing her in the middle of the Walmart, by acting like a fool. Emotional child abuse, according to the lawyer. We all know, words can hurt far more than any beating, meeting the factor of “infliction of substantial pain…”

    I have patience. When people get tired of the lawyer profession, I have the remedies to stop the most toxic occupation in the nation, more toxic than organized crime.

  16. I was an alternate juror on a murder for hire case where the woman got only 4 years on a diminished capacity defense because she had allegedly been abused.

    I didn’t get a vote, but I wouldn’t have bought that, she certainly showed she knew how to request the intervention of a third party to intervene, but rather than using the cops for free, she hired some farmworkers instead.

  17. First of all we need to thank Prof. Volokh for taking the time to reply to many of the comments on this Post.

    Second, there is a very ancient and valid principle in law that a person subject to a tort needs to do what he or she can to mitigate damages. That is, if someone runs a red light you do not have the right to let them run into you so you can collect the insurance by not trying to avoid the collision,m even though you are in the right and the other driver is in the wrong.

    The same is or should be true in the situations of domestic violence. A victim cannot kill when there was other reasonable remedies available. But what I think the Arkansas law is attempting to say iss that in the case of a threat from domestic violence the law will be more forgiving towards the victims who uses deadly force in the situation where they think serious injury or death is likely.

    Given that victims are usually serial victims and have been absused many times I do not think that is an unreasonable position. Annectdotal evidence, which admittedly is not all that great, would suggest there are far more cases where a spouse has suffered death or serious injury from continued abuse than where a spouse has taken advantage of the law to murder a spouse who is really not a threat.

  18. In the sweep of world history, peaceful but unhappy transfers of power have been very difficult to arrange, but somehow the British and we and then most of the rest of the West have gotten the hang of them.

    That’s bigger than one man, whatever his personality might be. And indeed, that the system works with the sore losers is ultimately a greater testament to it than its working with the gracious ones. True, it’s not Jan. 20 yet. But my prediction is that (setting aside the surface matters related to the epidemic) it will be a Jan. 20 of an inauguration year much like any other.

    Maybe you ought to lay off the predictions, eh prof?

  19. As far as the legal issues… loopholes, unintended consequences, etc there’s probably a lot of room to criticize this law.

    But simply in terms of the philosophy behind it… I think I agree with it.

    A person pokes you in the chest. You are not entitled to a justified defense commensurate to the threat. In this case you tell them to stop.

    They do it again… you tell them to stop with the follow up of some form of “or else”… presumably you’ll push them away.

    They do it again… you follow through with the threat and push them away, showing a willingness to use force, if needed, to end the threat.

    They do it again… you push harder and now raise your fists.

    They do it again… you punch them.

    They do it again… now what? You just punch them again, over and over, until they quit? Seems like the idea of escalating defense just stops here for some reason.

    Sure, they were just poking you in the chest. And for the first several times, that’s all the threat really entailed. Eventually, the poke was not really the issue anymore but the willingness of the other person to violate your physical space for the purpose of upsetting your mental state and serenity… a much more serious issue than a mere “poke.” The poke was merely the medium for a much worse desire to be carried out through. If we adopt some idea that the victim of aggression, at some point, must cease an escalation of force even though incremental escalation has thus far failed to effect a defense of a person’s rights, then we have given the game to the offender. The victim should always be allowed to trump the aggressor in terms of allowable force. And the force required to stop the aggression must be equitable. And while a mere poke in the chest should quelled with a “Stop that!”, if it is not, then apparently a “Stop that!” isn’t the appropriate amount of force and escalation is justified. This continues ad infinitum until the threat is neutralized. If that means deadly force… then don’t poke people in the chest.

  20. What a bizarre law! Thus, if Mr. Smith has hit and bruised Mrs. Smith twice before, she can buy a .45, goad him, and gun him down if he lifts his fist the third time. Right?

  21. The “goad him” term in your post shows where your prejudices lie in this discussion.

    The ‘Yes I hit her but she drove me too it” is the classic defense of a male spousal abuser. It is probably the most frequent excuse. It is morally, ethically and logically indefensible, shifting the blame from the abuser to his victim.

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