The Volokh Conspiracy

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Buddha, Christ, and Hercules Walk Into a Bar, in 1938 Wyoming …

An interesting passage on self-defense, which I think represents the majority though not unanimous view.


In State v. Bristol (Wyo. 1938), the facts were generally (as summarized by a later case):

[T]he defendant had helped eject the intoxicated victim from a liquor store and cocktail lounge. The victim [Skogerson] later returned and proceeded to abuse the defendant verbally, threatening to "stomp his face in" when the defendant left the premises. The defendant took a gun with him when he left the premises and went to a café. Although the defendant claims to have been unaware of this, the victim was in the same café. The victim physically attacked the defendant, who shot him. The State claimed that the defendant was the aggressor because he armed himself and went to where the victim was.

The trial court had instructed the jury on self-defense, but added:

Instruction No. 16. You are instructed that if one is an aggressor or provokes a difficulty or affray, he cannot invoke the right of self-defense to justify the killing of his antagonist, unless he first, in good faith, withdraws or attempts to withdraw from the combat, and that, too, in a way that his adversary will see that he intends to withdraw, and he cannot justify the slaying of an adversary, because in the course of an encounter, when to save his own life or to save himself from great bodily harm it became necessary to kill, where he has been at fault in causing the difficulty in which he becomes endangered.

Instruction No. 17. You are instructed in relation to the law of self-defense, that one cannot claim the benefits of the law of self defense, after he has intentionally put himself where he knows or believes he will have to invoke its aid….

The state argued:

Bristol did not go home from the liquor store. He went out looking for Skogerson. He came to the restaurant armed and looked in to ascertain definitely if deceased Skogerson and Johnson were present. He went back before the booth where deceased sat as if to taunt him as a picador does a bull. He knew that his actions would provoke a quarrel and in the dimly lighted back hall he could shoot deceased with impunity.

The Bristol court responded:

The State thinks that he should have gone home, instead of going to the restaurant. The jury doubtless took that view, and it is not improbable that the fact that he did not go home was the most potent factor in convicting the defendant. And, ethically speaking, that, perhaps, is what he should have done.

Without saying what the true facts are in this case, it is true that standing upon one's rights is not always the best course. The predicament in which the defendant finds himself today is good evidence thereof. Many times it pays and pays in solid rewards to follow the advice of Buddha when he urged: "Let a man overcome anger by love; let him overcome evil by good," or to follow the advice of Christ when he exhorted: "Resist not him that is evil, but whosoever smiteth thee upon thy right cheek, turn to him the other also."

But we have not arrived at such happy age. The difficulties in the way of reaching such end seem to be more herculean than the labors of Hercules. The restaurant was a public place. It was in itself not an unlawful or wrongful act for the defendant to go there. If it was wrongful, it was made so because the deceased had made wrongful and unlawful threats. The mind recoils from drawing such illogical conclusion.

Logic, of course, must give way at times to the larger interests of ethics and public policy, and if the latter clearly required the defendant to avoid the restaurant in this case because of the threats, we should disregard the logic of the situation. But the point here under consideration involves ethics and public policy as well. It involves the balancing of the interests between liberty and freedom of movement and the restraint thereof.

It involves the question as to whether or not the law can afford to encourage bullies to stalk about the land and terrorize citizens by their mere threats. We hesitate to lay down a rule which would do that.

The principle involved here bears a similarity to the principle or rule prevailing in some jurisdictions relating to "retreat to the wall." In both is involved the rule of avoidance of homicide. The rule of retreat to the wall is applied (where it prevails) in cases of actual assault. In cases such as that before us, the element of time seems to be of greater importance, seemingly making a fairly distinguishing mark between the two classes of cases.

If a man must curtail his freedom of movement by reason of threats made against him, during what length of time must he do so? Is it for just a few hours, a day, a week, a month? It might be as fatal in the one case as in the other. In any event, whether our analysis is correct or not, at least some of the courts, as those of Kentucky and Alabama, which hold to the rule of "retreat to the wall" also lay[] down the rule that a man has a right to go where he will notwithstanding threats against him….

All would agree that a man should not be compelled to shun his own home in order to avoid the threatened, unlawful action of another. Few, if any, would dissent that the rule should be the same as to going to the place of a man's business. The differences of opinion would arise in connection with going to other places in the face of such threats. Probably all would agree that if it is necessary to go to a place, a man should be permitted to do so. But there are degrees of necessity.

A defendant would be apt to be disbelieved by a jury, as they probably disbelieved the defendant in this case, so that, if the question of necessity of going were made the criterion, a defendant would determine that question at his peril, and his liberty of movement would be materially curtailed. There is, perhaps, more room for debate in a case where the defendant merely at or for his pleasure goes to where his antagonist is. But … a man may [generally] go where he has a right to be, and we hesitate in view of the apparently overwhelming authority to that effect, to hold that such rule should not prevail in this state….

"The right to go where one will, without let or hindrance, despite of threats made, necessarily implies the right to stay where one will, without let or hindrance. These remarks are controlled by the thought of a lawful right to be in the particular locality to which he goes or in which he stays.

"It is true, human life is sacred, but so is human liberty. One is as dear in the eye of the law as the other, and neither is to give way and surrender its legal status in order that the other may exclusively exist, supposing for a moment such anomaly to be possible. In other words, the wrongful and violent act of one man shall not abolish or even temporarily suspend the lawful and constitutional right of his neighbor." …