The Volokh Conspiracy

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Another Case About "Bringing About the Difficulty"


I've been reading up recently on whether someone can be stripped of self-defense rights on the grounds that he "brought about the difficulty" by going some place where he knew or should have known he would likely need to use deadly force to defend himself. I blogged about the 1938 Wyoming State v. Bristol case, which generally says that, no, one doesn't forfeit self-defense rights this way; that, I think, is the majority view, but some jurisdictions take the opposite view.

Here's one such case, which I've written about before, but which I thought I'd note again, Laney v. U.S. (D.C. 1923); it appears to still be good law in D.C., as a 1998 D.C. case notes ("Reid cites State v. Bristol (Wyo. 1938) … for the proposition that he was entitled to a self-defense instruction 'untrammeled by [the] provoking-the-difficulty language embodied in [Instruction] 5.16-B.' We cannot follow these cases because they are contrary to seventy-five years of District of Columbia precedents, going all the way back to Laney."). An excerpt from Laney:

This appeal is from a verdict and judgment of the Supreme Court of the District of Columbia, adjudging appellant, defendant below, guilty of the crime of manslaughter. The indictment charged the defendant with the crime of murder in the first degree, growing out of the killing of one Kenneth Crall, during a race riot in Washington on July 21, 1919….

Defendant [William Laney] testified: "On the night of the 21st of July, 1919, I went to the theater with Mattie Burke, and came back and went up on Seventh street at the request of Teresa Dobbins, to get Florence and Garfield Wood. On my return to 617 Massachusetts avenue, as I got to the corner where the Home Savings Bank is located, a large crowd that was there started to yelling 'Catch the nigger' and 'Kill the nigger' and started to chase me. I ran ahead of them down Massachusetts avenue. When I got near to 617 Massachusetts avenue, I pulled out my gun and the crowd stopped chasing me. I went into the back yard ….

"I then put the gun in my pocket and went to the front again, intending to go back to my place of employment. The mob was attacking a house across the street, and were coming both ways on Massachusetts avenue, from the direction of Sixth and from the direction of Seventh street…. While I was in the areaway between 617 and 619, the mob came across from the south side of the street, firing and hollering 'Let's kill the nigger.' The mob was firing at me, and I shot in the direction towards Seventh street. I fired to protect my life…." [The shots killed Crall, who was apparently a member of the mob.—EV]

[I]n our opinion, viewing the evidence in the most favorable aspect, self-defense does not enter into the case.

It is clearly apparent from [certain] testimony that, when defendant escaped from the mob into the back yard …, he was in a place of comparative safety, from which, if he desired to go home, he could have gone by the back way, as he subsequently did. The mob had turned its attention to a house on the opposite side of the street.

According to Laney's testimony, there was shooting going on in the street. His appearance on the street at that juncture could mean nothing but trouble for him. Hence, when he … stepped out into the areaway, he had every reason to believe that his presence there would provoke trouble. We think his conduct in … going into the areaway was such as to deprive him of any right to invoke the plea of self-defense….

[W]hether or not self-defense can be invoked under the evidence adduced is a question of law for the court to determine. If the facts, in the judgment of the court, are not such as to admit of this defense, the issue should not be left to the mere speculation of the jury.

It is a well-settled rule that, before a person can avail himself of the plea of self-defense against the charge of homicide, he must do everything in his power, consistent with his safety, to avoid the danger and avoid the necessity of taking life. If one has reason to believe that he will be attacked, in a manner which threatens him with bodily injury, he must avoid the attack if it is possible to do so, and the right of self-defense does not arise until he has done everything in his power to prevent its necessity. In other words, no necessity for killing an assailant can exist, so long as there is a safe way open to escape the conflict….

In the present case the defendant was neither acting in defense of his property nor attempting to avoid an affray. His going out into the areaway leaves but one inference to be drawn, namely, that he knew his presence there would cause trouble.

Nor was he in a place where, under the circumstances, he had a right to be. If conditions on the street had been normal, he would have had the right to elect that way to go home; but he had no right to go there with another way equally available, if by so doing it would invite an affray, which would almost inevitably result in the taking of life.

Defendant's going from the back yard into the areaway was a voluntary act, and no principle of the law of self-defense is better established than that: "Where a person voluntarily participates in a contest or mutual combat for purposes other than protection, he cannot justify or excuse the killing of his adversary in the course of such conflict on the ground of self-defense." …

I learned about the Laney case from Prof. Margaret Raymond's Looking for Trouble: Framing and the Dignitary Interest in the Law of Self-Defense. Laney was represented, it turns out, by "William Lepre Houston, who was considered one of Washington, D.C.'s finest African-American attorneys," and who was the father of Charles Hamilton Houston, widely regarded as one of the main architects of the litigation that led to Brown v. Bd. of Ed.