The Volokh Conspiracy

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Defying Criminal Demands

The Right to Defy Criminal Demands: Negligence and the Estranged Spouse's Criminal Demands

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I've just finished up a rough draft of my The Right to Defy Criminal Demands article (6 years in the making), and I thought I'd serialize it here, minus most of the footnotes (which you can see in the full PDF). I'd love to hear people's reactions and recommendations, since there's still plenty of time to edit it. You can also see previous posts (and any future posts, as they come up), here.

[* * *]

Let's return to the Introduction and to our Danielle, whom Craig is trying to force to do something through threat of criminal attack. Danielle, like all of us, "ordinarily has a duty to exercise reasonable care when [her] conduct creates a risk of physical harm." That includes a duty not to unreasonably increase the risk of criminal attack: "The conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or permits the improper conduct of the plaintiff or a third party." Thus, for instance, Danielle could be sued for negligence if she hires someone who foreseeably criminally attacks her customers, or if she lends a dangerous weapon to someone who foreseeably uses it to attack someone.

Say then that Danielle is aware that Craig is likely to violently attack her if she does X (is publicly seen with a new lover, continues to perform abortions, or sells a blasphemous magazine) or refuses to do Y (hand over the property that Craig is demanding). And say that bystander Paul is then injured in such an attack. The Paul v. Danielle lawsuit could easily be seen as raising a jury question as to whether Danielle is liable:

  1. Danielle's conduct created a risk of physical harm. Though the conduct was not dangerous by itself, it became dangerous because of the threat of Craig's attack. And even if Danielle is being faulted for not acting, for instance by not turning over property to a robber, she may still have had a duty to prevent the risk of physical harm, for instance to customers of her business.
  2. This risk is foreseeable, if Craig has made such threats, has engaged in such attacks in the past, or is just known to Danielle to be a person who would be enraged by her conduct (e.g., an estranged husband whom she knows to be violently jealous).
  3. Danielle's conduct would be the but-for cause of Paul's injury, since, had she complied with Craig's demands, it's more likely than not that Paul wouldn't have been injured.
  4. It should therefore be up to the jury to decide whether Danielle acted reasonably in doing X or not doing Y, balancing the costs to her of complying with the demands against the benefits to Paul of avoiding Craig's violent attack.

Consider some concrete cases, which I lay out below.

[1.] Touchette v. Ganal

Mabel Ganal had an affair with David Touchette, and soon left her husband, Orlando Ganal, to move in with her parents. Orlando then broke into the parents' home, murdered the parents, and injured Mabel and their son. He drove to the Touchette family's home, blocked the doors and set the house on fire, murdering four Touchette family members and severely injuring a fifth. (David Touchette himself wasn't there.) Orlando then set fire to his ex-employer's premises, though no-one was injured there.[1]

Touchette's sister, Wendy Touchette, then sued on behalf of her murdered relatives. Among others, she sued Mabel, claiming that Mabel had acted negligently in provoking Orlando, and the Hawaii Supreme Court agreed that the case could go forward:

Mabel had a duty to refrain from [her own] conduct that would create an unreasonable risk of harm to another through [Orlando] Ganal's conduct…. [A]ppellant's complaint against Mabel in the present case alleges affirmative conduct, or alleged "misfeasance" on the part of Mabel, in that "defendant Mabel Ganal initiated and maintained a course of conduct which involved taunting and humiliating defendant Orlando T. Ganal, Sr. by flaunting her extra marital love affair with David Touchette" (emphasis added), … [which] "… caused defendant Orlando T. Ganal, Sr. to suffer severe and extreme emotional and mental distress and depression," thereby implicating the duty [to exercise reasonable care when one's conduct creates a risk of harm to others] ….

The alleged "taunting and humiliating" included, in addition to "flaunting" the affair, telling Orlando that Touchette was a better lover than he had been. (The court noted that Mabel wasn't being held liable for the omission of failing to prevent her husband's crime, but for her affirmative acts in provoking the crime.) The case later settled for a six-figure amount, paid by Mabel's homeowner's insurance. Some years later, a Florida trial court case followed Touchette in similar factual circumstances. And the result fits the logic of modern tort law, as laid about above.[2]

To be sure, Touchette doesn't fit perfectly into the pattern I discuss in the Introduction (which is why my Touchette-based hypothetical alters a few elements): There is no allegation that Orlando had expressly demanded that Mabel not taunt him. Still, the case strikes me as quite analogous. Presumably Mabel knew that her jealous husband wouldn't want to hear about her new relationship and his own inadequacies, even if he had never expressly demanded that she not "taunt" him about such things. And the Touchette decision holds that people in Mabel's shoes have a duty (as part of their duty to avoid creating unreasonable risks of harm to others) to avoid such behavior that fails to comply with such unstated demands backed by the threat of violence.[3]

More broadly, under the logic of Touchette, a demand such as the one I hypothesize in the Introduction would even more clearly create a duty to comply. It would just make even more foreseeable the possible harm to third parties if the demand is defied.

Of course, this decision simply left the matter to the jury; it didn't hold that the jury had to hold Mabel liable. Nonetheless, such denials of motions to dismiss will often lead to the case settling because of the risk of liability (and the expense of litigation)—that is what happened in Touchette. And they send a normative message about duty: The duty to take reasonable care may sometimes include a duty to obey criminals' demands, even if it's up to each jury to decide what was reasonable under the facts of the particular case.

[2.] Hurn v. Greenway

Carrie Randall-Evans was married to Jeffrey Evans, but the marriage wasn't going well: She was frightened of Jeffrey, who often insulted and threatened her, and she was staying at a friend's house to avoid him. At the friend's, she met Simone Greenway, and the two became close.

Some time later, Carrie and Greenway were at Greenway's house, and Jeffrey (with whom Carrie had continued to have a relationship) was there as well, as was Bill Anthony, a friend of Greenway's.

… Carrie and Greenway sat at one end of the couch and held hands; Carrie appeared afraid but did not discuss why. Greenway said that Carrie sat next to her "like she wanted [Greenway] to protect her." Jeffrey asked Carrie and Greenway, "[W]hat would you girls do if somebody came in that door right now, after you?" Carrie and Greenway gave each other a high five and said, "[W]e'd kick his ass."

Carrie and Greenway began … dancing. While dancing, Greenway and Carrie kissed and touched each other. Greenway acknowledged that they were "laughing and joking and making fun out of [Jeffrey]" and that she was teasing Jeffrey "on purpose," with the intent of punishing him "because he was a jealous man." Greenway said that while she was laughing at Jeffrey she was attempting to express to Carrie the nonverbal message that "you don't have to be afraid…. [T]his my domain, you don't have to be afraid here." While being teased, Jeffrey "had no emotion, showed none whatsoever. He was stone cold, no emotion."

Shortly after that, Jeffrey shot Greenway (who survived) and Anthony and Carrie, who died.

David Hurn, the father of Carrie's two children, sued on their behalf; he sued both Jeffrey's estate (which settled for $800,000, but was unable to pay it) and Greenway. His claim against Greenway was that "Greenway was negligent when she made sexual advances towards Carrie Randall-Evans while her husband Jeffrey Evans was in the home."

Now obviously Greenway and Carrie were doing something risky, especially given that they knew that Jeffrey had threatened Carrie before, and Carrie was afraid of him. Greenway had a legal duty to act reasonably when creating a risk to others; and but for her actions, Jeffrey likely wouldn't have attacked Carrie (or at least wouldn't have attacked her as violently). Under the reasoning of Touchette, there likely would be a jury question as to whether Greenway acted unreasonably.

But the Alaska Supreme Court rejected the Hawaii Supreme Court's views. First, it concluded that "Jeffrey's violence was not foreseeable," even though "Greenway knew that Jeffrey had threatened Carrie with physical harm in the past; Carrie was afraid that Jeffrey would kill her; Jeffrey was a jealous man; on the night of the murder Jeffrey sometimes wore a 'stone cold expression' that betrayed no emotion; and prior to Greenway's dance, he had issued a veiled threat: 'What would you girls do if someone came in that door right now, after you?'" "It is not clear," the court held, "that homicide could ever be the foreseeable result of mere teasing, and Greenway could not foresee such violence here."

But the court didn't stop there, perhaps in part because foreseeability is usually a question for the jury; rather, it held Simone's duty should be limited, as a matter of law:

Hurn asks us to reduce domestic violence in this state by imposing a duty to "refrain from teasing or bullying someone known to be potentially violent." But we refuse to give victims the duty to prevent their own abuse and then hold them liable when they fail….

And if Greenway is liable for taunting an abusive husband, it follows that victims themselves may be liable for provoking their partners if the result is harm to a third party…. . [Such liability is] particularly troubling where, as here, the "provocation" is an act of resistance. [Footnote: The sparring, dancing, and teasing at issue were a direct response to Jeffrey's not-so-veiled threat to Carrie and Greenway's physical safety …. While they were sparring and dancing and laughing at Jeffrey, Greenway was expressing to Carrie: "[T]his is my domain, you don't have to be afraid here."] We reject the idea that victims are responsible for the violence they endure in the home, and we will not blame them for their otherwise reasonable actions simply because those actions foreseeably result in violence….[4]

It seems to me this logic is correct, and can fit negligence law in two possible ways.

First, one could say that, as a matter of law, Greenway's conduct was not unreasonable. Perhaps nonviolent "resistance" to "abuse" is never unreasonable, maybe because the dignitary burden of having to avoid such resistance would be too great. [5]

Second, one could conclude that there ought to be a limitation to the normal duty "to exercise reasonable care when [your] conduct creates a risk of physical harm"; to quote the Restatement (Third) of Torts,

In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.

Perhaps this is one of those exceptional cases, a right to defy criminals—a right not to have adjust one's behavior to obey a criminal's implicit demands—making up this "countervailing principle or policy."
[3.] Rojas v. Diaz
Patricia Diaz was fleeing her abusive husband, David Alvarez, "who had physically and emotionally abused Patricia and threatened to kill her." Patricia's aunt, Celia Diaz, let Patricia and Patricia's sister Veronica Diaz stay with her, though she "made it clear they could only stay at her house for three days because she was concerned Alvarez might go after Patricia, and she 'didn't want any problems.'" Indeed, on the third day, David Alvarez came to the house and killed four people who were there (but not Patricia and Veronica, who had left that morning). One of the murdered was Manuel Rojas, who had done some gardening for Celia earlier that day and had come back for a drink of water.

Rojas's family sued Celia for negligently failing to warn Rojas of the danger posed by Alvarez (so that, perhaps, Rojas might have skipped coming to mow the lawn while Veronica was there and the threat from Alvarez was most serious). The Court of Appeal held that this didn't state a claim, because the attack by Alvarez wasn't sufficiently foreseeable:

Patricia had communicated to Diaz that she was afraid Alvarez would harm her brothers; Diaz thought Alvarez would come after Patricia at Diaz's house, so Diaz limited Patricia's stay to only three days; Diaz was aware of Alvarez's propensity for violence and that he had threatened to kill Patricia. While these facts suggest that Patricia was in danger of continued physical abuse at the hands of Alvarez, they do not logically point to the events that took place on September 29, 1996, during which Alvarez showed up at Diaz's home with a female accomplice who proceeded to help him rob, stab and shoot the occupants of Diaz's house.

And this might have reflected the California rule that "third party criminal acts [should be analyzed] differently from ordinary negligence, and require us to apply a heightened sense of foreseeability before we can hold a defendant liable for the criminal acts of third parties."

But a similar scenario can easily arise when an attack is indeed foreseeable, even under a heightened standard, and when the alleged negligence wasn't just a failure to warn but the decision to harbor a stalking victim. Say, for instance, that

  • Alvarez had actually tried to shoot Patricia in the past (so a subsequent attempt to kill was much more foreseeable);
  • Celia had decided to let Patricia stay indefinitely;
  • Alvarez came to Celia's house, shot at Patricia, and injured a tenant or neighbor of Celia's; and
  • the injured party sued Celia, claiming that letting Patricia stay at her house unreasonably increased the risk to tenants and neighbors.

This would squarely raise the problem with which this Article deals.

[1] I generally refer to the parties by their last names, except when two parties share a last name, in which case I use the first name to avoid ambiguity.

[2] Note that the court expressly rejected the view that Mabel had a duty to control Orlando as her husband. Touchette, 922 P.2d at 355. Its rationale rested entirely on Mabel's having engaged in "conduct that would create an unreasonable risk of harm to another through Ganal's conduct," id., by allegedly "flaunting her extra marital love affair with David Touchette" and taunting and humiliating [Orlando] with respect to that affair," id. at 358.

[3] The same would apply in situations involving property damage to third parties (e.g., arson, vandalism, and the like) that is factually caused by a defendant's provoking plaintiff; negligently causing property damage is of course also actionable under the negligence tort.

[4] The court mentioned Touchette briefly, and distinguished it on the grounds that "the allegations in that case"—"that the wife taunted and humiliated the husband and caused him 'to suffer severe and extreme emotional and mental distress and depression'—"were more severe than the uncontested facts in this one." But it seems to me that the logic of Hurn would justify the opposite result from Touchette even on Touchette's facts.

[5] For another example of resistance, though one that has fortunately not led to a murder, see Letitia Stein & Colleen Jenkins, Mohammad Cartoonist Says U.S. Police Killing of Two Gunmen 'Justice', Reuters, May 4, 2015 ("For the cartoonist whose portrait of Mohammad won a Texas contest, the police killing of two gunmen outside the meeting place was justice…. [Bosch] Fawstin's winning entry depicts a sword-wielding Prophet in a turban shouting, 'You can't draw me.' In reply, a cartoon bubble portrays the artist, his hand grasping a pencil, as saying, 'That's why I draw you.'"); cf. John F. Trent, Cartoonist and Graphic Novelist Bosch Fawstin Faces Numerous Death Threats After Drawing Muhammed, Bounding Into Comics, Sept. 10, 2018, https://‌boundingintocomics.com/‌2018/‌09/‌10/‌cartoonist-and-graphic-novelist-bosch-fawstin-faces-numerous-death-threats-after-drawing-muhammed/‌; 2005 Will Eisner Comic Industry Awards, http://‌www.hahnlibrary.net/‌comics/‌awards/‌eisner05.php (noting that Fawstin's earlier work had been nominated for a prominent award). Fawstin's defiance may stem in part from his being "an ex-Muslim atheist." Robert L. Jones, Bosch Fawstin: Infidel Activist, Atlas Society, Mar. 1, 2018, https://‌www.atlassociety.org/‌post/‌bosch-fawstin-infidel-artist. Cf. Stop the Cartoonist Bosch Fawstin Who Draws Prophet Muhammad (Peace Be Upon Him), Change.org, https://‌www.change.org/‌p/‌kevin-systrom-stop-the-cartoonist-bosch-fawstin-who-draws-prophet-muhammad-peace-be-upon-him (petition with almost 50,000 signatures demanding that Instagram remove Fawstin's account).

NEXT: Today in Supreme Court History: January 19, 1990

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  1. This installment reminded me the aftermath of the killing of Nicole Brown Simpson. Word on the net was she flaunted her new boyfriends and provoked her ex, O.J. Simpson. If that could be proved, would deceased third party Ron Goldman's estate or survivors have had a claim against Nicole's estate?

  2. Seems perverse, to call one person the but-for cause of another's actions, when they remain free to make their own choice to not be violent.

    1. People can be perverse sometimes. Hit someone’s knee with a runner mallet, and they ought to be free not to jerk it. Expose them to bacteria, and they ought to be free to decide whether to get sick or not. Deprive them of food, and they ought to be free to decide whether to starve or not. Human beings are perverse creatures who don’t always fully realize the freedom that they rationally ought to have.

      It’s totally perverse. Just as reason dictates that human beings ought to be completely free to decide their actions, reason also dictates that the Earth, the home of such important and completely free beings as ourselves, ought to be the center of the universe and not move around the sun. And yet, perversely and contrary to reason, it moves.

      1. Exactly none of those examples support the argument that "the devil made him do it". Yes, hitting someone's knee triggers an (almost completely) uncontrollable reflex. No, it's not an involuntary reflex to go out and murder a bunch of people. Your arguments do not absolve the criminals in the examples above from their exercise of free will.

        Now, you could maybe argue that some of the criminals above were mentally ill to the point that they didn't have free will. But that same argument would cut against the claim that the crime victims were responsible for the criminals' actions. Unless (and now we're really on thin ground), you're also arguing that the crime victims managed to intentionally (or maybe just negligently) make the criminal mentally ill in the first place.

        1. Professor Volokh has chosen to lump together and describe as a single category a very disparate set of cases which I think need to be handled very differently. I am focusing on the hisband who, angered about his wife’s flaunting her lover in front of him, lunges in anger and strikes a bystander. You are perhaps thinking about the carefully planned firebombing of an abortion clinic that results in a bystander being injured. I see the two cases as radically different in kind and requiring different legal treatment.

          As I’ve said, I see the set of cases where it’s permissable to impose 3rd party liability as an extension of the fighting words doctrine. As the doctrine recognizes, people have a tendency to react in anger in certain circumstances, and the state can impose a duty not to create those circumstances. When it can impose a duty not to do something directly, it can also (or instead) impose the lesser duty of not injuring 3rd parties as a result of its occurrence.

          For 3rd party liability to occur, there has to be the equivalent of a fight provoked by the equivalent of fighting words. The 3rd party has to be injured as s result of an immediate reaction to the provocation. This rules out premeditated conduct.

          Thst clearly covers the spouse-flaunting-the-lover case. And it clearly doesn’t cover the carefully planned fire-bombing of the abortion clinic case. When there is premeditation, there is the ability to get out. But the law has traditionally recognized, and it is permissable for the law to recognize, that there are situations where people tend to react immediately without thinking.

          This is why I made my comment that people are only partially rational, not perfectly so. And it’s just the way people are, whether we like it or not. Believing it shouldn’t be so more fervantly, punishing people more savagely, won’t make it not so.

        2. A second very critical feature of the fighting words analogy is that the demand itself isn’t inherently criminal, although a threat to use violence to enforce it may be. The state could make the demand legally enforcible. Continuing to use the spouse-flaunting-the-lover case as fbe example, the husband’s demand to drop the lover could potentially be enforcible in court by a heart balm tort, and in a state that has the tort the husband’s lawyer could send a letter saying that if the conduct doesn’t stop immediately he will sue, or perhaps demand higher punitive damages.

          If a state can prohibit conduct directly, a demand to stop the condict simply isn’t an inherently criminal demand. Professor Volokh’s characterization of it as a “criminal demand” is simply false in this case, and I object to it strongly.

          Again, if a state can prohibit conduct directly, it can create a duty not to due it enforcible by tort, so people can perfectly legally hire lawyers to demand that it stop. And in that case, the state can take the lesser step of holding people who do the conduct liable to third parties who are injured if a person provoked by the conduct resorts to heat-of-the-moment self-help violence. And it can do that even whole also making resorting to self-help ciolence a crime.

          1. This sure fits the current politically correct trend of believing that people have a right to not be offended. The fighting words doctrine was never a good idea. When we lay down societal expectations of self-control, we get more self-control. When we say people need to coddle abuse, we get more abuse.

            That people other than the person who didn't develop discipline and self-control is responsible definitely decreases freedom.

            A wife should be able to flaunt an affair with her abusive husband. You are reinforcing the idea that she doesn't have the right to resist him in a manner that he finds offensive.

          2. Seems like the hypotheticals assume the legal conclusion: that the "threatening" conduct at issue is criminal. That may be clear in some scenarios (gun-wielding robber's demand for money to be handed over), but not at all so in others, such as a command to cease and desist from engaging in obnoxious and possibly actionable (or even illegal behavior) or practicing self-defense in situation of immediate threat.

            And what about using verbal (counter)threats (invocation of impending adverse consquences) in efforts to persuade another person to stop acting in a way that poses a danger to another, especially where the threat to be averted is immediate and there is no time to consult the Southwestern or any other Reporter? And as for self-harm prevention, what if a good samaritan jumps ("assaults") a person moving toward a passing train at a RR crossing in a bid to prevent that person from committing suicide through instant physical restraint? Or violently pushing or grabbing them to get them off a the ledge of a freeway overpass or bridge? Are these acts criminal?

            COARSE SEX-ROLE TYPING

            The other glaring problem here is sex-based stereotyping and propagation of traditional gendered conceptions. The posited legal issue(s) involve general propositions, but then the author immediately invokes the notion that men do bad things to women, and the woman is always at the receiving end -- i.e., the victim -- by personalizing the actors in his hypotheticals with male and female first names. Craig is the bad violent perp, Danielle the damsel in distress. Surely we can do better. Particularly when the fact scenarios involve questions of legal regulation in interpersonal relationships. Gender-neutrality anyone? Family Codes are required to be gender-neutral to the best extent possible, or at least so construed. Why can't legal scholarship live up to that standard too?

            Here we have "estranged spouse" behaviors vignetted (spouse as the gender-neutral concept for what used to be called "Husband & Wife" in the legal taxonomy, which is proper), but then again immediately it goes to Craig being the jealous husband and Danielle needing protection from such interference on her liberty to enjoy a satisfactory love life or just having fun and freedom at will with other dudes. The subtext is that the husband is in the wrong, and the wife is not, and that she is much rather in need of having special legal doctrine developed by law school professoriate for her benefit.

            Then take the abortion facility context. First, firebombing is incendiary and detracts from a serious exploration of the issues of first amendment limitations on clinic protest activity. Where is the line between the practice of first amendment freedoms and criminal trespassing/obstructing conduct? Not such a simple question, except for partisans on the Life/Abortion front. How many feet from the clinic entrance? And picking the most extreme fact scenario (fire bombing) to buttress the purported merits of a general proposition can hardly be said to constitute fair and nuanced argumentation. Not to mention being persuasive.

            And then Craig v. Danielle again. What is even the justification for equating an abortion facility with a named female person, other than propagating sexist precepts and partisan pro-abortion agenda? Please note that the clinics themselves are physical structures and they typically operate as legal entities (businesses). See the roster of plaintiffs that are actually in the abortion business in Whole Women's Health case: numerous legal entities. And as for the abortionists themselves (physician licenses required by law, so actual persons), they are both male and female providers. It's not an all-female enterprise even though the customers are all biologically female for physiological (capable-of-becoming-pregnant) reasons.

            Bottom line in case you missed it: Men of the species bad and violent, women good and in need of special legal solicitude.

            And that sort of gender-role stereotyping should at least be questioned regardless of any statistical patterns in prevalence in certain hypothetical scenarios because justice is to be dispensed at the individual level.

  3. While the 9th Circuit has decided if knows better than the Supreme Court, elsewhere it’s been made clear that the state can impose a duty not to have an affair and not to flaunt it. The North Carolina appelate courts upheld punitive damages for flaunting an affair. And in an extreme case, when a psychiatrist a husband had turned to for family therapy had an affair with the wife in their home, the North Carolina appelate courts absolved the husband of liability for slashing the psychiatrist’s tires in a fit of rage.

    If you can impose punitive damages for flaunting an affair, if you can absolve people of liability for property damage for minor acts of violence on grounds the rage is understandable, you can hold fhe person who flaunts the affair liable if the spouse becomes enraged and hurts somebody.

    Similarly, if based on the experience of society the conduct would provoke a reasonable person to violence or even a common unreasonable person - none of us are completely ressonable all the time - third party liability can be imposed. This is what I mean by considering the situation an extension of the “fighting words” doctrine. If you can prohibit fighting words, you can prohibit fighting conduct.

    I understand there’s an exception for constitutionally protected conduct, since this argument only applies to conduct the state can prohibit directly if it wants to. If it can prohibit it directly it can impose liability for collateral consequences. And frankly, one reason for being very reluctant to find constitutional rights to do things people tend to respond to violently to unless actually in the constitution, is that it’s not the business of courts to increase violence in society. Courts shoild think about the consequences of their actions to 3rd parties before acting.

    But in general, if the conduct is not constitutionally protected and society’s experience indicates it tends to be provocative, imposing liability to 3rd parties hurt by the reactions of the person provoked is a permissable policy options. It may not be wise or politic in a particular situation. But it’s permissable.

  4. "The Right to Defy Criminal Demands"

    May I suggest you change 'right' to 'duty'?

    There is no justice in holding one person (Danielle in these examples) responsible for the criminal acts of another (Craig).

    1. By the reasoning (?) of some of the examples, Pelosi is responsible for the insurrection of January 6th because she taunted half the country with her insane claims about the election.

      1. She taunted Trump and she should have known he was crazy.

  5. It seems that a more common case needs to be added to the discussion.

    Boyfriend announces that if girlfriend breaks off the relationship, he'll kill not only her but her family.

    Girlfriend breaks off the relationship, boyfriend behaves as he threatened.

  6. Fascinating, and I look forward to the whole thing in full law professor footnoting…????

    The example of acting so as to cause the jealous husband/ex-husband to kill the lover is an interesting one… reminds me very much of Joel Feinberg’s paper Causing Voluntary Actions from the early 70s. A worthwhile article if you don’t know it. I used it as part of an analysis of entrapment law back in law school….(at UCLA)

    1. You want footnotes, you can get footnotes (or at least most of them) in the PDF draft.

  7. I guess I am a cold-hearted S.O.B. I could see, somewhat, reducing the charges against the murdering husband, if it had happened immediately, in the heat of the moment. But to go to two houses and a business and murder people is long past the heat of the moment and straight-up intentional murder. Same with murdering people three days later. Especially the three day one; how much longer is everybody else supposed to walk on eggshells to avoid provoking the jealous husband? A month, a year, forever? The wife left; if the jealous husband had murdered her as she was leaving, suitcase in hand, maybe reduce the charge. But not after she had left.

    Isn't there some kind of self-defense limitation, that if you back off from a fight that you didn't start, walk away, tap out, whatever makes it clear you are leaving and the fight is over, you don't get to claim self-defense if you come back even seconds later with a gun and shoot the attacker.

    There have been lots of cases of drunks leaving a bar to get a gun from their car and come back and shoot up the bar. They don't get to blame their victims for provoking them, do they?

    1. I think you're mixing up two different issues. Whether the bad actor is criminally liable is separate from whether the other person can be liable for provoking the bad actor.

      1. IANAL, but the mixing up is what is wrong. The guy is a murderer, cold-blooded, not acting in the heat of the moment. No one else provoked him into a passionate mistake. He thought this through and made his decision independent of any provocation. Especially that three day one -- how long were the aunt and wife and everybody else supposed to wait before they no longer bore any responsibility for the husband's murderous rage?

        If the argument was fighting words or some such which provoked an instantaneous response in the heat of the moment, that's one thing -- fighting words. When the murderer instead acted afterwards, how can any provocation still matter?

  8. It seems to me the distinguishing factor is whether the initial/underlying conduct is legally wrongful or not.

    Adultery, the conduct in the first case, is still grounds for liability in many (all?) states.

    Flirting is not, nor is moving out of an abusive situation.

    Think of another example. If you are running an illegal bar and gambling parlor, and several of your customers get in an altercation with various third parties on the street, you are much more likely to be responsible for injuries/damage to third parties thank if you were running legal restaurant and the same thing happened.

    It has been a long time since Torts class, though, so this may be completely wrong.

  9. If we (society) reasonably expect Craig to restrain his passions -- we punish him criminally, despite some lenience for heat-of-passion -- why can't Danielle reasonably expect the same? She's part of society. How can we fault her (and let her be punished) for reasonably expecting what we all reasonably expect?

  10. Re: "How can we fault her (and let her be punished) for reasonably expecting what we all reasonably expect?"

    Thank you for a chance to chomp on that ... and cough something up. Here we go:

    1. We (any one) can fault other people as we/they please within libel and slander constraints as construed authoritatively by select sets of others. See First Amendment cum jurisprudence at federal and state levels. Legal fault, however, requires either a civil or criminal determination by a court of competent jurisdiction (sometimes with the help of a jury). So, unless I sit on a jury, I don't get to weigh in and let things happen or not. How does the same not apply to you and anyone else. As for policymaking courts, it could be argued that they are democratically accountable if they are elected, as is true in Texas, but the connection to particular rulings/holdings is still rather tenuous even under such circumstances. This factum - i.e. the nature of normsetting and tort-duty imposition and who gets to do it -- puts a real-life damper on prescriptions issued through law review articles, even if they are otherwise deemed of impeccable quality.  

    2. So how do "we" let her be punished when the relevant liability determinations are made by a court based in typically fact-intensive cases that don't lend themselves easily to bright-line rules or application of precedent. The negligence aspect of such incidents is rather complex, not just a matter of whether a bullet was fired and penetrated the skin of an employee or customer, and the size of the resultant hospital bill as a monetary measure of actual damages.

    3. As for Daniela being "punished", there is a very important distinction between criminal and civil liability, and the remedy in the latter is known as "damages" (measured in dollars), which often implicate insurance when the incident giving rise to the lawsuit occurred on the premises of a retail establishment. When you complain about her being "punished", you are implicitly equating civil and criminal consequences. Not legit. Nor is there occasion to talk about punitive damages  (which sounds like punishment, but still doesn't involve incarceration) in a civil case when this issue under discussion is mere negligence.  

    4. On rooting for Danielle. Since the posited concept of resistance is a general one (and at a rather elevated level of abstraction where cheated-upon husbands are equated with armed robbers and abortion clinic arsonists), "our" judgment of the merits of tort-law rulings by state courts of last resort should not be influenced by whether the tort defendant is a female, a male, or a corporate entity.

    5. On being punished for "reasonably expecting what we all reasonably expect". Leaving aside the tautology aspect of the locution, "she" (the business) isn't being "punished" (sought to be held liable in a civil suit) for any expectations on "her" part, but for acting or not acting in a particular way (complying with what the robber demands) in today's fact scenario. Clearly this is behavioral and not merely attitudinal.

    Finally, and again from a practical (as distinguished from an academic) perspective, retail companies can and do have policies of how to deal with robberies and train their agents accordingly. Retail banks, which get hit frequently, can and do limit the amount of cash available that a teller could fork over, and there is also marked robber money for tracing and along with other technical devices and systems designed to promote apprehension and recovery of the haul. Other retailers also limit the amount of cash and may require  employees to drop cash beyond a certain pre-set amount into a safe they do not know the combination for. The point of these examples is that financial-loss mitigation can be achieved at the operational level (with no needs for legal doctrines), and that it makes a lot of sense for cashiers to be instructed by their employer to turn over whatever little cash is in the drawer in full when they have a gun pointed at them. Additionally, the greater risk is for the employee to get shot when resisting, and the employer being liable at the minimum for the employee's work-related injury (or the workers compensation carrier, which might perhaps adversely affect the insured's claims history and related risk rating and future premium costs).  

    That said, there is of course an obvious need for doctrine because trial courts can't control the cases that come before them. So, if a Volokh-scenario Robber Craig Shootee v. Danielle, Inc. case can't be dismissed outright on jurisdictional grounds, the judge will be faced with competing arguments in favor and against theories of civil liability (at the summary judgment/motion to dismiss stage probably), and some decision will have to be made pursuant to applicable law (state caselaw, in large part). And if much injury or premature death is at stake, and deep pockets or insurance coverage are potentially available to be tapped, it may be worth pursuing a case on appeal, where the controlling caselaw might even be altered, at which point lawyers for at least one side will be in a position to cite Professor Volokh's contributions to the criminal-demand discourse.

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