The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Defying Criminal Demands

The Right to Defy Criminal Demands: Negligence and the Robber's Explicit Demands


I've just finished up a rough draft of my The Right to Defy Criminal Demands article, 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 situation 3 from the Introduction: Craig comes to rob Danielle's store; he is demanding money, and Danielle has reason to think that, if she doesn't comply, he'll injure some of the patrons. Does this make Danielle legally liable if she refuses to comply, on the theory that she has an affirmative duty to protect her business visitors, and failing to give in to the demands violates that duty?

No, several courts have ruled, expressly recognizing a "no duty" rule. The most prominent case is Kentucky Fried Chicken of California, Inc. v. Superior Court, from the California Supreme Court:

[A] shopkeeper does not have a duty to comply with the unlawful demand of an armed robber that property be surrendered…. Recognition of a duty to comply with an unlawful demand would be contrary to public policy as it would encourage similar unlawful conduct….

[T]he standard of a "reasonable prudent person under the circumstances" is the general standard of care [for property owners' duty to protect their visitors]…. [But] in particular situations a more specific standard may be established by judicial decision, statute or ordinance.

The court pointed to several appellate precedents from other states that so held. Part of the court's rationale was pragmatic:

[T]he public interest would not be served by recognition of a duty to comply with a robber's demands…. [W]e are not satisfied that persons who commit armed robbery would not become aware of and be encouraged by the existence of such a duty. Moreover, we have no basis upon which to conclude that compliance actually prevents injury to robbery victims. The public as a whole is much better served if would-be robbers are deterred by knowledge that their victims have no legal duty to comply with the robber's demands and are under no duty to surrender their property in order to protect third persons from possible injury.

And part was rights-based:

We agree with KFC that no duty to comply with a robber's unlawful demands should be imposed …. Both article I, section 1 of the California Constitution and Civil Code section 50 recognize the right of any person to defend property with reasonable force…. Recognizing a duty to comply with an unlawful demand to surrender property would be inconsistent with the public policy reflected in article I, section 1 of the California Constitution and Civil Code section 50…. Simple refusal to obey does not breach any duty to third persons present on the premises.[1]

Three of the seven Justices, however, dissented, refusing to hold that "a business proprietor is never required to subordinate any of his own property interests—no matter how insignificant the object and no matter how slightly it is jeopardized—to his customers' safety—no matter how many they are and no matter how gravely they are threatened." "'In­alien­able rights'" to defend property, the dissenters reasoned, "are not ipso facto absolute rights."

And one appellate case I know of seems to support the dissenters' view, though on peculiar grounds. In Massie v. Godfather's Pizza, two robbers robbed a pizza store, and threatened to rape an employee if the manager didn't turn over the money; when the manager refused to comply, they did indeed rape the employee. She sued the store, and the court allowed the case to go forward. But the court relied in part on the restaurant's stated policy of complying with robbers, which "created [Godfather's] own duty to the public," and didn't more closely confront the arguments that KFC would later make, or that the cases KFC cited had earlier made.[2]

To be sure, Kentucky Fried Chicken has been controversial, for two reasons. First, the majority's reliance on defense of property is perplexing given that the case didn't involve "active resistance to a robbery," and indeed the court expressly declined to consider what would happen had it involved such active resistance. The case involved simply a claimed right to passively refuse to comply. [3] And, second, to quote one criticism,

KFC held, not only that the store's property rights outweighed the lives of those in the store, but also that the property interest in the small amount of money in the cash register—perhaps $150—outweighed the lives of even a large number of customers.[4]

But I don't think that the court was simply saying that people can value their property above others' lives. Rather, it was arguing that, first, in the aggregate, putting the force of law behind robbers' demands will increase robberies and thus jeopardize even more lives. And, second, to the extent it cited the right to defend property, I think it was doing so to support not a right to protect property as such, but rather the dignitary right to refuse to "comply with an unlawful demand" (even a demand that seeks only property).

In this respect, KFC fits well, I think, with the no-duty rationale of Hurn v. Greenway. It would be wrong for the law to restrict Greenway's liberty "by imposing a duty to 'refrain from teasing or bullying someone known to be potentially violent.'" Likewise, it would be wrong for the law to restrict KFC employees' liberty by imposing a duty to refrain from provoking robbers. "[Such liability is] particularly troubling where, as here, the 'provocation' is an act of resistance."

To be sure, Greenway was in her own home, and was refusing to comply with Evans' an implicit demand to stop showing affection to a friend, a demand motivated by jealousy; the KFC employee was in his workplace, and was refusing to comply with the robber's explicit demand to hand over money, a demand motivated by greed. Perhaps the value of being able to kiss a friend while dancing is greater than $150. But at bottom, I think, the KFC employee's refusal wasn't about the money; it was about a refusal to obey criminal demands. In both cases, the law shouldn't punish such refusal.

[1] One might make a different argument against liability: that the KFC employee's actions were undertaken in the heat of an extraordinarily stressful situation, and therefore ought not be second-guessed by a judge or jury. Some states expressly take such an approach as to emergencies generally, usually under the rubric of the "sudden emergency" doctrine (also known as the "imminent peril" doctrine): "[A] person who … is suddenly and unexpectedly confronted with … imminent danger … is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments." Abdulkadhim v. Wu, 53 Cal. App. 5th 298, 301–02 (2020) (cleaned up). But see Bedor v. Johnson, 2013 CO 4, ¶¶ 23–26 & n.2 (2013) (abolishing the doctrine, and citing other states that have done so). To borrow a phrase from a different context (self-defense law), perhaps "Detached reflection cannot be demanded in the presence of an uplifted knife." Brown v. United States, 256 U.S. 335, 343 (1921). But that was not the court's rationale in KFC; and I think cases like McBrayer (the abortion clinic nuisance case) suggest that the right to defy criminals' demands should extend beyond reactions to sudden threats, and extend to situations where defiance does indeed stem from reflection.

[2] Query whether focusing on the defendant's own policies is a sensible approach to duty questions (regardless of whether it might be apt as to breach-of-duty or foreseeability questions).

[3] The court held that it "need not decide if that right [to reasonably defend property] is qualified by the duty to avoid injury to third persons or if a duty exists to avoid physical resistance that might provoke a robber into carrying out a threat to harm third persons," because the facts involved pure refusal to comply and not active resistance.

[4] Dilan A. Esper & Gregory C. Keating, Abusing "Duty", 79 S. Cal. L. Rev. 265, 321–22 (2006).