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.

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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).

Comments

[John F. Carr]

I follow the... I don't know if there's a name for it so I'll call it the "trolley rule". Inaction is much easier to justify than action.

[DaivdBehar]

How about gun safety training for all law abiding high school students? How about requiring all law abiding citizens conceal carry? How about a duty to kill? If you fail to fire on a violent offender, you get a $100 ticket in the mail. All violent offenders can risk death and learn to fear the public. We are sick of the vile lawyer profession siding with and protecting, privileging, and empowering the violent criminal.

[Ben of Houston]

Please don't hate me for bringing this up, but this makes me think of the Rittenhouse case. People kept saying that he shouldn't have been there at the protest, but let's be honest. 3 out of the 4 people present were there with the express intent to burn down buildings. 1 out of the 4 was present to stop buildings from being burned down. You cannot condemn Rittenhouse without condemning the others more. He had no duty to let them commit arson, endangering lives and destroying livelihoods.

[MatthewSlyfield]

There was a bit more than simple arson going on. The first person Rittenhouse shot was trying to push a burning dumpster into a gas station</b. Think about that, the bad guy wasn't trying to torch any old building, he was trying to torch a gas station. That could level a whole neighborhood.

I don't have the means to verify it, but I saw a claim somewhere else that the gas station in question belonged to Rittenhouse's grandparents.

[Sarcastr0]

Lotta unsaid assumptions and ifs there to get that story going.

[ReaderY]

My objection to Professor Volokh’s analysis is that he has lunped together two very different categories and given them the same label, “criminal demands.” In my view, if the state can prohibit an action, it can impose liability to third parties when they are hurt by somebody’s reaction to it, even if doesn’t directly prohibit the action and it criminalizes the reaction.

I’ve also focused on a second limiting feature, a category of cases where the initial action is considered provocative and has an aura of moral wrong associated with, whether or not actually made illegal. In my view, the spouse who flaunts an affair is doing something analogous to the use of fighting words, and the flaunting spouse could be held liable to a person hurt by the other spouse’s angry reaction. After all, in most of the country states could prohibit adultery directly, and punish flaunting it more severely, if they wanted to. And some states still do exactly that.

The key, really critical difference here is that the demand itself is a completely legal one, jndeed a socially sanctioned one, even if threatening force to back it up isn’t. You can demand that your spouse stop an affair. In states with heart balm torts, you can hire a lawyer who can make this demand for you and threaten to sue as a consequence.

So a critical difference between the person flaunting an affair and a robber is that the robber’s demand isn’t itself a legal or socially sanctioned one. The cheated-on spouse may be making a demand in a criminal way, but the demand itself isn’t a criminal demand. The state can imposr a duty to comply with the demand whether or not force is used. The demander may not have a right to use force. But he has or can have the right to make the demand.

I see that as critically different from the robber case. The robber doesn’t have any right to make the demand. The demand itself is wrong.

This categorization doesn’t fit all cases. One issue is that whether something will provoke a reaction is a behavioral issue separate from whether it’s legally or morally correct, and it’s the tendency to provoke reaction that tends to support laws of this type.

An example I think relevant and that Professor Volokh may want to consider is that many states prohibit repossession of property or a car when the owner is present and objects, because of a tendency for altercations and sisturbances of the peace to occur. Here the repossessor has (in general) the legal right to use force, yet can be held liable because of the possibility of someone getting injured, and the defaulting owner may be able to get the car back. In some sense, the repossessor case is the opposite of the robber case, the person with a right to take can’t take because of the way others might react.

But here, even though the defaulting owner may have no legal or moral right to the car, and no legal or moral right to react to repossessing it with force, nontheless society’s experience is that people tend to react violently to others entering their homesteads and taking things. So there’s an empirical question of whether something naturally tends to lead to violence, independently of whether it’s justified or morally right. This view is also consistent with one that sees the state as the only appropriate party to use force in confrontation situations. If provate repossession is likely to lead to confrontation, it isn’t allowed.

Seen this way, a state which particularly values life over property, and which also discourages self-help and sees the state as the appropriate party to engage in confrontation, could impose a duty, if it wants to, for a robbery victim in a crowd to comply with the robber to prevent third parties from getting hurt.

Libertarians tend to have a weak conception of the stste and its role. But a stronger conception of the state is a permissable option.

[jimc5499]

I'm going into a store that has a "No Firearms on Premises" sign on the door, so I leave my legal weapon locked inside of my vehicle. While I'm in the store and armed person comes in and threatens to shoot the customers, including me, if the Cashier doesn't give him money. In my opinion when the store placed the "No Firearms" sign on the door, they removed my ability to protect myself. Don't they assume the responsibility for my protection because they remover the means for me to protect myself?

[John F. Carr]

That would be a good law to propose in a pro-Second Amendment state. In practice it won't lead to much litigation or threatened litigation, but it will be symbolic of something. It might cause a few knee-jerk anti-gun policies to be reconsidered.

[jimc5499]

In most cases it isn't "anti-gun policies" driving this, it is insurance companies trying to limit liability.

[Rossami]

I am not aware of any commercial insurance carriers that consider a 'no weapons' policy as an underwriting factor in either direction. Lots of establishments have such policies (and many don't) but I don't think you can blame insurance companies for this one.

[MatthewSlyfield]

No, but from what I've read, commercial insurers for retail businesses have forced those retail businesses to adopt a "don't be a hero" policy for their employees.

7-Eleven for example has been in the news more than once for firing employees who stood up to and stopped would be robbers.
https://csnews.com/7-eleven-wins-lawsuit

[Rossami]

That's not something that commercial underwriters look for either. What you're seeing are the adverse consequences of the way state-mandated workers compensation works.

If the employee tries to be a hero and succeeds, the company saves the amount of cash or merchandise actually protected - which at your average Stop-and-Rob is pretty low. If an employee tries to be a hero and fails, their injuries are 'in the line of duty' and covered by workers comp - which bills are likely to be large and immediately reflected as premium increases to the employer.

Remember that workers compensation is not like other commercial insurance. It's not really "insurance" at all. Workers comp is mandated and often even run by the state. Worker's comp is 'risk-pooling' only to the extent that there's a pot of money to reimburse employees if the company goes bankrupt. Excluding bankruptcy and dissolution, 100% of workers comp payouts are passed back to the individual employer - with a slight time lag and a biggish overhead charge.

So, no, I don't think you can fairly lay this one at the feet of commercial insurance carriers either. Those are risk/reward calculations by business managers making (hopefully) rational decisions within the incentive system set up by state bureaucrats.

[Andrew Dhuey]

I think this is a situation where the recognition of such a duty would quickly become known on the street. Scores of stores, restaurants and the like would tell their employees they must turn over some loot when a robber threatens customers. That's a lot of employees who would know the new rule. They'd likely mention it to others.

[Ben of Houston]

Except multiple companies do actually have that policy. Large chain gas stations and convenience stores almost always have the policy to not fight back against any armed robbers, with the explanation that your life is worth a lot more than the money in the cash register. This is well known and publicized. People don't do it because they are afraid of getting caught on the video cameras.

[WPHDM]

RE: "putting the force of law behind robbers' demands will increase robberies and thus jeopardize even more lives."

First of all, the proposition that (judge-made common-law) policy x leads to an increase in the incidence of y is an empirical, not a legal or moral, proposition, and would therefore require empirical data and a good research design that would lend itself to at least tentative conclusions as to causal effects, and strength thereof, if any, compared to absence of the policy in question, or a different regime used as a baseline for comparison.

More basically and facially, however, the framing and reasoning seems faulty.

As for framing, the law cannot be said to be backing the robber when the robber acquires no civil claim against anyone (and hence no incentive) and instead remains fully liable for his criminal act it tort, to the extent those acts involved in the robbery episode are also actionable as civil wrongs. More importantly, the robber isn't relieved of criminal liability, and the threat of punishment (deprivation of liberty) under criminal law surely is a more potent deterrent than civil liability. So, even if there were some favorable civil liability implications for the robber (say, an insurer pays damages to third-party victims/claimants and the victim/would-be civil-law plaintiffs then forgoes any civil claims against the robber), that would have no effect on the robber's criminal liability.

Finally, from a common-sense perspective, how realistic is it that an armed robber would study the jurisdiction-specific tort law first before deciding whether to hit a commercial establishment, like a store, gas station, restaurant, or bar? All the tort-liability stuff is retrospective and - I would submit - the deterrent effect of tort liability considerations simply doesn't apply in the armed-robbery context. And remember that even the deterrent power of the criminal law often fails. How would the vast majority of garden-variety criminals be influenced by whether the different classes of victims of his crimes (such as business and customers in a store or restaurant robbery) can sue each other for negligence or premises liability?

But then again, there may be hundreds of thousands of court opinions and judgments in the ever-expanding Anglo-American corpus, so some freak case befitting a strange and seemingly fallacious premise can probably be ferreted out in the course of diligent AI-assisted gophering.