The Volokh Conspiracy
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The Right to Defy Criminal Demands: Expensive Duties to Protect
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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[A.] Duties to Protect Generally
So far we've discussed whether refusing to comply with a criminal demand should itself be tortious, be criminal, or nullify one's right to self-defense. But sometimes the claim is that a criminal demand creates an obligation to take care to diminish the risk of the crime. To adapt scenario 2 from the Introduction,
- Danielle's abortion clinic has been firebombed in the past, by people who want it to go out of business or at least to leave town. The clinic is indeed attacked again, and visitors who are injured sue the clinic for negligently failing to take reasonable steps to prevent the attack, such as hiring armed security guards or installing armored doors.
The claimed negligent conduct, unlike in the initial scenario 2, isn't keeping the clinic open—it's keeping the clinic open without extra security. By imposing liability, the law wouldn't be ordering law-abiding people to obey the bombers' demands, and the bombers wouldn't be directly getting just what they want. But practically speaking, legally requiring such security can indeed hand the bombers a victory: Their actions would have increased the clinic's cost of operating, perhaps enough to lead the clinic to shut down.
This is close to the scenario in Rocky Mountain Planned Parenthood v. Wagner, decided in 2020 by the Colorado Supreme Court. The case arose from a 2015 mass shooting at a Planned Parenthood clinic. Injured visitors and survivors of a murdered visitor sued the clinic, claiming that the attack "was foreseeable, given the 'long history of violent direct attacks, killings and threats' against Planned Parenthood facilities," and that the clinic should therefore have taken extra precautions: They should have had continuous armed security (rather than just "three days per week and only for about four hours each day"); should have "erect[ed] a perimeter fence"; and should have "replace[d the clinic's] tempered glass entry door with a steel or otherwise bullet-resistant door."
The four Justices in the majority held that the case could go forward:
On these facts, we cannot preclude, as a matter of law, the possibility that a reasonable jury could find PPRM's allegedly insufficient security measures to have been a substantial factor in causing the plaintiffs' injuries, even given the magnitude of Dear's premeditated efforts to cause mass casualties without regard for his own survival or capture.
Perhaps, if pressed on it, the Justices might have said that a clinic could indeed say, "millions for defense, not one penny for tribute," defying the demands of those who would make the clinic close—but then the clinic would indeed have to pay some money, if not millions, for defense. And they rejected the argument of the three-Justice dissent, which warned:
[T]he majority's approach creates a perverse incentive: Knowing that women's health clinics are more threat-prone than other public-facing businesses, and that such clinics may be found liable for their failure to mitigate or prevent mass shootings, abortion opponents can increase the frequency and severity of their threats of violence in order to force women's health clinics to fortify their facilities to extreme levels. This, in turn, makes women's health clinics both prohibitively expensive to operate and virtually impossible to insure….
Moreover, this risk is not one that will be faced only by women's health clinics that provide abortion services. After today's decision, antisemitic fanatics can impose additional costs on synagogues, and White supremacists can inflict the same on Black churches or businesses.
I don't know how these concerns ought to play out in such situations. Perhaps the right to defiance should nonetheless carry with it a duty to take reasonable care to protect visitors or bystanders against the harms that may flow from such defiance, so long as that care simply involves reasonable expenditures rather than giving up one's activities. Nonetheless, the practical concerns raised by the Planned Parenthood dissenters strike me as important, and as worth mentioning.
[B.] Duties to Warn of Danger
Courts could likewise demand that people who have been threatened by criminals issue a warning to neighbors, visitors, and others, as a special kind of precaution:
- Danielle as been threatened with a crime by Craig if she does something (continues seeing a new lover, sells blasphemous books, performs abortion). She refuses to comply. Craig attacks her, and third parties—lovers, guests, neighbors, employees, coworkers, customers—get injured in his attack. They sue Danielle for failing to warn the injured parties of the danger, and giving them an opportunity to avoid the danger, including by shunning her.
I've tried to deal with that in some measure in my Tort Law vs. Privacy article, and just wanted to flag the issue here. But I do think that, though warnings are often seen as inexpensive precautions, mandatory warnings that one is being targeted by criminals pose unusually great costs. Ellen Bublick puts it well in praising a court decision that held a "woman had no duty to warn [her] date about her extremely jealous ex-boyfriend"—"[a] contrary view could let his violence control her life." And the same would apply, I think, to bookstores, abortion clinics, and other politically controversial organizations as well.
