License to Kill? The Morality and Legality of Self-Defence

In a recent exchange on Facebook, I tried to explore the legal and ethical questions raised by a recent shooting in Oklahoma, and, having failed to get a debate going there, thought I would explore them further here.  A young teen mother, recently widowed, and home alone with her infant son, was besieged in her home by two men, one armed with a 12-inch hunting knife, demanding entry.  The woman grabbed her pistol and 12-gauge shotgun (what do you expect? it’s Oklahoma!), retreated to her bedroom with her baby, called 911, and aimed both guns at the front door.  She asked the 911 operator if it was fine for her to shoot the intruders if they entered.  The operator replied more or less, “I won’t tell you should, but I won’t tell you shouldn’t.”  As soon as the man with the knife broke down the door, she fired the shotgun and killed him instantly; the other man, on the other side of the house, fled as soon as he heard the shots fired.  The woman was not prosecuted.   

In the media, this was reported with a clear tone of approbation, hailing the gritty heroism of the young mom, and the woman, without any hesitation or apparent remorse, declared that she would do the same thing again if need be.  My friend on Facebook (whose response was fairly typical of most readers) linked to the story as a case of why gun laws and self-defence laws in the US were so great; in France or England, he said, the woman would be prosecuted (for the record, this is not quite true: both French and English law permit the use of reasonable and proportionate force in self-defence and defence of one’s home; while gun laws in those countries would certainly limit the range of acceptable weapons that the young woman could have had in her home, she would not have been left without viable options.  And, for the record, there is no indication that these strict gun laws make society more dangerous, as my friend implied; on the contrary, murder rates in the UK and France are 1/4 of the US murder rate).  Others joined into the discussion more or less to vaunt about how this was a fine example of the American way—”if you set foot in my house, I’ll shoot ya!”

But is this a cut-and-dried case of legitimate self-defence?  Not quite.  Of course, before going any further, I should say that my point here is not to impugn the actions of the young mother.  One could hardly have asked her to have been less trigger-happy in such a terrifying situation, and no equitable legal authority, it seems to me, should prosecute her.  Nonetheless, there is a difference between the right thing to do and what is understandable and forgivable, and the gloating response of most readers of the story suggests a disturbing lack of ethical sensibility. So I would like to use this as an opportunity to reflect on what law and ethics ought to say about such cases in general, not to cast any blame in the woman in this particular case (especially as I know far too little about the details of the case to be certain if the conditions discussed below were met or not).

 

There are, it seems to me, potentially four different levels at which to consider this question—the ethical ideal, the ethical permissibility, the legal permissibility, and the legal enforcement (though these will not always be different).  The first concerns the question: what is the morally best response, from a Christian perspective at any rate?  I confess that I am still not clear on the answer to this question.  Most of the Christian ethical tradition has always considered killing in self-defense to be perfectly appropriate, but I have never been entirely comfortable with this conclusion, or with the arguments usually used to reach it; certainly, the New Testament and the earliest Christian tradition do not seem to share this perspective.  Of course, it might be argued that the young woman was killing in defence of another—her infant son—which all but pacifists would endorse as the right thing to do, but this is perhaps not a strictly accurate description, given the apparent intentions of the intruders (However, if it turns out it was a matter of defending her son, not herself, that would not change any of the principles below, I don’t think).  On the whole, my (unsettled) view is that to kill in self-defence is not morally ideal, but it may well be morally permissible, which is to say it can be done without sin.  

However, for it to be an un-sinful action, certain conditions would have to be met, among which the following four appear to me particularly salient: (1) there is strong indication that the assailant intends to do potentially mortal harm to you; (2) there is no escape route; (3) the assailant is warned of his peril, and given every opportunity to reconsider and retreat; (4) the intention is to simply to stop the assailant, not to kill him unless that is absolutely necessary (e.g., if you are pinned down with no escape route and he is armed with a gun, in which case merely disabling him might not neutralize the threat).  I do not know all the details of this situation, but it appears that only the first two conditions were met—there was good reason to believe the assailants intended to attack her, not merely her property, and because there were two of them, one on each side of the small house, there was no escape route.  However, it does not appear that the third condition was met, since (a) the assailants were armed only with one knife between them, and would have been rash indeed to continue the attack if they knew they were up against a pistol and 12-gauge shotgun, (b) the second assailant fled as soon as he heard the sound of gunfire, suggesting that this was not something they were prepared to face, and (c) the first assailant was shot as soon as he broke down the front door.  Nor does it appear that the fourth condition was met, given that (a) he seems to have been killed immediately, and (b) the woman implied in subsequent interviews that she had fully intended to kill him.

Now, what should the law say?  Well, my first instinct is to say that the law ought to approximate the moral permissibility as much as is possible.  This will not always be the case (there are certainly a number of things that we would say are morally impermissible, which the law ought not to attempt to regulate), but when we are talking about matters of life and death, the law should be concerned to draw the line right at the point of moral impermissibility.  Now, I say “as much as is possible,” because many of the factors that might make a given action morally unacceptable may be beyond the reach of the law to accurately determine.  In this case, however, I think we would want to say that a good law would for the use of reasonable and proportionate force in self-defence—which is to say that, to the extent that one’s person genuinely was (or genuinely appeared to be) threatened, and to the extent that force was one’s only (or only reliable) recourse, to that extent, force is justified.  So, if an intruder is unarmed (and otherwise unlikely to be capable of inflicting mortal harm), deadly force would not be justified; and if an assailant can be disabled or otherwise eluded without deadly force, deadly force would not be justified.  Now, as a principle, the standard of reasonable or proportionate force may be difficult to apply in particular circumstances, but it seems a good legal principle, more ethical at any rate than the so-called “Castle Doctrine,” operative in Oklahoma and most US states, which allows a homeowner to employ deadly force against any intruder believed to have unlawful intent, with no duty to take advantage of an opportunity for retreat. 

As it turns out, the biblical guidance we have on the subject appears to bear out my first instinct here (always nice when that happens, eh?).  In the Old Testament law, which, while not always functioning as a good guide to ethical ideals, often serves as a good indicator of what should be considered morally permissible, or at any rate, worth socially tolerating, we have a case law that bears directly on this in Exodus 22:1-3.  This case law stipulates that if a thief is killed breaking into a house at night, the killer will not be held guilty before the law; however, if he is killed in the day, it will be homicide.  The Jubilee Foundation has an excellent discussion of the intention and application of this law, and how it might apply to contemporary issues of self-defence.  The gist, however, appears to be that at night (before artificial lighting), a homeowner will probably not know the intention or the threat posed by an intruder, and will probably not be in a position to seek assistance if he or his family is mortally threatened.  Therefore, he is permitted to kill first, ask questions later.  However, if it is daylight, then he is in a better position to assess the threat, to escape, or to seek assistance, and may only kill in direct self-defence, not merely  because an intruder has broken into his home.  Now, of course the application of this law will be somewhat different in a modern setting, when we have firearms, 911, and electric lights.  The general principle, however, seems to be that (1) deadly force is only justified in defence of life, or when there is good reason to believe that life is being threatened, and no time to determine clearly if it is or isn’t; (2) deadly force is not justified when mere property is being threatened, or when one may ensure one’s safety without deadly force; (3) when in doubt, the law should give the benefit of the doubt to the person attacked. 

This last point leads to the last question, that of legal enforcement.  In the Old Testament law just mentioned, law-as-written and law-as-enforced are elided, since what we have here is a case law, and a system in which justice simply does not exist outside of its concrete administration by local judges.  For us today, the concrete administration of justice is separated from the creation of legislation, and it is in the administration of justice that the important principle of “equity” comes in—the idea that it is not always necessary or helpful to impose the full rigour of the law, given the circumstances.  This is important in the Oklahoma case before us.  To my mind, the Oklahoma law (which follows the Castle Doctrine) is unjust.  The young woman’s actions (killing as first resort, not last resort) were also unjust.  However, no equitable judge should punish her for them.  She was 18, had been widowed the previous week, had a infant child, and was alone and terrified at night.  Did she fail to warn the intruders that she had a gun and was prepared to shoot simply because she was scared, or because she wanted to kill them?  Perhaps we will never know.  But she should be given the benefit of the doubt, and considered to have acted in what seemed to her at the time the only way to defend herself.

 

Nonetheless, excusing her action is not the same as praising it, glorying in it, or using it as proof that every citizen should be armed and empowered with sweeping rights to kill in defence of self and property. 

7 thoughts on “License to Kill? The Morality and Legality of Self-Defence

  1. jvangeld

    I was going to say that electric lighting does not necessarily make it much easier to determine a criminal's intentions in the middle of the night, but then I read the linked article and saw that the point had already been made. Other than that, I would note that Common Law legal systems have a high regard for "Disparity of Force" whereby a man with a knife can be determined to be as dangerous as a woman with a gun. Likewise, there is no question of deadly force when two drunk brawlers are duking it out with their fists, but there can definitely be such a question when a martial arts instructor strikes someone.Oh, and thanks for the link to the Jubilee Centre. I will definitely take a look around there.

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  2. Kent Will

    Brad, I looked carefully through the Facebook comment thread you mentioned (assuming I located the right one) and found no hint of gloating over a death qua death–only joy that a widow and her fatherless child were delivered from their oppressor. Nor did I find any instance of the (much-over-hyped) American "touch my stuff and I'll kill ya" mentality.

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  3. Brad Littlejohn

    Kent,Thanks for flagging that—I was actually telescoping together, for the sake of brevity, the comments on Facebook (which, as you say, were really fairly reasonable, given that my friends are fairly reasonable people) and other comments I read, posted on the various articles about the subject (which were on the whole much more egregious). Given that, for most of my blog readers, the Facebook interlocutors would be just as unknown as the latter, that seemed reasonable enough, but for those of you who know the people involved on Facebook, yes, it is important to say that they were not saying such foolish things. I apologize for the lack of clarity there. (For the record, I didn't say anyone was gloating over death qua death; certainly some were gloating over the superiority of American gun rights.)

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  4. Kent Will

    Hi Brad,Gotcha. That makes sense. I've done the same thing myself in the past. (Also for the record, the "death qua death" remark was only to distinguish one kind of gloating from another, since some of the comments could be viewed as gloating over death qua deliverance (for the mother). So I was more trying to anticipate a potential rebuttal than put words in your mouth, if that makes sense. 🙂

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  5. Peter Escalante

    Brad,This is a really excellent and measured consideration. I think I understand why you suspect that the NT doesn't really allow for killing in defense of one's self-and I'm not opposed to polishing the haloes of Boris and Gleb- but all the same I'd like to see a sketch of the exegetical argument you would make (and what you think those two swords were about!). I'd also suggest that since our selves are rarely sole, the idea of pure self-defense is mostly abstract; in this case,for example, besides the matter of the intrinsic good of her own innocent life, the mother, qua mother, needed to defend her own life for the sake of the child's need of her. Just as a policeman's personal existence, in defending himself while on duty, cannot really be separated from his official character, neither can a mother's self-defense be separated from her office as mother. paxP

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  6. Brad Littlejohn

    Apologies for the slow response–I've been kinda swamped lately. As it is, it won't be a proper response anyway:I really appreciate the question. Your angle is pretty much exactly that of Luther's treatise on the Sermon on the Mount (1530, I believe), and of course, I'm sure that's no coincidence. You may recall that around a year ago (or was it two years ago? goodness I've been here awhile), I was doing a series of posts on the Sermon on the Mount, and was none too fond of Luther's approach there. But I never finished that series, because I wasn't at all satisfied that I'd figured out what angle I wanted to take myself. As it is an important issue, I would like to revisit it, and I'm glad you've prompted me to do so. But I would like to do so in a proper post, with lots of time to analyze things properly, not in a comment. So let me give you a promissory note, and feel free to nag if I'm slow on redeeming it.

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