From Eugene Volokh, a difficult question arises of whether a drug dealer, during a deal gone wrong, has the right to defend himself by killing the other party to the criminal transaction. The story comes from the Baton Rouge Advocate :
But for those of us in common law jurisdictions, the question remains as to how this should play out. The argument that the right to keep and bear arms is based upon a natural right to defend oneself against others. Does this change if the defense happens in the course of a drug deal or other criminal transaction?
One easy answer is that it’s better to be judged by 12 than carried by 6. This, of course, answers nothing, since the question assumes that the person defended himself, the other person died, and the issue is whether this is a murder or justifiable homicide.
On the one hand, when a person engages in criminal conduct, the foreseeability of violence occurring is a problem. It’s hardly the same as an ordinary bloke walking down the street, attacked by a mugger and pulling out his Glock and blowing the mugger’s head off. This person is on the front page the next day as a hero.
But the drug dealer killing the drug buyer is both unlikely to win any awards and may have a very difficult time claiming that he was an innocent bystander to violence. It’s arguably the nature of the beast, at least at higher level drug deals. Indeed, many arguments have been made against a defendant charged with possession of a weapon with intent to use it that the weapon was there solely for defensive reasons, and that its possessor had no intention to use it affirmatively against anyone. In other words, drug deals are dangerous business, and a person needs to protect himself.
On the other hand, when one party to a drug deal threatens deadly force against another, does that person lose his natural, and constitutional, right to live? Would the law have him suffer a bullet to the head rather than defend himself? No matter how evil a criminal the person may be, does he not maintain his human right to defend himself from death at all times?
It seems to me that the law must distinguish between the underlying crime and the homicide, separating the rights and wrong of the two rather than bunching them together to determine whether defense is justifiable. Obviously, no one is going to let themselves be killed regardless of what the law says about it, taking comfort in the fact that they didn’t commit a second crime, even if they had to die to prove it.
While the drug dealer remains criminally liable for the drug deal, he would be entitled under the law to defend himself from an aggressor despite the fact that the killing occurred during the course of a crime, bearing in mind that this is expressly for a killing in self-defense, as opposed to a felony-murder. If the law was to do otherwise, it would essentially mandate that a person be required to allow himself to be murdered or be liable for murder. That’s an absurd choice.
While few people will be particularly sympathetic to the drug dealer who kills in self-defense, the difference between someone dealing drugs and committing murder remains huge, in concept if not always in sentence. No matter what one thinks of drug dealers, however, the law should never be construed to require someone to die to avoid criminal liability. The right to defend oneself is perhaps the most fundamental right we possess. No law should take it away.
Eugene deals with the case from a statutory perspective, addressing his disagreement with the prosecution’s position that the statute precludes a drug dealer from invoking justifiable homicide, and offers an excellent argument that the statutory limitation doesn’t apply in the way that the prosecution contends.Anthony Manzella … and Andrew Robertson … were on one side of an alleged drug deal … and … Johnny Barnes … was on the other side.Barnes’ companion, Jeral Wayne Matthews Jr. … allegedly struck Manzella[] in the head with a rifle butt before the deal was finished, and Manzella shot and killed Matthews with a .40-caliber handgun, Clinton police said in July….
Twentieth Judicial District Attorney Sam D’Aquilla said he interprets a section of the law dealing with justifiable homicide to preclude self-defense in drug deals that result in a homicide.
But for those of us in common law jurisdictions, the question remains as to how this should play out. The argument that the right to keep and bear arms is based upon a natural right to defend oneself against others. Does this change if the defense happens in the course of a drug deal or other criminal transaction?
One easy answer is that it’s better to be judged by 12 than carried by 6. This, of course, answers nothing, since the question assumes that the person defended himself, the other person died, and the issue is whether this is a murder or justifiable homicide.
On the one hand, when a person engages in criminal conduct, the foreseeability of violence occurring is a problem. It’s hardly the same as an ordinary bloke walking down the street, attacked by a mugger and pulling out his Glock and blowing the mugger’s head off. This person is on the front page the next day as a hero.
But the drug dealer killing the drug buyer is both unlikely to win any awards and may have a very difficult time claiming that he was an innocent bystander to violence. It’s arguably the nature of the beast, at least at higher level drug deals. Indeed, many arguments have been made against a defendant charged with possession of a weapon with intent to use it that the weapon was there solely for defensive reasons, and that its possessor had no intention to use it affirmatively against anyone. In other words, drug deals are dangerous business, and a person needs to protect himself.
On the other hand, when one party to a drug deal threatens deadly force against another, does that person lose his natural, and constitutional, right to live? Would the law have him suffer a bullet to the head rather than defend himself? No matter how evil a criminal the person may be, does he not maintain his human right to defend himself from death at all times?
It seems to me that the law must distinguish between the underlying crime and the homicide, separating the rights and wrong of the two rather than bunching them together to determine whether defense is justifiable. Obviously, no one is going to let themselves be killed regardless of what the law says about it, taking comfort in the fact that they didn’t commit a second crime, even if they had to die to prove it.
While the drug dealer remains criminally liable for the drug deal, he would be entitled under the law to defend himself from an aggressor despite the fact that the killing occurred during the course of a crime, bearing in mind that this is expressly for a killing in self-defense, as opposed to a felony-murder. If the law was to do otherwise, it would essentially mandate that a person be required to allow himself to be murdered or be liable for murder. That’s an absurd choice.
While few people will be particularly sympathetic to the drug dealer who kills in self-defense, the difference between someone dealing drugs and committing murder remains huge, in concept if not always in sentence. No matter what one thinks of drug dealers, however, the law should never be construed to require someone to die to avoid criminal liability. The right to defend oneself is perhaps the most fundamental right we possess. No law should take it away.
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I doubt I’m going to shock you by agreeing.
Seems to me that the legal status of the activity that the guy is engaged in when he engages in self-defense isn’t relevant (statutory issues aside). The reason that, say, a robber can’t legally shoot the clerk he’s busy robbing when the clerk goes for a gun to protect himself isn’t that the robber is engaged in an illegal transfer of funds, but that he’s the aggressor in the encounter, and the right of self-defense is just that — not the right of aggression, or vengeance.
Sliding down the slippery slope a bit, consider the first shot in the James Ersland case, but assume, for the sake of argument, that Mr. Ersland’s license had lapsed, making what he was doing as a pharmacist illegal. Should he (a more sympathetic kind of drug dealer in this hypo) become a murderer for protecting himself simply because what he was doing at the time was unlawful?
Sliding down the slippery slope a bit more, I’ll make a confession: I have, on one occasion, stayed overtime at a parking meter. That’s a violation, where I live. Hypothetically, put a short lobster in my pocket (not that I’d ever do such a thing, of course; butter gets all over everything) — would that mean that I wouldn’t be entitled to protect myself from somebody trying to kill me (either out of irritation over my flagrant violation of parking meter laws, outrage over the short lobster, or something else)?
I hope not, and — oops. Gotta go feed the meter.
I think this is the right method for deciding the basic rule. I think it’s in character (both in the UK and US) to treat drug crime as something much different from all other crimes (except, probably, paedophilia) but fundamentally it’s just selling a prohibited product, so it’s along the lines of selling “Rollex” watches (counterfeiting is a criminal offence in the UK, can’t speak for other countries) and I don’t think anyone thinks that you might lose self defence if you flog those.
Obviously, then there’s statute but that’s different.