I’ve long been curious about the “duty to comply with negative demands,” an analog to the duty to retreat suggested by the Model Penal Code (based on the Restatement (First) of Torts) and implemented in Connecticut, Delaware, Guam, Hawaii, Maine, Nebraska, New Hampshire, and New Jersey. (Alabama and Pennsylvania had such a rule, but recently repealed it.) Under this doctrine, a defendant loses the right to use lethal force in self-defense if he knows that
he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take.
That always struck me as shockingly broad — read literally, if Vic tells Don, “stop seeing my ex-girlfriend or I’ll kill you,” Don must stop seeing the ex-girlfriend or else lose the right to use lethal force to defend himself against Vic. Likewise, if Vic tells Don, “stop burning this flag / displaying this cartoon of Mohammed / picketing with this sign, or I’ll kill you,” Don must abandon his First-Amendment-protected activity or else lose the right to defend himself with lethal force against Vic. Perhaps prosecutors agree, and are skittish about using this theory, because I’ve found only one case in which it seemed to have been argued, State v. Savage, 573 A.2d 25 (Me. 1990); I thought I’d pass along an excerpt and see what people thought (some paragraph breaks added):
[James] Savage was a lead singer and rhythm player in a blue grass band called the Shilo Mountain Boys, led by the victim, C. Sumner Morrill. Shilo Mountain Farm was the name of the Morrill home in North Baldwin. Savage, who was married, had an affair with Morrill’s wife that lasted until October 1987. During the affair Savage received personal letters and tapes from Mrs. Morrill.
On November 7, 1987, Savage and his wife went to Shilo Mountain Farm. Savage brought a loaded revolver, a tape recorder and copies of letters and tapes from Morrill’s wife. As a result of an earlier confrontation, Savage was aware that Morrill did not wish to discuss Savage’s relationship with Morrill’s wife. After Morrill and Savage had settled some business matters, Savage placed the tape recorder on the table and said he wanted Morrill to hear something.
Morrill said he did not want to hear it, he knew all about it, this was his home and that he would have to get his “persuader.” Savage fired four shots at Morrill, the first two in his chest, a third through the side and a fourth through his back as he was kneeling on the floor. Savage testified that Morrill had previously threatened to kill Savage and that he thought Morrill referred to a gun when he mentioned “persuader.” …
[Savage] argues that the evidence was insufficient to warrant the instruction given, pursuant to 17-A M.R.S.A. § 108(2)(C), that Savage was not justified in using deadly force if he knew that he could with complete safety comply with a demand by the victim that he abstain from doing something that he was not obliged to do. Contrary to Savage’s contention, the evidence justified the court’s instruction concerning the victim’s demand that Savage abstain from referring to Savage’s relationship with the victim’s wife.
Indeed, Savage himself testified “[the victim] says I don’t want to talk, there’s nothing to talk about it, damn it, he says and that is the end of it, real firm, real belligerent and real right — outright.” Moreover, the instruction, as given, was not vague. Rather, the court addressed specifically the victim’s alleged demand concerning the playing of tapes, showing of letters or discussion of Savage’s relationship with the victim’s wife.
Note that Savage might have lost his self-defense rights under a different doctrine, which is that he, “[w]ith the intent to cause physical harm to another, the person provokes such other person to use unlawful deadly force against anyone.” This, though, would require the jury to find a specific purpose to provoke Morrill to attack, rather than just a knowledge that Morrill would likely attack based on Savage’s conduct. (The instructions apparently instructed the jury about both the intentional-provocation theory and the duty-to-comply-with-negative-demand theory, and it’s not known which theory the jury accepted.) Also, the behavior that Morrill demanded Savage forgo doesn’t seem terribly socially valuable — Morrill was simply demanding that Savage not play a particular tape for Morrill, in Morrill’s own house yet, rather than interfering with what Savage might choose to do with the tape (or with Mrs. Morrill) in the future. The opinion is unclear, but it might be that Savage did’t reasonably think that he was facing an imminent deadly attack from Morrill. And Savage’s adultery is also hardly appealing conduct.
But what troubles me about the duty-to-comply theory is that it doesn’t seem to include any such limitations (nor is it clear how such limitations could be turned into legal rules). Say Mrs. Morrill was about to put on jewelry that Savage had given her, and Morrill had said, “don’t put that on or I’ll kill you,” and Mrs. Morrill put them on and then shot Morrill as he was reaching for his gun. Under the Maine statute, as plausibly interpreted by the Maine court, it looks like Mrs. Morrill might have lost her self-defense rights, because of “the victim’s demand that [Mrs. Morrill] abstain from [displaying signs of] Savage’s relationship with [Mrs. Morrill].” And the same would be true if this was the now-formerly Mrs. Morrill, about whom Morrill was still jealous.
Is the Mrs. Morrill hypothetical (or the one involving the flag-burning or the Mohammed cartoons) legally distinguishable from the actual case, given the text of the Maine statute? Should both the hypothetical Mrs. Morrill and the real Savage be seen as losing their rights to lethal self-defense, on the theory that they could have avoided the need for deadly force by complying with Morrill’s demand? Should the results be different, but only through a prosecutor’s discretionary decision not to prosecute Mrs. Morrill even if he prosecutes Savage? Or should the duty to comply with demands to abstain from conduct be rejected (though this might still leave Savage prosecutable on the theory that he didn’t really fear imminent attack by Morrill, or on the theory that he deliberately provoked Morrill so as to have an excuse to kill him)?
Note that “duty to comply,” like “duty to retreat,” is a somewhat unusual use of the term “duty”: It’s not that someone can be prosecuted or sued for failing to retreat as such, or failing to comply with a negative demand; rather, the “breach” of this duty strips the breacher of the breacher’s right to lethal self-defense. But “duty to retreat” is the common legal locution, so I use “duty to comply with a demand to abstain from conduct” by analogy.