Deadly force laws and their legal and moral distinction

by Christopher Dodson | Catholic Action

Christopher Dodson | Catholic Action

For the second consecutive legislative session, the North Dakota Legislative Assembly has considered legislation to expand when a person can use deadly force against another. Proponents call these proposals “stand your ground” laws. Some law enforcement officials call them “shoot to kill” bills. As in 2017, the latest bill was defeated, but the margin was narrow. Both bills would have allowed the use of deadly force to protect theft of property, even if no life was threatened.

Support for these type of bills often reflects misunderstandings of both the moral law and North Dakota law.

When and how much force an individual can use against another is ultimately a moral issue. The Bible presents the precept “You shall not kill” as a divine commandment. Those of different faiths or no faith accept the same injunction because of the value of all human life. From this precept comes a fundamental principle: no one can claim the right to deliberately kill another human being. The injunction is rooted in the recognition that all human life is sacred and that all human life has inherent value.

Yet as far back as the Book of Exodus, faced with often tragic cases that can occur, we sought a fuller and deeper understanding of what the commandment prohibits and prescribes, particularly in cases of self-defense. St. Thomas Aquinas later provided the most accepted and definitive treatment of the subject. What he taught, though not entirely new even then, became the basis of Western Law.

Aquinas restated the fundamental principle that it is never permissible for a private individual to intentionally kill a person. This injunction applies even in cases of self-defense. A person can, however, use moderate force to repel an aggressor when it is necessary to protect oneself or someone for whom the person is responsible. If the use of force meets these conditions, and the aggressor unintentionally dies as a result, the person is not guilty of murder. If however, these conditions are not met and the aggressor dies, the person has committed murder.

Three fundamental principles underlie this teaching. First, intentional killing of an innocent person is always wrong. Second, intentional killing of a wrongdoer is also always wrong, though the use of force that unintentionally results in the death of a wrongdoer can be justified. Third, the mere fact that an individual is not where he or she should be or may be intending harm does not create an exception to the rule. Even in that case, a person cannot intend to kill the individual.

Through the centuries, courts and lawmakers incorporated these principles into law. The “duty to retreat” in English common law finds its basis in the necessity requirement, since the use of deadly force could not be viewed as necessary if the person could escape. Eventually, some jurisdictions, including North Dakota, adopted the “Castle Doctrine,” which removed the duty to retreat in a person’s dwelling or work place.

The Castle Doctrine does not necessarily contradict the fundamental principles since it is based on several presumptions about the ability to retreat. Indeed, something like the Castle Doctrine appears in Exodus 22:1. It states: “If a thief is caught in the act of housebreaking and beaten to death, there is no bloodguilt involved.” The next verse, however, states: “But if after sunrise he is thus beaten, there is bloodguilt.” In other words, killing an intruder at night was permissible, but killing an intruder during the day was not because escaping was possible in daylight.

North Dakota law clearly respects an individual’s “right” to use deadly force when necessary to prevent “death, serious bodily injury, or the commission of a felony involving violence” to the individual or others. The law contains a “duty to retreat,” but only outside of a person’s dwelling. Removing the requirement would, practically by definition, allow intentional killing when it is not necessary. This violates the fundamental moral rule that a person cannot use deadly force except when it is necessary for self-defense.

Because the use of deadly force is justified only when it is intended and necessary for the protection of human life, it follows that deadly force can never be used in defense of property. The principle always recognized in Western Law and morality has been that only moderate force—and even then, only the amount necessary—is justified to protect property.

Proponents of these types of law often claim that responsible citizens would never intentionally kill if doing so was not necessary. The law, however, is not meant only for responsible citizens. With that approach we would not need laws against abortion, rape, or sex abuse because no “responsible” person in their “right mind” would do it.

Indeed, there is not just a tangential connection between the deadly force laws and issues like abortion. The fundamental moral laws are universal. They apply now, just as they did in the time of Thomas Aquinas and the time of the Exodus. They apply in the womb, in our streets, and in our homes. They are universal because God is the Author of Life and Truth now and forever. Our laws should respect and reflect that truth.

Christopher Dodson is executive director of the North Dakota Catholic Conference. The NDCC acts on behalf of the Catholic bishops of North Dakota to respond to public policy issues of concern to the Catholic Church and to educate Catholics and the public about Catholic social doctrine. The conference website is ndcatholic.org.