If one party argues that another is guilty of negligence for breathing air, no court should allow that claim or defense. Why not? A court might say that breathing air is not negligent in the breach sense—it is reasonable to breathe (everyone does it) and, at least for now, its benefits outweigh its costs. Another way that a court could reject the breathing-air contention would be to say that the breathing party has “no duty” not to breathe.1 By saying that the party has no duty, the court would recognize an entitlement in the breather. When courts recognize that actors enjoy some entitlements in their daily lives, they cannot avoid deciding which entitlements come with the parties to court, when parties should have those entitlements, and with respect to whom they should apply.
In Professor Eugene Volokh’s important article, The Right to Defy Criminal Demands, Volokh makes the powerful claim that in both civil and criminal cases, courts implicitly do, and explicitly should, “protect defiance of criminal demands against legal liability even when such defiance can increase the risk that the criminal will harm third parties.” (P. 416.) The issue is one of principle. Volokh calls it a “right,” though in a Hohfeldian sense it may be a privilege/liberty or no-duty rule.
As fashioned by Volokh, the right would permit actors “to refuse to comply with [criminal] demands, without being held civilly or criminally liable for the consequences of this defiance and without losing important rights.” (P. 362.) The argument, with which I agree,2 is for certain liberties and dignitary interests to be protected by courts as a matter of law rather than subject to the vagaries of jury decision and comparative apportionment. (Pp. 368, 409.) In such cases, issues of principle and policy trump the usual tort-law concern of reducing risks of physical injury.
Volokh well illustrates the concern—the way in which courts themselves inadvertently translate criminal demands into legal restraints on crime victims. In one example, Volokh addresses a case in which a legally operating abortion clinic was firebombed by people who wanted to force the clinic to close. The clinic’s neighbors filed a public nuisance suit in which they prevailed against the clinic, because the criminal threats against the structure left neighbors fearful of future attack. In so holding, the court empowered the past and prospective arsonists, by their criminal threats, to force the clinic to pay significant costs, shut down, or relocate. (Pp. 363-64, 387.)
The same reasoning, Volokh notes, can empower people who criminally threaten any controversial business or enterprise, including churches, synagogues, mosques, and bookstores. (P. 364.) An Australian case well illustrates the point. In that case, the court refused a synagogue’s requested building permit because terrorists could target the building. (P. 388 n.85.) In translating terrorist threats against “Jewish communities around the world and in Australia” into legal limits on the threatened synagogue, the court became the terrorists’ actualizer and unwitting accomplice. As Volokh writes, if the law “arms our neighbors or the police with the right to stop our behavior when criminals so demand…, the law is arming criminals with an extra weapon against us.” (P. 369.)
Having clearly articulated the stakes—legal empowerment of criminal actors—Volokh unearths a wide range of civil and criminal contexts in which the right to defy is significant. For instance, in one negligence case, an abusive husband threatened to kill his wife. The wife’s aunt permitted her to stay at the aunt’s home even though the husband might attack. The husband did so, killing a person who was gardening in front of the house. When the decedent’s estate sued the aunt for negligent failure to warn of the danger, the court dismissed on the ground that the attack was “unforeseeable.” (Pp. 378-79.) But Volokh points out that the court could have invoked a more principled rationale for its no-liability holding. If the court had said that the aunt could not shelter her niece, or was required to provide constant warnings to others, the court would have empowered the husband’s threats to control the niece and aunt’s lives. (P. 416.)
Volokh does not deny that criminal threats may create real dangers. But he divides the response to that danger into two categories: the “immediate pragmatism approach” and the “right to defy criminal demands” approach. Under the first approach, courts focus on the ordinary norm of minimizing the foreseeable risks of harm, through which courts sometimes require actors to comply with wrongful commands. Under the second approach, courts focus on actors’ entitlement to defy criminal threats, rather than ask them to bow to unlawful demands. (P. 367.) As one court wrote in a case of domestic violence, “We reject the idea that victims are responsible for the violence they endure in the home, and we will not blame them for their otherwise reasonable actions simply because these actions foreseeably result in violence.” (Pp. 376-77.)
Volokh applies this right-to-defy principle to analogous claims in the criminal sphere with respect to the heckler’s veto, a duty to retreat, provocation as mitigation of defendant’s guilt, and more. The breadth of contexts Volokh identifies reveals the pervasive importance of the entitlement issue he raises.
Finally, Volokh addresses possible limits on the victim’s right to defy. These limits could be based on the independent wrongfulness of the victim’s behavior, the victim’s specific purpose to provoke, and the extent of the intrusion on the victim’s liberty. Volokh also distinguishes the right to defy from the legitimate precautions that parties must take against criminal misconduct. Most precautions don’t violate victims’ dignitary interests “because they don’t enlist the state on the side of the criminal threatener.” Requiring a company to have security features like a door lock would be one example. (P. 411.)
In a country in which crime is prevalent, Volokh’s proposed right to defy is one that courts and legislatures would be well-advised to adopt in some form. Surely the legal system, whether in civil or criminal actions, should not require the lawful to obey the lawless. When determining duties/entitlements courts must also look at principles and policies that inform which precautions ought (or ought not) be required in light of the conducts’ risks. If a reasonable person would fear posting a religiously inflammatory cartoon because of foreseeable risks of terrorist violence, a court might nevertheless recognize an actor’s right to defy terrorist demands by speaking freely, without the poster risking liability, or reducing the poster’s right to security from others. (P. 364 n.5.)
To embrace Volokh’s principle, courts must examine the relative importance of law’s many values, including its expressive value, as well as law’s accountability, deterrence and compensation functions. For example, in the gardener’s estate’s suit against the aunt who took in her threatened niece without warning others, what legal objectives are most important? Should the rule of law express the aunt’s freedom to associate with, and maintain the privacy of, her threatened niece—to say that the aunt has a right not to shape her conduct around the husband’s criminal threats (such that her risk-creating conduct was not wrongful)? Or is it more important to ensure that the innocent shooting-victim could have attempted to avoid physical injury, or once failing to do so, could access the aunt’s homeowners’ insurance to obtain compensation?
In many cases of threatened crime, an evaluation of principles and policies may well warrant recognition of a party’s legal entitlement—to file a police report even though the criminal said not to; to live in a first floor apartment while female regardless of gender-based vulnerability to rape; or to work in a convenience store at night despite the threat of robbery.3 Of course, when courts recognize an entitlement, rights holders will neither suffer from, nor possibly benefit from, partial assignments of fault in the remaining all-or-nothing claim.
Determining the proper scope of a right to defy is both vital and difficult. Criminal “demands” are sometimes not specific demands at all, as in the case of the legally operating abortion clinic, but rather generalized overhanging threats. Also, what constitutes “criminal” misconduct to trigger a full victim entitlement has raised issues in other tort doctrines that mandate all-or-nothing rules with respect to illegal conduct.4 Finally, the idea would be well served by further addressing the fact that even minor precautions, such as door locks, increase company’s costs based on future threats of crime. Explaining how to preserve these general precautions against threatened crime, even while recognizing a right to defy, needs greater elaboration.
The difficulty of defining such an entitlement is not exclusive to the right to defy context. Even in the simple case of an entitlement to breathe, courts have not recognized the entitlement at all times and in all circumstances. In Haydel v. Hercules Transp. Inc., 654 So.2d 418, 431 (La. Ct. App. 1995), for example, the defendant transport facility negligently released a cloud of anhydrous ammonia that approached the plaintiff’s nearby home. When plaintiff saw and smelled the chemicals, she “panicked,” feared for her life, and drove off the property. In her negligence action against the transport facility, a jury allocated 10% of the fault to the plaintiff on the basis that her choice to leave amidst the contamination exposed her to more chemicals, thereby exacerbating the harm. In upholding the jury’s assignment of plaintiff fault, the court, in effect, confined the plaintiff to her home while defendant’s chemicals infringed on her property—a sort of false imprisonment by the legal system.
Volokh’s article reminds us that before courts empower wrongdoers to constrain victim conduct, they should think carefully about whether the victims, instead, have some rights that came with them to court.
- The Third Restatement of Torts now recognizes “no-duty” rules for both plaintiffs and defendants. Restatement (Third) of Torts: Liability for Physical and Emotional Harm at §7(b) and §7 cmt. h. (Am. Law. Inst. 2010).
- Ellen M. Bublick, Citizen No-Duty Rules: Rape Victims and Comparative Fault, 99 Colum. L. Rev. 1413, 1416-18 (1999) (arguing that “citizens’ liberties should be recognized as an integral part of the freedoms that [tort liability] seeks to protect,” and specifically addressing negligence liability in civil cases of rape and other intentional torts, “particularly those torts involving acts or threats of physical violence which are malum in se.”)
- Ellen Bublick, Comparative Fault to the Limits, 56 Vand. L. Rev. 977, 980-81, 1026-29 (2003) (noting contexts in which fundamental values, and other principle and policy factors, limit the use of plaintiff conduct as comparative negligence).
- Nora Freeman Engstrom & Robert L. Rabin, Felons, Outlaws, and Tort’s Troubling Treatment of the “Wrongdoer” Plaintiff, 16 J. Tort L. 43 (2023).
