Living By the Sword

JonBostwick — Thu, 11 Oct 2007 07:11:00 GMT

Consider this scenario, police meaning to a serve a no-knock warrant get lost and mistakenly end up invading the wrong house. The home owner, defending his home from unidentified assailants, fires at and kills an officer. Who is to blame?

One defense for the officers jumps to mind, the home owner should have known that they were police officers, if for no other reason than no simple criminals would employ such bold and violent methods of entry. In addition to not being factually correct, it also fails as a defense because the homeowner, being a good citizen, is far more likely attribute the act to thugs rather than public servants.

But clearly the blame lies on the officers, as they failed to perform their duties correctly, by invading the proper house. This event could have been prevented most easily by the officers, who both made a thoughtful decision and performed an action removed from routine, rather than by the home owner who made a decision under stress while believing himself to be in normal circumstances. We must conclude that the officers were where they did not belong and the home owner acted justifiably towards armed men who presence infringed on his rights.

There could be other scenarios where officers have no legitimate reason to enter a home. Suppose the warrant was served at the correct house, but the inhabitants were innocent of the charge, that officers were sent to collect drugs that do not exist. The home owner would not have any reason to act differently than he did in the first scenario, and the presence of the officers would be still unjustified and infringe on the owner's rights. This change in the scenario does not require a change in our conclusion.

The last scenario involves a mistake not in enforcement of a law, but in the creation of that law. This time the warrant is served at the correct house and the house really does contain the sought drugs. In this scenario the home owner is more likely to identify the intruders as police, as he is actually guilty. But what about the presence of the police, what is there purpose for being there? They are enforcing a law who's stated purpose is to infringe on the property rights of others. The only difference between this scenario and the previous two is that the officers are not accidentally infringing on a person's property and his peaceful use of it, they are deliberately doing it. Should the home owner fire on the officers, I still see no reason to change our conclusion on who is at fault.

That conclusion is from a legalistic view point, not unnecessarily a moral or philosophical one. Libertarians may choose to not endorse violent defenses against the State's abuses*, but they can not support legal retribution against the rebels. Legality involves what you will be deliberately punished for, morality involves what you should do. Not resisting the officers would probably provide a more desirable outcome for home owner, even if he is legally in his rights to defend his property. Mathew's acknowledgment that "all they that take the sword shall perish with the sword" was a moral statement of the impractically of violence, it is not a legal code that promises retribution to violators.

*I do not endorse violence.

Brush Fires of Freedom : police, defense

Living By the Sword