Strict liability dilemma

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Eugene Posted: Fri, Aug 10 2012 1:41 AM

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Let's say a person takes a hostage and attempts to shoot at you, and you kill both the hostage and the attacker. Should you be liable for murder?

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cab21 replied on Fri, Aug 10 2012 2:08 AM

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no, the hostage taker should be liable for both deaths, his own and the death of the hostage.

depends on what you kill them with, if throw a granade at them and it kills them both, sure i would start with manslaughter.

if you leave the situation and order a drone strike, then that can be upgraded to murder

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Eugene replied on Fri, Aug 10 2012 2:17 AM

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I think you should be liable for murder no matter how you killed the hostage or how many other options you had. Why?

Let's say you are starving (you are at risk of losing your life) and you steal a loaf of bread from the bakery. Will you be liable for thieft? Yes you will. 

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cab21 replied on Fri, Aug 10 2012 2:32 AM

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i don't think that is a good analogy.

if a person is starving, noone put them in that situation

if someone is under gunfire, someone put them in that situation.

if someone is starving, there is no one place to target to get food

if someone is under gunfire, there is only one place to put the bullet to stop the gunfire.

murder is a specific state of mind, with preplaned malace. the person under gunfire would not have malice for either the hostage or the hostage taker.

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Autolykos replied on Fri, Aug 10 2012 8:41 AM

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Eugene:

Let's say a person takes a hostage and attempts to shoot at you, and you kill both the hostage and the attacker. Should you be liable for murder?

In my opinion, and assuming "murder" is defined as "illegitimate killing", then absolutely I'm liable for murder of the hostage.

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gotlucky replied on Fri, Aug 10 2012 9:05 AM

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Autolykos:

In my opinion, and assuming "murder" is defined as "illegitimate killing", then absolutely I'm liable for murder of the hostage.

I've been thinking more about this lately, and I'm beginning to think that "illegitimate killing" or "unjustified killing" is too broad, as I do see a categorical difference between murder and manslaughter. Namely, intent is important. If two people are in a car crash, and one is at fault for the death of the other, unless it was done on purpose, it doesn't seem like it should be classified as murder. Certainly there was homicide, but I think "unjustified killing" is too broad.

Regarding the OP's question, I do agree that you would be liable for murder if you shoot back and kill the hostage. Maybe the case could be made for manslaughter, that you were aiming for the criminal and you missed and hit the hostage. But either way you are the cause of the hostages unjustified death. Certainly he wouldn't be in the situation if it weren't for the hostage taker, but these situations can play out numerous different ways.

What some people seem to miss about these situations is not just what is the "moral" solution, but what is the likely outcome in a decentralized law society? Well, instead of a DA prosecuting you on "behalf of society", the victims or the family of the victims are the ones who bring the criminal to court. If the family of the victim believes that you acted in the only reasonable manner, I would think that most families would forgive you for the death of their loved one. And if anyone doubts me on this, how many times do we read about police abuse only to find that the victim goes ahead and says, "While it is unfortunate what happened to me, the police were just doing their job." So I think it's likely that if you behave in what the family might consider reasonable, they will probably pardon you legally.

But the criminal hostage taker is unlikely to get pardoned. They are responsible for the situation and escalated it to deadly force. Even if they are not directly responsible for the death of the hostage, they are certainly indirectly responsible and maybe even complicit. So he could probably be brought to court on murder charges, but even if he couldn't, there would be a host of other despicable crimes that he may be charged with.

And to be clear on what might be considered reasonable versus unreasonable behavior, if you were to blow up the building in order to take out the criminal, this would obviously be unreasonable behavior. If you were told to wait, that a sniper was getting in position with a clear shot of the criminal, but you went ahead and decided you wanted to shoot him yourself, this would be unreasonable. Obviously, what is considered reasonable and unreasonable is subjective, but for the most part, it probably only matters what the family of the victim considers to be reasonable or unreasonable.

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cab21 replied on Fri, Aug 10 2012 2:57 PM

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the family can press murder charges if they want, but would they be successful in a private court of a murder conviction?

it seems libertarians have a definition of murder that current law does not have.

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gotlucky replied on Fri, Aug 10 2012 3:02 PM

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cab21:

the family can press murder charges if they want, but would they be successful in a private court of a murder conviction?

I suggest you read What Law Is and A Praxeological Account of Law. Decentralized law, whether common law or customary law, does not work the same way our modern statutory law system works. This is true not only theoretically but also historically.

cab21:

it seems libertarians have a definition of murder that current law does not have.

This is false. The opening line of wikipedia's article on murder:

Murder is the unlawful killing, with malice aforethought, of another human, and generally this state of mind distinguishes murder from other forms of unlawful homicide (such as manslaughter).

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bloomj31 replied on Fri, Aug 10 2012 3:24 PM

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@OP

I agree with Cab.  I'd probably blame the hostage taker for creating the situation in the first place.

Obviously a real life version of this hypothetical could contain information that might cause me to feel differently but based on what you've told me, I'd blame the guy who took the hostages in the first place.

In a private law system I suppose the family could bring suit and win but I personally wouldn't support that defense agency or whatever if they ruled in favor of the family.

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gotlucky replied on Fri, Aug 10 2012 3:44 PM

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bloomj31:

 

I agree with Cab.  I'd probably blame the hostage taker for creating the situation in the first place.

Obviously a real life version of this hypothetical could contain information that might cause me to feel differently but based on what you've told me, I'd blame the guy who took the hostages in the first place.

Like I said, at the very least, the hostage taker is liable for all the crimes he definitely committed. Regarding murder, if the circumstances are right, I can see a legitimate case to be made that he was complicit in the murder, which would make him liable for it even if he didn't pull the trigger himself. An example where I wouldn't consider him liable for the murder would be if the police or whoever took completely unreasonable and dangerous actions in order to end the conflict.

bloomj31:

In a private law system I suppose the family could bring suit and win but I personally wouldn't support that defense agency or whatever if they ruled in favor of the family.

Well this is a misunderstanding of private or highly decentralized law. The more decentralized the system, the less the court "rules" in favor of one party or the other. In a completely decentralized system of law, the dispute is considered settled when both parties consider it settled. In our current system of highly centralized statutory law, the DA prosecutes and attempts to throw enough evidence out there for a conviction, and then the judge sentences the convicted to some sort of punishment.

It is the opposite in a decentralized system. The two parties go to a judge/arbitrator/mediator, and they sort out their dispute with the help of the judge/arbitrator/mediator. If the family of the victim believes that the police were reckless and unreasonable in their attempt to resolve the atrocious situation the hostage taker started, then they have a dispute with the police that were reckless and unreasonable. In our current system, any suit that the family would bring to court just gets dismissed because of qualified immunity (or some other relevant immunity law). But in a decentralized system, it's not like the police would be "ruled against" either. The point is to settle the dispute, and there are relevant customs and norms that each party can point to in order to say, "The other party is unreasonable in his demands. The custom is that the police pay $X when guilty of manslaughter in these types of cases. The family of the victim is demanding something that is outrageous and not in line with current law." Or the family of the victim might say, "The custom is that the police pay $X when guilty of manslaughter in these types of cases. The police are outrageous with what they consider to be appropriate settlement and not in line with current law."

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bloomj31 replied on Fri, Aug 10 2012 4:17 PM

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gotlucky:

 An example where I wouldn't consider him liable for the murder would be if the police or whoever took completely unreasonable and dangerous actions in order to end the conflict.

I'm not sure what would constitute an "unreasonable and dangerous action" for me in this case.

gotlucky:

 The point is to settle the dispute, and there are relevant customs and norms that each party can point to in order to say, "The other party is unreasonable in his demands. The custom is that the police pay $X when guilty of manslaughter in these types of cases. The family of the victim is demanding something that is outrageous and not in line with current law." Or the family of the victim might say, "The custom is that the police pay $X when guilty of manslaughter in these types of cases. The police are outrageous with what they consider to be appropriate settlement and not in line with current law."

I guess I just find it hard to imagine myself patronizing a system that wasn't adversarial in nature.

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cab21 replied on Fri, Aug 10 2012 6:42 PM

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do you think shooting a hostage by accident is malice aforethought and a state of mind of malice against the hostage?

 i think the state of mind is self defence, there is no malice at all involved. the missed target certainly was not on purpose and happened in the heat of the moment on reflexes rather than intention.

with the unlawful part, that would have to been changed in a lawless soceity or where law is so decentralized it is up for each individual to decide what law is and is not.

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Eugene replied on Mon, Sep 10 2012 1:55 PM

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Of course there was no malice, but you did knowingly put the hostage at risk when you shot at the criminal. Although I am inclined to think that you should be at least partially liable in this case, there is a danger here that it incentivizes the criminals to use human shields very often.

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Autolykos replied on Mon, Sep 10 2012 2:01 PM

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It might also incentivize people who aren't "the criminals" to (better) arm themselves against being taken hostage.

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Eugene replied on Mon, Sep 10 2012 2:08 PM

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That's also true

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Eugene replied on Mon, Sep 10 2012 2:15 PM

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However there has to be a difference in punishments. When you need to do a conscious and significant effort such as in premeditated murder its one thing, when you accidently kill someone in a car crash that's another, and when you are trying to save your life and accidently kill a hostage that's another thing altogether.