To: Senate Natural Resources Committee
From:
Christopher T. Dodson,
Executive Director
Subject:
House Bill 1319 (Use of
Deadly Force)
Date:
March 16, 2007
When and how much force an individual can use against
another is ultimately a moral issue. Each lawmaker must
evaluate House Bill 1319 according to whether it moves us
closer to or further from fundamental moral principles
found in Sacred Scripture and knowable by reason that have
served as a foundation of civil society for thousands of
years.
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 the value of all human
life. From this precept comes a fundamental principle: No
one can claim the right to deliberately kill an innocent
human being.
Yet the injunction against killing is rooted in the
recognition that all human life is sacred or that all human
life has value because of the inherent dignity of every
human person. For that reason, a second fundamental
principle developed: the determination of guilt and the
authority to punish is limited to duly appointed public
authorities.
These two principles have guided the development of law in
Western society for thousands of years, almost always with
the recognition that they are rooted in the unchanging and
absolute commandment, “You shall not kill.”
Yet from the beginning, faced with the many and often
tragic cases that occur in the life of individuals and
society, we have sought a fuller and deeper understanding
of what the commandment prohibits and prescribes,
particularly in the case of self-defense.
Thomas Aquinas provides the most accepted and definitive
treatment of the subject. 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 do so in order to protect oneself or
someone for whom the person is responsible. If the use of
force meets these conditions, and the aggressor dies as a
result, the person is not guilty of murder. The death of
the aggressor in such a situation is a double effect. In
other words, the death is an unintended result.
Through the centuries, courts and lawmakers incorporated
these principles into law. For example, 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 applicable 500 years ago. 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 in an intruder during the day was not. Why the
difference? Scholars have noted that a person had options
in daylight which he or she would not have in the small,
lightless, dwellings of that time. So long as options other
than deadly force were available, killing was not
permitted.
The instructions in Exodus are helpful to us today. The
passage in Exodus presumes that fear of imminent death was
reasonable in the case of a night break-in because of the
existence of conditions, unique to that time, that did not
allow retreat, use of moderate force, or determination of
the aggressor’s intent. The presumption was not based
on the mere fact that the trespass occurred in the home.
Again, the ultimate question is whether House Bill 1319
moves us closer to or further from these fundamental moral
principles. We conclude that adoption of the bill would
move us away from these precepts for several reasons:
• Deletion of the clause: “The use of deadly
force is not justified if it can be avoided” removes
the normative standard principle upon which a society
should rest;
• Removal of the duty to
retreat: (1) eliminates one of the key methods for
determining whether the use of force was actually
necessary, and (2) diminishes, if not ignores, the
fundamental principle that all persons have a moral
obligation to try not to use deadly force; and
• The creation of a
broad presumption of fear in Section 2: (1) justifies the
use of deadly force even when the person’s acts were
not, in fact, reasonable, (2) subtly shifts the
determination of a transgressor’s guilt or innocence
away from the duly appointed legal authorities and to the
private individual; (3) creates presumptions based on place
and circumstances that bear no actual relationship to
whether force is necessary; and (4) sanctions a shift in
culture from one expecting prudence and respect for life to
one of fear and acceptance of violence.
We urge a
“Do Not
Pass”
recommendation on House Bill 1319.
North Dakota Catholic Conference
Representing the Dioceses of Bismarck and Fargo
103 South Third Street,
Suite 10
Bismarck, ND 58501
701-223-2519