Philosophy Of Law : What Is Considered A Threat?

[Cole]

Or perhaps the question is "When is a threat an initiation of force?"

Consider the following example;

A madman with a gun sprays bullets at me, but manages to miss me. He does no damage to me or my property, but he obviously intended to kill me.

I think that the government has some right to charge this man with committing a crime, but in what way did he initiate force? To what level should intentions be a criminal offense? Is there an absolute method of determining the specific mixture of action and intention which are to be considered an initiation of force?

In a wider, real-world context; I am wondering about when the threatening actions by Iran are (or became) an objective initiation of force to the American people. I certainly don't think that we have to wait until planes are flying into buildings for force to have been initiated, so intentions are a factor to some degree, but I am having a difficult time determing an absolute criteria.

Keep in mind that I am discussing normative law and not the law as it exists in writting today.

Edited March 21, 2005 by GreedyCapitalist

[JMeganSnow]

Do you mean threat as in a verbalized offer of force as an attempt to get something, or threat as an attempt to do damage that doesn't succeed, or threat as a POTENTIAL for incurring damage that is not verbally or physically actualized?

The first two constitute initiations of force: if a man says to you, "gimme your wallet or I'm gonna shoot you," he is initiating the use of force whether or not he ever pulls the trigger. If someone shoots at you and misses, he is initiating the use of force just as though he had hit. It's POSSIBLE he didn't intend to hit you, just as it's POSSIBLE that someone might shoot you or kill you without intending to, and a court may take that into account. However, simply, say, owning a gun is not an initiation of force.

My thought is, if someone threatens to initiate force against you, then you are morally correct to act as you would if they had already or were in the process of carrying out that threat. It's usually not wise to wait until, as you said, the bomb has gone off.

[DavidOdden]

Or perhaps the question is "When is a threat an initiation of force?"

When the facts, as you are aware of them, indicate that the person will use force. You cannot come up with an absolute criterion, and it is a mistake to try to do so. Instead, you should focus on contextual criteria. (This is not to say that an absolute criterion could not possibly exist, just that it is so imaginary that it is not worth discussing as a real object).

From a moral POV, a threat to X is as good as actually doing X, so the real work comes in determining what a threat is. A particular abstract action, such as carrying a gun, might be perfectly normal in one context (even mandated by law, such as being a soldier, or stepping outside of the town limits of Longyearbyen), and an prima facie threat in another (e.g. being a kid in high school). The contextual nature of threats is further indicated that when I was in high school, you might get away with taking a gun to school under the School Play defense, but now it is statutorily considered to be a criminal offense.

The way this works out legally is by reference to the "ordinary" or "reasonable" man -- would an ordinary man conclude that Smith intended to shoot Jones. As long as you have objective and reasonable jurors, I think this works out pretty well. Dunno about the truth of that "as long as" part, though.

[Cole]

When the facts, as you are aware of them, indicate that the person will use force. You cannot come up with an absolute criterion, and it is a mistake to try to do so. Instead, you should focus on contextual criteria. (This is not to say that an absolute criterion could not possibly exist, just that it is so imaginary that it is not worth discussing as a real object).

Yeah. I'm just uncomfortable with the law being too contextual and not absolute enough- especially when jurors are often irrational and view the law subjectively, as you alluded to.

From a moral POV, a threat to X is as good as actually doing X, so the real work comes in determining what a threat is.

To me it seems that a threat requires a certain mix of intentions and action. I don't think that a person can be convicted of a crime based solely on his thoughts, or that saying you are going to murder somebody is the same as murdering that person. I've yet to find any criteria that would explain what the specific mix of intentions and action are to be classified as a threat.

[DavidOdden]

To me it seems that a threat requires a certain mix of intentions and action. I don't think that a person can be convicted of a crime based solely on his thoughts, or that saying you are going to murder somebody is the same as murdering that person. I've yet to find any criteria that would explain what the specific mix of intentions and action are to be classified as a threat.

Any assessment of threat that requires some part intention as distinct from action is doomed for the forseeable future. Unlike Vulcans and Talosians, we can't read minds, so we can only assess intent on the basis of actions. Somehow, you have to make your thoughts known. (Note, btw, that you can be imprisoned for writing child porn even if it is not distributed to anyone else and thus effectively remains a private thought put on paper). However, if you mean "actions which provide evidence of an intention", then we can make progress. If you simply say "I'm gonna kill you", those words don't intrinsically constitute a threat. I don't know how to define a threat -- it's like porn: I know it when I see it.

[Cole]

However, if you mean "actions which provide evidence of an intention", then we can make progress.

Yes, that's what I mean. The actions of the madman who sprayed bullets towards me did not initiate force in itself, but proved evidence of intentions to initiate force.

[TomL]

Yeah. I'm just uncomfortable with the law being too contextual and not absolute enough- especially when jurors are often irrational and view the law subjectively, as you alluded to.

If you're thinking about the normative case, then you don't have to worry about that, do you? Don't try to mix a normative idea with the "world as it currently is", they don't fit.

If the normative were ever realized, you'd have normative jurors (or a normative judge if no jury is used in a normative system).

[TomL]

The actions of the madman who sprayed bullets towards me did not initiate force in itself

He most certainly did, and you shouldn't have any compunction about drawing and dropping a man who did this, even if he appeared to run out of ammo. How do you know he doesn't have a clip in his belt and just needs a moment to reload?

Whether or not he actually hit you is irrelvant. Neither are his intentions needed to be known. The issue of importance is that he took an action which was observable in reality that caused you to fear for your immediate and future safety, and perhaps the safety of others.

If someone were holding a gun and starting having an epileptic seizure and starting firing all around me, I'd -still- drop him, despite the fact that he might have no real intention to shoot me. I'm still going to get shot, whether he "means it" or not, and he should have known better. How many epileptics don't know they are, or are not responsible for failing to take their Phenytoin?

In reality, you're never going to come across a case where someone fires bullets all around you, then drops his gun and turns himself in. There's going to be more fighting of some kind, even if he -does- run out of ammo. He'll pull out a knife, or swing the empty pistol at your skull -- it's not going to end just because there's no more bullets. And he not going to say, "Whelp! Didn't kill you with bullets so I guess I better call it a day."

Edited March 21, 2005 by TomL

[Cole]

If you're thinking about the normative case, then you don't have to worry about that, do you?  Don't try to mix a normative idea with the "world as it currently is", they don't fit.

If the normative were ever realized, you'd have normative jurors (or a normative judge if no jury is used in a normative system).

The discussion is normative to the extent of what the proper law should be in this case. It isn't normative to the extent of the metaphysical reality in which it took place. If that were the case, then we would conclude that initiation of force simply wouldn't exist- and that wouldn't do us much good. It also wouldn't do us much good to consider to law as it stands today. What would be beneficial is if we can determine what the law ought to be, and specifically why it ought to be as such- in the context of the real world.

[Cole]

How do you know he doesn't have a clip in his belt and just needs a moment to reload?

That's beyond the scope of the example and beyond the scope of the purpose of the discussion.

Whether or not he actually hit you is irrelvant.

Really? I'd consider it pretty relevant if I were in that situation. Granted, I'd still consider it to be very bad if somebody fired bullets at me and missed me instead of hit me. However, there's a difference between an action that initiates force and an action that is evidence of an intention to initiate force.

Neither are his intentions needed to be known.  The issue of importance is that he took an action which was observable in reality that caused you to fear for your immediate and future safety, and perhaps the safety of others.

I think they do need to be known when considering what is a threat and/or an initation of force. For example; there's a difference between somebody who intends to murder me by running me over with his car, somebody who runs me over with his car because he is driving drunk, and somebody who has a brain aneurysm while driving, loses all consciousness, and then runs me over with his car. The difference is in the intentions involved, and this is why intentions need to be known and considered. The action of running me over with a car shouldn't be viewed divorced of any intentions by the driver.

If someone were holding a gun and starting having an epileptic seizure and starting firing all around me, I'd -still- drop him, despite the fact that he might have no real intention to shoot me. I'm still going to get shot, whether he "means it" or not, and he should have known better. How many epileptics don't know they are, or are not responsible for failing to take their Phenytoin?

Again, that's beyond the scope of the example and the discussion. If we were talking about what is necessary for immediate self-defense, then I'd agree with you. But the discussion is regarding redistributive justice in the scope of the specified example.

In reality, you're never going to come across a case where someone fires bullets all around you, then drops his gun and turns himself in. There's going to be more fighting of some kind, even if he -does- run out of ammo. He'll pull out a knife, or swing the empty pistol at your skull -- it's not going to end just because there's no more bullets. And he not going to say, "Whelp! Didn't kill you with bullets so I guess I better call it a day."

Yes, I understand that. The purpose of the discussion is to examine the specifics of the crime being committed by actions that do not initiate force in themself, but are evidence of the intention to initiate force. What the person in the example would probably do next is irrelevant.

[JMeganSnow]

If someone shoots at me, I'm going to retaliate. Period. I'm not going to wait until they hit me or kill me to make sure. Force is not equivalent to VIOLENCE. Force can be very . . . polite, with the guns kept quietly out of sight, and only implied in the smug superiority of an official that can approve/disapprove of your life on whim.

[Cole]

If someone shoots at me, I'm going to retaliate.

Perhaps I'm not making the question clear.

I'll try again later.

[TomL]

Intent doesn't cause more/less damage to someone's life and subsequent values.

It is a factor in determining the -future- possibility of more loss of value, and as such comes into play with punishment for a particular act. Obviously, someone who intends to run someone down with their car deserves more punishment than someone who has a brain aneurism while driving, because the intent suggests a greater possibility of recurrence.

As to the question "when does a threat become an initiation of force?" -- it becomes such as soon as it is made, if it is a threat to initiate force. Where force is concerned, a threat is just as nasty as the actual force.

Physical damage/death cannot be undone. You cannot wait for it to actually occur before determining that someone has done something wrong -- because then its too late. It is just as wrong to threaten someone with death as it is to actually kill them. I think this is an area in which our current law doesn't go far enough (which is odd... it usually goes too far) but I think a serious intent to kill should be dealt with just as harshly as murder. The threat of occurrence (from someone who really means it) and the threat of REcurrence are equal.

[DavidOdden]

Obviously, someone who intends to run someone down with their car deserves more punishment than someone who has a brain aneurism while driving, because the intent suggests a greater possibility of recurrence.

Are you saying that you think that a person who has a brain aneurism while driving deserves some punishment? Would that extend to heart attacks, strokes, and migraines? Or was that a mistake?

I think this is an area in which our current law doesn't go far enough (which is odd... it usually goes too far) but I think a serious intent to kill should be dealt with just as harshly as murder.

This may vary from location to location (I suspect that it is very similar anywhere), but in Ohio, it is a first degree felony. Are you suggesting that the punishment (for example the death penalty) should be the same, and that a last-minute change of heart and decision not to commit the crime should bear no weight?

[realitycheck44]

This may vary from location to location (I suspect that it is very similar anywhere), but in Ohio, it is a first degree felony. Are you suggesting that the punishment (for example the death penalty) should be the same, and that a last-minute change of heart and decision not to commit the crime should bear no weight?

Um, I think he was talking about somebody who was apprehended before being able to commit the murder, not because of a "change of heart".

As always, correct me if I'm wrong.

Zak

[Rex Little]

Let's frame a slightly different situation: one where there is a clear attempt to do harm, with clear intent, but no actual possibility of doing so. For instance, someone picks up a gun and fires it at me yelling "die, you scum"--but it's a very realistic-looking toy rather than a real gun. (He thought it was real; it wasn't his, he picked it up just before shooting.) Or he's a believer in voodoo, and sticks pins in the chest of a Rex Little doll, fully expecting to cause me a heart attack. Has he committed attempted murder in either case?

[JMeganSnow]

No, Rex, he hasn't. He has made himself an object of ridicule.

I think the first case might be sufficient cause to get a restraining order, and possibly the second one also if you actually found out about it.

I think a good way of figuring out what constitutes a threat is to think of what you would do in those hypothetical situations (assuming you are rational); if someone is shooting an actual gun at you, wouldn't you be alarmed? Wouldn't you fight back or escape? That's what the law should do for you; provide you with the same protection. If someone shot a squirt gun at you, even if they really did want to kill you, I think you'd be more amused and concerned than actually frightened.

Exercising justice requires careful use of observation, prediction, and knowledge of people. When considering the severity of (and thus the required response to) a threat, one has to consider factors such as, does this person understand the implications of their action (a four-year-old vs. an adult), are they likely to do it again (a vendetta vs. a moment of rage), and will they have the opportunity to do it again?

[TomL]

Are you saying that you think that a person who has a brain aneurism while driving deserves some punishment? Would that extend to heart attacks, strokes,

and migraines? Or was that a mistake?

Only if they were negligent. That is, if they knew of their condition and drove anyway, then they should be punished. Someone unaware of the condition causing such an accident should be financially responsible for all the consequences of the accident, but not punished as a criminal.

Are you suggesting that the punishment (for example the death penalty) should be the same, and that a last-minute change of heart and decision not to commit the crime should bear no weight?

Yep. If a decision is made and action is taken (whether or not its successful), a murderer or would-be-murder should both be executed. If the person changes their mind before they take action intending to kill, then no one can prove they ever truly wanted to kill in the first place, and so should not be punished.

[TomL]

Let's frame a slightly different situation....

First example: If he thinks the gun is real, then I would execute him. All it will take for him to kill someone is not make the stupid mistake of picking up a toy gun next time. He made the decision and took action intended to kill, action that were it not for his mistake would actually kill someone.

Second example: This person is insane and needs to be removed from society, somehow. He is disconnected from reality and is potentially a threat to others. I don't think he has attempted murder because his actions are not consistent with the reality of life & death in this universe.

[DavidOdden]

Yep. If a decision is made and action is taken (whether or not its successful), a murderer or would-be-murder should both be executed. If the person changes their mind before they take action intending to kill, then no one can prove they ever truly wanted to kill in the first place, and so should not be punished.

Somewhere in there I think there may be a valid generalization, but I don't see it yet. Consider this: a person says "I am going to kill you", and steps towards the would-be victim. Then the attacker realises "Oh my god, if I kill him, I would be just as much of a scum as he is, so even though he murdered my brother, I cannot morally kill him", so he desists and departs. But wait: he has taken an action, two actions in fact, namely speaking and moving. So there is no distinction between this man, and the person who actually murders, by your rule. A reasonable person would conclude on the basis of those acts that the attacker does indeed intend to kill (and at that point the attackee would indeed be entitled to use deadly force to defend his life). To make matters worse, the aborted attackee has a thing about being truthful, so he finds himself incapable of lying and saying "Hey, I was just kidding". Now to be clear, in this case, you say that he should still be executed?

[TomL]

Somewhere in there I think there may be a valid generalization, but I don't see it yet. Consider this: a person says "I am going to kill you", and steps towards the would-be victim. Then the attacker realises "Oh my god, if I kill him, I would be just as much of a scum as he is, so even though he murdered my brother, I cannot morally kill him", so he desists and departs. But wait: he has taken an action, two actions in fact, namely speaking and moving. So there is no distinction between this man, and the person who actually murders, by your rule.

The actions of "speaking" and "walking towards" are not in themselves intended to kill. The action I'm speaking of is the action one takes when one expects someone else to die as a result of that action. For example: picking up a gun and spraying bullets in their general direction. You're expecting one of those bullets to hit and kill the person. It is the action itself which intends to kill, and not any fuzzy notion of "intent" in the mind of the attacker that is important.

If someone said "I'm going to kill you" and takes a step, I do not think that gives the attackee the right to use deadly retaliatory force, or makes the attacker a criminal. What gives the attackee the right to use deadly retaliation is when the attacker pulls out a gun and points, or takes out a knife and swings.

Taking out the gun and pointing it at the ground, or taking out a knife and holding it still isn't sufficient. They haven't done anything with it yet, but at this point the attackee is justified in preparing their defense, i.e. pulling out their own gun/knife in a display that says "I'm prepared to defend myself -- think again."

[DavidOdden]

The actions of "speaking" and "walking towards" are not in themselves intended to kill. The action I'm speaking of is the action one takes when one expects someone else to die as a result of that action. For example: picking up a gun and spraying bullets in their general direction.  You're expecting one of those bullets to hit and kill the person.  It is the action itself which intends to kill, and not any fuzzy notion of "intent" in the mind of the attacker that is important.

I think the problem is your use of the word "intend". Intention is a mental state, and actions don't intend to kill, or do anything. People intend to accomplish some end, via an action. The reason why "intent" is a lousy foundation for law is that it's a private mental fact, which allows people room to wiggle by denying that they intended harm. We can reasonably estimate a person's intent by their actions, indeed that is the whole foundation of a self-defense argument, that you reasonably expect that the person intended to kill you. So given your example, it seems to me you're referring to an action which was no longer under the assailant's control (i.e. he fired the gun, threw the knife) and would reasonably be expected to result in harm, if it had been successful (he had a better aim, etc). Intent then has little to do with it: but still not nothing, because he has to intend harm (to distinguish accidental knife-throwing from murderous knife-throwing). That can be sorted out by imposing a lesser burden of proof regarding intent, something less stringent than "beyond reasonable doubt".

If someone said "I'm going to kill you" and takes a step, I do not think that gives the attackee the right to use deadly retaliatory force, or makes the attacker a criminal. What gives the attackee the right to use deadly retaliation is when the attacker pulls out a gun and points, or takes out a knife and swings.

Under the right circumstances, an unarmed attacker is a deadly threat, and you are thus fully justified (legally and morally) to use lethal force. It would naturally depend on the nature of the step and the people -- a forceful, threatening step (aka "lunge") by a 6'5" tall 300 lb guy against a 5" tall 95 lb guy. It would be wrong to force a person to put their life at serious risk, to establish "beyond reasonable doubt" that the attacker intended to kill him.

[TomL]

Yea. What I mean is "the action by which the person intends to kill." I do not mean that the action itself has intent, it was just shorthand, but obviously confusing shorthand.

I do not think that intent is a proper basis for law. I think that the action which reasonably can be considered to have the effect of harm is the proper basis.

If one is considering a 300lb guy lunging at a 95lb weaking, then some more context is needed: distance between the attacker and attackee. At some particular distance, the attackee should fear for his life. Beyond that he has no reason to. It is actually taught in hand-to-hand combat classes, for example, that anyone within 3 steps of you holding a knife is a deadly threat, even if you have them at gunpoint. Depending on weapons and other context, distance itself is crucial to determining the moral actions one can take.

It would be wrong to shoot to kill an "attacker" who was standing 50 feet away holding a knife. That's not really a threat.

Edited March 31, 2005 by TomL

[DavidV]

(Note, btw, that you can be imprisoned for writing child porn even if it is not distributed to anyone else and thus effectively remains a private thought put on paper).

Btw, that's pretty ridiculous. Fantasizing about coercion is not the same thing as indending to commit it. We don't imprison writers of murder mysteries and rap songs, do we?

[Groovenstein]

"When is a threat an initiation of force?"

. . .

In a wider, real-world context; I am wondering about when the threatening actions by Iran are (or became) an objective initiation of force to the American people.

I like what David said as a starting point: "When the facts, as you are aware of them, indicate that the person will use force." I think David's word choice--"when the facts . . . indicate"--implies an objective determination. In other words, would a reasonable person conclude that the use of force was sufficiently likely as to justify a retaliatory "preemptive" strike?

What "indicates" that the person will use force? I think there are two important elements that must be demonstrated. (I don't yet know whether these are the only two.) The "threatener" must be 1) willing and 2) able to use the force threatened.

"Willing" is important because one might have the means to initiate force but no desire to do so--for example, an unfailing Objectivist with a gun. Knowing that the person has a flawless Objectivist view, you would have no justifiable reason to think that person would initiate force against you.

"Able" is important because one might have the desire to initiate force but no means by which to do so--for example, a small child who says to an adult, "I'm gonna beat you up." Knowing that you could easily fend off the child's weaponless attacks, you would have no justifiable reason to shoot him or knock him out first. Though, of course, in this case you could justifiably restrain him.

I don't know about Iran specifically, but I think the framework I laid out provides a helpful guide for such determinations. A country with a professed hatred for yours, but no means to do anything, is not a threat. A country with a large military, but no desire to harm yours, is not a threat. A country with both the means and desire to harm yours, however, is a threat, and you can justifiably take action--the so-called "preemptive" strike--to eliminate that threat.

I'll put what we have thus far in a tidy little law school outline form, which I will be happy to update as necessary.

-----

I. A threat is an initation of force when the facts, as the potential victim is aware of them when the threat is made, indicate that the person threatening force will actually use force.

(a) The facts indicate that the person threatening force will actually use force when they indicate that the person is

(1) willing, and

(2) able,

to use the force threatened.