Do criminals have the right to defend themselves from vigilantes?

Question

Consider this scenario...

An unarmed thief snatches a bag from a victim in a public park. The thief flees, pursued by members of the public. The thief trips, falls over and sprains his ankle, he's now more or less defenseless. A crowd surround him some of them start to kick and beat him, so much so that he fears for his life. One of the kickers has a gun in an ankle holster, the thief spots this, snatches the gun and shoots at his attackers. The crowd disperses, the police arrive, the thief surrenders without a fight.

There's no doubt that he's a thief, and there's no doubt that a citizen has a right to defend themself against a mob, but does a thief have any right to defend himself against vigilantes - especially when they go beyond just catching him and instead move on to assault and battery?

Answer 1

canada

This calls for a standard self-defence analysis.

Self-defence is codified at s. 34 of the Criminal Code and has three conditions:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Section 34(2) says:

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

The judge or jury is to assess the reasonableness based on all relevant factors, but one that would be central to the hypothetical you ask about is 34(2)(c): the accused's role in the circumstances.

The Supreme Court of Canada has explained that this factor (R. v. Khill, 2021 SCC 37):

calls for a review of the accused’s role, if any, in bringing about the conflict. The analytical purpose of considering this conduct is to assess whether the accused’s behaviour throughout the incident sheds light on the nature and extent of the accused’s responsibility for the final confrontation that culminated in the act giving rise to the charge.

...

34(2)(c) was intended to serve a distinctive, balancing and residual function as it captures the full scope of actions the accused could have taken before the presentation of the threat that motivated the claim of self‑defence, including reasonable avenues the accused could have taken to avoid bringing about the violent incident.

...

The extent to which the accused bears responsibility for the ultimate confrontation or is the author of their own misfortune may colour the assessment of whether the accused’s act was reasonable.

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The ultimate reasonableness of the act will be coloured by whether the accused caused or contributed to the very circumstances they claim compelled them to respond.

But the accused's role in the incident is only one factor, and it can't explain away all possible force brought by the crowd.

Many of the other factors will also play a role, specifically (a), (e), (g), and (h).

• this was a crowd, surrounding the accused and kicking him
• there were many of them
• shooting a gun seems to be a high degree of force in response
• up to a point, the force of the crowd was part of executing a citizen's arrest

All of the above, and any other relevant factor, would be considered by the judge or jury when considering whether the accused has made out the defence of self-defence. In some places other than Canada, whether the force used in self-defence is "deadly" might play a special role in the analysis. However, in Canadian law, this factor is simply assessed as part of the reasonableness analysis, chiefly through factor 34(2)(g) "the nature and proportionality of the person’s response to the use or threat of force."

With that law set out, none of us here is in any better position than another to make a guess at what a judge or jury would decide.

Answer 2

Being a thief does not give the mob the right to attack you. They can take reasonable measures to try to stop you, but that doesn't mean beating you when you're already defenseless.

If, during the "reasonable measures", you're injured accidentally, you might not be able to recover damages from them. On the other hand, if they go too far, they would probably be liable.

In general, the only time you lose the right to claim self-defense is if you incite someone to assault you. For instance, if you hit someone, they can hit you back, and you can't then claim self-defense for hitting them again. There's also the "fighting words" exception in many jurisdictions: if you taunt someone so much that you get them to hit you, they may not be guilty of assault (see Can one insult someone until he punches them with a goal of having the other person arrested for assult?).

But stealing a bag is not such an incitement.

Answer 3

The case isn't really different from any other reason why somebody might be beaten up by a crowd - maybe he's black or a Jew or is only suspected of theft. Self-justice is illegal in most countries as far as I'm aware, including in the US. Vigilantes may eventually be formed, but what their rights are is usually considerably limited by law (details vary by jurisdiction). It's usually legal to hold up a suspect until the real(!) police arrive, but it's clearly not legal to beat him up or, as it was done by vigilant groups in the mid-19th-century, even tie him to the next tree.

The below picture shows what happened to thieves and arsonists around 1850 in San Francisco because the vigilantes considered the real police corrupt and ineffective and thus also had to fear few consequences for the lynching.

(image source: https://commons.wikimedia.org/wiki/File:Lynching-of-casey-and-cora.jpg, Public domain)

Thus the action by the thief can be considered self-defense, even though it can be questioned whether it was necessary to actually try to shoot the attackers or whether threatening to do so would have been enough.

Answer 4

united-statestexas

It depends.

Generally, self defense is a matter of state law, and states vary. Some states have an exception to self defense when the person is committing a crime.

Example, Texas Penal Code § 9.31

SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

...

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

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(In Texas, common traffic violations, like running a red light, are Class C misdemeanors)

User Barmar asks about civil liability of the vigilantes. That can be precluded by Texas law, somebody would likely have to look at case law. Texas Civil Practice and Remedies Code Sec. 86.002

RECOVERY OF DAMAGES FOR INJURY TO CONVICTED PERSON PROHIBITED. (a) A claimant who has been convicted of a felony or misdemeanor may not recover damages for an injury sustained during the commission of the felony or misdemeanor if the injury would not have been sustained but for the commission of the felony or misdemeanor.

...

Subsection (b)(1)(B) specifically bars claims for damages arising from "apprehension of the claimant during or immediately after the commission of the felony or misdemeanor," but the question is how much the beating moved on from apprehension.

Answer 5

The specifics obviously depend on the particular jurisdiction under which that is judged.

But from practical considerations the answer should actually be: "Yes".

I usually hate "arguments from human nature", but this might be one of the rare cases where even "general animal nature" would make us expect that a wounded animal, in fear of their life and physical well being is to be expected to fight back, when attacked. That doesn't mean that they will, but you have really no argument to act surprised if they do.

So to criminalize behavior that is unavoidable for the "culprit" is something that any justice system should seek to avoid, as that would mean that crime and punishment are no longer a question of normative ethics, resting upon the assumption that the culprit knows or could be reasonably expected to know what is allowed/forbidden and deliberately violated those rules anyway (while being fully conscious of that and the availability of alternatives). So usually the "guilt" of the person performing the crime and not just an undesirable action are required. Like the idea of "that was wrong and you should have acted different only works if they could have", "ought implies can".

So as a result if everyone could be a criminal just by being at the wrong place at the wrong time without any initiative of their own, then punishment can easily feel arbitrary, tyrannical, discriminatory and trust in a justice system can thus be eroded.

The other thing is that the state reserves for itself the monopoly of violence. So no one is to be legally allowed to use violence against another person. Be it aggressive, for law enforcement or punitive unless it's immediately necessary to avert a threat to oneself or others and even then only to the amount that is actually required to do so and not more.

Only the state has the legal right to do law enforcement and take out punitive measures and only after a fair trial. Regular citizens at best are allowed to assist in that with fairly limited permissions.

So usually there's a "citizens arrest" or even an "any person arrest" where people are allowed to arrest a criminal on the spot, though it might vary on the jurisdiction what this actually entails. So the criminal usually makes it worse by "resisting an arrest" even by a non-officer, however that doesn't necessarily mean that the civilian arresting someone has too many rights to engage beyond telling them they are under arrest and defend themselves (as they could always do) if they are attacked.

Also for example in Germany you can only hold someone captive if there is a risk of escaping or if they can't be identified. So you might even have to let go a petty thief who verifies their personal details, as the police has enough information to catch them. So idk a petty thief with a fixed address is unlikely to make a run leaving behind assets more valuable than whatever they had stolen in the first place.

So there's usually an evaluation between the necessity for self-defense, the necessity to stop an criminal on the run and the rights of that accused citizen, because without a trial there is a presumption of innocence and keeping another person captive against their will is a grave violation of their personal rights, that is only warranted under special legal conditions and potentially restricted to professional law enforcement and if it's persistent only allowed after a judge approved of it or after they've legally been convicted of a crime.

Another point to consider is that with regards to the crime, usually crimes against another person's life, liberty and physical well being trump property crimes. The latter being a lot easier to restore, replace and settle than the former. So not only did the mob likely exceed their permissions granted via citizen arrest laws, they likely engaged in extrajudicial punitive measures and thus committed a crime themselves that exceeds the initial crime.

So by doing so they might have entered a new situation where the thievery is almost a negligible factor.

So by the state claiming the monopoly of violence AND only using it when pushed to, the criminal can reasonably expect that if they surrender they remain unharmed and have their case heard in a fair trial before they receive punishment. So under ideal circumstances he's not attacked in the first place and thus has not reason to defend himself. And if he does, he's dealing with professionals who likely have better equipment, martial arts training, numerical power and whatnot, so that he's further disincentivized to go down that path.

While with mob violence, you erode the monopoly of violence, you likely create questionable legal priorities (enraged people usually have a hard time judging proportionality so "potentially fatal battery assault" > "thievery") and the thief themselves has no reason not to resist because they have probably good reason to expect harm and no idea what's going to happen next. Unlike with regular law enforcement where you should technically be able to explicitly read up the paragraphs of what they are allowed to do in what situation and that you shouldn't have to expect unproportional harm from them as they have no punitive permission to use force, but purely self-defense measures, but likely better capabilities to do so.

Answer 6

I'm going to have to dispute the premise of your statements.

Just because you sprain your ankle, it doesn't mean you are defenseless. There are various martial arts that are ground based. Many MMA fights are decided on the ground, rather than in a standing fight.

Just because the thief knows they are unarmed, it doesn't mean the crowd understands this. As far as they know, he is the one with an ankle holster and is going to pull out a gun unless the crowd prevents it.

Granted, the proper response is for someone to take specific action to make the "citizens arrest", which may include binding the thief's hands or otherwise preventing him from leaving the area. They may also have to take action against the crowd to prevent undue violence to the thief.

But it will be up to a judge or jury whether the crowd was "too violent" against the thief. And that will likely be determined by the laws in that jurisdiction.