Abstract

http://ssrn.com/abstract=2256035
 


 



The Value of Life: Constitutional Limits on Citizens’ Use of Deadly Force


F. Patrick Hubbard


University of South Carolina - School of Law

2013

George Mason Law Review, Vol. 21, 2014

Abstract:     
This Article argues that most states have unconstitutionally overbroad authorizations for citizens to use deadly force in the context of crime prevention, citizen’s arrest, and defense of one’s “castle.” Similarly, some authorizations of deadly force for self-defense in public areas may be unconstitutional. The starting points of this argument are the fundamental value of life, the state’s monopoly of deadly force, and the fundamental constitutional right to life. Because of the state’s monopoly of deadly force, any use of such force is either legitimate or proscribed. The lack of a third category of “private” use of deadly force affects constitutional review of authorizations of the use of deadly force in two ways.

First, a citizen’s use of authorized deadly force is subject to the same constitutional limitations that apply to a governmental official’s use of such force. Consequently, because some authorizations permit citizens to use deadly force in a way that would be unconstitutional if a government official had used the same force, these citizen authorizations are also unconstitutional.

Second, equal protection and substantive due process review of an authorization require a stringent standard of review in terms of the rights of citizens killed as a result of the authorization of deadly force. More specifically, because of the fundamental constitutional right to life, the authorization must be narrowly tailored to address a compelling state interest. Many authorizations of deadly force do not satisfy this standard because they are so overbroad that they include authorizations of deadly force in situations where the state interest involved is not sufficiently compelling to justify a denial of the fundamental right to life.

Because of the unfairness of applying a constitutional limit in the context where a citizen has acted in accordance with an overbroad authorization of deadly force, a prospective declaration of unconstitutionality may be appropriate.

Number of Pages in PDF File: 34

Accepted Paper Series


Download This Paper

Date posted: April 25, 2013  

Suggested Citation

Hubbard, F. Patrick, The Value of Life: Constitutional Limits on Citizens’ Use of Deadly Force (2013). George Mason Law Review, Vol. 21, 2014. Available at SSRN: http://ssrn.com/abstract=2256035

Contact Information

F. Patrick Hubbard (Contact Author)
University of South Carolina - School of Law ( email )
Main & Greene Streets
Columbia, SC 29208
United States
Feedback to SSRN


Paper statistics
Abstract Views: 463
Downloads: 59
Download Rank: 207,205

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo4 in 0.797 seconds