Self Defense Rules Should Be Very Narrow

People use self defense cases as a proxy for their frustration about crime, and in the process devalue human life

Note: The original version of this post erroneously stated that Bernhard Goetz’s victims were killed. They were seriously wounded and one was paralyzed. Thank you to Megan McArdle of the Washington Post for pointing this out.

In the 1980’s, the Bernhard Goetz case made national news. Several young Black men approached Bernhard Goetz, a meek looking man who looked like he might be someone’s accountant, on the New York subway. One of them asked Goetz for 5 dollars. Goetz pulled out a gun and shot them all, and the public erupted. On the Left, he became a villain. On the Right, a hero. And New Yorkers sided mostly with the Right, speculating that the young men had supposedly planned to rob Goetz (we don’t actually know this) and expressing their frustrations about crime and sketchy people on the New York subways. Goetz was acquitted in his criminal trial.

Many lessons have been drawn from the Goetz case, on everything from race to the politics of crime. But in my mind the Goetz case also delineates the parameters of how self defense debates work. I don’t think anyone truly thought that asking for 5 dollars, by itself, constituted such a threat of imminent deadly force against Goetz that he had no choice but to shoot. Rather, people who argued Goetz was defending himself were really cloaking other arguments within the scope of self defense: arguments that these young men had no right to surround and harass a weak looking man on the subway and deserved what they got, frustrations with the crime rate in New York City and especially on its public transit, and a belief that if the police weren’t going to adequately protect citizens, private gun ownership and vigilantism could deter crime.

It is something of a cliche among gun rights advocates to claim that private gun ownership deters crime. Supposedly, criminals know that the armed populace will shoot them if they engage in criminal mayhem, and it prevents crime. Or at the very least, it prevents the specific crimes being interdicted by the self defense. This position is obviously silly, which is probably a big reason why you don’t see, say, Republican presidential candidates espouse it (even as they appoint judges who toe the NRA line). We have a gun homicide rate that far exceeds other developed countries; obviously the number of homicides deterred by citizens exercising self defense rights is far exceeded by the number of additional homicides generated by widespread gun ownership.

But I don’t think this debate was ever really about facts, but feelings. As I said, there’s no serious argument that people asking for 5 dollars are threatening deadly force against your life. But there was an enormous frustration with the fact that you couldn’t ride the subway without being accosted by strangers asking for (or demanding) your money. And we are seeing that same frustration now with two asserted self defense cases that are taking the country by storm.

In that same New York subway system that produced the Goetz case comes the case of Daniel Penny and Jordan Neely. Neely was a poster child for our dysfunctional criminal justice and mental health systems— a man who had been in and out of the system, over and over again; a man who had a rap sheet that ran several pages long; a man whose most recent interaction with the criminal justice system involved an order that he report to psychiatric treatment, which he quickly ditched to go back to living on the street.

But at the time that Penny and Neely had their fateful interaction on the train, Penny knew none of this. What he did know is that Neely was loudly proclaiming that he was willing to die and didn’t care whether he was going to jail. Whatever it was Neely was saying, Penny obviously had enough of it, because he took Neely down and put him into an extended chokehold that killed Neely. And the country responded by polarizing in the exact same way it polarized over the Goetz case.

And again, like in Goetz, I don’t think the argument that this was really self defense is serious. You don’t have the right to choke people to death because they say crazy things in a loud voice on the subway— the victim must be about to attack the other passengers, at the very least. (There’s a strained debate about whether a chokehold is “deadly force” which would require that Neely have been about to try to kill another passenger; I’ll spare you that except to say that New York case authority seems to indicate that a chokehold is deadly force.) The support for Penny, which has come from all over the right, comes from a very different place, the same place the support for Goetz came from. A lot of conservatives, and a lot of ordinary subway riders, are frustrated that so many clearly mentally ill people use the subway not as transportation, but as a staging point to harass their fellow human beings. Someone finally got sick of it and did something about it. What are you going to do, call the cops? We saw what the cops do with the Jordan Neelys of the world- they let him back out on the street, over and over again.

The other recent case is, I will concede, a little more debatable. A store security guard in San Francisco shot Banko Brown, a young shoplifter, after a prolonged fight in the front of the store. Eventually Brown picked up his bag of goods and tried to leave the store, and as he appeared to be backing away, the security guard shot him dead.

The reason this case is at least a little closer from the standpoint of self defense is because the guard says that Brown was threatening to stab him, and the video is too fuzzy to see what Brown was doing with his hands and whether he was threatening the guard. Nonetheless, no knife was found, and I am very skeptical that in fact a bare threat to stab someone, with no knife anywhere to be found, is sufficient authorization under the law to shoot someone dead.

And again, the arguments seem to be a proxy for something else. After all, because Brown did not have a knife, had the guard not shot, the guard would not have been dead. He didn’t actually protect his own life by shooting Brown. No human life was saved, and one was taken. But Brown was a shoplifter in San Francisco, a city that is seeing its retail stores flee in part because of a major shoplifting problem the city is doing little to stop. These same calculations— Brown deserved it, finally someone stood up to a shoplifter, the police will do nothing— explain the reaction to the Brown case, just as they did Goetz and do with Penny/Neely.

And the problem with all of these cases is that while I get the frustration people have with crime and disorder, the solution to this isn’t— and indeed can’t be— to broaden the rules for self defense. Again, come back to the Goetz case. If the rule is going to be that any time a stranger asks you for 5 dollars on a subway train or does something roughly analogous, you can shoot them, how many people are going to get shot and killed who would have lived if they were just ignored? How many lives are we going to lose as hotheads and the trigger happy escalate human interactions to violence?

Of course, I am sure the defenders of Goetz would come back and say that it wasn’t just asking for 5 dollars. But what was it then? The fact that it was several people rather than one? The fact that they were young? They were male? They were… Black? None of these are workable principles (and some of them are offensive ones). None of these facts erase the fact that when Goetz shot those young men, his life was not in danger. He was being harassed, and there’s a big difference.

Do we actually have the right, as a matter of self defense, to choke to death anyone who says crazy things on the subway? Where does that lead? Do we have the right to shoot shoplifters who are retreating from a store, or anyone who the perpetrator claims threatened to stab them, even if they don’t even have a knife? There are no workable rules to come out of these cases, because if we really followed their logic, it would simply mean that ordinary, annoying human interactions and minor crimes could effectively carry the death penalty by summary execution if an armed citizen wishes them to. The value of a human life in that situation would be practically nil, and our rules of engagement would be dictated by the most trigger happy among us.

Look, crime is awful. Policing can be frustrating. People are rightly upset when they ride the subway and strangers will not simply leave them alone. San Franciscans are certainly right to demand that their government do something about shoplifting and theft. But the solution to these problems is not, and can never be, to just allow frustrated citizens to kill the people who annoy them. Human life is worth more than that.