A Preemption Puzzle

Smith and Jones are neighbors in Washington, DC. Smith is a retired Special Forces Sergeant-Major currently teaching children in an inner-city school. Jones is a violent felon with multiple convictions for arson, who is presently on parole.

Smith detests Jones as a waste of space; Jones detests Smith as a goody-two-shoes and is given to mocking him with jeering smiles and a chant of “burn, baby, burn!” as he suggestively lights twists of paper while staring intently across the street at him.

One day, Smith sees Jones unloading what he knows to be parts of a flame thrower (remember his military background) in his garage. He calls the police, who search Jones’s house but can find no such parts. Later, Smith observes Jones unloading parts of an even more lethal flame thrower but, once again, the police are unable to find anything.

At this point, Smith erupts “If you can’t do anything about Jones, I CAN!”

Now, the question is this: since the federal government controls DC, and since it now recognizes the principle of preemptive violence, at what point is Jones, in view of Smith’s hostility and known military expertise, legally justified in killing him?

Sure, you can make a claim of self-defense, or at least try to make this defense.

In Virginia, and I believe this isn't unique to Virginia law, one may only use deadly force during the moment that there is an illegal threat to your life. This requires an overt act that reasonably leads you to believe you are threatened with death or serious bodily injury.

Fear is not sufficient cause without some overt act.

So, you are going to have to argue to a jury that the preparations made by the neighbor are sufficient overt act. Lots of luck on that one; juries do strange things and it might work, given sufficient facts on your side.

If your neighbor is in the backyard aiming the device at you, that might be enough--the overt act is preparing to use the flamethrower. Simple posession, even coupled with threats to use it, but where the threat is not when he is holding it in his hands are highly unlikely to be enough.

As far as being able to raise the US action vis-a-vis Iraq--I can't imagine a judge that would allow that argument for the reasons I mentioned earlier; you are governed by domestic law, countries are co-equal soverigns and are not subject to the law of a greater soverign.

You might as well try not paying the bank your mortgage payment arguing that Argentina can default on its debt, therefor you can as well. Or, print your own money and argue as a defense that the government prints its own money.

Jack

As has been and continues to be the case, governing law would prohibit Jones from killing Smith unless threatened by death or serious bodily harm and left with no reasonable avenue of retreat.

If, however, Jones lived in Bogota, had a lot of money and was friends with the local police chief and political boss, I suppose he would be "legally justified" whenever he got around to it.

I like the concept of your post, a nice thinking question, but it doesn't take a lawyer to figure out that governing law is only as good as its enforcement (or the realistic threat of its enforcement). Without being presumptious (though your juvenile final comment makes it a forgone conclusion), your "puzzle" would appear to reflect a characterization of a particular current world affair. In that instance, the better question would be: "If there were no such thing as police wherever Jones and Smith lived, but only an ineffectual an unelected homehowner's association passing rules which it doesn't actually enforce, then when would Jones be legally justified in taking out Smith?" (My answer: immediately. No enforceable law restricts his freedom of action, ergo, he needs no legal authority or justification.)

One final note: Your question would be particularly difficult to answer if Jones and Smith were involved in politics and lived in New Jersey or Florida, where the application of any given law is subject to the whimsical interpretation of some dudes in cloaks.

Now in principle permissible?

Hmmm. What is new about the United States attacking another country? Did Serbia attack us? Did Syria? Did Somalia? Did Hitler? Did Spain (ok, the fate of the Maine is debatable)? Did North Korea? Did North Vietnam?

I don't think any of these countries attacked us anymore than Iraq has. Characterizations aside, I don't see anything new about this policy.

As for permissible pre-emptive attack being a valid criminal defense strategy. Well, if a criminal defense lawyer thought peeing on his client in court might provide a viable defense argument, I'm sure he'd try it. That doesn't mean it makes any sense or is viable.

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