Self-defense, stand-your-ground, and excessive force / Parshat Mishpatim

When I was very young and growing up in New England, my father jokingly told me that every winter, it snows one more inch than the previous year. My mind went straight to imagining the wondrous winters of my adulthood when the snow would be so deep that people would need to dig tunnels—from house to house and through town—to get around. (I don’t recall thinking about the lighting and oxygen problems entailed in this fantasyland.)

Parshat Mishpatim doesn’t mention snow, but it does mention tunneling. Amidst a compendium of mitzvot in the domain of civil law, and following one specifically concerning theft, we find this:

If the thief is seized while tunneling, and he is beaten to death, there is no bloodguilt in his case. If the sun has risen on him, there is bloodguilt in that case. (Exodus 22:1-2)

If the thief tunnels into my home at night, and I encounter him and kill  him, I have not committed murder; if, however, in the light of day I can discern that has come to steal, but not to kill anyone, were I to kill him, I would be guilty of murder.

Talmud explains the Torah’s temporal distinction. Mishnah Sanhedrin 8:6 tells us:

[A thief] who tunnels his way in is judged on account of its [probable] outcome: If he broke through and broke a jug, should there be bloodguilt for him, he must pay [for the jug he broke], but if there is no bloodguilt for him, he is not liable.

Brief as this two-sentence mishnah is, there’s a lot packed into it, so let’s take it bit-by-bit.

The Rabbis understand that it is difficult to judge another’s motives: A thief who enters at night—let’s call him Shimon—knows that he is likely to encounter the person who lives in the house. We may presume that Shimon is prepared to kill the inhabitant—let’s call him Reuven—if encountered, because Shimon knows that Reuven might well try to kill him if caught by surprise at night. In the dark of night, Reuven cannot identify Shimon or discern his intentions. The householder feels he is faced with a threat to both life and limb, and might kill the intruder to protect himself and his family. If, under these circumstances, Reuven kills Shimon, Mishnah tells us that Reuven bears no “bloodguilt”—that is to say, he has not committed a din nefesh, a capital crime punishable by death.

If, however, Shimon tunnels his way in during the light of day, he is likely trying to avoid encountering the residents. Moreover, Reuven can see that Shimon is merely a thief. Ibn Ezra explains that when the Torah says “if the sun has risen on him” it means: if the matter is as clear and obvious as the light of the sun that Shimon did not come with intent to kill (only with intent to burglarize). Under these circumstances, the house holder (Reuven) may not kill the intruder (Shimon).

What if Shimon breaks a ceramic jug? Must he repay Reuven? If Shimon comes during the day, when Reuven is not permitted to kill Shimon to protect his home, Shimon must pay restitution, as we might well expect. If, however, Shimon broke the jug when he tunneled in at night, thereby effectively forfeiting his life since Reuven is permitted to kill him, he is exempt from repayment, because one who is executed is not required to also pay damages, according to M. Baba Kamma 3:10.

I mentioned that Mishnah seems to base itself on an understanding of human nature that Gemara (Sanhedrin 72a) spells out clearly:

Raba said: What is the reason for the law of breaking in? Because it is certain that no man is inactive where his property is concerned; therefore this one [the thief] must have reasoned to himself, “If I go there, [the owner] will oppose me and prevent me; and if he does I will kill him.”

It is here that Talmud establishes the halakhic right to kill in self-defense, declaring:

Hence Torah decreed, If he come to kill you, forestall by slaying him.

Following the castle doctrine, which designates one’s home as a place one has a right to use force (and sometimes deadly force) to protect from intruders, forty-six states have adopted “stand-your-ground,” or “line in the sand,” or “no duty to retreat” laws. Many of these laws not only afford legal permission to kill someone who enters your premises, including in broad daylight, but also confer immunity to both criminal charges and civil law suits. However, stand-your-ground laws often apply to daytime events, and generally permit one who feels threatened but has an option to run away to stand his ground and use deadly force instead. This is deeply troubling, given how easy it is to claim after the fact that one felt mortally threatened. Florida stands poised to expand its current stand-your-ground law by permitting those who consider themselves under threat to fire a warning shot with a gun in order to ward off their assailant. While one might argue that firing a warning shot could mitigate the situation and prevent the firing of a fatal shot, there is good reason to be concerned that this legislation—indeed all legislation of this sort—encourages people to shoot off their guns long before they consider any other option.

Roman rhetorician Lucius Seneca the Elder (54 B.C.E. ‑ 39 C.E.) famously said, “A sword never kills anybody; it is a tool in the killer’s hand.” 

 

Lucius Seneca the Elder (54 B.C.E. - 39 C.E.)

The NRA reformulated Seneca’s words into its well-known slogan, “Guns don’t kill people; people do.” This is no more than a slick attempt to argue that a proliferation of guns has no bearing on our ever-increasing rates of gun violence. In claiming that guns are only proximate causes of death, not primary causes, it utterly fails to take into account human nature. But a gun in hand, and legal permission—indeed encouragement—to shoot at the first hint of danger handily unravels the disingenuous claim of this slogan, and threatens us all.

While Jewish law permits killing in self-defense, the use of excessive force is neither countenanced nor justified. Talmud (B. Sanhedrin 74a) makes this point unequivocally clear:

If one was pursuing his fellow to slay him, and [the one pursued] could have been saved by maiming a limb but did not thus save himself [killing him instead], he is executed on his account.

We hardly need encouragement or sanction to commit gun violence. Mass shootings (such as the Westroads Mall in Omaha, Nebraska, or the movie theater in Aurora, Colorado), school shootings (such as Virginia Tech and Sandy Spring), and individual cases most of us never hear about continue to exact an enormous toll on life. The CDC reports that gun violence claims more than 30,000 lives annually in the United States, and another 60,000 are wounded. Every segment of society is at risk. From Seneca to the NRA, the claim that access to a lethal weapon, and widening permission to use it is not a game-changer is fallacious and perilous. Is this the world we want to live in? Is this the society we want to bequeath to our children?

© Rabbi Amy Scheinerman