Insomnia-blogging. Man comes home to find three masked men in his house. They tie up him and his family and threaten to kill them. Teenage son escapes and fetches uncle. Burglars flee, man and brother chase them and catch one, subject him to a “sustained attack” with a cricket bat leaving him with brain injuries. Man and brother get 30 months in jail.
What’s the libertarian analysis? Self defence is allowed. It would be perfectly right to shoot all three burglars dead on discovering them, their trespass being a threat to life, but the family were prevented by the state from having sufficient means of self defence. Attempting to apprehend the burglars after they fled also makes sense: they might come back, they be a threat to others, and they owe reparations to the injured family. But beating a man who is lying on the floor and either unconscious or otherwise no longer a threat is obviously not self defence.
So a lot depends on the exact details of the events. Was the burglar beaten after he was no longer a threat? Or was he a threat up until the point when he was struck the brain-injuring blow with the cricket bat? And did the brothers then stop attacking him?
The law allows for people to use reasonable force to protect themselves or others, or to carry out an arrest or to prevent crime.
[...]
A document jointly published by the CPS and Acpo says people are not expected to make fine judgments about what might be reasonable force in the heat of the moment, so long as they only do what they honestly and instinctively believe is necessary.
However, force used after chasing someone who runs off may not be considered to be reasonable. Acting out of malice and revenge with the intent of inflicting punishment through injury or death would not be reasonable, it adds.
Part of the problem is that when your weapon is a cricket bat it’s hard to moderate the level of force. I wouldn’t know how hard to hit someone with a cricket bat to incapacitate him. As hard as possible is the only thing that makes sense. It’s easy to imagine the burglar being hit once, trying to get up — oh no, he’s still a threat — and being hit again even harder. Is this a “sustained attack”? I imagine the case rested on details like these.
But I’d give these brothers the benefit of the doubt. They were put in the stressful situation by the burglars. Being in a blind rage after your family has been tied up is understandable, and the sort of thing you should expect from someone whose family you’ve tied up and threatened. The brothers arguably owe no reparation to the burglar and are not an ongoing threat to society, so putting them in jail can’t be defended from a libertarian point of view.
Update: Here is an excerpt from the judge’s sentencing. He has seen all the evidence, in particular the injuries and a eyewitness.
Salem was apprehended and cornered in the front garden of …[another house in Desborough Park Road] and brought to the ground.
Four men including, as the jury found, the two of you, armed with weapons then proceeded to carry out a dreadful, violent attack upon him when he was defenceless on the ground.
That attack involved kicking and punching him, stamping upon him and striking him with weapons, including a hockey stick and a cricket bat.
The witness, Miranda McCloughlin, who was at the window immediately adjacent to where the attack was taking place pleaded with you and the two others to stop, telling you that you were going to kill the man on the ground.
She was disregarded and the attack continued. She described you and the other two men involved as acting like a pack of animals. It is purely fortuitous that the man Salem was not killed.
As it was, he suffered a number of fractures, including a skull fracture, and brain damage, giving rise to permanent injury.
So they did indeed beat him to a pulp while he lay on the ground. If this had occurred in Texas he’d have been shot dead in the house and no charges would have been brought. He brought it upon himself, it’s hard to have any sympathy for him. But there comes a point when it’s not self defence any more.