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.
F. Patrick Hubbard,The Value of Life: Constitutional Limits on Citizens’ Use of Deadly Force, 21 Geo. Mason L. Rev. 623 (2013-2014).