Introduction
From subtle shifts in the procedural mechanics of self-defense doctrine
to substantive expansions of justified lethal force,
many red-state legislatures across the country are delegating larger amounts of “violence work”
to the private sphere. In the wake of antiracism protests in summer 2020, Republican-dominated legislatures proposed a slew of such measures.
The measures provide private citizens greater license to engage in violence to protect themselves from perceived threats and, supposedly, to contribute to the public maintenance of law and order.
Some proposals have been drastic, potentially upsetting what previously had been thought settled practice and doctrine. New Hampshire lawmakers proposed authorizing deadly force against someone who is “likely to use any unlawful force in the commission of riot.”
Arizona legislators wanted to authorize deadly force whenever a property owner reasonably believed it necessary “to prevent the other’s commission of criminal damage” to the property.
Missouri lawmakers sought to create a statutory presumption that any interpersonal violence was justified by self-defense, entitling an actor to presumptive immunity from arrest, prosecution, and conviction.
Florida Governor Ron DeSantis proposed a measure that would permit private deadly force to prevent looting, criminal mischief, or arson that disrupts a business operation.
These proposals capture a cultural zeitgeist that increasingly condones violence, especially directed at those perceived as outsiders or political antagonists.
Some measures have gone beyond mere proposals. Numerous states have relaxed their rules for civilian use of force, authorizing private citizens to mete out violence in a greater number of situations.
In 2018, for example, Idaho passed a law expanding its justifiable homicide statute to permit deadly force in defense of “a place of business or employment” against anyone who “manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the . . . place of business or employment.”
Professor Cynthia Lee documents how states have expanded the defense of habitation—the traditional right to use deadly force to defend one’s home—to many more places than the dwelling.
As Professor Mary Anne Franks writes, laws like these are “a significant departure from the long-held belief that the use of deadly force should not be used to protect mere property.”
Journalist Alex Pareene also chronicles an uptick in legislation immunizing drivers who run over protesters.
Iowa, for instance, provides civil immunity to drivers who, while “exercising due care,” run over protesters blocking public highways.
And Oklahoma provides civil and criminal immunity for persons who unintentionally injure another if they reasonably believe they must flee a riot in their vehicle and exercise due care.
Not coincidentally, legislative interest in these laws picked up after the protests arising from George Floyd’s 2020 murder.
These regulatory innovations layer on top of existing rules that broadly authorize private violence, like expansive stand-your-ground and citizen’s arrest laws. Stand-your-ground laws give citizens the right to use deadly force even when they could safely leave an encounter.
In doing so, they provide private actors the prerogative of police, who also owe no duty to retreat from a potentially deadly scenario.
Yet “this transformation of citizen into cop,” argues Professor Kimberly Ferzan, “is practically redundant because little-known citizen’s arrest laws already do just that.”
Citizen’s arrest laws grant private citizens the right to coercively capture and detain suspected wrongdoers, often with little to no training and few to none of the constitutional protections that circumscribe police-initiated arrests.
When these citizen’s arrest privileges are coupled with expansive stand-your-ground immunities, private citizens obtain powers to use violence that equal—and sometimes exceed—the powers of professional law enforcement.
Such broad authority for private violence workers—and its expressive effects—can have disastrous real-world consequences. The stories are familiar and harrowing. Ahmaud Arbery, a twenty-five-year-old African American man, was simply out for a jog when three men chased him down in a vehicle and shot him. The killers claimed to be engaging in armed civilian policing in response to a series of recent break-ins in the neighborhood.
But for the fact that one individual recorded the homicide, a criminal case against the three men may never have been brought. At trial, the defendants claimed both a right to engage in citizen’s arrest and a right to self-defense.
On his own initiative, Kyle Rittenhouse traveled interstate to Kenosha, Wisconsin, to provide volunteer security services amid racial justice protests in the city and ended up killing two men.
Daniel Perry ran a red light, drove into protesters at a racial justice rally, and then shot and killed a legally armed protester who approached his vehicle.
Perry had previously texted a friend that he “might go to Dallas to shoot looters.”
Some of these men were convicted of crimes. Others were not.
These permissive laws and the constitutional and policy questions they raise are not entirely novel. After all, as Professor Farah Peterson reminds, “There are more than enough signs, for those looking to find them, that violence has been an integral part of the American system of government from the Founding era.”
Indeed, “[v]iolence is the double-edged sword of democracy.”
It has been used to secure safety and freedom since the beginning but also used to undermine democratic institutions and to subordinate people. Recent events, legislative experimentation with ever-expansive spheres of private authority,
and a growing public distrust of governing institutions and fellow citizens make questions about authorized private violence newly urgent.
This Essay builds on our prior work outlining the limits of the state’s authority to delegate violence
and makes two primary contributions to debates about delegation,
privatization,
and violence.
First, this Essay reframes the authorization and toleration of private violence from a libertarian model to one that better reflects Anglo-American political and legal traditions. This reframing exposes these efforts as less about expanding negative liberty and more about implementing an affirmative program of social control, especially targeting marginalized communities.
The Essay then affixes a label to this phenomenon, calling it the “New Outlawry.” The New Outlawry shares features with the ancient practice of outlawry, in which the sovereign removed the protection of the law from designated individuals and left them vulnerable to the plenary use of private violence by any other person.
Like traditional outlawry, the state leverages its monopoly on legitimate violence by dispersing it, empowering and immunizing private violence for public ends. Unlike traditional outlawry, however, the New Outlawry minimizes or abandons the ex ante procedural controls on who is exiled from the protection of the law; and it operates in ways that are (1) both more and less particularized, and (2) both more and less temporally contingent. The New Outlawry also operates in ways in which racialized preconceptions and biases are covert but no less fatal.
Second, this Essay uses the New Outlawry as a vehicle to explore constitutional limitations on empowerment of private force wielders. Many discrete constitutional domains—state action doctrine, the private nondelegation doctrine, due process and equal protection, and the republican form of government guarantee—rely on an intuition that there are constitutional boundaries to delegation to private parties, especially with respect to violence. But as of yet, few scholars have discussed how these doctrinal areas are linked. State experimentation with the New Outlawry provides an opportunity to explore how these different doctrinal categories share common jurisprudential and normative roots.
The following analysis builds on open questions in this debate. As one scholar recently underscored, “[L]ittle contemporary work has been done examining when governments may permissibly authorize deadly force apart from self-defense”
—or, one should add, on the limits of that authorization even when characterized as self-defense. Many scholars who have written about private policing focus on the professional, institutional, paid private security guards patrolling malls, gated communities, retail stores, and similar venues.
Other studies of privatized violence focus on the outsourcing of national security efforts to private military contractors.
This Essay focuses on the unpaid, “volunteer,” noninstitutionalized, domestic private policers who do not wear uniforms (at least not the retail kind) or answer to corporate decisionmakers. Despite differences with their formalized and professional peers—both public and corporate ones
—these private actors are also imbued with significant authority.
And this Essay argues that, at least in some circumstances, the state should be responsible when it delegates power to private parties to deal out violence, especially violence that the state itself could not lawfully engage in.
The object in this Essay is to surface and scrutinize the deep legal and theoretical issues that arise when the state decides to delegate violence work to private parties—whether by express authorization, tacit permission, post-hoc immunization, or other means.
The topic is pressing. Lawmakers are actively proposing and passing legislation. Experiments in one sector of a state’s “ecology of violence”
are wreaking unintended consequences in another. Forces of both the left and the right are questioning foundational notions of the state as legitimate violence monopolist and the constitutional doctrines that reflect that role, whether those challenges arise in the form of police abolition or expanded rights to carry and use firearms.
The Essay proceeds in four Parts. Part I describes the traditional forms of outlawry and highlights its features as a form of social control. From even before the Norman Conquest, Anglo-Saxon law recognized a form of legal action in which a person could be declared an outlaw—placed outside the protection of the law and subject to the lethal violence of any other citizen.
Over time, this severe judgment grew less harsh and submitted to greater exceptions and qualifications.
After briefly remaining in the states after independence, it was abolished for most people in U.S. jurisdictions in the nineteenth century.
Nevertheless, vestiges of outlawry remained in America, especially as applied to African Americans (both enslaved and free), and formed the basis for a type of racialized social control that relied on the authorization and immunization of private violence.
Building on this groundwork, Part II describes what this Essay refers to as the New Outlawry. Although the New Outlawry differs in context, operation, and effect, this web of proposed and enacted laws nevertheless serves a function similar to traditional outlawry.
First, the New Outlawry designates certain persons, under certain conditions, as having forfeited their right to protection of the state (or as lacking any legitimate claim to protection at all); second, it authorizes private actors to judge the violence necessary to incapacitate or punish these persons; third, the express or implicit purpose of these laws is to enlist, empower, deputize, and immunize private parties to deploy violence in service of social control, often in ways the state itself legally cannot.
Next, Part III explores how the New Outlawry represents a departure from basic assumptions of the state that form the best account of Anglo-American political and legal traditions. It then describes how these assumptions undergird a set of seemingly disparate constitutional doctrines: those dealing with state action, private delegation, due process, equal protection, and guarantees of republican government.
Part IV discusses the implications of the New Outlawry with respect to these doctrines and theories, exploring how courts and policymakers may respond to accelerated experimentation with violence delegations.