Social:Ordinary firmness
Ordinary firmness is the amount of determination a typical person would have to do what he wants to do even when duress is being applied to get him to do otherwise.
Description
In criminal prosecutions, a voluntary act may be excused as the product of duress if another person procures the actor's cooperation in a crime by an illegal threat that would overcome the resistance of a person of ordinary firmness.[1] Certain crimes, such as murder, have been considered by the common law of most Commonwealth jurisdictions as so heinous as to be excepted from this doctrine, which is sometimes considered paradoxical in light of the fact that a mere provocation can serve as a partial defense to such charges.[2]
In the United States, if a person of ordinary firmness would be deterred by a reprisal from exercising his First Amendment rights to freedom of speech, then this reprisal is considered to have a chilling effect, and it is unlawful for the government to engage in it.
Some individuals are not deterred by such reprisals, but rather are riled up by them, and their determination to speak out is increased. However, in Bennie v. Munn, the United States District Court for the District of Nebraska ruled, "It would be unjust to allow a defendant to escape liability for a First Amendment violation just because an unusually determined plaintiff persists in his protected activity."[3]
Cases
In Ford v. City of Yakima, the U.S. Court of Appeals for the 9th Circuit found that "a retaliatory police action such as an arrest or search and seizure would chill a person of ordinary firmness from engaging in future First Amendment activity."[4]
Jason Kessler and three white nationalist and neo-Nazi organizations, as organizers of the Unite the Right Rally, filed a suit alleging that Charlottesville Police Chief Al Thomas and Virginia State Police Lt. Becky Crannis-Curl, by issuing orders not to engage crowds, allowed counter-protesters a heckler's veto that "injured Plaintiffs in a way likely to chill a person of ordinary firmness from further participation in that activity".[5]
References
- ↑ Dripps, Donald (1996). "For a Negative, Normative Model of Consent, With a Comment on Preference-Skepticism". Legal Theory 2 (2): 113-120.
- ↑ Arenson, Kenneth J (February 2014). "The Paradox of Disallowing Duress as a Defence to Murder". The Journal of Criminal Law 78 (1): 65-79.
- ↑ Judge, JOHN M. GERRARD, District. "BENNIE v. MUNN | 58 F.Supp.3d 936 (2014) | By... | 20141006c08| Leagle.com" (in en). https://www.leagle.com/decision/infdco20141006c08.
- ↑ "FORD v. CITY OF YAKIMA | 706 F.3d 1188 (2013) | 20130208104 | Leagle.com" (in en). https://www.leagle.com/decision/infco20130208104.
- ↑ Unite the Right organizers sue city, former police chief, TCA Regional News, 8 Nov 2018
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