(By Daniel B. Peters)
***Disclaimer – this is not to be construed as legal advice, it is only provided to inspire discussion and to give you information and entertainment. In the event you need legal advice during an actual zombiepocalypse please contact an attorney. Also, make sure that your attorney is not a zombie. Avoid being bitten.***
Alright, I know what you’re thinking. I don’t have time for this. I should be stockpiling more ammunition and learning how to make a zombie slaying robot out of a lawn mower, two shovels, mentos, diet coke and my I-Pad. But who wants to survive the zombiepocalypse only to spend the rest of your life in prison? Or having to sell the property you fought so hard to protect in order to defend a law suit by the family of a zombie that your I-Zombieslayer 2000 chopped up into bits?
There are other sources for information on what to do in case of a Zombie invasion, but the legal aspects are often ignored. The CDC was off to a good start in its Preparedness 101: Zombie Apocalypse article, but it neglected several important topics, such as do I need the I-Pad2 to build my I-Zombieslayer 2000, or will the original model do, and of course, the legal aspects of the zombie apocalypse. The Zombie Survival Guide: Complete Protection from the Living Dead by Max Brooks also has great advice, but likewise fails to include important legal considerations (as far as I know, I haven’t read it, or even skimmed the back cover).
Without further ado, here is the FAQ.
Can I Kill a Zombie (legally speaking that is - you’ll have to figure out the actual mechanics of zombie slaying elsewhere)?
First and foremost, you need to make sure what you have on your hands is actually a zombie. After the zompocalypse there are going to be a lot of people (and not just the brain-eating, shuffling around undead kind of people) skipping showers and missing out on sleep, and maybe even missing some meals. Real living, breathing, non-flesh-eating people might smell bad, look ugly and be easily confused for a zombie.
Is “killing” a zombie homicide/murder? Homicide is the killing of one human being by another. Just to point out quickly, not all homicide is criminal. So, if you want to know if killing a zombie is homicide, you need to know if the zombie is a human, and if it is alive. Now there are two basic theories that address the topic of how zombies are created. There is the more traditional and mystical zombies rising from the grave theory, and then there is more modern and scientific “outbreak” theory.
Why is this important? Well, if you’ve got a zombie that’s been dead for awhile, climbs out of a grave and has no heartbeat, it seems pretty clear that the zombie isn’t alive, and is arguably not human. I think here you don’t have to worry about homicide (or, more to your concern, murder, which is a category of homicide, and a crime). On the other hand, if you’re dealing with somebody who is alive, but has a nasty, brain altering flu, who happens to be hungry for human flesh, well, I’m not going to stop to check his pulse, so, legally speaking, I’d play it safe and consider these zombies to be alive. Killing this type of zombie could likely be homicide.
So under the risen from the grave zombie scenario, I think you can get rid of your concern about murder charges after the whole apocalypse mess is over. In the plague zombie scenario, you have to consider the possibility that just blasting away at zombies could cause you to end up in front of a judge and jury of your surviving peers trying to defend yourself on a murder charge.
Okay, I’m in front of the Judge and Jury Facing Murder Charges – What are My Arguments?
Self-Defense – In most every state you are allowed to defend yourself from an attacker using reasonable force, and you may even use deadly force to protect yourself from imminent and potentially deadly attacks or extreme bodily harm. I can’t imagine many scenarios where, if you have a zombie charging at you ready to feast on your brains, you wouldn’t be justified in using any means necessary to stop the attack (e.g., a 12 gauge shotgun or that fire axe you remembered to grab on your way home from work).
Necessity – Necessity is a defense that works in many situations and basically says you may cause some lesser harm in order to avoid a greater harm. For example, in order to avoid being killed in a snow storm while out hiking in the woods, you can break into a cabin to stay warm. Most places still hold that necessity will never justify the killing of a human being (because you have to be causing a lesser harm than you are avoiding. i.e., killing another person is not a lesser harm than you, yourself being killed.) However, the necessity defense may protect you from other, lesser charges, for instance, the crime of desecrating a corpse. For more discussion on this topic, and reference to a great case about sailors and cannibalism, see this site.
Can I Break Into my Neighbors House (or steal his car, or use his weed whacker) to Get Away From Zombies or Gather Supplies? What about Taking Twinkies from Convenience Stores?
So here we are, already back to the necessity defense. In order to avoid being eaten by zombies, you can probably take whatever steps are necessary to survive, short of killing an innocent, living human. So taking that car, or picking the neighbors lock to hole up in his house is most likely fine. However, if you steal your neighbors car and leave her surrounded, without transportation to escape from the zombies himself, you could be on the hook for causing her death.
One drawback of the necessity defense is that you may have to reimburse the owners of the property for any damage you cause to their property. (However, if they’ve been eaten, what are they odds they come after you).
I am a Zombie, Can I get in Trouble for Eating People?
Assuming you’re still a human, but are infected with zombie-plague, can you face prosecution for eating people? This is an important question, because if you are a zombie, you’re really going to want to eat those brains. First, I would advise you to do everything in your power to avoid eating and/or killing people. However, you may be able to raise an insanity defense. Various states use different tests to determine whether someone is insane. One such test is the “irresistible impulse test,” if you’re in one of the states that use this test, I can’t imagine many people would find that your urge to eat brains was resistible. I think, under any of the state’s test you would likely be able to make a strong case for an insanity defense.
Also, most crimes require that you have a certain mental state when you do an action. For instance, in order to steal something, it’s not enough that a pack of gum just falls in your pocket as you leave the store, you have to have the intention of taking the item. Likewise, if you’re a zombie, it may be that your mental powers are so diminished you don’t have the mental state to commit murder.
What if Looters, Street Gangs, Anarchists or a Bunch of Nuns (or other living human beings) Attack Me or Try to Take My Stuff?
Really, this just goes back to the self-defense and necessity discussions argued above under the “Can I Kill a Zombie” section. Just remember though, you cannot use lethal force to protect your property (except probably in Texas), unless your life is in imminent danger or you will suffer extreme bodily harm.
My I-Pad, Lawn Mower and Shovel (or other stuff) were Damaged During the Zombie Apocalypse, Who Can I Sue? (Who knew my I-Pad wasn’t Diet Coke ™ Proof?)
First off, look to who caused this whole plague to begin with. Was it witches? Satan worshipers? Government scientists? High school kids screwing around in the cemetery trying to creep each other out who happened to stumble across a cursed scroll? None of this crap would have happened without them. I’d point my plaintiff’s attorney squarely at them first.
Next, was the I-Pad, lawn mower or shovel still under warranty? Was it not properly designed to withstand zombie infestation? Products liability and warranty claims could easily arise here.
Do I Have to Obey the Speed Limit? Should I Wear My Seat Belt?
Every society has rules, even one falling apart and being nommed on by zombies, and it’s important that we follow them. What would happen if every time we had a zombie outbreak people resorted to anarchy? That being said, if you’re being chased by zombies, drive as fast as you want.
Should I Update My (un)Living Will Now? Will it be Effective if I am Bitten?
So imagine this: Zombies everywhere, you and your friends are surrounded. Oh no, you’ve been bitten! Your friends don’t know whether they should restrain you and take you with them in hopes of finding a cure, run away and leave you behind, or decapitate you. A little advanced planning can avoid all that. Sign an unliving will now to protect yourself in the unlikely event this scenario comes up. Leave specific instructions on how you want the matter to be handled.
One great idea to let everyone know of your post-bite/pre-zombification wishes is to use the ZomBalert System.
Okay, now imagine this: You and your friends are surrounded by zombies, your good friend has just been bitten! What do I do? That’s easy, she has signed an unliving will, and is wearing a ZomBalert bracelet that instructs me to decapitate her. But wait! She’s not a zombie yet. Most states don’t recognize physician assisted suicide, let alone friend assisted suicide. Your friend isn’t attacking you yet, so it’s not self-defense. You don’t want people to call you the next Jack Kavorkian! This presents a difficult situation, one which I find myself balking at answering. Leave your friend behind and he’s sure to be eaten and/or turned into a zombie. Bash in his brains and you may have committed murder. You’re on your own on this one, legally speaking.
I am the Last Living Human Being on the Planet Earth, What Should I Do?
Don’t panic. You can do whatever you want, elect yourself president, write some legislation that favors your political party. Start a cloning program or invent a cure for zombification. Avoid being eaten by zombies, and have a great day!