Law of the Undead, pt. 2

October 25, 2012

In our first installment, we looked at one of the possible legal implications under Texas law: in the event that you or a loved one find yourself among the undead, can your will be admitted to probate if you’re a zombie?

But there’s another side to the law of the undead:  specifically, what are your legal rights if you find yourself confronted by the walking dead?

Continuing our tongue-in-cheek examination of this “rising” body of law, I thought a natural question that flowed from a confrontation with a zombie was, if you act to defend yourself, would it be considered justifiable homicide, or desecration of a corpse?

Surprisingly, Texas has helpful law for examining this question as well.

Texas has very clear materials regarding the justifiable use of force.  We can get a good snapshot of those materials with the following search:

Search: justifiable use of force
Jurisdiction: Texas

A good place to start with any question involving self-defense is with the statutes and secondary sources.  Self-defense laws differ state-by-state.  Under Texas law,

The defendant is entitled to exercise self-defense when the defendant reasonably believes that it is imminently necessary to use a reasonable degree of force to protect himself or herself against unlawful force or threat of force even if the defendant’s reasonable belief is mistaken. In the defense of others, situation, the person claiming the right of defensive force essentially stands in the shoes of the person who is unlawfully attacked except that it is the reasonable belief of the person who comes to the aid of another concerning the situation that justifies the use of force that is controlling and not the actual situation or the view of the person who the defendant is aiding.

43 TXPRAC § 43:38


The actual statutes regarding self-defense are found in TX PENAL §  9.31-9.34.  These statutes all discuss use of force against “another” or the “person against whom force was used.”  But is a zombie a “person”?  Might sound crazy but consider how technological advances have challenged basic assumptions and spurred quite a bit of writing on the subject of personhood.   See, for example Lawrence Solum’s essay, Legal Personhood for Artificial Intelligences, 70 N.C. L. Rev. 1231, 1231 (1992) and especially its citing references which address the rights of electronic agents, avatar, chimera, chimpanzee, and persons in a “persistent vegetative state.”

Let’s take a look at whether a dead person is considered a “person” under Texas law.

Search: decedent no longer legal person
Jurisdiction: Texas

This search brings us 33 cases, including one with the following language:

“When [decedent] passed away, she no longer represented a legal entity for purposes of filing suit and, therefore, did not have standing to assert a claim.”  Armes v. Thomspson, 222 S.W.3d 79 (examining legal existence of a decedent in the context of standing); accord Green v. Southern Transplant Svc., 698 So.2d 699 (“The decedent had no claim for the injuries done to his body after his death because he was no longer a legal person capable of suffering physical or mental injury.”)

So a clever prosecutor, perhaps a zombie himself, depending on the spread of the outbreak, could argue that self-defense doesn’t apply because the object of the force exercised (the zombie) wasn’t a person, and therefore outside the scope of the self-defense laws.  This, of course, presumes that a zombie can be considered “dead” for legal purposes, which means either 1) circulatory and respiratory function have irreversibly ceased, or 2) brain function has irreversibly ceased.  TX HEALTH & S § 671.001.  Whether this is the case is, as we discussed in the previous post, an open question.

But is justifiable use of force a defense against desecration of a corpse?

Under TX PENAL § 42.08 one commits the offense of abuse of a corpse by when he or show knowingly:

(1) disinters, disturbs, damages, dissects, in whole or in part, carries away, or treats in an offensive manner a human corpse;
(2) conceals a human corpse knowing it to be illegally disinterred;
(3) sells or buys a human corpse or in any way traffics in a human corpse;
(4) transmits or conveys, or procures to be transmitted or conveyed, a human corpse to a place outside the state; or
(5) vandalizes, damages, or treats in an offensive manner the space in which a human corpse has been interred or otherwise permanently laid to rest.

Not surprisingly, a search within the 102 cases citing this statute for self-defense (justifi! /5 force) reveals no cases where a defendant attempted to argue self-defense after being accused of abusing a corpse.  In fact the following search in All State and Federal materials yields no relevant cases:

Search: self-defense (justif! /5 force) /s corpse “dead body”

So if you find yourself defending someone claiming self-defense for abusing a corpse, you’ll almost certainly be blazing new ground.

For more on self-defense laws throughout the country, try the following:

Search: “castle doctrine” “stand your ground” self-defense
Jurisdiction:  All State and Federal

For more on the much more seasonal topic of desecration of a corpse:

Search: (abuse desecration) of corpse
Jurisidcition:  All State and Federal

Hopefully now you’ll have a good primer for the zombie apocalypse.