The internet’s favorite conspiracy theory

May 26, 2022

I have gotten endless entertainment out of this legal hypothetical much beloved by the internet. I found myself laughing out loud several times writing this. Don’t read too much darkness into the following; it is more than anything a hypothetical situation, that “the internet” roughly speaking, often used to bring up whenever the subject of law and lawyers came up. I don’t know when or where it originated, but it’s been around for while, more often than not used as a sort of trump card to “stump” someone into taking a moment to think. In a sense, it is one of the internet’s best quasi-Zen koans. A Zen koan is a facially absurd statement that is designed only to make you think through a part of life more thoroughly. This hypothetical is a little bit like a Zen koan. 

The hypothetical is: “hire a hit man on yourself”. It means exactly what it sounds like. What if you hire a hitman to kill you? And then, what if, when he comes to kill you, you kill him instead? What does the law say about that? 

I’ll briefly note that there was a certain Stackexchange thread about this among a group of lawyers that helped confirm parts of this line of reasoning. It’s Google-able. This isn’t legal advice from me - although, I’d imagine it would be a very rare set of facts that would lead to this being legal advice, anyway. 

So let’s get to the point.  The internet’s favorite conspiracy hypothetical: What if you hire a hitman on yourself and then kill the hitman? I’d raise many questions about this.

• Is there a conspiracy to commit murder if someone hires a hitman on themself and yet, in the encounter that follows, instead ends up killing the hitman?

  There was certainly an agreement to carry out a crime by hiring the hitman on yourself and substantial steps were carried out toward committing that crime if there was an encounter that led to the hitman’s death. However, you are not allowed to create a situation that necessitates the “need” for self-defense and then violently exercise self-defense in order to escape a situation you created for yourself. So the law of self-defense doesn’t protect you. But does that mean it was cold-blooded murder of the hitman? It can’t be, because there is a reasonable expectation of self-defense whenever someone is in danger of losing their life.

  So then an alternate interpretation of this hypothetical is raised: if you hire a hitman on yourself, the proper reasonable interpretation of the resultant situation is that you have created a fight clu- (sorry, fight club. Shh.) Rather than describing this situation as setting up your own assassination and/or cold-blooded murder, because you are aware of your own actions, and because of the reasonable expectation of self-defense whenever someone’s life is in danger, haven’t you created a situation where you have actually agreed to a fight to the death?

• In this case, the felony murder rule could apply. If an agreement exists, hypothetically, between A and B, where A is to to kill B, and subsequently A does attempt B’s murder, but B kills A instead, the felony murder rule applies: but does it apply successfully? Let’s look: “B kills A” is the killing to which the felony murder rule applies to. Without the specific prior context, “B kills A” is a crime related to self defense (or more strictly a retaliatory action against the violent crime about to be done to B) which occurred during A’s attempt to kill B, which is, absurdity aside, a felony crime. So, normally self-defense applies, but for the prior agreement when B put himself into this pickle, which B himself could be culpable for. Now, the felony murder rule would apply in this case only because the actual killing (“B kills A”) happened during the commission of what is perhaps a conspiracy, wherein A was supposed to kill B, and also if that agreement was actually a crime. That is, not idle talk, i.e. B didn’t seek out A to kill him after the agreement was made. Absent that agreement and substantial steps to consummate it, it is self-defense. So therefore this reintroduces the question about the existence of conspiracy to decide the question of whether the felony murder rule applies. 

• So if the question turns on the existence and application of the law of conspiracy, some big questions I have are: 

  • Does a conspiracy have to be an agreement to commit a crime on someone or some entity “outside” the group of people agreeing to it?

    • Insurance fraud is often offered as an example of conspiracy to harm a member of the group agreeing to the crime, but that is actually someone harming oneself for a payout, that is, someone is defrauding someone outside of the group, or, more simply is stealing from an outside entity by lying about conditions contained in a prior agreement, etc. etc. The point is that it is not wholly an insular agreement to do harm to one of the group in agreement. An additional by-the-by would be: what if such a conspiracy was unsuccessful in getting a payout - it seems to me that the resultant situation to that would be closer to the situation we’re talking about here with the hypothetical “hire a hitman on yourself.”

    • The discussion of this among the group of lawyers in the Stackexchange thread eventually devolved into a testy exchange about the differing definitions of “conspiracy” at the state level, and whether their versions of the state codes were up to date. From my recollection, some of the definitions at the state level that were quoted supported the idea that conspiracy had to be a compact against some third party, and some were more vague, but only a few differing definitions were dug up. C’est la vie, I suppose.

      • I can offer here only the common-sense suggestion that there are some harms that you could agree to take on as a matter of private agreement, as a sort of sacrifice to the group, which, as long as it is without coercion, shouldn’t be chargeable as a conspiracy against you by some compact or group. On the other hand, there are other things that you can’t reasonably agree to sacrifice as a matter of private agreement, like your life. And yet, even in light of that, the hilarity in this fact pattern still continues - because, even if there could be no enforceable agreement between this person and the hitman that was to kill him, the hitman still showed up pursuant to the agreement that was made, even if it was theoretically invalid. The hitman can’t claim the protection of a private agreement for his actions, but likewise neither can the person who hired him claim self-defense because the agreement is unenforceable. It’s still unreasonable to claim self-defense because he still, as noted above, put himself in this pickle in the first place. The general principle being that you can’t claim self-defense after putting yourself voluntarily in a position that might require it. It seems to me that that the question “what happens here, legally?” is still theoretically unsettled. I could be wrong, but it makes me curious.

  • Taking a wider view, I have to ask, what if we consider the concept of a duel? Due to the unusual expectations derived from taking a reasonable look at this unusual scenario, couldn’t you actually consider this to be a duel? To my recollection, in history, the killer of another in a duel was sometimes charged, but with conspiracy? Unlikely…. More often they were charged under statutes than with standard conspiracy. Which begs the question: Why charge under statute unless it proved hard to charge under conspiracy? The fact remains that there is an honor and tradition associated with dueling and unless prevented by statute, dueling was hard to charge as a crime in court because of the customary law associated with it. If you hire a hitman on yourself, because of the reasonable expectation of action in defense of your own life, you can reasonably expect the hirer of the hitman to defend himself. Should you reasonably characterize this situation as a duel?

    • Furthermore, duels not ending in death, were customarily not tried - even in cases of wounds and so on. That idea went completely against customary law of dueling. Perhaps if the traditional duel was not “to the death” and death occurred, maybe legal charges would follow, but this was always viewed as a complete betrayal of custom. Let’s say the hitman survived your “fight” - could he take legal action against you? Probably not: contract killing is not a lawful business, and so on and so forth, so even if you never personally met nor gave personal information to him, but only a place and a time, he probably doesn’t have a cause of action. That’s my guess. But, let’s say the hitman died in your “fight” - could his estate take legal action against you? Maybe, if you buy all my arguments above. I.e., if this was not a contract killing but rather a duel, a fight club or an agreement to fight to the death. Because it is forbidden to agree to sacrifice your own life, but it is not strictly forbidden, theoretically, to risk your life. 

Anyway, I enjoin you not to take this too seriously as a matter of law, but, maybe, as a matter of awe. Awe at the genius of the internet, and its ability to find the most absurd, yet penetrating hypotheticals, that get our preconceived notions all twisted up - and one notion in particular: the notion that we already have all the tools and structures we need to reason out a solution to every possible situation that could arise in society.