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The Second Amendment Wins One

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The Federalist Society's Criminal Law Practice Group reports:

In a per curiam opinion, the Court vacated and remanded a decision by the Supreme Judicial Court of Massachusetts that upheld a state law prohibiting the possession of stun guns after considering "whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment." The Court held that the state court's opinion directly contradicted DISTRICT OF COLUMBIA v. HELLER (2008), in which the Court held "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Alito, joined by Thomas, concurred in the judgment, noting that "[t]he lower court's ill treatment of HELLER cannot stand."

The Court's opinion is here.  The concurring opinion by Justice Alito, joined by Justice Thomas, shows the wisdom of Heller:  Ms. Caetano, the petitioner in the Supreme Court, was given a stun gun by a friend who wanted her to be able to protect herself from an abusive ex-boyfriend who had already put her in the hospital once.  It worked.  The next time he menaced her, she pulled out the gun.  He thought the better of it and left.

For too long, the attitude has been that private citizens should be passive in the face of crime, running or hiding.  "Don't be a hero" was the mentality.  But we need heroes.  It was the heroic passengers of United Flight 93 on 9/11/01 who prevented the plane from slamming into the U.S. Capitol.  It was the heroes on the French train who prevented a massacre.

In some cases, running or hiding may be the right response.  If the professionals are on the scene, it is best to leave it to them.  Other times, though, the combined efforts of multiple people, even if unarmed, can end the killing, and more companies are now including active response in their active shooter training.  Michael Rosenwald has this story in the WaPo.
The US Department of Justice issued this report on the shooting of Michael Brown by Officer Darren Wilson.  The evidence is summarized on pages 5-8.  On point after point, Officer Wilson's claim of justifiable homicide is supported by forensic evidence, reliable witnesses, or both.  The claims that fanned the flames of racial division and touched off riots are refuted, as the witnesses making those claims are contradicted by forensic evidence or their own inconsistent statements.

Although there are several individuals who have stated that Brown held his hands up in an unambiguous sign of surrender prior to Wilson shooting him dead, their accounts do not support a prosecution of Wilson. As detailed throughout this report, some of those accounts are inaccurate because they are inconsistent with the physical and forensic evidence; some of those accounts are materially inconsistent with that witness's own prior statements with no explanation, credible for otherwise, as to why those accounts changed over time. Certain other witnesses who originally stated Brown had his hands up in surrender recanted their original accounts, admitting that they did not witness the shooting or parts of it, despite what they initially reported either to federal or local law enforcement or to the media. Prosecutors did not rely on those accounts when making a prosecutive decision.

Self-Help For Package Theft

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Christin Ayers reports for KPIX, San Francisco:

A Vallejo homeowner fed up with package thefts from his front porch left a stinky surprise boxed up for the thief with a little help from his dog.
Miguel Bustillo, Ana Campoy, and Andrew Grossman report in the WSJ:

At a news conference, Sgt. Jeremy Lewis of the Police Department in Moore, near Oklahoma City, said the suspect in the stabbing spree, Alton Nolen, began attacking workers at random after he was fired from his job at the city's Vaughan Foods Inc. processing plant around 4:05 p.m. local time on Thursday.

When police arrived, two women in the plant's front office area had been attacked and Mr. Nolen, 30, lay wounded from gunshots, Sgt. Lewis said. One of the women, Colleen Hufford, 54, was decapitated. "He did kill Colleen and did sever her head," Sgt. Lewis said.

Police determined that as Mr. Nolen attacked the second victim, Traci Johnson, 43, he was confronted and shot by the chief operating officer of Vaughan Foods, Mark Vaughan, who is a reserve Oklahoma County sheriff's deputy, Sgt. Lewis said. "This off-duty deputy definitely saved Traci's life," he said, describing Mr. Vaughan as a hero. "This was not going to stop if he didn't stop it."

The Only Thing That Actually Counts

The shooting in Ferguson, Mo. has been the launching pad for all manner of expounding about pre-existing agendas.  Libertarians have used it to urge the disarming of the police (called "demilitarization" for their present purposes); liberals have used it to push for legalizing dope; anti-white racists have used it to demand reparations ("reparations" being the word that radicals of one race use to promote appropriating money they did nothing to earn from people of a different race who did nothing to bring about the practices they condemn).

All this is the expected, if not exactly wholesome, reaction of a society that encourages free speech.  But it deflects  --  and is largely designed to deflect  -- from the one thing that actually counts.

The Other Side of the Story in Ferguson

I take press reports with a grain of salt, not because I think reporters are biased (although some certainly are), but because I much prefer facts about alleged crimes to be proved by the rigors of presentation in court, in particular oath-taking and cross-examination.  This is one reason that, for example, I put no great stock in one-sided "reports" that, 22 years after the fact, Cameron Todd Willingham has been "proved" innocent by "more advanced" scientific testing conducted by his partisans without oversight, scrutiny, or adversarial process of any kind.

It is with this skepticism in mind that I bring you this report from the New York Post:  "A Dozen Witnesses Say Ferguson Teen Attacked Cop Before Shooting".  There is also a report out that the cop, Officer Darren Wilson, suffered a facial fracture as a result of being attacked by the teenager he shot.

If these reports are true, it's very difficult to see how a scrupulous prosecutor can indict Wilson.

Unfortunately, with the politically edgy Civil Rights Division on the case, the operative word here is "scrupulous." 

We shall see.

UPDATE:  The original source for this story, St. Louis Post-Dispatch reporter 
Christine Byers, has been on family and medical leave since March, and has tweeted that the story does not appear in the paper because "it did not meet standards for publication." This makes me happy that I started this entry by reiterating my skepticism about about media reports.  Of course the story may still be true; we should find out more in the days to come. 
There has been a huge amount of disinformation about what a "stand your ground" law actually is, particularly during the Trayvon Martin hysteria.  Eugene Volokh has this post explaining the matter at the eponymous Conspiracy. 
On May 12, the Commonwealth Court of Pennsylvania (an intermediate appellate court, see below) decided a case on a constitutional right of self-defense.  The case of Madziva v. Philadelphia Housing Authority, No. 1215 C.D. 2013, arose in the unusual context of a public employee's challenge to his discharge.

Madziva was a property manager for a public housing agency.  One day, a resident's unhappiness with the handling of her transfer request resulted in a minor scuffle in which the resident was the aggressor, and Madziva used a minimal amount of force to extricate himself.  The agency's personnel manual had a flat prohibition on fighting and said self-defense was no excuse.  The Pennsylvania Constitution provides in Article I, Section 1 (emphasis added):

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

The conflict between the manual and the Constitution resulted in a firing, as it should have.  Unfortunately, instead of firing the bonehead who wrote the manual, they fired the manager who used reasonable force to defend himself from an assault.

The Root Causes, and So On....

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We are often lectured about the "root causes" of crime.  They turn out to be numerous, but have one thing in common:  It's never the fault of the guy who did it.  It was someone or something else's fault:  Fell in with the wrong crowd, was off the meds,  neglectful parents, racism, poverty, bad schools, the One Percent, brain lesions, too many Twinkies, not enough Twinkies, lead paint, "urban survival syndrome," you name it.

And some of those may, from time to time, have had something to do with it.  But the main proximate cause of crime is right in front of our eyes: The criminal's blanked-out attitude toward his fellow creatures  --  a simple, if sometimes breathtaking and violent, indifference to the fact that other people have feelings just like he does.

This was seldom on better display than in the aftermath of an armed robbery in Ohio. The robber apparently was on his second escapade of the month (he was out on bond for the first).  This time a store customer shot him.

His parents' reaction was something less than contrition.  Perhaps this particular young man would have done better with less attention and more neglect from his doting parents, who seem to have little knowledge about their son's activities and even less interest in finding out.

It's also a lesson about how thoroughly we're in the grasp of the culture of victimization. It's a mistake to think that such a culture will permanently content itself to serve as the prop for criminal defense.  Its next step  --  and it's a logical step --  is affirmatively to strike out against The Privileged and the Callous, roughly meaning everyone who leads a normal life and tries to be responsible for himself.  Or even just someone who wants to make a trip to the Dollar Store.

Misrepresenting "Stand Your Ground"

I got an email from in the name of the parents of Trayvon Martin. Regrettably, they have abandoned the high road and are now campaigning against "stand your ground" laws with some serious misrepresentations.

Last year, our son Trayvon Martin was stalked, chased down and killed by George Zimmerman, and Zimmerman received no punishment whatsoever. That's in large part because Florida is one of at least 21 states with some form of 'Stand Your Ground' law which enables people like George Zimmerman to claim self-defense.
That is simply not true.  As we have noted on this blog earlier, the "stand your ground" portion of Florida's self-defense law was rendered irrelevant by the testimony of the prosecution's witness that Martin had Zimmerman pinned on the ground.  The verdict was based on the portion of Florida's self-defense law that deadly force is justifiable in response to a threat of great bodily harm, which is substantially the same as the law throughout the country.

Zimmerman Jury Instructions

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The Florida courts have posted the jury instructions in the Zimmerman case. The instruction on justifiable use of deadly force is on page 12 of the PDF file.  See prior post.

Note the absence of any definition of "great bodily harm" in the instruction.
At first, the Zimmerman/Martin case was all about race.  But now it's not, says this article in the WaPo.

Next, it was going to be about Florida's "stand your ground" law.  But it's not.  The prosecution's best witness says Martin had Zimmerman pinned on the ground and was beating him in a mixed martial arts "ground and pound" maneuver.  See ABC story.  Retreat wasn't an option.

It appears that in the end this much-ballyhooed case will be a regular self-defense case.  Florida's self-defense statute (ยง776.013(3)) says:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
Aside from the "no duty to retreat" language, inapplicable to this case, this is standard self-defense law, the same as most states.

However disagreeable Zimmerman's acts of following Martin and confronting him may have been, they were not criminal.  If Martin is the one who crossed the line from verbal confrontation to physical assault, as appears to be the case, then what is left to argue about?  It looks like the key issue is "great bodily harm."  How much injury do you have to be in danger of before you can shoot the assailant?

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