Recently in Use of Force Category

Although Hall v. Florida got most of the attention yesterday, the Supreme Court also decided two cases in favor of the police, both unanimous at least in part.

Plumhoff v. Rickard involves the police's use of deadly force against someone who led them on a high-speed chase over 100 miles an hour and continued trying to escape even after the police had him cornered.  There are several holdings worth noting.
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.

SCOTUS Monday

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The US Supreme Court today decided a rather narrow victim restitution issue in a mortgage fraud case, Robers v. United States.  Ronald Mann has this analysis on SCOTUSblog.

The high court also summarily reversed a summary judgment for the police officer in an excessive force case, Tolan v. Cotton.  There were sufficient disputed facts to go to trial.  Justice Alito agrees with the result but questions why this one case was plucked out the stream of cases.  It seems to be the exemplar of the kind of case SCOTUS passes up regardless of whether the lower court's decision is right or wrong.  That is, it is the application of settled law to particular facts with little potential to blaze any new legal trail or settle any disagreement between lower courts on a recurring question.

Also on today's orders list is Beard v. Aguilar, No. 13-677, California's petition seeking review of a Ninth Circuit decision overturning a murder conviction.  The underlying issue is the reliability of dog alerts as evidence and disclosure of previous false hits.  The Ninth Circuit said the California Court of Appeal's rejection of the claim was an unreasonable application of Brady v. Maryland.  Justice Alito, joined by Justice Scalia, dissents from denial of certiorari with only a cite to his Tolan concurrence, described above.  I gather he means to point out that the Court took Tolan even while letting other wrong decisions pass by.

Town of Greece v. Galloway is yet another case on opening public proceedings with prayers.  FWIW, SCOTUS opens its own sessions with "God save this honorable court."

In the orders list, the court took up for full briefing and argument two civil cases. Ryan v. Hurles is relisted yet again.
There was a strange hearing in the United States Senate regarding the "stand your ground" laws passed by a number of state legislatures.  Laurie Kellman has this story in the WaPo.  How was it strange?  Well, for starters, the star witness was Sybrina Fulton, the mother of Trayvon Martin, who testified:

"I just wanted to come here to . . . let you know how important it is that we amend this stand your ground, because it certainly did not work in my case," Fulton said, speaking without consulting prepared remarks. "The person that shot and killed my son is walking the streets today. This law does not work."
As we have noted here multiple times, the "stand your ground" aspect of Florida's self-defense law was completely irrelevant to that case.  The prosecution witness established that Martin had Zimmerman pinned on the ground at the time Zimmerman shot him.  "Duty to retreat," the point on which Florida's law differs significantly from the laws of a number of other states, is irrelevant when retreat is not an option.  See this post last July.  The relevant aspects of Florida self-defense law are fairly standard.  How can a law "not work in my case" when it has nothing to do with the case?

The hearing was strange, also, in that it was conducted before a legislative body with no authority to make the requested change in the law.  The circumstances in which a person can use deadly force in self-defense is a matter of state law, and nothing in the United States Constitution authorizes Congress to step in.  Section 5 of the Fourteenth Amendment does allow Congress to override some state laws that are used in a discriminatory manner, but despite all the race-baiting that has gone on in the Martin/Zimmerman matter, the claim that "stand your ground" laws are discriminatory is utterly unsupported.

Gun Control, Mars Edition

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Reasonable minds differ on the subject of gun control.  I know thoroughly sensible people in law enforcement who favor strict measures, on the theory that anything that stands even a chance of getting guns off the street makes life safer  --  and, in particular, makes life safer for them.

My own view is that the problem is less guns than the people who use them for criminal purposes.  I have never heard a persuasive rebuttal to the notion that, "if you outlaw guns, only outlaws will have guns."

But whatever one might think of it, some "gun control" measures must have been hatched on a different planet.  I knew academia was the home of some kooky ideas, but this one, from grade school no less, must be the all-time winner.

Bringing a Knife to a Gunfight

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Generally, attacking someone armed with a gun when you have only a knife would be the height of folly.  However, when the perpetrator has his gun pointed at your wife's head, it is the right and gallant thing to do.  That is what a 61-year-old doughnut shop owner in San Francisco did at 3:00 a.m. Monday, according to Ellen Huet in the SF Chron.

The heroic husband was shot in arm but stabbed the robber, who remains at large.  Want to bet the next thing he does is buy a gun?
Attorney General Holder's letter to Rand Paul has been the subject of some commentary.  It is available on Sen. Paul's site, here.

It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.
One need not imagine.  It has happened.  President Washington used military force to put down the Whiskey Rebellion.  President Lincoln used military force to quash a larger rebellion.  President Eisenhower sent the 101st Airborne to deal with Little Rock High School.  Fortunately, they didn't have to shoot anyone in the latter instance, but they might have.

We have not hesitated to criticize Mr. Holder on this blog when he is wrong, but he is right in this instance.  A lawful use of military force, even on American soil, cannot be ruled out in advance, even though the circumstances would have to be extreme and are unlikely to occur in our time.

Update:  The WSJ has this editorial Thursday:

The country needs more Senators who care about liberty, but if Mr. Paul wants to be taken seriously he needs to do more than pull political stunts that fire up impressionable libertarian kids in their college dorms. He needs to know what he's talking about.

Update 2:  The AG has sent Sen. Paul a supplemental letter:

It has come to my attention that you have now asked an additional question: "Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?" The answer to that question is no.

Kyle Hightower reports for AP:

The attorney for the man who shot and killed Florida teenager Trayvon Martin said Monday he'll seek to get the case dismissed using a traditional self-defense argument and not the state's "stand your ground" statute.

Mark O'Mara, who is defending George Zimmerman against a second-degree murder charge in the fatal February shooting, said the traditional self-defense approach is appropriate because the facts suggest his client couldn't retreat from a beating Martin was giving him.

Zimmerman's attorneys had said last week that they would use Florida's "stand your ground" law, which allows people to use deadly force -- rather than retreat -- if they believe their lives are in danger.

"The facts don't seem to support a 'stand your ground' defense," O'Mara said.
I've been saying for some time I didn't think this was "stand your ground" case.

Standing Ground

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The term "stand-your-ground" law comes from one particular aspect of the self-defense laws passed in a number of states.  This aspect overrules case law in those states saying that a person attacked in a public place must retreat rather than respond with deadly force if possible.

Some states, however, don't need a "stand your ground" statute because their courts never made a "duty to retreat" rule by caselaw in the first place.  Bob Egelko has this story in the SF Chron noting that California is one such state.  Overall, though, California law is not particularly friendly to people using deadly force against the initial aggressor.  Of the three briefs that CJLF has filed in support of defendants over the years, two of them have been in California cases where the initial victim was charged with murder for using supposedly excessive force against the initial aggressor.

Both Egelko and Curt Anderson for AP note additional advantages for the defendant in the Florida law, aside from the "stand your ground" aspect.

Anderson says, "The U.S. Supreme Court has never weighed in on the constitutionality of such laws, and none has been struck down by a lower court."  Well, of course not.  People can, should, and do debate the wisdom of such laws, but what serious argument could be made that they are unconstitutional?  It has apparently become part of our modern legal mentality that we assume every important question must be a constitutional question, and a federal one at that.

Bill Cosby weighs in with an interesting interview at CNN.

Standing More Ground

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David Kopel has this post at the Volokh Conspiracy making the same point I made yesterday.

Eventually, a grand jury will issue a report based on its investigation. In the meantime, there are two competing narratives. In one narrative, Zimmerman followed Martin, attacked him, and then murdered him. Let's call this the "M narrative." In Zimmerman's account, he followed Martin, caught up with him, and then left; while he was leaving, Martin attacked him, knocked him to the ground, and began slamming his head into the pavement. Let's call this the "Z narrative."

I am not making any judgment about which narrative is more plausible. The grand jury will do that. For now, it should be noted that neither the M narrative or the Z narrative has anything to do with a duty to retreat. The retreat issue would only be relevant if Martin were the aggressor, and Z had the opportunity to escape from Martin in complete safety. Then, and only then, would different state standards about retreat be relevant....

The core Florida law on deadly force in self-defense leads to clear results. If M is true, then Zimmerman's firing of the gun was a criminal homicide. If Z is true, the act was lawful self-defense. The results would be the same in every other state.

Stand Your Ground, Cont.

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The campaign to exploit the shooting of Trayvon Martin to attack a robust right of self-defense continues.  Eugene Robinson has this column in the WaPo, beginning:

The "Stand Your Ground" laws in Florida and other states should all be repealed. At best, they are redundant. At worst, as in the Trayvon Martin killing, they are nothing but a license to kill.
But of course it's not true, as Robinson comes pretty close to admitting further down the page:

The consensus view, which I've heard expressed by supporters of Stand Your Ground, is that police were wrong to extend the law's self-defense immunity to Zimmerman so quickly without a more thorough investigation -- and that, given what we have learned about Zimmerman's pursuit of Martin, the law does not seem to apply.
The consensus happens to be right for once.  If the facts are as the initial media blitz led us to believe, it's a case of murder, and the Florida law provides no defense.  On the other hand, if the facts are as Zimmerman reported and one witness partially corroborates (see report by Rene Stutzman in the Orlando Sentinel), then it would be self-defense even without the Florida law.  Duty to retreat is irrelevant if you are on the ground with the attacker on top of you, as Zimmerman claims.

Self-Defense and Riots

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The WSJ's "Notable and Quotable" feature quotes Blogger Brian Micklethwait writing at Samizdata.net, Aug. 9:

One of the more depressing things about these [London] riots is the way that the only thing that the Police can think of to say to us non-looters and non-arsonists is: "Don't join in" and "Let us handle it." If the bad guys start to torch your house, let them get on with it. If they attack your next door neighbour, don't join in on his side. Run away. Let the barbarians occupy and trash whatever territory they pick on and steal or destroy whatever property they want to.

There was a fascinating impromptu TV interview with some young citizens of Clapham last night, not "experts," just regular citizens, one of whom stated the opposite policy. Law abiding persons should get out of their houses, he said, en masse, and be ready to defend them.

The trouble with "letting the Police do their job" is that in the precise spot in which you happen to live, or used to live, their job probably won't start, if it ever does start, for about a week. In the meantime, letting the Police do their job means letting the damn looters and arsonists do their job, without anyone laying a finger on them, laying a finger on them being illegal. This is a doomed policy. If most people are compelled by law to be only neutral bystanders in a war between themselves and barbarism, barbarism wins. The right to, at the very least, forceful self defence must now be insisted upon.


It Didn't Happen By Magic

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Question:  How did we get the intelligence that made possible the raid that killed Osama?

Fake answer:  By whimpering, "Why do they hate us?"

Real answer:  By extracting information that, left to their own devices, captured al Qaeda operatives would never have divulged.  Fortunately, under President Bush, they were not left to their own devices.

John Hinderaker makes the point on Powerline:

More information is coming out about how American intelligence identified and tracked down the al Qaeda courier who led to Osama bin Laden. It appears that the CIA's interrogations of Khalid Sheikh Mohammed and Abu Faraj al-Libi provided the information that began the chain the culminated in bin Laden's death yesterday:

Officials say CIA interrogators in secret overseas prisons developed the first strands of information that ultimately led to the killing of Osama bin Laden.

Current and former U.S. officials say that Khalid Sheikh Mohammed, the mastermind of the Sept. 11, 2001 terrorist attacks, provided the nom de guerre of one of bin Laden's most trusted aides. The CIA got similar information from Mohammed's successor, Abu Faraj al-Libi. Both were subjected to harsh interrogation tactics inside CIA prisons in Poland and Romania.

KSM and Libi are two of the three al Qaeda leaders who were waterboarded. Published accounts indicate that waterboarding was key to getting valuable information from them. Our intelligence on al Qaeda and other terrorists groups is of course much better than it was in 2001, but it is still possible that in the future we may capture a terrorist who has information that we have an imminent need to extract. Should that happen, it is unfortunate that waterboarding and other enhanced interrogation techniques, which can best be viewed as humane alternatives to torture, have been taken off the table.



Obama Toughens Up, Uses Beanbags

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I have often questioned this Administration's seriousness in fighting crime.  It happily went along with the Crack Dealers Relief Act (formally known as the Fair Sentencing Act); it appointed an Attorney General who gushes all over himself seeking the approval of the defense bar but can't decide where, or whether, to try terror mastermind KSM; and we have a DOJ that looks the other way at club-wielding thugs menacing a polling station.

This story, however, reaches the point of low comedy.  Frankly, it sounds so bizarre that I have trouble believing it.  But so far as I have been able to discover, the Administration does not deny it.

The story is, in short, that we are fighting the war on illegal immigration at the border, and its intimately related massive drug smuggling, with beanbags.  Not too surprisingly, the opposition is not returning the favor, and is using guns.  One of them killed a federal agent.  If this has inspired any re-thinking of the Administration's policy, however, I haven't been able to discover that either.

Why a terrorist, or even a cat burglar, would take this crew seriously remains a mystery.

Modern Day Katko (Criminal Version)

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For our readers who graduated law school in the past 30 years, you probably all remember nostalgically the famous Torts "spring gun" case Katko v. Briney.  For those who aren't familiar with the case (or you lawyers who tucked away your Torts knowledge after the bar exam), it was a case about an Iowa farmer who, frustrated with a string of breakins of his unoccupied farmhouse, rigged the door with a 20-gauge spring-loaded shotgun to shoot the legs of any unwanted intruders.  In 1967, Katko and a buddy, thinking the building to be abandoned, entered the farmhouse to collect some antique bottles.  The shotgun went off and blew away much of Katko's leg.  Katko sued the farmer for $30,000 and won, and the case stands for the idea that a landowner may not set deadly traps simply to protect his property.

Had Californian Wesley Jones read this case, maybe he would have thought twice about rigging a grenade to his vacation home door.  He apparently did not, and is now dealing much more serious  - and criminal - consequences than his Iowa farmer counterpart.  Jones's wife heard the pin drop when she opened the booby-trapped door, but fortunately the grenade did not detonate.  Jones originally faced an attempted murder charge, but pleaded guilty to lesser offenses and was sentenced to eight years for burglary, assault, and weapons charges.  Read the AP story here.

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