Recently in Use of Force Category

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

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.

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, 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


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.

Proper Use of Force

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How long do the police have to try to talk a hostage taker into giving up peacefully before they go ahead and shoot him? I would think that two full days is long enough in the estimation of any rational person.  Gina Kim and Chelsea Phua report for the Sacramento Bee:

After 55 1/2 hours, it finally was over.

The stalemate between authorities and a mentally unstable and wanted man holed up for more than two days in a Sacramento apartment with a 16-month-old boy as his hostage ended Friday evening with the man dead and the boy safe.

"This is, in fact, by any measure a very, very successful outcome," said Sheriff John McGinness who said he gave the green light for deputies to use deadly force against Anthony Alvarez, 26, if the boy could be safely rescued.

Five Years for a Push?

It is always dicey to make judgments from a newspaper story, so I'll hedge right up front by saying there may be more to the story. However, if the facts reported by Sunita Vijayan in The Californian accurately reflect the event, it appears a California man is facing up to five years in prison for doing nothing wrong.

Salinas police have said Moore, 29 at the time, pushed Harish Dinesh Davis to the ground on Dec. 26, 2008, causing him to hit his head on the pavement. Police have said Moore shoved Davis after the transient, about age 60, ignored repeated requests to stop washing the windshield of Moore's BMW.
*                          *                        *
On Thursday afternoon, Moore pleaded no contest to assault with force likely to cause great bodily injury. He also admitted to an enhancement of causing great bodily injury. He is scheduled for sentencing July 7.
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Before the confrontation, police have said Moore and a female companion stopped at the gas station while traveling through Monterey County on Highway 101.

They said Davis was seeking donations in exchange for washing windshields, and Moore walked into the station store to complain about him. They said Moore saw the transient arguing with the woman, came outside and pushed Davis, causing him to hit his head.

A shove is not force likely to cause great bodily injury. It is force likely to cause no injury at all. It is an entirely appropriate amount of force to use when a trespasser to one's chattels refuses to desist after being warned. In this case, it caused accidental injury resulting in death. But a legal use of force against the transgressor does not become a crime because of an unlikely and unintended consequence, however unfortunate. That consequence is the result of Davis's own misconduct, and that is where the blame lies.

We need to revise California's law of authorized use of force. Given that our state cannot afford to protect us, it can at least allow us to protect ourselves.
Today, the U.S. Supreme Court announced three opinions for cases argued this term: Johnson v. United States (08-6925); Reed Elsevier v. Muchnick (08-103); and Mac's Shell Service, Inc. v. Shell Oil Products Company; Shell Oil Products Company v. Mac's Shell Service (08-240; 08-372).  At SCOTUSblog, Erin Miller posts brief descriptions of each of the opinions. 

Reed Elsevier and Mac's Shell address areas copyright and franchise law, but today's decision in Johnson held that in the context of  the Armed Career Criminal Act's definition of "violent felony," the phrase "physical force" means violent force.  This means that in order to qualify for enhanced sentencing under "violent felony" section of the Armed Career Criminal Act, a person must have engaged in "force capable of causing physical pain or injury to another person."  The individual could not be sentenced for a violent felony if the person had been convicted for "unwanted touching." 

In 2007, Curtis Johnson pleaded guilty to knowingly possessing ammunition after having been convicted of a felony.  This violated 18 U.S.C. §922(g)(1).  Based on its determination that Mr. Johnson had three earlier convictions for violent felonies, the district court sentenced him to 185 months in prison. Mr. Johnson appealed the court's determination with respect to his 2003 conviction for "unwanted touching," which had been elevated from simple battery to felony status because of a prior battery conviction.

In today's 7-2 decision, Justice Scalia wrote that Johnson's 2003 "conviction was a predicate conviction for a 'violent felony' under the Armed Career Criminal Act only if '[a]ctually and intentionally touch[ing]' another person constitutes 'physical force' within the meaning of §924(e)(2)(B)(i)."  When the Court ruled that it was not, it reversed the judgment of the Eleventh Circuit, set aside Johnson's sentence, and remanded the case for further proceedings.  Justice Alito wrote a dissent, which Justice Thomas joined. 

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