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Some Analysis of the Brady Suit Against Lucky Gunner

Dave Hardy, who unlike me is a lawyer, looks at the Brady Center suit against Lucky Gunner and declares it weak tea. As a reader mentioned yesterday, LG is owned by former law students of Glenn Reynolds. If I were them, I’d be looking into what sanctions are available in Colorado against plaintiffs who file frivolous lawsuits with an aim to punch back twice as hard.

I believe the best strategy to discourage the Brady Center from continuing to harass and harangue people out of exercising their constitutional rights is to make sure they pay for this to the fullest extent available under the law. I believe in the past, our side was generally reluctant to play dirty with the Bradys, for fear of the negative PR associated with the big, bad gun industry attacking poor little gun control advocates. I think in this case, based on comments I’ve seen around non-gun sites, most people view this as suing car dealers for DUIs. We shouldn’t fear the news cycle on this one.

I think we should ensure that the costs for these legal adventures is borne as much as possible by the Brady Center. If the Brady’s don’t accomplish anything except enriching our pro-2A attorneys, I’m pretty certain this strategy will be declared a loser, and they will stop.

Upsetting the Right People

I have been rather skeptical of NRA’s ads which wander out of the realm of gun rights and into the realm of the vague and lofty. These are the NRA “good guys” (whoever they are) commercial spots:

But I’ll say this, they are at least sending the right people into spastic fits. I continue to be skeptical that this foray into the high and inspiring is going to work, but then again, I’m a cynical bastard compared to most people.

Friends of the NRA Dinners: Why We Win

It’s becoming a tradition of mine at our Bucks County Friends of the NRA Dinner to pick out the kitschiest thing I can find and aim to win it. Last year I got the NRA branding iron. The year before that the tobacco walking stick. This year was the NRA fan:

NRA Fan

This was won on silent auction. Our silent auction items weren’t doing very well this year, so I managed to get it for cost. Friends of the NRA Dinners raise money for things like the East Stroudsburg South rifle team. Half the funds we raise stay right here in Eastern Pennsylvania.

There were 200 people at our dinner last night, which is a record for us. I’d note that’s a bigger turnout than Shannon Watts can draw to a national protest even with all of Bloomberg’s money. Our people also paid 45 dollars a person to attend (which really just covers the cost of the meal). We didn’t do as well in our raffles and auctions as last year, but that’s been typical for most dinners. In 2013, for obvious reasons, people were a lot more eager to open their wallets for the cause. Overall we’ll end up raising more than $15,000, which mostly goes to fund youth shooting programs.

That’s from one dinner, in one county. Our budget each year to promote the dinner? Five hundred dollars. Our staff? About ten volunteers. I’d challenge Shannon Watts to set up a dinner for Moms Demand under similar restrictions, and see how many people they can draw. Both Chester County, Montgomery County, and Philadelphia all have dinners as well, each raising that much or more (in the case of ChesCo, significantly more). Lancaster County has a dinner that draws 800. They can’t even seat them all in a room, and so have to resort to buffet hot seating. It’s standing room only during the auction. So, Shannon, up for the challenge?

 

 

Bad News for Gun Control

Quinnipeac has Hick down 10 points over Bob Beauprez. This is certainly welcome news, but we should be wary of getting cocky. I’d love to see Hick’s political career served up on a silver platter after he sold Colorado’s gun owners out to Bloomberg.

Dan Malloy in CT is down by six points as well among likely voters. Bloomberg and Obama sold these two guys on the idea that gun control was a winning issue, and it’s looking very likely both of them are going to see the demise of their political careers as a result.

Things don’t really look that good for Martin O’Malley’s presidential ambitions either. This sets things up so nicely for Hillary, you’d almost expect the big gun control push was concocted by Clintonites to pave the way for Hillary and ensure any potential rivals ruined themselves with voters.

The lesson here is not only that gun control won’t save you, it’ll quite likely ruin your political career. Bloomberg is selling politicians snake oil. It was conventional wisdom among Democratic circles that gun control was a loser of an issue, and I’m sincerely hoping that the 2014 elections send that message in a big, big way. This will be our first opportunity, post the big Sandy Hook gun control push, to express our great displeasure.

Tuesday News Links 09-16-2014

I hate to news links you guys so soon after doing it previously, but today is our Bucks County Friends of the NRA Banquet, for which Bitter is co-chair and I serve on the committee (and will be co-chair next year, as Bitter is stepping down) and Bitter’s Mom and Grandmother are visiting, so lots of stuff going on this week.

Shooting in defense of pets.

A lot of folks are talking about the New York Times admitting the Assault Weapons issue was bullshit. I think there’s a concerted effort by anti-gun groups to spread this story so gun owners feel safe and go back to sleep. Once that happens, next Sandy Hook like pretext, they are going to come after us differently, not trying to get everything and the kitchen sink. But that will open the floodgates.

$350 million for gun control from another rich asshole.

Speaking of rich assholes, looks like NRA has started a site meetbloomberg.com. Bloomberg is a great villain. What we have to hope is that he stays at the center of the debate.

I don’t know about the antis, but I personally prefer it when our nation’s police officers can shoot straight.

Turns out that there is mounting scientific evidence showing that natural supplies of lithium in water correlate to suicide rates. I’ll be it correlates better than gun ownership does with suicide rates. (h/t Instapundit)

The Brady Center is suing Lucky Gunner for selling the Aurora killer ammo. I will analyze that complaint when I come across it. “[T]he case will allege that BulkAmmo.com was negligent in allowing the purchase without any ‘screening mechanism to determine his identity or intent for the products.’” This is sure to be even worse than the case I mentioned yesterday. I actually think someone needs to countersue the Bradys. There are usually sanctions for filing frivolous lawsuits. Punch back twice as hard.

Remember, our opponents are against the very notion of self-defense. Well, maybe they’d agree hitting someone repeatedly with a flower would be a reasonable level of force one could use in self-defense.

I guess Kathy Kane doesn’t want to make people think she’s too anti-gun. She’s pooped in a lot of punchbowls in Harrisburg. She can’t really afford powerful enemies.

Things are looking better for Shaneen Allen, but we should keep the pressure on.

I suspect this is a ploy to derail ATF 41P. ATF can’t define person to mean one thing in one context, and another thing in another context.

Brady Attack on Pennsylvania Gun Dealers

The Brady Campaign, no doubt in an attempt to thwart their slide into utter irrelevancy at the hands of the much better funded Bloomberg effort, has filed suit against a suburban Philadelphia gun dealer. The Protection of Lawful Commerce in Arms Act was intended to stop lawsuits like this, but PLCAA allows exceptions for negligence, and that’s what the Brady lawyers are arguing in the case of Fox v. In Site Firearms. They are also being careful to only make state claims, which will make it more difficult to remove it to federal court (where it could be more easily killed). The case against Gander Mountain in New York, for instance, the defendants failed to remove the case. I believe the Bradys are intending to blow a hole in the PLCAA a mile wide and deep, probably because this is an area of activism that Bloomberg’s outfits haven’t had much to do with. The Bradys are demanding a standard that essentially boils down to requiring Federal Firearms Licensees be clairvoyant. Let’s take a look at their complaint:

7. In Site, acting through its owners, operators, employees and/or agents, including the individual defendants named heron, unlawfully sold the handgun used to kill Officer Fox to Michael Henry (“Henry”), a known drug addict, who acted as a “straw purchaser” for Thomas.

8. Thomas was prohibited by federal law from purchasing or possessing firearms due to a 2005 felony arrest. Thomas also was the prime suspect in the disappearance of his fiance in 1999. Despite being unable to pass a background check himself, Thomas was able to acquire the 9mm Beretta from In Site by having Henry act as a straw purchase and illegally and fraudulently complete firearm purchase paperwork required under both federal and Pennsylvania law, falsely claiming to be the actual purchaser. See Bureau of Alcohol, Tobbaco, Firearms and Explosives (“ATF”) Form 4473 and Pennsylvania State Police Form SP4-113.

This is a common means that criminals obtain firearms. In this case the firearm was sold unlawfully, but it’s the straw purchaser who committed the crime, along with the actual felon buyer. The dealer shares no criminal responsibility for a person who deceives the dealer about the legality of the purchase.

9. In fact, from April 10, 2012 through July 31, 2012, Henry straw purchased at least nine different guns for Thomas. Six of the guns Thomas bought through Henry were acquired from In Site. The gun used to kill Officer Fox is the only gun of the nine to have been recovered. According to authorities, the remaining guns are believed to remain in circulation in the criminal market.

Six guns in four months is hardly a high rate of gun buying, especially for a collector. If you’re a high volume business, are you going to remember someone coming in about once every three weeks to make a purchase? Is it even going to look suspicious? I know collectors who buy a lot more than this.

10. On each occasion that Henry straw purchased a gun for Thomas, In Site allowed Henry to submit and/or aided and abetted him in submitting the required Form 4473 and Form SP4-113, falsely claiming to be the actual and qualified purchaser of guns.

So filing legally required paperwork is now “aiding and abetting?” What next? Suing Buick dealers because they “aided and/or abetted” a DUI fatality by helping file for tags on a new car purchase? This is exactly what Brady is doing here. The analogy is perfect. They are doing the equivalent of suing the car dealer over a DUI fatality. Most people, I believe, agree such a thing is ridiculous. Remember, these are extremists. They are modern day Carrie Nations.

11. In Site was aware of facts and circumstances sufficient for it to have known or to have had a reasonable cause to believe that Henry was a straw purchaser and drug addict, who was not purchasing the handgun lawfully for himself but rather was profiting by making an unlawful purchase for another individual prohibited from buying a firearm.

How the hell were they supposed to know he was a drug addicts? Do drug addicts have that fact tattooed on their foreheads? Look, if the guy was coming in every couple of days and purchasing a gun in cash, I would agree they had reason to be suspicious. But six guns over four months is below that which could be reasonably expected of any retailer to notice.

The owner of In Site firearms is a retired West Norriton police officer. Does the Brady Campaign really think that a former cop is going to knowingly sell to a straw buyer knowing there’s a likelihood that illegally obtained firearm might be used against one of his fellow officers?

It’s also worth noting that Brady is not just suing the company, but the two owners personally, even given that the dealer’s wife died in 2013. Their arguments for “piercing the corporate veil” in this case are outlined in the complaint, and in my decidedly non-expert opinion very weak. They seem to focus on the fact that In Site is not the name of the company, calling it a “fictitious name,” and arguing that because the owners hold themselves as owners (it’s an LLC, they are owners), and because the entity, L & J Supply, LLC, uses their initials, this is grounds enough to reach beyond their corporation. This is patent nonsense! This gives you an idea of what scum we’re dealing with in the Brady outfit. I expect the owners should get their suit dismissed, as the proper target of the suit is their LLC and not them personally.

Later in the lawsuit, they turn NSSF guidelines against gun dealers, quoting them in the lawsuit:

“To simply have your customer fill out the required forms and undergo the criminal background check may not be enough under certain circumstances. By including a couple of questions regarding the identify of the actual purchaser in this area of presages screening, retailers can provide a valuable service to law enforcement and to their community without offending a legitimate customer.”

“An effective way to do this is to establish a store police that every potential handgun purchased will be asked the same sequence of questions. You may even want to post a sign in your store that informs the customer of this policy. The sign may read: To assist law enforcement it is our policy to go beyond the law in verifying the identity of the actual purchaser of a handgun.”

When I first got into shooting, I was in a few gun shops that have given me the third degree before they’d sell me a gun, and uniformly I’ve never done business with that shop again. Back then I didn’t have any idea about straw purchasing, and I thought the owners was treating me with suspicion because he didn’t really want to deal with newbs.

Treating your customers as potential criminals is generally not a successful business practice in retail. Most shops I’ve been to haven’t done this kind of screening, and it’s interesting that NSSF’s program is getting turned around against its own members in this suit. The Bradys would like to create a precedent that would mandate it, because it would be unwelcoming to new purchasers. I know if I had been given the third degree on my first purchase, I may have never made another one. The Brady suit goes on to describe what In Site should have known:

These red flags included but are not limited to the number and type of guns Henry purchased; that he was buying semiautomatic handguns; that he purchased multiple semiautomatic handguns; that he was the identified buyer of multiple guns on the same day; that he purchased six guns within a mere 14 weeks; that he purchased two of the same type of gun (a Colt 45) within two weeks of each other; the time frame in which he purchased multiple guns; that he paid for all of his guns with cash; as well as his drug use. In addition, upon information and belief, when In Site illegally sold Henry the six guns and Henry completed the firearms paperwork requiring him to state his address, Henry was living in a house for recovering drug addicts.

Do you know where the halfway houses are in your area? Do they publish a list of halfway houses to crosscheck against anytime someone offers a dealer an address? Does NICS do it? How the hell were they supposed to have known?

And sorry, I can’t resist, they sold him a Colt .45? Really? You couldn’t afford lawyers who perhaps knew something about guns? Colt 45 is a malt liquor beverage promoted by Billy Dee Williams. The actual name for that is the Single Action Army, which is not a semiautomatic handgun. But nit picking aside, they are demanding clairvoyance here. They are trying to achieve through lawsuit what they cannot achieve legislatively. They are trying to render PLCAA without meaning.

Let me tell you that if this works, and there’s a reasonable chance that it will, there is a very good chance gun dealers are going to become very unfriendly and unwelcoming places to first time buyers, and that’s exactly the point. It’s also worth noting that if this Brady legal strategy wins, NSSF will have played a hand in selling the Bradys the rope by which its industry will be hung.

Thursday News Links 09-11-2014

It’s the anniversary of 9/11, and I don’t really have much to say after 13 years. Maybe after 40 we’ll have sales at Penny’s. If it hasn’t been apparent, I’m suffering a bit from blogger burnout. Most of that is because I really just don’t have the time right now. In truth, these past few weeks have been quite generally unproductive, so I don’t think it’s just blogger burnout, but burnout in general. The cure for burnout, for me at least, is usually a vacation, but even if I had somewhere to go, I have things I need to spend money on that aren’t a vacation, like digging a fallout shelter in the back yard. I kid for now, but if the Bear keeps terrorizing the countryside, I might not be kidding. I never had high hopes for this Administration, but if you had told me the Cold War might be back on like in the good old days, I wouldn’t have believed you.

Andrew Cuomo won his primary, but not nearly by the margin he should have as a well-funded incumbent against poorly funded challengers. Jacob notes in the link that it’s being acknowledged that Cuomo’s support for the SAFE Act is a big reason why he fell short of expectations.

Please note some of the unintended consequence of the “law and order” stance of “throw the book at criminals who violate our guns laws.” I’d personally love to see the “law and order” strain in the center-right coalition die the quiet death is richly deserves. I get why we’ve wagged that dog int he past, but it’s always been an unsavory business, and it does us no good to pretend otherwise.

More accurate headline: The NRA Pissed Off the Wrong Billionaire, or maybe the right one. In fact, the effort in Washington State to end private transfers of firearms is headlined almost exclusively by billionaires. Remember, it’s OK to buy democracy, as long as it’s the right people doing it.

Remember, it is unlawful to carry weapons on public transportation in Illinois.

Mother Jones thinks “These Women Are the NRA’s Worst Nightmare.” I hate to tell you Mother Jones, but no. We’ve been through much worse than the likes of Shannon Watts. I’d much rather have Bloomberg and Watts as opponents than the Brady’s, who were a D.C. power couple even before they got into gun control. I’d much rather have an unpopular and failed Obama Administration in the bully pulpit than a popular are politically adroit Clinton Administration. There is no comparison.

Why gun control groups have moved away from the assault weapons bans? It’s naive to believe it’s not still on the agenda. They are just looking for ways to score a victory without rousing our community to oppose them, and they’ve learned assault weapons bans tend to do that. They will ban any gun they can get away with politically if you give them half a chance.

SayUncle notes that using wasp spray as a defensive spray, as an article suggests, is a violation of federal law. I also doubt very much it would be effective. Actual defensive sprays have their place, but I wouldn’t use one to stop a home invasion. Home invasions are deadly force situations.

SayUncle notes that the guy in WalMart who was shot dead holding a BB gun was likely swatted. Bob Owens is also on the case.

Eugene Volokh: The Last American Jurisdiction with a Total Handgun Ban. There’s an awful lot of pacific territories that are unfriendly toward guns. It’s good to see that might be changing. John Richardson has more background not he case. Bitter’s grandfather was stationed on Tinian in World War II as a mechanic, but was shipped back to Hawaii only a few months before this most famous aircraft went rolling down the runway there with it’s rather infamous payload.

The Second Amendment isn’t just about firearms. Someone ought to tell that to Mike Honda.

Thirdpower has snapshots of the rally and counter-rally at Chuck’s Gun Shop in Cooke County. They headed to Pennsylvania right after, but didn’t say where until the lawsuits were filed. I’ll have more to say on that later.

Panera Bread has caved to Shannon Watts. I suspect they wanted to avoid the kind of Bloomberg funded ad campaign currently being waged against Kroger. Where would their movement be without rich assholes? It’s the same play, however. Panera doesn’t actually change it’s policy, but instead releases a statement saying guns are icky so Shannon Watts can fundraise off another “victory.”

Bloomberg getting bored with gun control? I’m not relaxing. It doesn’t take much effort to write checks, and Bloomberg can outspend NRA every year for the rest of his life just by occasionally cleaning out his sofa cushions.

NRO: Anatomy of a GOP Disaster, talking about the Corbett Campaign. The biggest complaint against Corbett from the center-right is that he’s been a do-nothing governor. To me, that’s hardly a sin. I worry more about what politicians are going to do to me than for me. But being a loser Republican this year has to take a special talent, when you look at how other states are faring poll wise.

Anti-gun people won’t give up on this ridiculous notion that guns cause suicides. I can state this very confidently: owning a firearm does not increase my risk of death by suicide one bit. If I die from my own hand it’s going to be by fried foods and booze.

Another mass knifing in China. He stabbed 8 children and a teacher, three fatally.

A lot of anti-gun folks really are terrible people, but let’s not pretend we don’t have assholes on our side too. Though, to be honest, I’ve never seen anything like this on our side.

A teacher in Utah has an accidental discharge while, well, having an… err… intentional discharge. A professor in Idaho also screws up. This obviously is not going to help our cause. While I still strongly believe most people who carry are safe, there is a small number of buffoons out there who will ruin it for the rest of us. We’re probably very fortunate the Missouri Legislature chose to override Governor Jay Nixon’s veto of a bill that would allow limited carry in schools, and also preempt local communities when it comes to open carry.

From The Firearm Blog: Guns, Ignorance and Superstition in Africa, and The Winchester 94 in WWII.

Mike McDaniel of Bearing Arms: A Submachine Gun Primer.

Remember, gun control works.

The World Is Not As It Should Be

I’ve followed Megan McArdle since her days as a self-publishing penurious blogger through her gigs at the Atlantic, the Daily Beast, and now Bloomberg News. I don’t always agree with her, but she’s a thoughtful writer. And her comments are refreshingly multi-partisan (to the point of ideologues from all points of the political compass calling her a hack for their enemies.)

One article that recently caught my eye started from a discussion of the recent revelations that, yes, Virginia, some people will hack other people’s cloud storage accounts and distribute them far and wide. She then segues into why we can’t social engineer away crime:

[Y] ou cannot possibly subscribe to the idea that only social sanctions, well-designed law-enforcement penalties and a more equitable welfare policy stand between us and a nearly-crime-free utopia.

The point is that crime still happens even when everyone agrees that it is wrong, and crime still goes unpunished even when we would very much like to punish it. That’s because many people are … well, something that’s not printable on a family blog. Let’s just say that a troublesome minority of people will ignore basic decency and morality and do terrible, wrong things to get what they want.

The conclusion of the piece is one that I think readers here will agree with. “It is not “victim blaming” to urge their targets to protect themselves from that threat.” All together, a nice justification of the right to self defense.

The Best Kind of Correct

Ce n’est pas un fusil

It is what you get when you have to rules-lawyer around a 80-year old law intended to prevent ownership of anything that wasn’t a hunting or fowling piece by the poor, then clumsily edited by politicians to exempt handguns when it turned out that an effectively-complete ban on anything that was smaller than a breadbox was politically untenable.

Now, Linoge notes that there are two pieces of arcane interpretation of unclear law that make this a pistol instead of Any Other Weapon or a Short-Barreled Rifle; and that the BATFE could change their minds at any time. I have to wonder, though, if the BATFE is wary of doing so given that the arcanities of the GCA that separate those three categories are actually quite hard to explain to the layman judge; and that they might have some difficulty keeping a prosecution based on where the lines were drawn in their own admin proceedings these days…

Historically, the BATFE has preferred to rule by interpretation rather than regulation, probably because there’s less oversight on that process. But it has bitten them in the nethers a few times, and with the decade-long trend of various pro-firearms-rights organizations willing to actually make federal cases out of infringements, I have to wonder if the BATFE permanent leadership is a little leery of what might happen in a real court instead of their administrative proceedings.

As a side note, I want one; but may not have one as long as I live in NJ. As a pistol, it’s way over the line of being an “assault firearm” (A semi-automatic pistol with a detachable magazine that has a magazine outside the handgrip, barrel shroud, weight of 50 oz or more, AND is probably a semi-automatic version of a fully-automatic firearm, well more than the 2 strikes permitted). Which reminds me, does anyone know why the federal ban and its imitators has that odd weight restriction?

Self Defense in NJ

New Jersey publishes the jury instructions online in PDF and DOC format (link is to a PDF table of contents). I once sat as a juror in an aggravated assault and unlawful use of a weapon case (a stabbing in a public place) where the defendants claimed self-defense. At this point, the details are unimportant, except that in the course of the trial I received an education in the standards by which actions in self-defense are to be judged in courtrooms in NJ. This, of course, is of utmost importance to know for anyone who owns a firearm and keeps it in functional condition, even more so if you plan on carrying a firearm in public (not an option in NJ for the regular person, of course.) It is, however, a good idea for anyone to be aware of, both for their own personal legal safety and also to be a well-informed person. Well-informed or not, I am not a lawyer, please consult one before believing anything or everything you read on the internet about the law.

One thing about jury instructions that I believe to be superior to reading caselaw and statute law and attempting to interpret, is that they are written to explain the law as-applied for the benefit of the layman, rather than a lawyer, judge, or legislator. Technical terms are explained in layman’s term, and while can lead to leaky abstractions, it’s good for an overview.

The section I’m going to be looking at in this post is found in Chapter 3 “General Principles of Justification” – specifically

JUSTIFICATION – SELF DEFENSE In Self Protection (PDF)

JUSTIFICATION – USE OF FORCE IN PROTECTION OF OTHERS (PDF)

JUSTIFICATION – SELF DEFENSE USE OF FORCE IN DEFENSE OF PERSONAL PROPERTY (PDF)

JUSTIFICATION – USE OF FORCE UPON AN INTRUDER (PDF)

The middle two I’ll just touch on briefly, as they are rather wordy explanations of some pretty simple concepts.

First, let’s look at the general case, Self Defense in Self Protection, excerpted below

The statute reads:
“The use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.”

In other words, self defense is the right of a person to defend against any unlawful force. Self defense is also the right of a person to defend against seriously threatened unlawful force that is actually pending or reasonably anticipated. When a person is in imminent danger of bodily harm, the person has the right to use force or even deadly force when that force is necessary to prevent the use against him/her of unlawful force. The force used by the defendant must not be significantly greater than and must be proportionate to the unlawful force threatened or used against the defendant.

The use of deadly force may be justified only to defend against force or the threat of force of nearly equal severity and is not justifiable unless the defendant reasonably believes that such force is necessary to protect himself/herself against death or serious bodily harm. Deadly force is defined as force that the defendant uses with the purpose of causing or which he/she knows to create a substantial risk of causing death or serious bodily harm. By serious bodily harm we mean an injury that creates a substantial risk of death or which causes serious permanent disfigurement or which causes a protracted loss or impairment of the function of any bodily member or organ.
For example, if one were to purposely fire a firearm in the direction of another person, that would be an example of deadly force. A mere threat with a firearm, however, intended only to make the victim of the threat believe that the defendant will use the firearm if necessary is not an example of deadly force.

A reasonable belief is one which would be held by a person of ordinary prudence and intelligence situated as this defendant was.

Even if you find that the use of deadly force was reasonable, there are limitations on the use of deadly force. If you find that the defendant, with the purpose of causing death or serious bodily harm to another person, provoked or incited the use of force against himself/herself in the same encounter, then the defense is not available to him/her.

If you find that the defendant knew that he/she could avoid the necessity of using deadly force by retreating, provided that the defendant knew he/she could do so with complete safety, then the defense is not available to him/her

So we have a proportionality requirement in NJ – you can’t use deadly force except in reasonable belief that such force is necessary and (for lack of a better word) proper. My problem with this is that the average person does not really believe that an unarmed attack may “create a substantial risk of causing death or serious bodily harm.” See, e.g, the Zimmerman “trial-by-press” or pretty much any self-defense incident where the attacker was unarmed. I don’t see this changing any time soon, either.

The really scary thing, from the point of view of use of deadly force in self-defense is the second highlighted passage. This one requires that the defender be a mind-reader, and be able to distinguish in the heat of the moment whether someone who offers a threat of violence is sincere about it or not, or is merely trying to scare the defender. I about fell out of the jury box when I heard that part of the instruction; as the judge made it clear that a mere threat was not sufficient. I am given to understand this is outside the mainstream of US law on self-defense, but I’ve not made any more than a cursory study of non-NJ law. So, in NJ it would appear you have to let them shoot/stab/swing first if you wish to use deadly force in self-defense (in public, anyway, see below). UPDATE: Mike, below, points out that the sentence actually refers to the defendant, meaning that the jury instructions say that you threaten to shoot someone as part of your self-defense, that is not considered use of deadly force. Since you can use force to defend yourself against the threat of force, it would appear that in the face of a threat of deadly force you may actually respond with use of deadly force. In theory, anyway.

Finally, there is a duty to retreat (with the apparently usual “in complete safety” caveat) prior to the use of deadly force (but not, apparently, prior to the use of force).

In all cases,

The State has the burden to prove to you beyond a reasonable doubt that the defense of self defense is untrue.

Which is something, I guess.

Use for force in protection of others is basically the same as using force in defense of yourself:

… the use of force upon or toward that person of another is justifiable to protect a third person when:
(1) The actor would be justified … in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect and
(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
(3) The actor reasonably believes that his intervention is necessary for the protection of such other person.

Interestingly enough, the defendant’s knowledge of the situation, not the actual facts of the situation, apply

In applying this test [of reasonable belief] you are instructed to disregard any finding that the person in whose behalf (defendant) intervened was in fact the aggressor or that no defensive measures on his/her behalf were actually necessary, but you may consider everything defendant knew when he/she acted, including these same factors if you find that he/she knew them.

The rest of the instruction basically summarizes the duties and rights incumbent on the use of force on one’s own behalf, and would appear to be intended for use with the appropriate jury instruction for those cases.

Use of force in defense of personal property – you basically can’t use deadly force at all, and use of non-deadly force is limited in several ways. Since this is a firearms rights blog, and since actual use of a firearm is deadly force (and brandishing one without intent is unwise), I’ll give it a pass.

Use of force on an intruder is an exception to the general rule requiring retreat, and there is no direct mention of proportionality; though the instructions do not specifically disclaim proportionality. However the conditions under which a defendant is justified in using force include refusal of an intruder to disarm, surrender, or withdraw.

Under certain conditions, the law allows a person to use force upon another, and the use of such force does not constitute a criminal offense. The law exonerates a defendant who uses force (or deadly force) upon or toward an intruder who is unlawfully in a dwelling when the defendant reasonably believes that the force is immediately necessary for the purpose of protecting himself/herself or other person(s) in the dwelling against the use of unlawful force by the intruder on the present occasion.

For the force used by the defendant against another to be justified, the following two conditions must exist:
1. The other person (victim) was an intruder who was unlawfully in a dwelling.  An intruder is one who is unlawfully in the dwelling–that is, he/she was not licensed or privileged to be in the dwelling. The term “dwelling” means any building or structure, though movable or temporary, or a portion thereof, which is used as a person’s home or place of lodging. (A dwelling includes a “porch or other similar appurtenance.”)
2. The defendant reasonably believed that force (deadly force) was immediately necessary for the purpose of protecting himself/herself or other person(s) in the dwelling against the use of unlawful force by the intruder on the present occasion.
A reasonable belief exists when a defendant, to protect himself/herself or a third person, was in his/her own dwelling at the time of the offense or was privileged to be thereon, and the encounter between the defendant and intruder was sudden and unexpected, compelling the defendant to act instantly, and the defendant reasonably believed that the intruder would inflict personal injury upon the defendant or others in the dwelling, or the defendant demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so.

If the defendant did employ protective force, he/she has the right to estimate the necessity of using force without retreating, surrendering position, withdrawing or doing any other act which he/she has no legal duty to do or abstaining from any lawful action.

Now, absence of evidence is not necessarily absence of evidence, but the two highlighted sections suggest that the normal rules of proportionality of force are suspended. This is definitely someplace I’d like actual legal advice on, though; but I’m not going to pay Mr. Nappen’s consulting rate to get an answer to, or buy his out-of-print book at over $100 to answer, at least not today. This eventuality was brushed over by the judge in the case I sat on the jury on (he did mention it, though, despite there being no chance of the defendants using this defense), possibly out of a sense of completeness.

Anyway, the state of jury instructions covering the use of force in NJ suggest that it’s not really a good idea if you have any alternatives, but it is an alternative in extremis.

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