Sep 10, 2014
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.
Sep 9, 2014
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.
Sep 2, 2014
I regret that I was not able to fully participate in the discussion that my last post engendered; but a family vacation out of country intervened. But I’m back now, so I can address a couple of points that came up.
First, of course, I don’t believe that the usual business owner should discriminate against the usual firearms bearer, either as a visitor or employee (except as far as dress code; don’t open carry a white rifle after labor day, don’t open carry at people, &c); at least not as a matter of course. There are circumstances where certain specific areas of a business might be off-limits to carriage of firearms; you don’t necessarily want to allow large chunks of ferrous metal into the MRI room, or non-instrinically-safe items into a place with a volatile atmosphere, for example. Not to mention tightly-secured aras such as prisons, mental hostpitals, or certain areas of courthouses. However, I am also somewhat leery of using the blunt force of law to enforce this societal norm against private property owners. In this case, while I’m not unaware of the civil rights aspect, it’s not a free-for-all, either. Regardless of your right to free speech, a private property owner may ask you to leave if you exercise it in certain ways, for example; or if you are an employee your free speech rights may be quite sharply curtailed while on the property or on the clock.
However, I chose the title of the last post and this one to highlight that my suggestion is to change the “default” assumptions. Today, the “no guns” sign functions against lawyers as a bunch of garlic does against vampires; as a mythical ward against their depredations. The suit in Colorado aims to change this assumption, but not particularly in a way that the supporters of the RKBA should be happy about; the plaintiffs claim that the theater chain should have had more security, not that they should not have posted, and that the theater should be on the hook for compensating the victims and families.
In a better legal regime, the property owner might be excepted to take basic and minimal security precautions, such as ensuring any exterior lighting is in proper order, just as they should ensure that the parking lot does not have any sinkholes, &c. When it comes to controlling access to the property by possessors of weapons, thought, they can have a choice. On the one hand, that if a property owner does not prohibit firearms to the people who are inclined to observe such a restriction, they should be immunized (a la the Protection of Commerce in Lawful Firearms acts immunization of retails and manufacturers of firearms, as a very off-the-cuff suggestion). But, on the other hand, that if the property owner does post, they should be required by law and custom to make a serious effort to ensure that all visitors are protected. IE, that a secure perimeter be established, at the boundaries the visitors be given the opportunity to safely and securely disarm and stow their weapons and later safely and securely recover and rearm, and that the property owner be potentially liable in civil (and if appropriate, criminal) court for malicious acts perpetrated against visitors (and employees), not to mention the secured weapons.
This is something that could and should be codified in law, that if a business owner wishes to declare part or all of their property a “weapons-free” zone, they must make a sincere and thorough effort to ensure that it remains as such. In theory, I suppose the courts could force the issue, but in practice I don’t think they will, at least not in a manner we would recognize as supportive of the general RKBA.
Aug 22, 2014
There’s a certain amount of libertarian ambivalence about laws that force companies to allow their employees and patrons to have firearms (or other weapons) in vehicles in parking lots on private property. On the one hand, the property rights of the owner are trampled. On the other, if this is not forced, the self-defense right of the individuals are trampled. No matter what, someone’s natural rights are getting trampled. The justification for parking lot laws boils down to property rights are less important than self-defense rights.
But, there’s an interesting lawsuit that’s come out of the Aurora, CO mass shooting a few years back. Victims and family members are proceeding with a wrongful death/personal injury suit against the theater chain. Normally, I’d say this was an attempt to go after the deep pockets. But, we have been told that this theater chain was somewhat unusual in the region for posting their property, and it’s suspected that the shooter chose this theater at least partially because it was posted, since the theater was not the closest to his home.
A federal judge has again refused to dismiss wrongful death and personal injury lawsuits filed against a movie theater chain by victims of a 2012 mass shooting at a Colorado cinema where 12 people were killed and dozens injured.
In general, the lawsuits claim Cinemark had lax security at its theater in the Denver suburb of Aurora when a gunman opened fired during a midnight screening of the Batman film “The Dark Knight Rises.”
The article then goes on to point out that other theaters in the chain hired security, but this theater chose not to. The theater chain’s defense is that they should not have a “duty and burden to have foreseen and prevented the criminal equivalent of a meteor falling from the sky.” However, by encouraging their patrons to disarm under threat of banning from the property or other legal actions, I’d say that they have chosen to assume the “duty and burden” by forbidding their patrons from retaining the means of self-defense. And, at any rate, a mass murderer is not the only reason for someone to wish to have the means to defend themselves readily to hand.
In the end, this is why those signs and policies exist, because after a tragedy, people will go looking for the deepest pockets that can provide them monetary compensation. The assumption has been, until now, that the signs may not be effective against lawbreakers, but they are effective against the plaintiff’s bar; that they are the equivalent of those signs you see at coat racks and in parking lots that say “management is not responsible for theft.” (which is literally true, but apparently needs to be spelled out). However, today we live in a legal regime where the search for deep pockets causes the plaintiff’s bar to advance the theory that if a property owner does not have a policy against the carriage of weapons, they are responsible for the actions of anyone who does carry a weapon onto the property. Which is absurd, of course.
If this lawsuit goes through, though, the property owners will be forced to take on the duty of defense of their patrons. For a variety of reasons I don’t expect this lawsuit to succeed; but it points out a libertarian way of obtaining the same results as a parking lot law, without the trampling of the rights of the property owners. Pass laws that make it harder to sue the property owner for the actions of a third party on that property, a la the Protection of Lawful Commerce In Firearms Act or the safe harbor provisions of the DMCA, and impose a duty to defend patrons if the property owner chooses to post their property as a “gun free zone.” Then leave it to the free market and the insurance companies to make those signs evaporate…
H/T to Saysuncle
Aug 18, 2014
After the embarrassing political loss for a county office, we knew Bloomberg wouldn’t sit back and let that slide. Now he’s sending the Moms who are continuing to use their brand, despite being rolled into Everytown Against Illegal Mayors Who Hate Guns (or whatever their name is), after grocery stores thanks to images offered up by open carry activists with rifles.
So far, it seems like Kroger is willing to stand by their policy of just letting state and local laws prevail. The company spokesman told HuffPo, “We know that our customers are passionate on both sides of this issue and we trust them to be responsible in our stores.”
Aug 8, 2014
I’ve generally believed when you make a decision to be armed, you try to do your best to be armed in all circumstances where you can. But sometimes, you just have to give in. Caleb seems to be in the same place, describing that there are no good solutions for jogging. When I used to bike regularly through Fairmount Park in Philly, I usually figured out a way to carry. It’s not difficult if you eschew the typical biker spandex and go with shorts and a loose t-shirt. You’ll probably print a bit, but if it’s legal, who cares.
But I don’t really concern myself anymore about difficult situations. When that comes up, I just leave it at home. I’m working in New Jersey now, which means generally not carrying very often. I don’t want to risk strapping on in the morning and then forgetting about it if I get called on-site. Do I worry about being unarmed? No. Not really. The more I’ve thought about this, the more I think mindset is more important than the weapon. Firearms are just tools. It’s the mindset that makes them weapons.
Statistically I’m taking a much bigger risk indulging in my love of fried foods and distilled/fermented beverages than I am leaving the gun at home. Caleb’s probably doing more to protect his life jogging than he would spending equivalent time driving car while armed. For most suburban dwelling middle class folks, the odds that you’re ever going see the balloon go up are smaller than being in a serious car wreck, or coming down with a life threatening illness before you’re 60.
But even for suburban dwellers, the odds of being the victim of a violent crime over a lifetime is not so insignificant as to make it something to just casually dismiss. Most of us know a few people in our lives that have been victims of violent crime. Maybe we only know a few more than have ever had cancer. Over the years thinking about this, I’ve come to the conclusion that carry is not a numbers game. If it were, we’d spend less time with the guns and more time at the gym, and we’d try to fly and take trains instead of driving places.
I believe the reason we all carry is because most of us demand a high level of personal autonomy, and the individual dignity that comes with that. That’s why people who have a weak sense of individuality don’t understand it, and why it’s such an affront to collectivist thinking. I’d much rather die in an accident, or from a health issue, than die on someone else’s terms. I can’t honestly think of a worse way to go.
If I were one of the 40,000 Yazidis trapped on Mount Sinjar, staring down the ISIS horde, I’d much rather having a gun in my hand, pondering a strategy for taking at least 5 barbarians with me, than have to contemplate submission. Even if submission would mean living, I’d rather die on my own terms, as a free thinking and acting individual, than submit to the barbarian horde.
That’s probably also why I’m not keen on spending more treasure helping the Arabs, but I’m willing to do so for the Kurds. The Arabs have largely thrown down their weapons and submitted when confronted. The Kurds are fighting, and at the end of the day I’m always going to be willing to throw my lot in with people who are willing to stand up for themselves, even against terrible odds. The reasons the Kurds are fighting barbarians are the same reasons we carry. It’s not about statistics, or odds, it’s about dignity.