March 2012 – Page 6 – Shall Not Be Questioned

A Real Colt M4

I guess Colt got the idea that, perhaps upon hearing the term M4gery, that it was time to offer the public the real thing. That is, if the real thing were semi-automatic and had a 16 inch barrel. But hey, it says “M4 Carbine” on the receiver, and it’s got a pony on it, and who doesn’t want a pony?

Actually, I almost got a Colt AR-15 carbine once. It was in 2004, right after the ban expired, and a local gun shop had a few samples marked “Restricted: For Law Enforcement and Government Use Only.” I thought it would have made a nice souvenir for what once was and never should have been. I’m actually kind of sorry now I didn’t get it, because I haven’t seen them since.

New Name for the Brady Campaign?

Uncle coined the term Brady Campaign to Prevent Gun Ownership. Now he’s using a different one, “The Brady Campaign to Cling to Relevancy.” I guess the real question is how bitterly they are clinging? I’d say very. While the previous one is still certainly true, I think the newer one is probably more true.

What Was Common Law Self-Defense?

Lots of people are bandying “common law” around in regards to self-defense, especially suggesting that Florida’s laws are a departure from common law. Anyone who is suggesting this is ignorant of what the common law on self-defense really was. First, a brief history of what common law is. Common law is essentially judge made law, or customary law, that is built up by precedent over time. For many years, much of the laws of England were done this way. The Romans brought us the idea of civil law, where everything is written down by statute. Self-defense traditionally was a common law justification for certain crimes such as murder, manslaughter, and assault. These justifications were, for a long time, not codified in most states. Codification didn’t generally begin until fairly recently, and some states, such as Virginia, still use common law self-defense. So what was common law self-defense? To understand that, we go back to the authority on the common law, which is William Blackstone, who wrote Commentaries on the Laws of England. But to summarize:

Under common law, it was legal to use deadly force against a person who was committing a felony. Not only was it legal, it was considered a civic duty to do so.
It was legal to use deadly force against anyone breaking into a house at night. It was not considered acceptable to do this during the day, unless robbery was a motive.
Duty to retreat only applied, under common law, to someone who was defending himself against an assault in an “affray” or “brawl,” and with the exception that there was no duty to retreat “in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law.”

As the common law evolved in the United States, Americans never had a particularly liking for the duty to retreat, and it worked its way out of the common law in many states, including New York, who included no such requirement from common law when they codified their self-defense statutes. Many states, when they codified their self-defense statutes, ignored common law and essentially created this duty even when presented with someone committing a felony. Pennsylvania, for instance, does not allow for deadly force to prevent commission of a felony. That was dropped during codification. But the idea that the common law created a duty to retreat in all circumstances is just plain false. Many of the “stand your ground” or “castle doctrine” laws more closely match common law practices than do statutes of states that require retreat even when faced with a felonious attack.

One can see that even with the recent Zimmerman case, that whether a duty to retreat would apply under common law would hinge on whether “certain and immediate suffering would be the consequence of waiting for the assistance of the law,” rather than some absolute duty, as some have made it out to be. Also worth noting that in Blackstone’s time, law enforcement was considered a duty of every citizen, and people were more civically minded back then. With the advent of professional policing in the 19th century, individual citizens have become more removed from looking out for the safety and well-being of their own communities.

George Zimmerman, a lone, self-appointed neighborhood watch captain, would not have been in the tradition of Blackstone’s time. But neither would a neighborhood full of people who hear someone screaming for help, and don’t bother to act until a shot is fired.

Playing Fast and Loose

If the gun control movement has been turning the exploitation up to the max with the Zimmerman case, CSGV has been turning the dials all the way to 11. World class reality distortion expert and lilliputian Josh Horwitz is busy over on HuffPo trying to distort the facts around the Florida law, pointing to the immunity section of the statute, and arguing that prevents “ever having to face any meaningful review of their actions by a jury.” This is hogwash. This immunity can only apply in the event your self-defense is lawful underÂ 776.012, s. 776.013, or s. 776.031 of Florida’s statute. If the facts are in dispute in regard as to whether you fall under this immunity, a jury will try those facts. I argued previously, this actually doesn’t mean a whole lot, and really only prevents prosecutors from abusing people who by all accounts were engaged in lawful self-defense. If there’s probable cause to believe the self-defense wasn’t lawful, then arrest and prosecution and proceed. Horwitz is essentially arguing we ought to be able to prosecute individuals without probable cause. Which isn’t lawful regardless of whether this statute exists or not. As I’ve said, I’m not sure really what purpose this passage serves in regards to criminal immunity, since it seems to me to just restate what is already law.

The bottom line is that prior to the “Stand Your Ground” law, if you were out in public in Florida and could avoid spilling blood by safely retreating from a conflict,Â you were required to do so by law. Now, hundreds of years of common law have been thrown out the window and the Seminole County grand jury will have to evaluate Zimmerman’s actions through the lens of the NRA’s new (and dangerous) statutes.

The standard is safely retreating. The law required retreat only when retreat could be done in complete safety. That’s a relatively tough burden for prosecutors to meet. Indeed, one of the arguments our opponents used to try to defeat the removal of the retreat requirement was to argue that it’s never been abused to lock away innocent people, because it is a tough standard to prosecute someone on.

So the $64,000 question is will the grand jury ultimately indict George Zimmerman or find that he acted in lawful “self-defense.” Prior to the “Stand Your Ground” law, a claim of “self-defense” would not have been possible, as Zimmerman would have had a duty to retreat to avoid a conflict with Martin (something which everyone acknowledges he could have done safely). But with the law in place, the grand jury may have the legal wiggle room necessary to avoid taking action.

This is just BS, plain and simple. Horwitz has absolutely no evidence that duty-to-retreat would have played into this case. I’ve seen one report that Zimmerman was on the ground with Martin on top of him. Duty-to-retreat would not have played into those circumstances. I’ve seen another report that Zimmerman was headed back to his truck and was attacked. That’s another circumstance duty-to-retreat wouldn’t have played into, because Zimmerman was in the process of retreating. As I’ve been saying repeatedly this week, this case is going to hinge on whether Zimmerman was legally faultless, more so than whether he could have retreated, and that would be the case whether Florida had this statute or not.

Horwitz then goes on to lament that Florida will issue licenses to people who have been arrested but not convicted:

Or you can be someone like George Zimmerman, who committed a violent crime but was able to plea-bargain it down to the point where it served as no obstacle to him obtaining a permit. And permits are good forÂ seven yearsÂ — so once you are issued one, you may not have your record checked again by theÂ Florida Department of Agriculture and Consumer ServicesÂ (the issuing body) until you renew the permit.

Zimmerman shoved an alcohol enforcement officer that was trying to arrest his friend in 2005. He was arrested, and in exchange for having the charges dropped, entered into what in Pennsylvania we’d call an ARD program, which means charges are dropped in exchange for your entering into a non-criminal rehabilitation program. This is usually done for non-violent first time offenders… typically DUIs here in Pennsylvania. Was it appropriate for Zimmerman? I think that can be debated. But the fact remains that Zimmerman was never convicted, and we don’t deny rights in this country without due process of law. Horwitz’s claim also implies once you have the license, they ignore any criminal activity you have in the mean time. This is just false. If you’re convicted of a disabling offense your permit will be noted, and revoked.

Horwitz is likely thrilled, because this case is earning CSGV some attention when they are largely, otherwise ignored. They’ve even been quoted in friendly media articles, the media being equally eager to exploit the tragedy for gain. It’s our job to ensure that once the hubbub over this case dies down, things go back to normal, and CSGV are left to their normal routine of begging for attention, any attention.

Update in Nordyke

The Nordyke case was head a few days ago, right after the Peterson oral arguments concluded. This was the case over Alameda County banning gun shows on its property. Apparently now they are suggesting the gun show can continue as long as the guns are tethered to the tables. This seems reasonable to me, since many gun show operators around here tether the guns with a cable lock anyway. The San Francisco Appeal has more. This is an indication that the county doesn’t have much confidence in its case.

A Call For More Gun Control

Apparently the lack of it is pissing off a couple of local runners in Glendale, California.

The Gift Wrapped Tragedy

Much like the shooting of Congresswoman Giffords, the Treyvon Martin shooting is the kind of tragedy that’s positively gift wrapped for our opponents in the gun control movement and the media, and they are exploiting the tragedy to the hilt.

Bloomberg News notes that it shows the weakness of American gun laws. The Tampa Bay Times, who are renowned experts on self-defense law, note the problems with Florida’s “Stand Your Ground” law, even though there’s no evidence at all yet that a duty to retreat would have played into these circumstances. The New York Times is certainly quick to jump in to blast Florida law, even though New York City’s laws are roughly the same. But of course the New York Times knew that, being such strong experts in these matters. The distinguished law professors at CNN tell us that the stand your ground law seems central to this case. Another post at a New York Times blog who don’t realize their law is the same as Florida’s and always has been. Even the National Review, apparently friendly to self-defense interest when the going is easy, run with their tail between their legs when the going gets tough.

It’s a gift to our opponents because it has folks talking about gun control, vigilantes, and wild, out of control redneck gun nuts. Tragedy may be our opponent’s currency, but demographic stereotypes are their natural manure. Any time they can people to surrender all reason, get angry, and act based solely on their emotions, it’s fertile ground. We should be on guard. I do not defend Zimmerman’s actions, but we have to be prepared to defend our rights from those who would exploit the shooting for their own political gain.

New Yorkers Rally in Albany

New York Second Amendment enthusiast are rallying in Albany today. You know one thing they won’t be rallying for? Castle doctrine or “stand your ground” laws. Why? Because New York already has them. That’s right, hysterical media, the self-defense laws that govern Florida are not that materially different than the ones that govern New York City, and I don’t hear New York prosecutors bitching that their laws are an abomination and interfere with their ability to prosecute criminals.

Grand Jury to Be Convened in Zimmerman Case

I figured it would go at least this far. Even if the evidence they thought they have is scant, the political firestorm surrounding this case almost guaranteed that it would go to a grand jury. I should note that were I in either side’s shoes, I’d want this outcome. For Martin, it’s a chance to have the evidence publicly aired. For Zimmerman, if he really is an innocent man as he says, here’s his chance to be exonerated by an impartial jury. This is an interesting detail we haven’t seen previously:

Zimmerman said he had stepped out of his truck to check the name of the street he was on when Trayvon attacked him from behind as he walked back to his truck, police said. He said he feared for his life and fired the semiautomatic handgun he was licensed to carry because he feared for his life.

If that statement is true, then Martin is the aggressor and Zimmerman would be legally faultless, which we discussed in the previous post. The question would then be whether he reasonably believed he was in fear of great bodily injury or death, justifying his use of deadly force in self-defense. If he was indeed walking back to his truck, he was already retreating, and a duty to do so would not have factored into this case, unless he was close enough to his truck to make an escape in complete safety (a difficult standard).

Another common mistake people are making in this case is believing that the attacker has to be armed to be able to use deadly force. This is not the case. The law allows for deadly force to be used on an unarmed attacker in some circumstances. That one party is armed and the other not doesn’t really matter. Only the circumstances under which deadly force were used matters.

H/T to Miguel, who has more.

Mob Justice

I have made it pretty clear on this blog that I am not at all supportive of how George Zimmerman handled himself in circumstances that lead to the shooting of Treyvon Martin, and believe the authorities should take his case to a Grand Jury so that the evidence and witness statements can be scrutinized. But I am absolutely not a fan of trying men, and I don’t care what color they are or where they are from, in a court of public opinion. I am not a fan of mob justice. I don’t care if 20 million people sign a petition to incarcerate George Zimmerman, that’s not how the system works in this country. We arrest people when we have probable cause to arrest them, and you don’t get probable cause until an investigation turns up evidence that disproves or casts doubt on the self-defense claim. We also don’t deprive people of life or liberty without due process of law in this country.

The FBI’s civil rights division is getting itself involved in the case now. This is to be expected, and may even be welcomed by the local authorities since it takes some of the heat off them and brings in a third set of eyes to examine the evidence and witness statements.Â Police have released more calls in the past from Zimmerman, which show a pattern of mall ninjary and playing cop that seems to have developed over time. A new witness has also come forward, who was on the phone with Treyvon Martin when the altercation began (WARNING: Link will play an obnoxious advertisement automatically). I’ll be honest, I’m skeptical how much detail of a situation someone can get over a cell phone, particularly who threw the first punch. But assuming the witness is credible, I would argue that Treyvon has a good faith belief he was defending himself.

But on matters of self-defense, one disappointing aspect in regard to the coverage of this case, is how poorly people seem to understand self-defense law. The media could step in and presents the legal facts, but they are happy to fan flames and throw gasoline on the fire, rather than try to educate people. I think it would be very unlikely, whether there was a duty to retreat or not under Florida law, it would play into this case. Retreat has always required the ability to do it in complete safety in order for it to be required; if you’ve met the standard of a reasonable belief that grave bodily injury or death is imminent, you’re not expected to run from your attacker unless you could have done so in complete safety. The law has never required you to make a judgement about whether you could outrun your attacker, or disengage from an affray without getting stabbed, etc.

What the Zimmerman/Martin case is likely to hinge on is whether Zimmerman was faultless. Generally, in order to claim self-defense, you have to have no fault in the circumstances. In other words, who threw the first punch is relevant here. If it was Zimmerman who used unlawful force on Martin, by trying to restrain him, etc, then Zimmerman’s self-defense claim can’t stand. In fact, Martin would have the valid self-defense claim in using force to defeat Zimmerman’s use of unlawful force. The fact that Zimmerman disregarded advice from 911 is not material. What 911 tells you are not lawful orders that must be obeyed. That doesn’t play into fault here as far as the law is concerned. Word are also generally considered insufficient to surrender faultlessness. In other words, if Zimmerman asked Martin “What are you doing here?” or even if he verbally antagonized Martin, and Martin attacked, Zimmerman is still faultless legally. Even if Zimmerman unwisely pursued Martin, that still does not create fault in the eyes of the law. The validity of the self-defense claim hinges almost entirely on who started the affray. If there was not a witness to those circumstances, it hinges on Zimmerman’s statement, and whether it comports with the evidence and statements from witnesses, and whether any of it casts doubt on the self-defense claim.

One consequence of our legal system, which requires proof beyond a reasonable doubt, is that sometimes murderers will go free. We can’t incarcerate someone because we just know he’s guilty. We can’t incarcerate someone for being a racist asshole, and disregarding all sound advice about not engaging in cop-wannabeism or mall ninjary. Incarcerating someone takes evidence, witness statements, an indictment, and a trial by a fair and impartial jury. Justice is not meted out by the mob in this country, and that is how I sincerely hope it remains. I do want to see the Martin family get a day in court before a grand jury, who can examine the evidence, and decide whether there’s grounds to indict Zimmerman. But that is a formal process, which takes time, and mob justice in the mean time isn’t going to solve anything.