When I started this conversation, I didn't expect it to be a single-shot. Now it looks like we'll need a big magazine.
Joel and I switched red and blue last time, and I've kept those colors here.
Joel: When we last left off, Charlie, we'd agreed to move on to the specifics of the two bills, HF498 [Download pdf] and HF3324. I'd like to take the first one first; all in all, I think it's the one that's much more likely to be in front of the lege this session — it may be amended onto another bill on the floor — and, if not, well, we'll be back to it next session.
I'm also going to try to keep my opening of this round short, and as focused on the bill itself as I can. A bit of preparatory stuff, for those who have never looked at these before: language that isn't either stricken through or underlined is in the law now; stricken through stuff would be removed, and underlined stuff added, if the bill becomes law.
JUSTIFIABLE TAKING OF LIFEUSE OF DEADLY FORCE IN SELF DEFENSE.
Which is where I'm going to start off: at the beginning, and what I'm going to focus on in this installment. At present, Minnesota law is clear — both statute and case law — on when you can lawfully kill somebody, not when you can lawfully do something that may kill somebody, or legitimately and lawfully threaten somebody. (I hope you will agree that there are times when it is legitimate to threaten somebody — not out of anger, but out of a reasonable fear that one is about to be harmed.)
That's a problem, and I'm going to draw on some experience as a guy who teaches civilians, cops and lawyers about this stuff in saying that. Nobody — nobody sane — really wants to kill another person, even if under a deadly, violent attack. But reasonable people do want to know what they can do — both short of that and, should it become necessary, including that — so that an encounter that they didn't want doesn't end up with their blood on somebody else's hands.
Let me tell you a short story; I'll file off some names and play around with dates and muck with some of the facts, but it was at least as bad as I'm telling you that it was; you've my word I'm not whitewashing this.
Al and Betty were having a few folks over one evening, when they heard a commotion outside their house. When they went to the window, they saw four guys kicking the crap out of a fifth guy. "Hey," Al yelled, "get away from him!" and they fled; Betty was on the phone to 911, and Al went out and administered first aid until the ambulance and the police arrived. The kickee was hauled off in the ambulance; the police took a report and left.
A little while, there was another commotion outside. The four perps plus another had returned, and they were not happy that Al had interfered with their kicking. Another call to 911. Average response time to a Priority One in Minneapolis is in the double-digit minutes. They started moving up the sidewalk, announcing their intention to come in and do harm to Al and his family and friends, in no unambiguous terms.
At that point, Al made a decision that was to cost him. Granted, it almost certainly saved him to come to his wife come and his friends from some serious harm — but it was to cost him. He stepped out on his porch, a shotgun in his hand, and told the thugs — remember, these were four men who had just beat another man unconscious, and then had been kicking the unconscious body; they'd brought along a friend — to go away.
They started to move toward him — he fired one shot into the ground, not near them, but signaling his intent — and they scattered. Fast.
The police arrived. Giving no consideration to the fact that they'd know where to find him if they needed to arrest him, giving no consideration to the fact that he had just called the police, twice — once to report the beatings; the second time (technically, yes, it was his wife) to call them for help — they cuffed-and-stuffed him, and hauled him off to jail.
He was charged with two felonies.
That is among the outrages that this law is needed, if not to prevent (it won't remove the "ham sandwich" prosecutor powers, but it might inhibit them a little), to make less common.
We can go into the provisions of HF 498 that would have been applied here, but I think — and hope — that you'll agree that he would not have been better off waiting until the threat was even more imminent, and he would have been allowed, under present law, as we've seen above, to take one or more of their lives.
Over to you.
Charlie: First, let me say I have no problem with Al's conduct. In fact, he behaved the way I'd want my neighbors to behave. You don't say what happened after he was charged, but based on your account, it sounds like he was dealt with unjustly. The story raises several questions for me.
One, was Al constrained by current law from doing the right thing? It doesn't appear so.
Two, will others, knowing what happened to Al, be constrained from behaving in a similar, responsible manner? Some will argue yes, though I bet most gun owners in his position, including those doing the arguing, would still act as Al did.
Three, should we try to prevent what happened to Al, if we can do it without unintended consequences that are worse? Again, I say, yes.
And that brings me to four: How? I'm not convinced the bill under consideration would actually accomplish something we both agree would be a good thing. I've thought about this and have some alternative proposals, but if you want to convince me about this legislation first, keep going.
Joel: Well, after some time in jail, several thousands of dollars to a very good criminal defense attorney, the case was settled. He didn't go to prison.
Was he constrained by law? Well, he clearly wasn't constrained from doing the right thing — he did it, after all — but he could have been, quite easily, put in front of a jury, and that's always a roll of the dice. He clearly was treated unjustly — it's the old MPD "arrest the gun" problem. The cops — and for all I know they were good, service-oriented cops — weren't allowed to cut him loose, write up a report — and they weren't required to consider his self-defense explanation (as HF 498 would have required) before arresting him, even though they would have known, had they looked into it. that he wasn't some sort of transient who was likely to disappear, but a working man and homeowner who, had he been indicted, would have been easy to find.
It's still possible, I guess, that he could have been indicted; it's also possible that the cops wouldn't have done more than pretended to consider the circumstances surrounding it, and that it was pretty clearly self-defense... it's just more likely that he would have spent that night in his own bed — sleeplessly, fearfully, granted, but his own bed nonetheless — and never have been indicted in the first place.
Your second question — and it's a good one — is what would other folks do, knowing that. I don't know; there is no way to tell. But I think it's fair to guess that at least some, knowing about that, would say, "Hey, Betty — a guy's been kicked to death in the street, and if I go out and shout at them to stop, they are going to know that it's us who called the police, and we might end up, if we're lucky, like that guy Joel told me about in class. If we're lucky."
I'm really glad we've gotten to your third question, because I think it's exactly the right one. And exactly the right way to look at any changes in law. It's important, as you say, to consider both the benefits and costs.
In this case, we don't have to hypothesize. Language very similar to HF 498 exists in the laws of around 20 states; HF 498 is the Minnesota flavor of a bill that the NRA has been pushing for, nationwide. (There are additional states that have very similar language — Utah, for example — but they don't have the same origin.)
So, I'll ask you, in all of those states — some of those having had similar language for many years, some for only a few years — what have the costs been? Show me — I'm willing to consider that these laws have resulted in people being unreasonably killed when they otherwise wouldn't have been, or murderers have gotten off when they otherwise would have gone to prison.
But give me examples — as many as you can. Not, please, some prosecutor saying that if some gang banger shoots another gang banger he'll claim that he was scared and get off on a self-defense claim; for that sort of thing, show me where some gang banger murdering another gang banger got off on a self-defense claim because he claimed he was scared. Don't restrict yourself to that; you don't have to. Show me where, in the more than two dozen states that have similar language in their self-defense laws, authorizing scaring an attacker or not retreating has resulted in bad things happening that likely otherwise wouldn't.
I'm going to be fair here. If I was having this discussion with one of our local antis, who have been characterizing this as the "Shoot First!" or the "Shoot the Avon Lady" bill, I'd be asking for the numbers of dead Avon ladies. But I'm having it with you, and I'll refer to you how the bill would handle "arrest the gun":
(b) A law enforcement agency may arrest a person using force under circumstances described in this section only after considering any claims or circumstances supporting self-defense.
The emphasis is mine.
Charlie: I am not going to be drawn into representing all the anti-gun arguments in the world or separating actual from imagined consequences. I won’t supply you with a bunch of counter examples, because I am willing to grant you that the changes you seek may result in very few dead Avon Ladies, Mormon Missionaries or Trick or Treaters.
Ooops, here’s a dead kid in a Halloween costume, but it’s only one kid, he was a Japanese exchange student, and Rodney shot him in 1992 before these newer laws were in place.
Again, the way Al was treated was extreme, especially since no one was harmed. I have no problem with the cops saying, in cases like Al's, “don’t leave town for a few weeks while we look into this.” But I also think being dead is a pretty severe penalty, whether it's for someone’s mistaken reading of kids looking for a party, or for being on the wrong side of a drug deal. So I think it's reasonable to expect in those cases that even a normally law-abiding citizen could be inconvenienced a bit before the facts are sorted out.
I confess, I've read the text of the bill a number of times, and I've read a lot of pro-commentary on it, but it wasn't until re-reading the beginning of your post that some of the fog lifted. You said (my emphasis):
At present, Minnesota law is clear — both statute and case law — on when you can lawfully kill somebody, not when you can lawfully do something that may kill somebody, or legitimately and lawfully threaten somebody.
If I understand you correctly, your intent is to cut some slack for Al — the guy who scared off some thugs. But not to let Rodney — the guy who killed a kid in a white tuxedo who didn't understand the idiom "Freeze" — off the hook.
You may hope HF498 would change that murky bathwater, but the bill still looks to me like it could excuse shooting screaming babies. (At least if someone had just finished reading Ray Bradbury.) It first presumes an individual who perceives a threat is justified in using force and then it appears to give a stay out of jail free card in (a) preceding the (b) you mentioned above.
(a) An individual who uses deadly force according to this section is justified in using such force and is immune from any criminal prosecution for that act.
Maybe you can walk me through how (a) and (b) relate, and how the new law would treat Al, Rodney and some of the other permutations likely under claims of self-defense.