American Crosscut: Boy Scouts and Bogus Boyz.

Joel Rosenberg and I resume our discussion of the Minnesota bill HF498 [Download pdf] on the use of deadly force in self-defense.

Since we last posted, we've had some other exchanges that were useful to us, but a bit off track for posting here. You'll notice Joel is posting comments here, too. That's a good byproduct... no, the point of these discussions we're having. Opening up to the other side on one thing leads to another.
 
Charlie: Joel, I don't think we're too far apart on the right to self-defense or when there are questionable claims, they ought to be determined in the courts. Certainly, people will make mistakes in those split-second decisions, and those are a very different sort than the "mistake" of a driver who gets into a car after downing a quart of booze. I'm not personally big on punishing mistakes. I think we ought to try to prevent them as much as reasonably possible, and try to mitigate the seriousness of the consequences that do occur. It seems like this part of the discussion may belong with the other bill, so I'll table it for now.

The question for me regarding HF498 at the end of our previous post was the purpose of the presumption language. Let me remind readers where we left off last time. I wanted to understand how the presumption of innocence — which we all enjoy — relates to the bill's statement about immunity from prosecution:

(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.

   If we agree the place to sort these claims out is in the courts, how can that be done if the individual claiming self-defense is immune from prosecution? This language may only be intended to let someone shoot into ground in self-defense and not get hauled off to jail by the cops, but it sure sounds like he can kill someone under the defined circumstances and not even be brought to trial, where the claim could be tested if there were questions about its legitimacy.

If this language is still confusing to me after numerous readings, no wonder people who haven't even looked at it are concerned. Can you address this and straighten me out?

Joel: Utterly fair questions.  Let me give you two answers.

I'll take the easy one first.  We don't have to guess how this language will be implemented, because we know how this language is implemented.  There are quite a few other states that already have just this law -- tweaked slightly, from state to state, to make the language consistent with pre-existing state law.  While there are some Minnesota specific bits in HF498, all of the reform in the following states was based on the same model bill, lobbied for by a fairly prominent — in the view of some folks, including me, often too accommodationist — civil rights organization, the NRA.

Here's the list.

Alabama
Alaska
Arizona
Colorado
Florida
Georgia
Idaho
Indiana
Kansas
Kentucky
Michigan
Mississippi
Missouri
Oklahoma
Pennsylvania
South Carolina
South Dakota

I'm not including states like Utah — while Utah has very similar language (I have to know this; I'm certified by Utah as a Concealed Weapons Instructor, and teach this stuff), it wasn't part of this endeavor by the NRA; its self-defense language was already in place long before the NRA move for reform in all the other states.

Charlie, do you think that if such laws had the effects that you're worrying about, you wouldn't have heard about the murders in, say, Colorado that had gone unpunished because of them?  If it hasn't been a disaster in Colorado, why would it be one in Minnesota?

That's the easy part.  The more difficult one involves a close look at the text and at legal construction.

Here's what it doesn't say:  (emphasis mine, in both of the following quotes)

(a) An individual who claims to have used deadly force according to this section is justified in using such force and is immune from any criminal prosecution for that act.

Nope.  It starts off with "an individual who uses deadly force..." 

Whether or not the individual has, in fact, used deadly force as provided for in that section is, as lawyers say, a matter of fact.  In a court of law, matters of fact are determined by a trier of fact — either a jury, or a judge sitting as a trier of fact.  While, of course, the trier of fact should give the benefit of the doubt to the defendant, juries (and judges, in a bench trial) aren't required to throw common sense out the window, much less run down the stairs to get it with a shovel and make sure it's dead.  They're allowed to — invited to — look at the evidence presented to them, by both the prosecution and the defense, and make some judgments about what the facts are.

When I do my carry classes, I talk about this stuff.  One of my standard raps goes something like "if you're surrounded by a dozen Bogus Boys (they're a local gang, consisting of gang bangers who have not been able to maintain the minimal interpersonal skills required by the Bloods, Crips, or Vice Lords) trying to knock you down and stomp you to death, a jury might conclude that you were in imminent danger of immediate death or great bodily harm, even if they displayed no weapons.  If you're surrounded by a pack of Cub Scouts, threatening to punch you in the thigh with their little fists, you're really very unlikely to be able to persuade a jury that you were."

Getting back to my first answer, we ran into these same sorts of objections to carry reform.  We heard all the theoretical worries about how the Personal Protection Act would turn bar arguments into gunbattles, fender benders into gunbattles, disagreements about parking spaces into gunbattles... and when we pointed out, then, that something like three dozen states already had similar laws in place — in some cases for many decades — it hadn't happened there, we were right... but the folks opposing carry reform just refused to listen and to look for themselves at the other states, but kept repeating the same theoretical fears, over and over again.

So, in answer to your question: in other states, with laws similar to HF498, people who have claimed self-defense have, in fact, been brought to trial.  I don't see any reason to believe that it will be different here — and, in fact, every reason to believe that prosecutors will bring people claiming self-defense to trial, if and when they have sufficient grounds to believe that the claim is bogus, and that they'll be able to persuade the juries of that, when they have sufficient evidence that the claim is bogus.

That any help?

As a heads up, when we get to the gun registration bill, I'm going to be pointing out how gun registration has been — not everywhere, nor all the time — a necessary precondition to gun confiscation, and how almost invariably useless it's been for the purported purpose of preventing violent crime and aiding in the apprehension and punishment of criminals.

Over to you.

Charlie: Well, I've always made a living by my imagination, so maybe it's too highly developed. I've also had a youthful experience of entering a dwelling by stealth — at least in the view of my girl friend's father, who had a shotgun and no sense of humor. It's easy for me to imagine not being around to have this discussion, had Colorado passed its law about 20 years earlier.

But I take your point. Here I am.

I also noted that the Halloween story recounted in an article I linked to last time was from 1992. So yes, there are cases used to evoke fears, but they're not exactly ripped from the headlines.

Here's a case from Colorado that's more current. It involves a homeowner wounding a late-night intruder in his home, who was drunk and disoriented from a motorcycle accident. He thought he was entering his father's house down the street. After considering charges against both parties, no one was prosecuted, and no apparent outcry followed.

Another involves a man assaulted in his house shooting one of the assailants in the back while the guy is sitting in his own car. The jury, interpreting the evidence and the law, found him not guilty of murder. That one was more controversial, but despite the ambiguity (Colorado also has a detailed self-defense statute), the Colorado legislature hasn't gone back to clarify the 1985 Homeowners Protection Act.

You've allayed most of my concern about the intent of HF498 and how it's likely to be interpreted. I'm still not convinced it's needed, but I don't believe it will unleash gunplay in the streets, either. I hope I don't come across too wishy washy here, but I'm not anti-gun or anti-self-defense. I do not represent gun control forces; I represent me trying to come to terms with this issue and trying to provide a model for how others might, as well.

Now, speaking of active imaginations, tell me about how gun confiscation and registering private gun sales come together in your mind. The usefulness of regulating sales requires a whole 'nother post, at least.

Comments

[Joe Doakes]

For me, the main question underlying gun registration discussions is whether the right to keep and bear arms is a fundamental right held by individual people and guaranteed by the Constitution, or not.

One way to illustrate the enormity of the question is to ask: Would you be okay with the government starting a registry of people who exercise other fundamental Constitutional rights, such as people who had abortions, people who attend worship service on Saturday, or people who read certain library books?

What's the harm? Well, let's see, what possible use could a government make of a list of Catholics, for example? (Note, this is not a Godwin's Law situation as I'm not making a sneaky reference to Nazis under the guise of substituting Catholics for Jews; I'm referring to anti-Catholic laws in Enlightenment England and later in Minnesota's own Constitution).

If it's not okay for the government to maintain a registry of people who exercise other fundamental rights guaranteed by the Constitution, why is it okay for guns?

Joe Doakes, Como Park

.

[DiscordianStooge]

Spot on description of the Bogus Boyz, Joel.

[DiscordianStooge]

Also, for Mr. Doakes;

Do you believe that since possession of a weapon is a Constitutional right (which it is), that any person should be allowed to purchase any weapon with no restriction (unless they have had their rights removed by crime conviction)?

[Joe Doakes]

No, Discordian, I don't.

Little children too young to wisely handle firearms shouldn't be allowed to buy them.

Insane adults - even those with no criminal record - shouldn't be allowed to buy them.

We can recognize situations where even fundamental freedoms protected by the Constitution need limitations, which is why you can't shout "Fire" in a crowded theatre.

None of those arguments apply to the present discussion.

Joe Doakes, Como Park

[Joel Rosenberg]

DS, I think that the model for limitations on the Second Amendment should be limitations on other fundamental, individual rights.

No rights are without limitations. You do have the right to freedom of speech, but that wouldn't allow you to get away with saying (I'm not suggesting that you would), "I'll give $1000 to whoever brings me the head of Joel Rosenberg."

In looking back at what the Founders appear to have been talking about when they acknowledged (not created) the RKBA, it's pretty clear that they were talking about an individual's weapons, suitable for self-defense and infantry, not cannons or capitol ships.

I can see a good legal argument against allowing individual ownership of field artillery pieces, tanks, and TOW systems -- although, as a practical matter, I don't see it as a problem.

As to the panic that some people go into (I'm not pointing fingers at any of present company) about guns that fire more than one round with each pull of the trigger, I don't get it. If I wanted to, I could arrange to (lawfully) carry a select-fire Glock. (Some paperwork and about $300/year is all it takes to get a manufacturer's license, and a manufacturer can carry a sample of his stuff, although the ability to sell such things is very limited.)

I don't not do that because I couldn't swing the $300/year or the help in manufacturing my sample -- I'm one phone call from the latter -- but because I don't think it makes sense, for me, for self-defense, and the toy value isn't worth the hassle.

[DiscordianStooge]

After that last comment Joel, I'm guessing $1,000 wouldn't be enough to get any takers. ;)

I can see a good legal argument against allowing individual ownership of field artillery pieces, tanks, and TOW systems -- although, as a practical matter, I don't see it as a problem.

Wasn't this just an issue lately with a guy who wanted to give tank rides on his property, and was denied?

[Charlie Quimby]

I think it was more a matter of the neighbors not thinking it fit the neighborhood. Probably would've felt the same way if he was boarding elephants and giving rides.

[Joel Rosenberg]

Wish it were so, DS. But my philosophy on how invulnerable carrying makes me comes right from Heinlein:

Rod did not argue, but he still had a conviction that a gun was a handy thing to have around. It made him feel good, taller, stronger and more confident, to have one slapping against his thigh. He didn't have to use it -- not unless he just had to. And he knew enough to take cover; nobody in the class could do a silent sneak the way he could. While Sis was a good soldier, still she didn't know everything and--

But Sis was still talking. "I know how good a gun feels. It makes you bright-eyed and bushy-tailed, three meters tall and covered with hair. You're ready for anything and kind of hoping you'll find it. Which is exactly what is dangerous about it--because you aren't anything of the sort. You are a feeble, hairless embryo, remarkably easy to kill. You could carry an assault gun with two thousand meters precision range and isotope charges that will blow up a hill, but you still would not have eyes in the back of your head like a janus bird, nor be able to see in the dark like Thetis pygmies. Death can cuddle up behind you while you are drawing a bead on something in front."

Were it up to me -- and it isn't -- taking a class in "Tunnel in the Sky" and "Starship Troopers" would be written into the Constitution as a requirement for citizenship, and I wouldn't care if it was taught in English, Spanish, Esperanto, or Swahili.

I still remember the first time that one of the folks taking my carry class referred to it as "History and Moral Philosophy." I was more than a little flattered.

As to the tank guy (it's actually a couple) he and his wife have gone to the Court of Appeals. No guarantees, but they've got a real, real good attorney, who not only is my criminal attorney, but a good friend, and one of my mentors. (Small world, eh?)