The Baton Rouge Advocate reports on an interesting case (thanks to Mike Christensen for the pointer):
Anthony Manzella … and Andrew Robertson … were on one side of an alleged drug deal … and … Johnny Barnes … was on the other side.Barnes’ companion, Jeral Wayne Matthews Jr. … allegedly struck Manzella[] in the head with a rifle butt before the deal was finished, and Manzella shot and killed Matthews with a .40-caliber handgun, Clinton police said in July….
Twentieth Judicial District Attorney Sam D’Aquilla said he interprets a section of the law dealing with justifiable homicide to preclude self-defense in drug deals that result in a homicide.
I disagree with the DA’s interpretation of the statute, which reads:
A. A homicide is justifiable:(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention….
(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle.
(4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle.
(b) The provisions of this Paragraph shall not apply when the person committing the homicide is engaged, at the time of the homicide, in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.
The provision to which the DA is pointing, (4)(b), pretty clearly limits just (4)(a); that’s what its placement suggests, and my quick search through some other Louisiana provisions suggests that “paragraph” likewise refers just to a subsection and not to the whole section. Even drug criminals are entitled to defend themselves against imminent threats of death or great bodily harm (though likely limited by the well-established principle that one generally loses one’s right to self-defense when one is the initial attacker in the first place) — they just aren’t entitled to benefit from paragraph (4)(a)’s authorization to use deadly force against unlawful entry.
[UPDATE: Commenter PatHMV points out a theory that might work for the prosecution: The Louisiana statute that bars self-defense by someone who is the initial attacker reads (alluded to in the parenthetical above) reads "A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict"; and one could argue that engaging in a drug deal counts as "bring[ing] on a difficulty.” But that doesn’t seem to be the prosecution’s theory, at least according to the article, and it’s also not clear whether simply engaging in an illegal transaction of a sort that may often lead to violence counts as “bring[ing] on a difficulty,” a phrase that is generally used in self-defense law to refer to deliberately provoking someone to fight.]
Still, there’s a broader conceptual issue here as well: To what extent is it proper for the law to strip criminals of the right to self-defense, when they aren’t the initial attacker? Here’s a discussion of this from Perkins v. State, 576 So. 2d 1310 (Fla. 1991):
Is the defense of self defense available for a killing that occurred when both the defendant and the decedent were engaged in an attempt to traffic in cocaine and the decedent was the first to use deadly force? … Under section 776.041(1), Florida Statutes (1987), the defense of self defense is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony….… Section 776.08, Florida Statutes (1987), defines “forcible felony” as:
treason; murder; manslaughter; sexual battery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.… The district court below concluded that cocaine trafficking fits [the last clause in sec. 776.08] because of “the propensity for violence inherent in narcotics trafficking.”
Certainly, violence sometimes accompanies narcotics trafficking, as it does many other types of crimes. Yet, contrary to the district court’s conclusion, this fact alone does not place drug trafficking within the letter of the statutory language upon which the opinion under review rests….
Kogan, Justice, specially concurring.
I fully agree with the majority opinion but write separately to express my belief that petitioners’ claim also implicates article I, section 2 of the Florida Constitution. The right to fend off an unprovoked and deadly attack is nothing less than the right to life itself, which this portion of our Constitution expressly declares to be a basic right. Florida’s Constitution states:
Basic rights. — All natural persons are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty. …This constitutional right, I believe, applies in two different senses. First, petitioners have a fundamental interest in defending their life and liberty in court by mounting a reasonable defense, such as the one they now assert. Second, petitioners had a fundamental right to meet force with force in the field because the initial attack mounted against them by Kimble was illegal and unjustified. Under article I, section 2, the state cannot deprive individuals of this right of self defense without demonstrating a compelling state interest achieved by the most narrowly tailored means….
I do not imply that the state always is precluded from depriving certain persons of the right of self defense. The state clearly has a compelling state interest in disallowing the use of self defense when a person’s own unprovoked, aggressive, and felonious acts set in motion an unbroken chain of events leading to a killing or other injury, with some exceptions not applicable here….
Even in oral argument, counsel for the state admitted he has no evidence substantial enough to rebut Perkins’ claim of self defense on the merits. Yet after making this concession, the state now asks us to turn both reason and law on their heads by heaping total blame on Perkins when Kimble, the initial aggressor, clearly bore the greatest guilt.
In effect, the state has conceded that it can demonstrate no compelling interest in depriving Perkins of the right of self defense guaranteed by article I, section 2….
UPDATE: Note also that the Louisiana Supreme Court has held that the Louisiana constitution secures a right to self-defense, via its right to bear arms provision, though the court did not discuss whether and when the right to self-defense can be forfeited by criminal activity. See McKellar v. Mason, 159 So.2d 700, 702 (1964) (“The Constitutions of the United States and Louisiana give us the right to keep and bear arms. It follows, logically, that to keep and bear arms gives us the right to use the arms for the intended purpose for which they were manufactured.”).
Dan Hamilton says:
It was self defense but he is still guilty of the drug crimes. No difference weither they are dealing drugs or DVDs.
December 9, 2009, 6:03 pmArkady says:
That’s how I read it, but it strikes me as incoherent. Why would deadly force be legitimate on the sidewalk in front of the house if, say, the folks transacting the drug deal were accosted by other folks wanting the drugs and the money, yet not be legitimate if the deal was going down in the living room and someone unlawfully broke down the door and entered?
I can’t see the rationale.
December 9, 2009, 6:16 pmegd says:
I think it’s relevant, although not necessarily persuasive, that the word “subparagraph” was amended to read “paragraph.”
I think a reasonable inference can be made that “Paragraph” refers to part A in whole.
That said, your reading appears to make mincemeat of the felony murder rule. If a drug buyer pulls out a gun and the dealer shoots him first, isn’t that still a “felony murder”? Would a rapist be able to kill his victim if she pulled out a gun first? What if he had a knife and she “escalated” the conflict? Escalation, at least under the common law, reverses the roles of the individuals, the assaultor because the assaultee.
My only point is that I think there are some more serious concerns than you’re applying to the issue.
December 9, 2009, 6:17 pmdbt says:
I think egd makes a good point. “Paragraph” appears to be a defined term due to its capitalization. Persumably it’s defined in a section of the Lousiana Code relevant to statutory drafting or construction. If so, however “Paragraph” is defined in that section would answer this question pretty conclusively.
December 9, 2009, 6:26 pmPatHMV says:
I’ll have to check the statutes and ask around some of my friends to see if the meaning of “paragraph” in such context has been defined either by statute or case law.
But I’m fairly certain there are at least some judicially-recognized limitations to the self-defense statute which may not be expressly spelled out in the statute. For example, if a robber pulls a gun in a liquor store, assuming for the sake of argument he has no intent to ever actually shoot anybody at first, and then the clerk pulls a gun and aims it at the robber, threatening to shoot, the robber cannot then kill the clerk and claim self-defense. Indeed, under Louisiana law, if the clerk shoots at the robber, misses, and kills an innocent bystander, the robber would be guilty of murder under our felony-murder rule, even though the actual triggerman, the clerk, would be innocent of wrong-doing, because of the justifiable homicide statute.
Also, note that subsection C may be applicable in part: “C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.”
I’m not familiar yet with the factual circumstances here, but this suggests at least by implication that a person who IS engaged in unlawful activity would have a duty to retreat before using deadly force.
On the larger, constitutional issue, I think I disagree with you. I don’t see anything inherently wrong with saying that, if you voluntarily participate in a criminal act, you are liable to suffer criminal consequences, should violence erupt, as violence is such a foreseeable risk during criminal actions… even if the other guy started the violence. Had the surviving criminal not participated in the illegal drug deal, the violent circumstance would not have arisen. It’s not the state saying that the criminal has no right to protect himself; it’s the state saying that by entering into the criminal transaction to begin with, he will be held responsible for any violence resulting from that criminal transaction, regardless of any fine details of who actually started the violence.
While practical concerns should not be the final arbiter of what is and is not constitutional permissible, they should at least inform our judgment. The result of the rule you propose would require prosecutors, in every drug-deal-gone-bad murder (among other cases) to disprove, beyond a reasonable doubt, that the dead guy started the violence. The witnesses will almost invariably all be criminals, most of whom were participating in the very drug deal leading to the murder. The dead guy will not have a chance to tell his side of the story. Absent hidden video, forensics is unlikely to be able to say who actually pulled a gun first. The rule you propose would have the practical effect of giving a free pass to drug dealers to kill the other guy.
December 9, 2009, 6:38 pmWaste93 says:
“On the larger, constitutional issue, I think I disagree with you. I don’t see anything inherently wrong with saying that, if you voluntarily participate in a criminal act, you are liable to suffer criminal consequences, should violence erupt, as violence is such a foreseeable risk during criminal actions”
So if someone was jaywalking (criminal offense) they have no self defense right?
I think this would have to be more of a case by case basis. Maybe say if you were involved in a violent crime than you can’t fall back on the self defense.
I find it a bit odd that the LA law seems to only exclude drug dealers from being able to claim self defense and not other violent felonies.
December 9, 2009, 6:53 pmegd says:
I think there’s a well established distinction between felonies and minor infractions such as jaywalking.
PatHMV’s position seems to be that if you’re engaged in an activity likely to cause violence, then you shouldn’t have the right to engage in violence to defend yourself.
I think there should be a difference between shooting a drug buyer who pulls a gun during a deal and shooting a burglar or other violent intruder. I think the issue deserves closer scrutiny, and it would be difficult to draw a clear line.
December 9, 2009, 7:25 pmgasman says:
Presumably he could not shoot the driver of the car that was about to unintentionally hit him. The jaywalker puts himself at jeopardy of imminent injury through his illegal act and has no right to directly harm someone else just to save his own hide.
The jaywalker however would be fine defending himself against the mugger, whether or not the mugger was simultaneously guilty of jaywalking.
All depends on how the crime is related to the self defense situation.
December 9, 2009, 7:31 pmSteve says:
Why would deadly force be legitimate on the sidewalk in front of the house if, say, the folks transacting the drug deal were accosted by other folks wanting the drugs and the money, yet not be legitimate if the deal was going down in the living room and someone unlawfully broke down the door and entered?
In that scenario, you couldn’t use deadly force because of the unlawful entry alone, but you probably could use deadly force because of the threat of force posed by the unlawful entry. If someone breaks down your door, it’s reasonable for you to assume they’re about to attack you. It’s not the same as, say, catching a cat burglar in the act.
December 9, 2009, 7:56 pmCDU says:
I had a conversation with firearms instructor John Farnam on this general subject. His position was that even criminals have a right to self defense, but if the police and the DA think that you’re a thug, they’re not going to give you the benefit of the doubt. I think the DA’s decision in this case is a good example of that.
December 9, 2009, 7:57 pmMalvolio says:
Hmmm. Bob is embezzling from Carol. She finds out and in a rage, attempts to strangle Bob. In the struggle, Bob shoots Carol. Embezzling is a felony; is Bob therefore guilty of murder (or agg. assault or whatever)?
December 9, 2009, 8:02 pmDavid McCourt says:
I’m no Louisiana lawyer, but it seems pretty clear that the entire provision (“§20. Justifiable homicide”) is a “section”; that the provisions under that labeled “A,” “B,” “C” and “D” are “subsections”; and that the provisions under them that are labeled “(1),” “(2),” “(3)” and “(4)” are “paragraphs.” See, e.g., RS 11:502.2.B(1)(a), which uses the terms section, subsection and paragraph in that way. http://law.justia.com/louisiana/codes/162/75732.html
But there is more to the Justifiable Homicide section of the Louisiana that appears to limit the drug dealer’s right to self-defense. Immediately after the quoted material comes this subsection:
It would seem that the killing took place indoors, http://www.2theadvocate.com/news/52484152.html, so the accused would, at the least, have had a duty to retreat before using deadly force.
Unless the next subsection somehow throws another monkey wrench into that reading:
A badly written statute, but not necessarily a bar to putting this guy where he belongs.
December 9, 2009, 8:05 pmArthurKirkland says:
The solution — which would vindicate a right to self-defense in this circumstance, as well as other rights that should not be infringed — is to place the drug warriors in the sack in which they belong. The underlying commercial transaction becomes open conduct among free men (resembling purchase and sale of beer or a harmonica), and the nanny-state opprobrium that breeds special statutes inhibiting self-defense is defused.
Does no libertarian frequent this site?
December 9, 2009, 8:14 pmtamerlane says:
Does Louisiana have a felony murder statute? In states that do wouldn’t Manzella — who killed during the commission of a felony — automatically be guilty of homicide no matter what the circumstances. If I remember correctly, there’s some very weird cases in the criminal law casebooks based on this point of law. Personally, I think that it’s good policy to hold criminals fully responsible for any event — no matter how untoward and unforeseen — that occurs as a result of their decision to commit a crime.
December 9, 2009, 8:49 pmRicardo says:
Doesn’t there have to be some showing of causation for felony murder to apply? In the case of a drug dealer being hit in the head with a rifle butt, that didn’t necessarily happen because he was selling drugs. It could have been simply because the buyer thought the dealer was likely to be carrying cash and valuables on him and looked like an easy target. If instead a random stranger walked up the dealer while the dealer happened to be selling drugs without even knowing who he was and tried to rob him at gunpoint and was killed in the attempt, would the dealer be liable under felony murder?
Or to take a more extreme example, if I am in a state where DUI is a felony and someone tries to carjack me while I am driving while intoxicated, is it felony murder to respond with deadly force to the carjacker? I kill someone while committing a felony but the death of the carjacker has nothing to do with the felony I am in the process of committing other than the fact that both involve me being behind the wheel of a car.
December 9, 2009, 9:22 pmPatHMV says:
tamerlane, we do have a felony-murder statute. The thing is, and I haven’t had time to do much research on this today (and it’s been too long since both my ADA days and my La. law school days), the justifiable homicide statute is structured so that it is a defense to any type of murder charge; it’s an exception to the killing being a crime at all, not just a defense to, say, first degree murder. See R.S. 14:18.
The actually relevant statute here is R.S. 14:21, which says:
Is participating in a drug deal “bringing on a difficulty”? That will require more analysis to determine, and we’d need to look at what the case law has to say on the subject.
December 9, 2009, 9:30 pmtamerlane says:
PatHMV: Thanks for the clarification. It sounds like two statutes/policies are in conflict here and I’d better leave the rest of this thread to the lawyers.
December 9, 2009, 9:44 pmKharn says:
Dan Hamilton:
If you read more about the case, Manzella wasnt just someone watching his friend make a purchase. The guy is a loon. He has constantly carried his pistol openly and posted openly about the situations that resulted (according to his posts on a LA gun forum that were reposted on other forums after the shooting) and that he did nothing to defuse, for example, he had a dispute with his neighbor about a loud party, he walked over with his pistol exposed and then left the party ‘when it was no longer a good kill’ (paraphrased).
Normal terminology among shooters is ‘shoot to stop’, but Manzella on numerous separate occasions referred to the action as a ‘good kill’ instead. In my opinion, he made numerous attempts to provoke situations where he could legally use his pistol as lethal force against perceived attackers, only to not realize that LA does not recognize self defense during drug deals and now he’s set to be Bubba’s new roommate/girlfriend.
December 9, 2009, 10:35 pmGuest101 says:
I had the same thought as tamerlane– I would think that even if the defendant can assert self-defense as a defense to a first- or second-degree murder charge, he still ought to be prosecutable for felony murder for the death that took place during his participation in a drug felony and was certainly foreseeable. Maybe that’s not how the law actually works, but it’s not a ridicuous argument, nor do I see any particularly good policy reasons why it shouldn’t work that way.
If a defendant is robbing a bank and a security guard starts shooting at him, is the defendant not guilty of at least felony murder if he shoots the guard in “self-defense”?
December 9, 2009, 10:43 pmRicardo says:
I think so. But partly that is because in states where there is a felony murder rule, robbing a bank is usually understood to be an inherently dangerous felony and the security guard’s response was directly linked to the underlying felony. I could be wrong on this, but as I posted above, if a state declares DUI to be a felony (I think NC does this or did at one time) and if a person driving while drunk shoots and kills an armed carjacker, that is not necessarily felony murder. Wikipedia’s entry on felony murder also includes a hypothetical about a cashier having a lethal allergic reaction to the ink on a bounced check: even if deliberately bouncing a check is a felony, the felony murder rule probably would not apply.
I’m not a lawyer so I don’t know the rules that different states use to distinguish these kinds of cases but I imagine there either has to be some direct causal connection between the underlying felony and the death or else the felony has to fit in a category of particularly dangerous felonies (like burglary, robbery or arson — but not necessarily assault).
December 10, 2009, 1:25 amDavid Schwartz says:
Under those facts, it’s certainly possible that he could be.
December 10, 2009, 1:27 amJKB says:
The statute seems to be cumbersomely written but it appears the intent was to deny the use of the “Castle Doctrine” defense to someone engaged in drug trafficking. TN denies the presumption of self defense for any criminal activity:
(
This seems to be a standard exception to the “Castle Doctrine” and not unreasonable…unless some DA tries to use it to deny all right of self defense.
December 10, 2009, 2:16 amTweets that mention The Volokh Conspiracy » Blog Archive » Drug Dealers’ Self-Defense Against Other Drug Dealers -- Topsy.com says:
[...] This post was mentioned on Twitter by Real Combat Tactics and Eugene Volokh, Eugene Volokh. Eugene Volokh said: Drug Dealers’ Self-Defense Against Other Drug Dealers: The Baton Rouge Advocate reports on an interesting case .. http://bit.ly/4uRw4q [...]
December 10, 2009, 2:46 amCarl from Chicago says:
Likewise, Illinois’ use-of-force statutes exclude those involved in a forcible felony. From my quick read of Illinois’ statutes on defense, it appears that a drug dealer might make a self-defense argument.
(720 ILCS 5/7‑4) (from Ch. 38, par. 7‑4)
December 10, 2009, 7:36 amSec. 7‑4. Use of force by aggressor.
The justification described in the preceding Sections of this Article is not available to a person who:
(a) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(b) Initially provokes the use of force against himself, with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or
(c) Otherwise initially provokes the use of force against himself, unless:
(1) Such force is so great that he reasonably believes that he is in imminent danger of death or great bodily harm, and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(2) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
(Source: Laws 1961, p. 1983.)
David McCourt says:
Interestingly, the friend of the deceased was also indicted for murder, along with the gunman and his friend. A few other interesting facts that may negative the idea of self-defense: the gunman had come to the deceased’s house; though the gunman’s custom was to go about openly carrying his gun, for this visit he left his holster in the car, and so presumably had concealed the gun on his person, or had it ready in his hand; the gunman’s first shot was a misfire, and he had to stop to eject that shell before firing the second round that killed the victim. http://www.2theadvocate.com/news/52484152.html
December 10, 2009, 9:33 amArrowSmith says:
Don’t rob banks and you won’t get hurt.
December 10, 2009, 10:27 amMithras says:
I don’t think it should be. Under Delaware law (which I am familiar with), for example, felony murder is:
In the scenario, the dealer is intentionally causing another’s death, so the killing is felony murder if there is no defense. However, under the state self-defense statute:
The statute carves out exceptions (including, among others, if the defendant provoked the violence) but those exceptions don’t include the felony murder statute. Therefore, self-defense justification is available for the drug dealer. Note that it would not be available in the scenario where a rapist kills his victim after she produces a weapon, because there he provoked the violence. (She was also using force authorized under the self-defense statute, but I don’t know if you can say there would never be a scenario in which self defense is never justified in reaction to another also acting in self defense.)
December 10, 2009, 11:28 amMartyA says:
“Manzella shot and killed Matthews…”
December 10, 2009, 11:35 amIf Matthews was such a very bad guy, does Manzella get the cash reward for his “apprehension?”
Mithras says:
Also, for example, in one case (pdf) the Delaware Supreme Court held that self-defense could be justified in the case of a fight over the collection of a drug debt using a forged check. The court held that the defendants failed to qualify for the defense because they did not stop using force after the threat was eliminated.
December 10, 2009, 11:36 ammischief says:
Was he embezzling at the point of attack?
I think we could agree that if a vigilante attacked a drug dealer in the street because he was a drug dealer, the drug dealer is the one with self-defense rights.
December 10, 2009, 12:37 pmLaura Victoria says:
This to me illustrates one more example of the plethora of poorly educated and prosecute-at-all-costs DAs in the U.S. There is no sound reason a person who commits a malum prohibitum crime should lose his right of self defense. A defense of property argument might be another thing.
The bigger question is how we get rid of all the dogmeat prosecutors. They are almost never disciplined for any misconduct, no matter how blatant and recidivist. In my state, Colorado, the Bar is so weak it more resembles the SEIU.
December 10, 2009, 1:06 pmDavid McCourt says:
“This to me illustrates one more example of the plethora of poorly educated and prosecute-at-all-costs DAs in the U.S.”
Huh? The prosecutor’s made a rasonable argument about the availability of self-defense under an unclear statute, and the court will rule on it. I see no reason why this defendant shouldn’t be prosecuted for killing his host.
December 10, 2009, 1:41 pmMike C says:
To throw another wrench in the works, if I recall correctly from reading prior reports of the incident, no drugs were present. The “seller(s)” purportedly set up the deal such that the “buyers” would be present with cash expecting to do an illegal drug transaction. At that time, the ultimate victim came in to rob the “buyers”. The one “buyer” defended himself from being robbed by shooting the robber that had threatened them with deadly force. The “seller(s)” never intended to actually complete a sale of any drugs.
The “buyers” may have had intent to enter into an illegal drug transaction, but they can’t be charged with an actual purchase of drugs. Does this change the reading of the laws involved? The shooter is well known for being shady, but does that cause him to lose his right to defend himself? Could be an interesting case to see how it turns out. Regardless of how the trial judge rules, this one is likely going through a long appeals process.
December 10, 2009, 2:25 pmKazinski says:
There may have been a duty to retreat under Paragraph C, but from the facts it doesn’t look like there was an opportunity to retreat:
Once you’ve has been struck in the head with a rifle butt, the conflict is already too deadly serious to afford an opportunity to retreat. Manzella was lucky he still had the faculties to draw and shoot his attacker. He was likely too incapacitated too retreat, I know my time in the 40yd dash would be likely to suffer after getting hit in the head with a rifle butt.
Besides it seems to me there are probably other charges available to the DA, possession of a handgun while committing a felony, the drug dealing its self. But I think a murder, or manslaughter charge just isn’t warranted here.
December 10, 2009, 2:36 pmMichael Gersh says:
Kharn – Posting using definitive-sounding language might give the false impression that you know what you are talking about.
There is no such thing as “shoot to stop” except in works of fiction. In any situation in any state where the law allows the use of a firearm for self defense, deadly force is authorized. There is no firearms training regime that teaches shooting to achieve anything but a lethal result. Even “warning shots” are never legal, or wise.
December 11, 2009, 3:03 amKharn says:
Michael Gersh:
That is the exact opposite of all reputable firearms training courses currently offered. Clint Smith, Massad Ayoob, etc, along with various police departments all teach “shoot to stop.” In a personal defense situation you do not care why the person has stopped attacking you (incapacitated, deceased, fled, surrendered, etc) just that the person has ceased the attack.
Deadly force is authorized (and used during a self defense shooting), but that does not mean the law allows a coup de grace. Once the attacker is no longer physically capable of continuing the attack, has ceased resisting or fled, you may no longer engage.
December 11, 2009, 11:03 amJoel Rosenberg says:
Kharn is, as I understand it, correct, but Michael Gersh isn’t totally wrong; where I think he’s mistaken is in that thinking that “shoot to stop” somehow might mean not using deadly force. I’m not a lawyer, but I do firearms instruction, and hereabouts, “deadly force” doesn’t mean force that will kill somebody, but force that is likely to.
There are states where a “use of a firearm for self defense” can happen without any shot being fired, and where it can be done in situations where the use of lethal force is not authorized; in some that have adopted the NRA model language (pending in Minnesota; I’m not holding my breath) the display of a firearm for defensive purposes is lawful in a circumstance where a person is in fear of some serious harm short of death or great bodily harm:
December 11, 2009, 3:09 pmMr. Ballgame says:
Does the self defense exception also obviate the liability for felony murder — a murder committed during the course of commission of a felony?
December 11, 2009, 4:25 pmMichael Gersh says:
What Massad Ayoob teaches as what you call “shoot to stop” means a shot to the heart or brain. What I took away from the course I took with Mas was that the point is to make the attacker stop breathing, which is the best way to make him stop attacking.
It is true that shooting an attacker after he has stopped any resistance is considered murder in most, but by no means all, places, but no “reputable firearms training courses” teach targeting non-lethal parts of the human anatomy.
If you have the legal right to shoot you have the legal right to kill, and any attempt to refrain from causing death in that instance is foolish. While a prosecutor may, and frequently will, prosecute anyone involved in a shooting, the survival of the target does not make the shooter’s case stronger, rather the existence of a live witness with an interest in shifting blame for the shooting makes the legal outlook for the shooter worse if his attacker survives.
Back to the OP, considering that the vast majority of drug deals are conducted without any violence, it is clearly unreasonable and inconsistent to deny a participant in an illegal drug transaction the right to self defense. Is a prostitute allowed to defend herself? Can a thief defend himself from having stolen goods stolen from him? Of course they can. Singling out participants in illegal drug transactions for a diminution of their rights while leaving the rights of all others intact is more evidence of how the war on some drugs has corrupted the definition of fairness throughout our society.
December 11, 2009, 7:44 pmKharn says:
Michael Gersh:
Did I ever say to not aim for center of mass? I’m strictly discussing the terminology and mentality of self defense, not the tactics. Less lethal has its place, but its using a tazer, baton and spray, not your sidearm.
You will never hear Ayoob say ‘shoot to kill’ is the proper mentality, he even explains why in his article ‘Choose your ammo… police style’
December 12, 2009, 9:02 amThe Volokh Conspiracy » Blog Archive » More on Drug Dealers’ Self-Defense Against Other Drug Dealers says:
[...] follow-up to my post three weeks ago on this case, from The Advocate (Baton Rouge): A state district judge has ruled two … men may claim they were [...]
December 29, 2009, 1:02 pm