A reader asked about a city code provision (Baltimore City Code Art. 19 § 59-2, but there are many others like it) that bans discharging firearms, with no self-defense exception. How can that be?
It’s common for criminal laws — including laws prohibiting murder and assault, and not just the discharge of firearms — to outlaw conduct without mentioning the possible defenses. There are, after all, lots of defenses that are generally available as to a wide range of crimes: self-defense, defense of others, defense of property, duress, insanity, necessity (recognized in some states), and more. It doesn’t make sense to list all of them in each statute.
Sometimes the defenses are set forth in general terms in other statutes. Sometimes they aren’t codified at all, and continue to exist as common-law defenses. But in any event, they can be raised as to a wide range of criminal offenses, even when the statute or ordinance defining the offense never mentions the defense. That would surely apply as to a discharge-of-weapons ordinance, just as it would apply to a statute that on its face bans all assaults or all intentional homicides. See, e.g., Jones v. State, 745 A.2d 396 (Md. 2000) (“when a defendant is charged with the statutory crime of reckless endangerment under § 12A-2(a)(1) and evidence is presented to generate an issue of common law perfect self-defense, the defendant is entitled to have the jury instructed regarding the application of self-defense to the charge of reckless endangerment”).
Orson Buggeigh says:
News reports that a female member of the biology department at University of Alabama, Huntsville was denied tenure. She allegedly responded today by producing a pistol and opening fire in a faculty meeting.
I imagine that this will open further discussion regarding the merits of allowing people to carry concealed weapons on campus versus the common practice of prohibiting weapons on campus excepting law enforcement personnel on duty.
February 12, 2010, 8:01 pmruuffles says:
@ Orson,
February 12, 2010, 8:22 pmYou’d be surprised how unwilling schools are to change classroom doors to open in, rather than out, or to make them lockable from the inside.
CreedOne says:
Politicians (with the backing of police) pass asinine laws (such as this) to give the illusion that they are “cracking down” rather than admitting that the existing laws have failed to work.
Why is the answer to governmental failures always more government?
February 12, 2010, 8:30 pmBama 1L says:
Door design doesn’t help when you’re all in a meeting. Of course neither does a firearms policy.
February 12, 2010, 8:40 pmBama 1L says:
Oh, and what I meant to say is that I think the U.S. Code is the premier example of a criminal code that lays out offenses but not defenses, meaning that defendants have to get these from the common law.
February 12, 2010, 8:41 pmorca says:
Sounds like a terrorist attack to me.
How the cops don’t Mirandize this patriot.
February 12, 2010, 8:53 pmBrett Bellmore says:
So, you might be legally entitled to use a gun in self defense, but it’s still going to cost you a good part of your life savings to reach the point where you can assert that right?
February 12, 2010, 9:37 pmButternut says:
You assert when you pull the gun.
You spend your life savings defending your assertion.
February 12, 2010, 9:40 pmbyomtov says:
So, you might be legally entitled to use a gun in self defense, but it’s still going to cost you a good part of your life savings to reach the point where you can assert that right?
Yeah, that’s stupid. Let’s just let anyone who feels like it fire a gun whenever they like. Hey, it’s a Second Amendment privilege, isn’t it?
February 12, 2010, 9:47 pmBrett Bellmore says:
The stupid part is that, after you’ve proven that you didn’t do anything wrong, they don’t give you your life savings back.
I consider that an outrage equivalent to takings without compensation. It licenses prosecutors to bankrupt anybody of ordinary means they take a disliking to, regardless of guilt.
February 12, 2010, 10:29 pmbyomtov says:
Brett,
I actually have a lot of sympathy with your comment. But of course the principle doesn’t just apply to prosecutions for firearms use.
The cost to an individual of coming into a prosecutor’s sights for any reason is pretty high, both financially and psychologically. No one much cares, it seems to me.
February 12, 2010, 11:09 pmBans on Discharging Firearms, Without a Self-Defense Exception | Liberal Whoppers says:
[...] this article: Bans on Discharging Firearms, Without a Self-Defense Exception [...]
February 13, 2010, 12:00 amAnonymous says:
The motivation to avoid bankrupting oneself to defend against unconstitutional laws results in consequences that are, at least on the surface, unintended: shoot, shovel, and shut up.
February 13, 2010, 12:37 amLarryA says:
Given Maryland’s other laws concerning firearms I’d say the powers that be don’t like self-protection as a legitimate defense.
A policy that seems to be working so well.
Or you could just write in an exception for self-defense.
February 13, 2010, 12:42 amKirk Parker says:
Brett,
Here in WA we do exactly that.
February 13, 2010, 3:22 amKharn says:
You mean a ban on the discharge of firearms has not stopped Tebo from killing Tyrone over 14th and Broad’s lucrative crack trade? Color me surprised.
There’s also Maryland’s restriction that a handgun cannot be taken off your property unless you’re traveling directly to/from a range, your business, a dealer or hunting activity and the pistol is unloaded.
February 13, 2010, 7:39 amBrett Bellmore says:
Good for you!
February 13, 2010, 8:53 amsubpatre says:
Back on the subject:
The ‘no discharge within city limits’ gets a tepid defense from me. As is a misdemeanor, it can be overruled by common-law defenses. The ordinance can also be nullified by other city actions such as zoning (shooting ranges, rural areas), periodic hunting exceptions, etcetera.
The ordinance is to formalize that a city —densely populated— is unsuitable for most routine firearms use. The use of such an ordinance is to adjudicate ‘justified’ shootings in the public eye. When a kid puts a bullet into his mother’s boyfriend for beating her to a pulp, the ordinance is an ideal venue to make sure the act was a reasonably valid. As a city ordinance, it doesn’t trigger double jeopardy for homicides.
It is (or was) a substitute for the public inquest that most states don’t have; a moderately good thing.
February 13, 2010, 10:09 amLarryA says:
I’ll agree with you on lockable. A bathroom-style lock on the handle that deactivates when the handle is turned and can easily be unlocked from the outside with a simple tool would have proved invaluable in a number of shootings.
But I’m with the school on doors that swing in. That’s against almost every building code I’ve read, with good reason. The problem is that if there is any kind of rush to exit people can stack up against the door. If it opens out, no problem. If it opens in, it can be a huge (as in people being crushed) problem. It’s not worth the safety tradeoff.
February 13, 2010, 10:39 amStormy Dragon says:
Fire is a far more likely risk than a shooting spree. On the other hand, why not make the doors lockable even though they open out? It seems highly unlikely that the type of people who do shooting spress are going to stop and spend an extensive amount of time attempting to remove the hinges from a particular door rather than just continue on down the hallway looking.
February 13, 2010, 12:04 pmJKB says:
There is actually a lock-type, called the classroom lock, that can be locked on the outside but never on the inside. Just like a door that opens in, a door with a manual internal lock is dangerous in a mass evacuation as people just don’t think to operate the lock, even those trained and drilled for such emergencies.
As to the discharging a firearm in the city limits. Those were imposed due to the density risks. As stated, up to now, they aren’t prosecuted when the overall act was justified but with today’s prosecutors who knows. The do impact firearm use in self-defense. Namely, don’t use the lame TV idea of a warning shot. Either shoot to stop or don’t shoot. Or in Kansas, shoot to stop or don’t draw your weapon. In self-defense, you shoot to stop, if you have time for a warning shot, you are not in imminent threat of death or serious bodily injury.
February 13, 2010, 1:38 pmArchitect says:
This is a building code issue as it relates to fire and “means of egress” Schools don’t have the option of making this choice for security reasons.
On the other hand, school and assembly buildings of any size are almost always fire suppressed (sprinklered). I believe the industry further makes the claim that no person has ever died in a suppressed building. Perhaps relaxing the standard wouldnt create any real-world safety issue
February 14, 2010, 12:04 amLarryA says:
The lock on my bathroom door disengages as you turn the handle. There are also panic bars and other devices that make it unnecessary to unlock the door.
February 14, 2010, 1:51 am30yearProf says:
I wrote this for the next printing of Everything You Need to Know About (Legally) Carrying a Handgun in Minnesota (AACFI, 2007).
Defensive display and reasonable force
Defensive display or “brandishing” may be defined as a threat to cause death or serious bodily harm by the production of a weapon or otherwise, so long as the actor’s purpose is limited to creating an apprehension that he will use deadly force only if necessary. See Model Penal Code sec. 3.11(2) which provides:
Defensive display does not involve the actual discharge of a firearm, for example, thus it cannot produce lethal results. Most importantly, neither does it constitute the “use” of deadly force.
Brandishing is governed by the rules for use of reasonable force set forth in Minnesota Statute 609.06 and not the more restrictive rules for use of deadly force to intentionally take the life of another set forth on Minnesota Statute section 609.065 (see page 38). This is the usual American rule.
As criminal law scholar Wayne R. LaFave says in Principles of Criminal Law, sec. 9.4(a) last sentence (2003):
This is a common example of the necessity criteria in action prohibiting greater force when lesser force will do. If the assailant continues the attack, use of deadly force (i.e., firing the gun) will be necessary and, therefore authorized. An imminent threat is seldom instantaneous. If the threat (even of death or great bodily injury) can be safely neutralized by a mere counter-threat, that is certainly allowable even if never mandatory. Ninety-nine percent of successful defensive gun uses involve mere brandishing — display — of the firearm. The defender demonstrates that she is capable (means, motive and opportunity) of using deadly force and the encounter ends as the assailant flees. Even criminals can weight the odds of their own injury.
Although seldom heard of by the public except in homicide cases, justification defenses like self-defense apply to all crimes. Thus self-defense may be pleaded if as a consequence of a brandishing incident you are charged with assault in the second degree (a felony), with intentionally pointing a gun at or toward another person (a misdemeanor) or with reckless handling or using a gun so as to endanger the safety of another (a misdemeanor) or other crimes.
February 14, 2010, 1:34 pm30yearProf says:
My 1:34 pm entry is posted in the wrong thread.
Moderator, please delete it. Thanks.
February 14, 2010, 3:27 pmLaura Victoria says:
Although I am a huge fan of Eugene’s, I think frequently he thinks a law is ok if a defendant can ultimately bring in up to SCOTUS and then win.
Cops are the product of education at the level of today’s high schools. They are not sitting around trying to help defendants by recognizing common law defenses. DAs can use laws like this, and frequently do, to force the defendant to plea to a lesser offense, or go financially and psychologically bankrupt. Kind of like the old beat the rap but not the ride.
Telephone harassment law are another category. A legal scholar might defend one of these laws as not facially invalid; only if applied incorrectly. But they’re applied incorrectly all the time in the real local dumbas# courtroom. Then it’s up to the defendant to take it up and up and up.
This goes back to the issue, first presented I think by Martin Shapiro, in Law and Politics in the Supreme Court. The courts are not the only branch obligated to comply with the Constitution–the other branches have this obligation too. The courts should force the legislature to make clear right there in the same statute what is covered and what isn’t.
It is akin to an assault statute that might say “touching any person…” is a crime, and then leaving it to the defense to raise the common law exceptions/defenses, such as consent, lack of intent to harm, etc.
Not everyone gets a Eugene Volokh to jump in on their cases in an amicus brief or pro bono representation. Further, if the laws are not laid out explicitly, and existing on-point factual precedent does not yet exist (which occurs all the time back in Colorado), then the cops get to claim qualified immunity because the law was unclear.
For similar reasons, I diagree with him in the recent blogging and briefing of the lying medal of honor cases. Eugene was absolutely correct, but he qualified his point on the law being enforced and interpreted in exactly the narrowly tailored way he supported. I think this will lead to a slippery slope in the real world where our “lawmakers” are not really the best and the brightest or the most ethical ones to be writing laws. Once medal of valor is approved, they’ll move on to the next lie they don’t like (lies about their being lying scumbags, for example). Then we’ll have prosecutions under those laws, and the defense will bear he burden of taking it to SCOTUS, or more likely pleading to something else. Meanwhile, the “unconstitutional” law will stay on the books because SCOTUS hasn’t ruled it unconstitutional and a chilling effect will ensue.
February 14, 2010, 8:15 pmLaura Victoria says:
Kirk Parker, thanks so much for turning me on to this remarkable statute. If someone told me a law like this existed in WA of all places, I’d wonder if they were smoking something really good and not sharing.
I’ll be blogging on this and giving you a H/T as a blogger here. But if you have a website you’d like me to link the H/T to, it would be my pleasure. I’ll check, but otherwise please let me know.
This gives hope that maybe some critical changes can be made in the criminal justice system’s assymetrial warfare status quo.
February 14, 2010, 8:26 pmRicardo says:
Could be but the reason for doors that open out is to avoid people being trampled in any panic situation or stampede. That can happen even if the building is fire suppressed. If a fire breaks out in the middle of chemistry lab, people are going to race for the exits rather than trust the sprinkler system to work properly.
As for not putting locks on classroom doors, I think people are not thinking like students here. Students could play a prank on their teachers by locking them out if they have to leave the room for a minute. Additionally, in college classroom buildings that are open at night, students could lock themselves in a classroom and engage in all kinds of sex- and drug-related mischief. Without locks, many (believe me, not all) students are deterred by the much higher risk of having someone walk in on them.
February 14, 2010, 10:12 pmTim says:
This is precisely why Harvey Silverglate wrote an entire book about the decline of criminal intent as a requirement in statutory crimes.
February 15, 2010, 2:45 pmDave Kopel’s Second Amendment Newsletter | The American Jingoist says:
[...] Eugene Volokh The Volokh Conspiracy February 12, 2010 http://volokh.com/2010/02/12/bans-on-discharging-firearms-without-a-self-defense-exception/ [...]
March 4, 2010, 1:56 pm