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The Second Amendment and Unmarked Firearms »

Friday, the Michigan Supreme Court handed down an interesting case — People v. Dupree on this. The case is not novel, and my sense is that the defense is generally recognized: Just as what would otherwise be the crime of murder, attempted murder, battery, and the like might be justified if done in defense against an imminent threat, so a felon’s taking possession of a gun is justified if done in defense against an imminent threat. (The defense does not apply to a felon’s arming himself against a possible threat of attack at some indefinite future time.) Still, the case struck me as an interesting illustration. Thanks to Jason C. Miller for the pointer.

Categories: Guns, Self-Defense    

    21 Comments

    1. Soronel Haetir says:

      I know courts have repeatedly made such rulings, but have they ever actually encountered the case that does in fact pass the test?  (Quote)

      July 30, 2010, 1:13 am

    2. LarryA says:

      In this criminal case, we hold that the traditional common law affirmative defense of self-defense may be interposed to a charge of being a felon in possession of a firearm, MCL 750.224f. 

      Gosh. Doesn’t that sound suspiciously like a long-recognized individual right?  (Quote)

      July 30, 2010, 1:37 am

    3. David says:

      The part I found most interesting was when the defendant entered the house and placed the gun under Horton’s chin and pulled the trigger; it was not established whether the defendant knew there was no bullet in the chamber and was an attempt at intimidation or whether the defendant believed the gun to be loaded and had again attempted murder.

      I also found it interesting that in the original case, it seems to mislead you to think that the defendant had grabbed Reeves’ gun; whereas in the appeal, they make it clear that Reeves had reached for the gun and that the defendant had wrestled it away. I wonder if the defense would have stuck if the defendant had preemptively taken the gun from Reeves and the shots had still been fired.  (Quote)

      July 30, 2010, 1:52 am

    4. Shag from Brookline says:

      Doesn’t everyone have a right of self defense just about any place, at any time, e.g., government facilities, including the Supreme Court? In a church, mosque or synagogue? On public transit? Someone visiting you at your home who knows you have guns for self defense and fears you might harm him/her if unarmed? Does an absolute right to self defense then call for an absolute right to keep and bear arms for that purpose, whether open or concealed?  (Quote)

      July 30, 2010, 7:57 am

    5. cboldt says:

      – I wonder if the defense would have stuck if the defendant had preemptively taken the gun from Reeves and the shots had still been fired. –
      We don’t know if the defense will stick. Defendant was convicted of being a felon in possession against the Michigan law (I presume the feds can try him separately for being a felon in possession under federal law), and the appeal grants defendant a new trial. In the new trial, he will be permitted to argue self defense. One of the MI Supreme Court judges would also allow the affirmative defense of “duress,” in addition to the affirmative defense of “self defense.”
      This case is an example of “better to be tried by 12 than carried by 6.”  (Quote)

      July 30, 2010, 8:03 am

    6. cboldt says:

      – Does an absolute right to self defense then call for an absolute right to keep and bear arms for that purpose, whether open or concealed? –
      As a moral matter, individual force parity is called for — or better, superior force to the innocent or victim. That general situation is modified when somebody is being forced to submit, e.g., to a Court or other law. Being (legally) forced to submit implies absence of (legal) right to self-defense, and even the (legal) right to resist.
      As a matter of law, the government can assign force superiority however it feels, by person, time, and place.
      As for being excused from operation of law, I think the “illegal to discharge” laws that are in force in most, if not all cities, include language that permits discharge for lawful self-defense. This case presents a similar principle.  (Quote)

      July 30, 2010, 8:17 am

    7. Mr. UPL says:

      Soronel Haetir says:

      I know courts have repeatedly made such rulings, but have they ever actually encountered the case that does in fact pass the test? 

      See State v. Blache, 480 So. 2d 304 (La. 1985)

      Defendant was a felon who used brother’s gun to defend himself from attackers. The court reversed the conviction stating that “when a felon is in imminent peril of great bodily harm, or reasonably believes himself or others to be in such danger, he may take possession of a weapon for a period no longer than is necessary or apparently necessary to use it in self defense or in defense of others.”  (Quote)

      July 30, 2010, 9:07 am

    8. Shag from Brookline says:

      cboldt said:

      “As a moral matter, individual force parity is called for — or better, superior force to the innocent or victim.”

      As to whether one is the “innocent or victim,” when is that determination made? Perhaps by the time a court gets involved, the facts may differ on whether the self defense claimer is the “innocent or victim” or the perp.

      cboldt also said:

      “As a matter of law, the government can assign force superiority however it feels, by person, time, and place.”

      May the government “assign force superiority” prior to the alleged act of self defense? If not, when? A cite to the “law” would be appreciated.  (Quote)

      July 30, 2010, 9:22 am

    9. cboldt says:

      – As to whether one is the “innocent or victim,” when is that determination made? –
      There is no definite tining for that. Could be the police, could be the district attorney, could be the trial judge, could be an appellate decision, stating a certain fact pattern is sufficient “as a matter of law.”
      – May the government “assign force superiority” prior to the alleged act of self defense? –
      It does. And in some cases, I think it does so in an immoral way. “The law” I’ll cite is several manner of state and federal criminal penalties for possession of arms, against people who are otherwise free. Domestic violence misdemeanant, ex-felons, to name two classes.  (Quote)

      July 30, 2010, 9:33 am

    10. sardonic_sob says:

      Compare and contrast English law, wherein such things as possessing a found weapon long enough to turn it in to the authorities, wrestling away an attacker’s weapon and using it in self-defense, and using an otherwise lawful tool as a weapon of self-defense have all been found to be unlawful possession of weapons.  (Quote)

      July 30, 2010, 9:36 am

    11. Steve says:

      Shag from Brookline: Doesn’t everyone have a right of self defense just about any place, at any time, e.g., government facilities, including the Supreme Court? In a church, mosque or synagogue? 

      Surely you do. But to exercise your right to self-defense (in the legal sense, not the human rights sense), you need to be in imminent danger. You can’t just be generally fearful that something might happen to you if you go to church.

      On a deeper level, you can of course argue that your human right of self-defense is meaningless if you’re not allowed to carry a gun anywhere and everywhere. But the law hasn’t reached the point of recognizing the right of self-defense to that extent. Justice Scalia basically blew it off altogether in the Heller dicta.  (Quote)

      July 30, 2010, 10:37 am

    12. OrenWithAnE says:

      As for being excused from operation of law, I think the “illegal to discharge” laws that are in force in most, if not all cities, include language that permits discharge for lawful self-defense.

      Even when they don’t, the common law affirmative self-defense applies.  (Quote)

      July 30, 2010, 10:49 am

    13. ArchitectJS says:

      Shag from Brookline: Doesn’t everyone have a right of self defense just about any place, at any time, e.g., government facilities, including the Supreme Court? In a church, mosque or synagogue? On public transit? Someone visiting you at your home who knows you have guns for self defense and fears you might harm him/her if unarmed? Does an absolute right to self defense then call for an absolute right to keep and bear arms for that purpose, whether open or concealed? 

      Don’t be ridiculous. That’s crazy talk.  (Quote)

      July 30, 2010, 11:06 am

    14. Malvolio says:

      What I find most interesting: the Court used “disrespect” as a verb (probably paraphrasing testimony).  (Quote)

      July 30, 2010, 11:49 am

    15. yankee says:

      This seems like a pretty unremarkable application of the self-defense defense, which I suppose is what Eugene said in the first place.

      Shag from Brookline: Doesn’t everyone have a right of self defense just about any place, at any time, e.g., government facilities, including the Supreme Court? In a church, mosque or synagogue? On public transit? 

      Of course! And if somebody snuck a gun past the Supreme Court’s security guards and started opening fire at random, you’d be entitled to a self-defense instruction if you used a gun (say one of the guards was shot and dropped his gun and you picked it up) even though you’re not lawfully entitled to possess a weapon in the Supreme Court.  (Quote)

      July 30, 2010, 12:17 pm

    16. luagha says:

      Similarly, G. Gordon Liddy (a convicted felon) is well-noted for the fact of his family’s firearms possessions being owned by his wife. As to whether or not any of said firearms are on his side of the bed (in case, as mentioned above, he needs to “take possession of a weapon for a period no longer than is necessary or apparently necessary to use it in self defense or in defense of others” he doesn’t mention.  (Quote)

      July 30, 2010, 1:15 pm

    17. Fub says:

      How widely accepted is MI’s burden of proof for affirmative defenses after a prima facie showing — both as to which party has the burden and the standard of proof? 

      From the MI decision, p. 18 (discussed in more detail pp 15–16):

      We also conclude that self-defense was available under the facts of this case. Once a defendant satisfies the initial burden of producing some evidence from which a jury could conclude that the elements necessary to establish a prima facie defense of self-defense exist, the prosecution bears the burden of disproving the affirmative defense of self-defense beyond a reasonable doubt.

        (Quote)

      July 30, 2010, 5:18 pm

    18. cboldt says:

      – How widely accepted is MI’s burden of proof for affirmative defenses after a prima facie showing ... –
      Without doing any survey of the law, my reaction is that this shifting parallels the standards that pertain in criminal trials. This is roughly the re-establishment of presumption of innocence.
      Affirmative defenses can also be raised in civil cases (e.g., “assumption of a known risk”), and the threshold in those is preponderance of the evidence.  (Quote)

      July 30, 2010, 5:28 pm

    19. OrenWithAnE says:

      Similarly, G. Gordon Liddy (a convicted felon) is well-noted for the fact of his family’s firearms possessions being owned by his wife

      I had thought Carter pardonned him but Wikipedia says he just commuted the sentence. How bizarre.  (Quote)

      July 30, 2010, 9:10 pm

    20. Fub says:

      cboldt: Without doing any survey of the law, my reaction is that this shifting parallels the standards that pertain in criminal trials. This is roughly the re-establishment of presumption of innocence.

      Thanks. Close to what I was wondering.

      What raised the question for me was the court’s use of affirmative defense to describe rebuttal of an element of the crime.

      Self defense rebuts the mens rea of the crime. The defendant’s burden is that of going forward, presenting evidence which a reasonable jury could conclude rebuts the element. The burden of proof does not shift, and standard of proof remains. Prosecution must overcome defendant’s evidence beyond reasonable doubt. That was the case here.

      An affirmative defense usually requires defendant to prove its elements by preponderance, and can necessitate admission to having committed the offense.

      I’m accustomed to thinking of self defense as a rebuttal, so I found the court’s terminology confusing.  (Quote)

      July 30, 2010, 10:34 pm

    21. CDR D says:

      Didn’t Judge Kozinski write a decision on “justification defense” in matters like this quite a few years ago? (*United States v. Gomez*)  (Quote)

      August 1, 2010, 7:00 pm

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