The Volokh Conspiracy

The case is People v. Richardson, decided by the Michigan Supreme Court Friday. The big dispute is not about the law, but about whether the instructions were clear enough; but many cases indeed turn on that very question. If you’re interested in self-defense cases as they are actually litigated — especially in situations where the facts are ambiguous (was the defendant reasonably afraid of imminent death or great bodily harm, or was the threat over and the defendant attacked just because he was angry or worried about harm at some future time?), where the jury might well have been confused, and where the instructions weren’t as clear as they could have been — you might check this out.

The brief supporting the petition for rehearing was filed in Barnes v. State, the decision Orin blogged about last month. The brief was also signed by 31 of the 100 Indiana House of Representatives members, but the overwhelming support in the Senate struck me as especially striking.

The brief argues that the Indiana self-defense statute, which allows the use of force “if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle,” is applicable whether the unlawful entrant is an ordinary citizen or a police officer. Neither the Barnes majority nor the dissent cited this statute, and my quick look through the briefs suggests that the parties didn’t mention it on appeal; I suspect that means they didn’t bring up at trial, either.

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.

From People v. Srnec (Mich. Ct. App. Jan. 26, 2010) (italics added):

Defendant next argues that the trial court erred in denying his motion for a new trial and to dismiss because the Second Amendment safeguarding the right to bear arms affords every citizen a right of self-defense against unlawful arrest or seizure. Defendant claims that MCL 750.81d unconstitutionally deprives every citizen of this right because it allows officers to seize the citizen, regardless of the lawfulness of the seizure, and then penalizes the citizen for resisting through the use of self-defense. We disagree.

Under the plain language of the Second Amendment of the United States Constitution and Const 1963 art 1 § 6, the right to keep and bear arms involves the right to use firearms in self-defense. See District of Columbia v Heller. Defendant claims he has a constitutional right to use firearms to resist an unlawful arrest or seizure. Defendant’s argument fails because the Second Amendment does not give any citizen a constitutional right to use deadly force to resist an unlawful arrest or seizure. The right to bear arms does not safeguard an individual’s right to self-defense short of deadly force. In People v Dillard, 115 Mich App 640, 645 (1982), this Court noted that “the [common law] right to resist an unlawful arrest can never include the right to use deadly force where the only danger perceived is loss of liberty.”

The right to use self-defense to resist unlawful arrest has only been afforded protection at the common law and is not a constitutional right.

Now the result might be right: I think it’s plausible to conclude that the right to keep and bear arms in self-defense presupposes a certain sort of right to self-defense (see PDF pp. 16-17 of this article), but how this plays out as to self-defense against unlawful arrest is a complicated question. (Even if you don’t think the right to keep and bear arms in self-defense provides any constitutional basis for a right to self-defense, 21 state constitutions expressly secure a right to defend life, liberty, and property, so the issue would still arise in those states.)

But can it really be the case that the right safeguards only the right to use deadly force, but not the right to use nonlethal force? Even if “arms” is read as being limited to firearms, firearms can be used in ways that are nearly certain to be nonlethal — if, for instance, one only brandishes them. Why would one interpret the constitutional provision as securing a right to deadly self-defense but not a right to nondeadly self-defense?

Note, though, that the defendant in this case used “arms” in a different sense than that used in “keep and bear arms”: His resisting arrest consisted of “continu[ing] to thrash and struggle and buck his arms out.”

You wouldn’t think that it would take a statute to do this. After all, if it’s OK to kill someone to defend against a threat of death or serious injury, the lesser harm of threatening to kill someone should be fine, too.

But last year the Kansas Supreme Court held that existing Kansas law only allowed a defense for actual use of force, which didn’t include threats; earlier this year, the Kansas Court of Appeals faithfully applied this principle. Fortunately, the Kansas Legislature (apparently prompted by the urging of gun rights advocates) passed a law that — among other things — makes clear that threats of force should qualify as justifiable self-defense, to the same extent that the actual use of force qualifies; and just yesterday, the governor signed the bill. Good work.

From the Chicago Daily Herald. Throwing a rock through a car window might not at first seem like much by way of self-defense, especially if the fear is that the car will run you over. But I take it that the court’s rationale — which seems sensible — must have been that showing signs of a willingness to retaliate might deter bullies, who might worry that the next rock will hit them directly, or might even just psychologically intimidate them:

A [17-year-old] girl who hurled a rock through a car window after its occupants repeatedly drove by yelling threats and homosexual slurs [at her 15-year-old] male companion] was found not guilty of a criminal damage to property charge Tuesday by a McHenry County judge who ruled she acted in self-defense….

“I believe she believed she was in danger of being hit by a car and her feeling was that (the harassment) wasn’t going to end,” [Judge Charles] Weech said while issuing his verdict….

Note this quote from the judge:

“Was there another way to handle it? You bet,” the judge added. “Two wrongs don’t make a right, and you made a wrong move by throwing the rock.”

The judge’s verdict — and self-defense law more broadly — does reflect that one wrong (the initial harassment, which is reasonably interpreted as threatening violence) may make the other wrong (throwing a brick) into a right.