Archive | Self-Defense

Response to Prof. Rosenkranz: ArmS & the Man – or Arms & the People

Nick takes issue with my suggestion that the Second Amendment on its face bars laws restricting people to one gun, such as that currently proposed by Gov. Quinn in Illinois.

My (first) argument is not an originalist or purposivist one, but rather a purely textual one. The primary meaning of “arms” is plural. Nick argues the plural is used to go with “the right of the people.” The real “reason,” I think, the plural term is used is probably because that is how it was written in the English Bill of Rights (and the Magna Carta). The question is what are the consequences of those possibly unconscious decisions and associations for a textual reading of the Constitution.

Certainly the plural arms goes with the plural “people.” But both are independent drafting choices. For example, the right of the people could have been “to be armed,” which would leave out the plural. Or it need not have been written in terms of “the People.” Nick compares it the Fourth Amendment. I like that: is the “people’s” right to be secure in their “houses, papers, and effects” even arguably singular, or be restricted to one house, one paper, one effect? Could papers be limited to one piece of paper? It is not “people” that makes “papers” plural, it is the way people commonly use paper.

Turning to purpose, the Framers used a plural word; they certainly did not intend to rule out “one gun” rules, because as far as I know, they had never encountered such restrictions, and were more interested in gun minimimums than maximums. None the less, the plural has consequences. Nor are the consequences absurd (this still permits two-gun limits) though they may be undesirable from certain policy perspectives. Nor is the reading contradicted by substantial originalist [...]

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Ice-T, Volokh, and Kopel: Together at last in a feature film

The film is Assaulted: Civil Rights under Fire. It opened Friday in a limited theatrical release. Assaulted tells the modern and historic story of the Second Amendment, with a particular focus on civil rights. The events include Reconstruction, the Deacons for Defense, the Battle of Athens, the post-Katrina gun confiscations, and much more. The narrator is Ice-T. On-screen talking heads include Eugene Volokh, Alan Gura, Adam Winkler, Gary Kleck, Dan Gross (Brady Campaign), Bobbie Ross, and me.

The production values of the film are very high; there is even a recreation of the 1946 Battle of Athens, Tennessee.

I thought it was a very good film, although as with any documentary, there were a few parts with which I did not entirely agree. (And I certainly don’t agree with everything that Ice-T has ever said.) I should point out one correction regarding me: the film identifies me as having a Ph.D., which is incorrect; I have a J.D.

Assaulted is currently showing in 16 theaters around the nation; if you would like it to be screened in your town, the website provides a form to request that. Congratulations to Executive Producer Kris Koenig for creating the first documentary about the Second Amendment to make it the screens of ordinary movie theaters. [...]

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Knives and the Second Amendment

That’s the title of my forthcoming article in the University of Michigan Journal of Law Reform. My co-authors are Clayton Cramer and Joe Olson. The abstract:

This Article is the first scholarly analysis of knives and the Second Amendment. Knives are clearly among the “arms” which are protected by the Second Amendment. Under the Supreme Court’s standard in District of Columbia v.  Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.

Bans of knives which open in a convenient way (bans on switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives which, after being opened, have a safety lock to prevent inadvertent closure.

Prohibitions on the carrying of knives in general, or of particular knives, are unconstitutional. There is no knife which is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on the carrying of handguns set the upper limit for restrictions on knife carrying.

The Article is just the beginning of long overdue scholarly analysis of laws about knives. Not all households own firearms, but almost every household owns a knife, even if we do not count table knives. Issues involving knife carrying come up quite frequently in state criminal courts, but the legal academy has thus far failed to provide the courts with useful guidance. Persons who are interested in writing on Second Amendment issues, and who wish to make an original contribution, will find that there is plenty to write about.

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Michigan Supreme Court Reaffirms Right to Physically (But Nonlethally) Resist Illegal Police Conduct

The case is People v. Moreno (Mich. Apr. 23, 2012) (5 to 2). A 2004 Michigan Court of Appeals decision had held the contrary, but the Michigan Supreme Court overruled that precedent.

Under the old common law rule, people were allowed to use nondeadly force to resist an illegal arrest or search. But, to quote the dissent, “As of 1999, 39 states had eliminated the common-law right, ‘twenty-three by statute and sixteen by judicial decision.'” The question in this case was whether a Michigan statute had likewise eliminated the common-law right; the majority concluded that the statute hadn’t done so. The decision was on its face about how to interpret the statute, but I take it that the majority thought the common-law rule at least made enough sense that they shouldn’t reverse it themselves.

Note that the same issue has recently come up in Indiana, where the Indiana Supreme Court (by a 3 to 2 margin) eliminated the common-law right using its own power to change the common law; a month ago, the Indiana Legislature in turn reinstated the right. [...]

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The “Duty to Retreat,” the Duty (or Not) to Comply With Demands, Necessity, and Liberty

The so-called “duty to retreat” has been in the news recently, and has long been of interest to people interested in self-defense law. Some have argued that the duty to retreat is a special case of the general requirement that lethal force may only be used when necessary to prevent death, serious bodily injury, rape, kidnapping, or perhaps some other serious crimes. But I think this “corollary of the necessity requirement” view misses an important point, which I want to blog about briefly here.

1. The necessity theory goes like this: “The use of deadly force,” to quote the Model Penal Code, “is not justifiable … unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or [rape].” (Similar formulations are used in many states that haven’t adopted the MPC, though many of those states add robbery and sometimes burglary to the crimes that may be prevented through deadly force.)

If someone “knows that he can avoid the necessity of using such force with complete safety by retreating,” then deadly force isn’t really necessary. Hence the duty to retreat: Even when threatened with death, serious bodily injury, rape, etc., you must retreat if that’s safe (e.g., by driving away from someone who’s threatening you with a knife from across the street, if you’re safely in your car), or else lose the right to use deadly self-defense.

2. But wait: Let’s say that someone tells me “Give me your wallet or I’ll seriously injure you,” and I know that (1) if I give over the wallet, I won’t be seriously injured, and (2) if I don’t, then I will be seriously injured. (I acknowledge that it’s rare to have such confidence, but let’s assume this — perhaps because I know the attacker [...]

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“I’m Going to Stab You Niggers”: A Duty to Retreat Case

I blogged a while ago about how the presence of a “duty to retreat” probably (though not certainly) wouldn’t have affected the outcome of any possible prosecution of George Zimmerman for killing Trayvon Martin. The issue in that case would likely be whether Zimmerman reasonably feared death or serious bodily injury or some similarly serious crime, a requirement that’s present in pretty much all states, whether or not they adhere to the “duty to retreat” doctrine (Florida and most other states don’t).

But I want to talk a bit more generally about the duty to retreat, both in this post and (I hope) in a future post. Recall that this isn’t a true duty, such as the duty to testify when subpoenaed, but rather a rule that

  1. even if D reasonably believes that he is facing an imminent threat of death, serious bodily injury, rape, kidnapping, or, in many states robbery and some other crimes from V,
  2. so long as D can escape this threat with complete safety
  3. by leaving the altercation
  4. except when D is in his own home (or, in some states, in his workplace),
  5. D does not have the right to engage in lethal self-defense because such lethal self-defense is no longer necessary given the availability of a safe retreat.

And the question raised by the duty to retreat is this: Should D have to surrender his liberty to be in a place where he has every right to be — e.g., a street, a bar, a party at a friend’s house — in order to retain his right to lethal self-defense? The answer might well be “yes.” Perhaps some surrender of this liberty is indeed proper in order to minimize the risk of a shootout, which could lead to death or injury to D, to [...]

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Florida’s Self-Defense Laws

Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws actually say. [...]

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Can the Police Arrest Someone for Homicide, When It’s Clear He Killed But Likely in Self-Defense?

To arrest someone for a crime, the police need probable cause to believe that he committed the crime. But what if it’s clear that the person committed the act (e.g., intentionally killed someone), but it seems likely that he has a good affirmative defense (e.g., self-defense)? My view is that probable cause should be probable cause to believe that the conduct was indeed criminal, and if the self-defense case is strong enough, that negates probable cause to believe that a crime (as opposed to a justifiable homicide) was committed. But when I looked into this several years ago, I saw that the few courts that had discussed the matter were split.

Florida law, though, clearly resolves this: “A law enforcement agency … may not arrest [a] person for using force [in a self-defense situation] unless it determines that there is probable cause that the force that was used was unlawful.”

So in Florida, the police must have probable cause to believe that the defendant wasn’t acting in lawful self-defense in order to arrest the defendant. It’s not enough to say, “we have probable cause to believe that you killed the victim, so we’ll arrest you and then sort out later how strong your self-defense case is.”

I can’t speak with confidence to whether in the Martin/Zimmerman case the police indeed have such probable cause (which, as you may recall, is a not very clearly defined standard that is well below proof beyond a reasonable doubt, and probably somewhat below preponderance of the evidence). [...]

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Lethal Self-Defense, the Quantum of Proof, the “Duty to Retreat,” and the Aggressor Exception

The tragic death of Trayvon Martin has led to more discussion of self-defense and the “duty to retreat.” I wanted to offer a few thoughts about the broad issues.

1. The costs of the legal acceptance of lethal self-defense: To begin with, I think both self-defense enthusiasts and self-defense skeptics have to acknowledge that the law’s accepting lethal self-defense poses very serious risks, not just to criminal attackers but to the law-abiding. (When I say self-defense, by the way, I generally also include defense of others.) First, there is a risk of accidents, where a well-intentioned defender erroneously assumes he is being attacked.

Second, there is a risk of false claims of self-defense being used as a cover for murder. When D kills V in alleged self-defense, there is often only one witness left: D himself. He can say, “I heard V threaten to kill me, saw him reaching for his waistband, and was sure that he was going to shoot me”; and unless the jury concludes beyond a reasonable doubt that D — again, the only witness — is lying, D will be off the hook, even if D was well aware that V was no threat at all and just wanted to kill him. (This could happen either if D was planning to kill V all along, if D and V are involved a dispute and D kills V in a moment of anger, or if D and V are involved in a fight that doesn’t suffice to authorize deadly force, but D uses deadly force in any case.)

Third, there is a risk — especially with guns — of an innocent bystander being hit. And, fourth, there is a risk that even a justifiable killing will lead to a cycle of retaliation, including not just against the [...]

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Interesting Self-Defense Case

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. [...]

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40 Out of 50 Indiana State Senators Sign Amicus Brief Supporting Right to Use Force to Resist Unlawful Police Entry

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. [...]

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Self-Defense as a Defense Against a Charge of Being a Felon in Possession of a Gun

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. [...]

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Deadly Force in Self-Defense Constitutionally Protected, Nondeadly Force Unprotected?

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 [...]

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Kansas Now Allows Threat of Deadly Force in Self-Defense, and Not Just Use of Such Force

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. [...]

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