Archive | Self-Defense

New Florida Self-Defense Case

It’s the Gabriel Mobley case, State v. Mobley (Fla. Ct. App. Jan. 2, 2014) (2-1 vote). Here’s the summary from the end of the majority opinion:

The record — as corroborated by a video of the events — is that (1) Mobley found himself in the middle of a violent, unprovoked attack on a companion who was standing right next to him, by one of two men who earlier had engaged in an altercation to which he was a witness; (2) after the initial violent attack on Mobley’s friend, the attacker immediately turned his attention to Mobley; (3) less than four seconds after that, the first attacker was joined by the second man involved in the altercation inside the restaurant; and (4) when the second man reached under his shirt after rushing up to join his companion who had not abandoned the field, Mobley believed the second man was reaching for a weapon to continue the attack. With these facts at hand, and with Mobley’s knowledge of these two assailants, the issue for determination was not whether Mobley knew a weapon was possible or whether he actually saw one, but whether a reasonably prudent person in those same circumstances and with the same knowledge would have used the force Mobley used….

It may have been more prudent for Mobley and Chico to skitter to their cars and hightail it out of there when they had the chance; however, as even the State concedes and the court below recognized, Mobley and Chico had every right to be where they were, doing what they were doing and they did nothing to precipitate this violent attack. The only relevant inquiry was whether, given the totality of the circumstances leading up to the attack, the appearance of danger was so real that a

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Evolving Christian Attitudes Towards Personal and National Self-Defense

Issue number 5 of this year’s Connecticut Law Review is an excellent symposium on firearms law, policy, and culture. The lead article is from Nicholas Johnson, of Fordham: Firearms Policy and the Black Community: An Assessment of the Modern OrthodoxyJohnson (who is my co-author on the Second Amendment textbook Firearms Law and the Second Amendment) details the long and honorable history of Black Americans’ use of arms for lawful self-defense, especially against white racists. Johnson observes that in the late 1960s, Black political leadership abruptly shifted from the community’s traditional support for armed self-defense into being quite hostile to gun ownership.

The Johnson article is a short version of his forthcoming (Jan. 14, 2014) book Negroes and the Gun: The Black Tradition of Arms by Nicholas Johnson (Jan 14, 2014). I very highly recommend the book. It goes far beyond the Connecticut article. The subject of race control and gun control has been a subject of increasing scholarly attention ever since Robert J. Cottrol and Raymond T. Diamond’s 1991 Georgetown LJ article, The Second Amendment: Toward an Afro-Americanist Reconsideration. Having followed the subject carefully for the past two decades, I am amazed by how much original research that Johnson brought to the book, and by the rigorous analysis he provided for the most difficult questions.

In the Connecticut symposium, response essays are offered from leading “pro-gun” scholars (Cottrol & Diamond, Don Kates & Alice Marie Beard) and from leading “anti-gun” scholars (Michael DeLeeuw, David Kairys, Andrew McClurg [my co-author on another gun textbook], and William Merkel).

My own contribution to the symposium is an article titled Evolving Christian Attitudes Towards Personal and National Self-Defense. (SSRN link here; Conn. L. Rev. link here.) My article observes that the Black political leaderships’ sharp turn against self-defense [...]

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Knives and the Second Amendment

The Second Amendment guarantees the right to keep and bear “Arms”–not solely “firearms.” While firearms have always been the paradigmatic Second Amendment arm, there are many other types of arms which are protected by the Second Amendment. By far the most common of the other arms are knives.

Now at the printer is the first detailed scholarly analysis of Knives and the Second Amendment. 47 University of Michigan Journal of Law Reform, vol. 47, pages 167-215 (Fall 2013). The article is co-authored by Clayton Cramer, Joseph Olson, and me. We argue that:

  • 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.
  • There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.
  • Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives that, after being opened, have a safety lock to prevent inadvertent closure.

The article provides an explanation of various types of knives, of criminological evidence regarding knives, and of the 19th century panic and case law about Bowie Knives and Arkansas Toothpicks. We then apply the Second Amendment to modern knife laws. We cover the utility of knives for personal self-defense and for militia use, and the constitutional significance of technological changes in knives since 1791. Finally, the article considers some modern prosecutions, statutes, and cases from Washington, Oregon, Indiana, New York, and D.C. We conclude that even under the weakest relevant standard (intermediate [...]

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May Employer Fire Employee Based on Employee’s Reasonable On-the-Job Self-Defense?

Generally speaking, private employers may terminate their relationship with employees for any reason, or no reason at all — that’s the “employment at will” principle. There are two main legal constraints on this. The first is contractual, for instance some sort of union contract or tenure contract. The second is statutory, such as bans on discrimination based on race, sex, religion and the like (including, in some states, sexual orientation and marital status), or less well-known statutes banning discrimination based on an employee’s vote, and in about half the states banning employer retaliation for certain kinds of employee speech and political activity. But if no such contract or statute is applicable, even conduct that is constitutionally protected against governmental retaliation — such as speech, political activity, off-the-job sexual activity, marital decisions, self-defense, and the like — are not protected against private employer retaliation.

There is, however, a third constraint, created by judges in many states: the tort of “wrongful termination in violation of public policy.” The Utah formulation of this tort, which is similar to that in many other states, bars employer retaliation against an employee for:

(i)[r]efusing to commit an illegal or wrongful act, such as refusing to violate the antitrust laws;
(ii) performing a public obligation, such as accepting jury duty;
(iii) exercising a legal right or privilege, such as filing a workers’ compensation claim; or
(iv) reporting to a public authority criminal activity of the employer.

The complicated category is category (iii). There are lots of legal rights and privileges that don’t trigger that category — people have the right to speak, but, absent a statute, courts generally don’t bar employers from firing employees based on their speech. (There’s one exception, Novosel v. Nationwide Ins. Co. (3d Cir. 1983), but it hasn’t been followed.) Likewise, [...]

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The U.N. Weighing in on the Zimmerman/Martin Investigation

According to a United Nations press release,

A group of United Nations independent experts today called on the Government of the United State to finalize the ongoing review of the case involving the death of teenager Trayvon Martin, an African-American teenager who was shot in 2012 by a neighbourhood watchman in the state of Florida.

“We call upon the US Government to examine its laws that could have discriminatory impact on African Americans, and to ensure that such laws are in full compliance with the country’s international legal obligations and relevant standards,” said human rights expert Verene Shepherd, who currently heads the UN Working Group of Experts of People of African Descent.

The death of Trayvon Martin sparked a new debate about racial profiling in the United States after the unarmed black 17-year-old was shot and killed in Florida by George Zimmerman, a neighbourhood watchman. Mr. Zimmerman, who argued that he acted in self-defence and with justifiable use of deadly force, was found not guilty of all charges against him.

The US Department of Justice, the US Attorney’s Office for the Middle District of Florida and the Federal Bureau of Investigation are currently evaluating the evidence generated during the federal investigation, as well as the evidence and testimony from the state trial, trying to establish potential civil rights charges linked to the case.

“The Trayvon Martin case has highlighted the importance of the need to review those existing laws and policies that can have a discriminatory effect on the basis of race, as African Americans become more vulnerable to such discrimination,” Ms. Shepherd said, recalling that the US has been party to the International Covenant on Civil and Political Rights since 1992, the International Convention on the Elimination of Racial Discrimination since 1994, and many other international human rights

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Interesting Self-Defense Story

From the Sarasota Herald Tribune:

[Vickie] Rock, 50, of Riverview, came outside armed with a .45-caliber handgun and saw [Daniel] Robertson beating [his girlfriend Christy] Vasilakos with a metal object, said Hillsborough sheriff’s spokesman Larry McKinnon.

When Rock tried to intercede, Robertson turned on her. Rock suffered several facial injuries before firing at least one round and striking Robertson, McKinnon said.

The rest of the story provides some more details, including Vasilakos’s perspective on Robertson (though of course one should take any media accounts in such a situation with a grain of salt, and more broadly take everyone’s accounts with a grain of salt). From the story, Rock’s actions seem perfectly legally proper — and likely would be seen as legally proper even in duty-to-retreat states — and morally praiseworthy.

At the same time, though much depends on the nature of the metal object, it seems likely (though not certain) that if Rock hadn’t intervened, both Robertson and Vasilakos would be alive today. Indeed, it seems possible (though far from certain, and perhaps not knowable to us) that Rock might have thought that she could have saved her own life, at the expense of submitting to the beating, even without shooting Robertson.

So whether you think this was a laudable instance of self-defense (as I do) or something that you think shouldn’t have happened may turn not just on whether it’s good to take an attacker’s life to save the victim’s life, but also whether it’s good to take an attacker’s life to prevent likely harm that is likely to be well short of death. The law in all states says yes, in allowing killing not just to protect life but also to prevent serious bodily injury (including rape), and also, in many states, to prevent robbery or even [...]

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Losing Self-Defense Rights If You Refuse to Comply with Attacker’s Demands to Abstain from Conduct?

I’ve long been curious about the “duty to comply with negative demands,” an analog to the duty to retreat suggested by the Model Penal Code (based on the Restatement (First) of Torts) and implemented in Connecticut, Delaware, Guam, Hawaii, Maine, Nebraska, New Hampshire, and New Jersey. (Alabama and Pennsylvania had such a rule, but recently repealed it.) Under this doctrine, a defendant loses the right to use lethal force in self-defense if he knows that

he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take.

That always struck me as shockingly broad — read literally, if Vic tells Don, “stop seeing my ex-girlfriend or I’ll kill you,” Don must stop seeing the ex-girlfriend or else lose the right to use lethal force to defend himself against Vic. Likewise, if Vic tells Don, “stop burning this flag / displaying this cartoon of Mohammed / picketing with this sign, or I’ll kill you,” Don must abandon his First-Amendment-protected activity or else lose the right to defend himself with lethal force against Vic. Perhaps prosecutors agree, and are skittish about using this theory, because I’ve found only one case in which it seemed to have been argued, State v. Savage, 573 A.2d 25 (Me. 1990); I thought I’d pass along an excerpt and see what people thought (some paragraph breaks added):

[James] Savage was a lead singer and rhythm player in a blue grass band called the Shilo Mountain Boys, led by the victim, C. Sumner Morrill. Shilo Mountain Farm was the name of the Morrill home in North Baldwin. Savage, who

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Cathy Young on Race and Self-Defense

An interesting Newsday column. A couple of excerpts:

Could there have been a white Trayvon Martin? Ask the parents of Christopher Cervini, also 17 when he was killed in Rochester, N.Y., in 2009. The shooter, Roderick Scott, said he saw three boys breaking into a car, went out with his (legal) handgun to stop them, and fired in self-defense after Cervini ran at him yelling a threat. Cervini’s family insisted that the teen, who had never been in trouble, was murdered in cold blood. Scott was tried for manslaughter and acquitted. He is black; Cervini was white….

As proof of pervasive bias, some cite a June 2012 Tampa Bay Times report based on a study of cases involving self-defense claims since 2005, when Florida passed its “stand your ground law”: 73 percent of defendants who killed blacks were cleared, compared to 59 percent of those who killed a white person. Yet, since most homicides were between people of the same race, this also suggests black defendants were more likely to win. Indeed, the study found that “black defendants went free 66 percent of the time in fatal cases compared to 61 percent for white defendants.” In mixed-race cases, “four of the five blacks who killed a white went free; five of the six whites who killed a black went free.” …

In any case, if you’re interested in the topic, read the whole thing. [...]

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Duty to Retreat and Stand Your Ground: Counting the States

People are talking about how common “stand your ground” states are compared to “duty to retreat” states, so I thought I’d do a bit of looking to see the current head count. First, let me explain what I mean by “duty to retreat,” which is something of a misnomer (though a very common one):

Say that a defendant is facing the risk of death or serious bodily injury (or rape or kidnapping or, in some states, robbery or some other crimes). And say that the defendant

  1. is not in his home or other property that he owns or his place of business,
  2. is in a place where he may lawfully be,
  3. is not engaged in the commission of such crime, and
  4. has not attacked the victim first or deliberately provoked the victim with the specific purpose of getting the victim to attack or threaten him.

In duty-to-retreat states, the defendant is not legally allowed to use deadly force to defend himself if the jury concludes that he could have safely avoided the risk of death or serious bodily injury (or the other relevant crimes) by retreating.

In stand-your-ground states, the defendant is legally allowed to use deadly force to defend himself without regard to whether the jury concludes that he could have safely avoided the risk of death or serious bodily injury (or the other relevant crimes) by retreating.

Relaxing criterion 1 above moves states into the stand-your-ground category; for instance, nearly all (and perhaps all) states don’t require retreat when the defender is in his own home, except in some narrow circumstances. Relaxing criterions 2 to 4 above moves states into the duty-to-retreat category, or even denies a right to self-defense regardless of whether the defendant tried to retreat. I’m speaking here of the core duty-to-retreat vs. stand-your-ground case, [...]

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A Correction and Apology Regarding the New York Times Zimmerman Editorial

In a post Monday, I criticized the New York Times editorial that read, in relevant part,

The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of the now-notorious Stand Your Ground provision in Florida’s self-defense law. Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she “reasonably believes” it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome.

These laws sound intuitive: who would argue that you may not protect yourself against great harm? But of course, the concept of “reasonable belief” is transformed into something deadly dangerous when firearms are involved.

One thing I argued was that there was no reason to think that the jury had relied on the Stand Your Ground instruction, since that’s relevant only when, in “the circumstances by which [the defendant] was surrounded at the time the [deadly] force was used,” the defendant had the opportunity to retreat with safety — something that didn’t seem to be part of either the prosecution’s or defense’s factual theory. It thus struck me that the issues before the jurors were matters, such as whether Zimmerman reasonably feared death or serious bodily injury, on which the law was unaffected by Florida’s Stand Your Ground statute.

Nonetheless, as some commenters noted in the last several hours, one of the jurors said in an Anderson Cooper 360 interview,

JUROR: Exactly, exactly. We looked through pretty much everything. That’s why it took us so long. We’re looking through the evidence, and then at the end we just — we got done, and then we just started looking at the law. What exactly we

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Provocation and Self-Defense

One recurring comment I’ve heard on the Zimmerman case is that Zimmerman was in the wrong for following Martin in the first place, and therefore couldn’t use deadly force when Martin reacted violently in response (perhaps in what Martin perceived was self-defense). This is an interesting and complicated question, which Prof. Alafair Burke (Huffington Post) discusses in some detail; I thought I’d also discuss it, with some overlap with Prof. Burke’s analysis.

To begin with, it’s clear that the right of lethal self-defense is lost in some situations. If D criminally attacks V with a knife, V takes out a gun, and D stabs V, D can’t defend himself by saying “I was in reasonable fear of death or grave bodily harm.” That risk of injury happened because D was committing a serious crime in the first place.

But what if D does something that’s noncriminal, but nonetheless foreseeably triggers a violent reaction by V, and then D uses deadly force to protect himself against that reaction? Has D also lost the right to lethal self-defense, because he could have avoided the need for such deadly force by avoiding the earlier act — or because he more broadly “provoked” the occasion for such deadly force? (Note that this is a separate kind of provocation from that which reduces a murder charge to voluntary manslaughter; though the label is the same, the legal rules and consequences are completely different.)

Let’s consider a few scenarios:

1. D knows that V is insanely jealous, and has threatened to attack D for dating V’s ex-girlfriend. Nonetheless, D keeps dating her, and even appears with her in places where V might well see them. V attacks D in a way that threatens D’s life, and D shoots V.

2. D knows that V hates him, [...]

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Successes in Colorado Sheriffs’ Second Amendment case

This post provides an update on last week’s developments in Cooke et al. v. Hickenlooper. This is a lawsuit filed May 17 in federal District Court in Denver, challenging two gun laws enacted by the state legislature in March. In the case, I represent 55 of Colorado’s 62 elected Sheriffs, plus one retired police officer. Other plaintiffs, with their own attorneys, include the Colorado Farm Bureau, Outdoor Buddies (which helps disabled people participate in outdoor sports), the Colorado Outfitters Association (trade association for hunting guides), federally-licensed firearms dealers, the National Shooting Sports Foundation, and others. We argue that House Bill 1224 (magazine ban) and House Bill 1229 (background checks and paperwork on temporary loans and private sales of firearms) violate the Second and Fourteenth Amendment, and the Americans with Disabilities Act.

On June 12, we filed a motion for a preliminary injunction on two narrow issues in the magazine ban.

1. The magazine ban outlaws magazines which accept more than 15 rounds of ammunition. The ban also applies to magazines which are “designed to be readily converted” to hold more than 15. We argued that the “designed” language was unconstitutionally vague, in violation of the 14th Amendment, and to the extent that the language had any clear meaning, it violated the Second Amendment.

2. To qualify for grandfathering, a person must fulfill two requirements. First: own the magazine on July 1. Second: maintain “continuous possession” thereafter. We argued that “continuous possession” was unconstitutionally vague, and that what meaning it did have (according to the Attorney General) violated the Second Amendment.

On the eve of the July 10 preliminary injunction hearing, the plaintiffs’ attorneys and the Colorado Attorney General’s office reached an agreement which resulted in new Technical Guidance being published by the Attorney General on July 10. The new [...]

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[NOTE CORRECTION] New York Times Editorial vs. News Analysis

[NOTE: Having read the post-trial Anderson Cooper 360 interview of one of the jurors, I now think I’ve erred in one of the criticisms of the editorial (the one labeled 1 below); my apologies on this to the editorialists and to our readers. For more on the details, please see this follow-up post. For more on the very interesting question of provocation and the self-defense defense (a separate question from that raised by the post, but one that I think many people confuse with the Stand Your Ground issue), see this post.]

* * *

[Posted before the NOTE posted above: Note the FURTHER UPDATE below, which discusses a defense of the Times Editorial, and the reason I’m unpersuaded by this defense.]

From yesterday’s New York Times “News Analysis” item:

Soon after Mr. Zimmerman was arrested, there appeared to be a chance that the defense would invoke a provision of Florida self-defense law known as Stand Your Ground. Ultimately it was not part of Mr. O’Mara’s courtroom strategy, though it did play a pivotal role immediately after the shooting.

The provision, enacted by the Florida Legislature in 2005 and since adopted by more than 20 other states, allows people who fear great harm or death not to retreat, even if they can safely do so. If an attacker is retreating, people are still permitted to use deadly force.

The provision also allows a defendant claiming self-defense to seek civil and criminal immunity at a pretrial hearing.

Mr. O’Mara said he did not rely on Stand Your Ground as a defense because Mr. Zimmerman had no option to retreat. A pretrial immunity hearing, which prosecutors said they had been expecting, would only have divulged his case. So Mr. O’Mara gambled on a jury trial.

“That was a brilliant

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Burden and Quantum of Proof as to Self-Defense

A commenter writes:

It’s very troubling that someone can be acquitted on the basis of a self-defense claim without the defense having the burden of proof to claim self-defense. I agree that a 12-person jury would be a good change of the law, but another would be to bring Florida’s self-defense laws in line with most other states’.

Who should bear the burden of proving or disproving self-defense in criminal cases, and by what quantum (preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt), is an interesting question. But on this point, Florida law is precisely the same as in nearly all other states: In 49 of the 50 states [UPDATE: I would now say it’s 48½], once the defense introduces any evidence of possible self-defense, the prosecution must disprove self-defense beyond a reasonable doubt.

This wasn’t always the rule. The English common law rule at the time of the Framing was that the defense must prove self-defense by a preponderance of the evidence, and Ohio still follows that rule; the Supreme Court has held (Martin v. Ohio (1987)) that placing this burden on the accused is constitutional. But to my knowledge, only Ohio still takes the view — all the other states do not. [See UPDATE below for one other state, Louisiana, in which some courts in some situations also take this view.]

Of course this doesn’t dispose of what the rule ought to be. One way of thinking about that policy question is that the nearly unanimous rule takes the view, “Better that 10 guilty killers go free than one person who killed in proper self-defense go to prison for a long time (or be executed).” The Ohio rule, which is also the historical Framing-era rule is, “It’s slightly worse for [...]

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Possible Change to Florida Law Following the Zimmerman Verdict?

Many people think the Zimmerman verdict was a just application of Florida law, i.e., that there was a reasonable possibility that Zimmerman “reasonably believe[d] that such force [was] necessary to prevent imminent death or great bodily harm to himself.” Many others think the verdict was an unjust application of that law. Many others aren’t sure, because they didn’t watch all the evidence.

But even if one thinks the result was unjust, it’s hard to see what can feasibly be done about unjust applications of self-defense law in the future. For instance, Florida’s Stand Your Ground law, which was much talked about early in the process, didn’t materially affect the outcome here; even in non-stand-your-ground states, the duty to retreat before using deadly force generally arises only when there’s an imminent threat of death or great bodily harm but one can avoid that threat by retreating with complete safety. Whatever you think of Stand Your Ground laws, they wouldn’t affect cases such as this one. The question in this case came down to how the jurors evaluated the facts, and it’s very hard to control that through changed legal rules (or at least changed rules that will be acceptable to the public — to given an extreme example, one could prevent unjust acquittals on self-defense grounds by abolishing the self-defense defense, but for good reason few people would go for that).

But there is one change in the law that I think would be sound, that could be enacted following the verdict, and that would make it more likely (I think) that such verdicts in the future would be just and would be perceived as just: bring Florida into line with almost all other states by providing 12-person juries in serious felony cases. As I noted in this [...]

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