This morning, we went over the claims from “Spotty” from Cucking Stool that Rep. Cornish’s “Stand Your Ground” bill (HF 1467, which we discussed at great length last week) would allow people to make spurious claims of self-defense and, literally, get away with murder.
It won’t, of course – although Minnesota’s “progressives” want you to think so. We’ll come back to that.
What it will do is bring some much-needed rationality to Minnesota’s self-defense law.
Let’s go through a hypothetical example that, unlike Spotty’s, actually occurs in the real world.
Say that you are a woman. You’re walking from your garage back to your house, coming home from a picnic. It’s dusk. Your two kids are indoors, but the back door is open. Suddenly, you hear a shout; it’s that stalker-y collections lawyer you met on Match.com, the one you told to pound sand after a noncommittal first date and a weird second one. You told him you weren’t feeling it, and he’s been stalking you ever since. You’ve even explored taking out a restraining order – but there’s no restraining him now. He’s standing where he could come between you and the back door of the house. He has a knife – a big, long knife. Being a carry permit-holder, you grab your pistol and point, frantically remembering what your carry permit instructor taught you about the law last year:
- He’s got a knife – so you have reasonable fear of death or great bodily harm to yourself and your children. Check.
- You are not a willing participant in this incident; you’ve made your lack of interest clear (which is one of the things that’s set the little fella off). Check.
- If someone is coming at you with a knife, then you can probably convince a sane jury that lethal force is reasonable. Check.
- You are in the back yard of your house. The law re self defense says that you have to be sure of all of the above and make every “reasonable” effort to disengage and avoid the use of lethal force. As you stand in the back yard facing a stalker moving toward you with a knife, you need to decide; do you retreat toward the house to protect your kids, even though he could cut you off? Or do you retreat back toward the garage (because defending your children means, conceivably, advancing on him)? And if he follows you, do you retreat completely off your property? You need to decide this immediately, under life or death pressure, with your adrenaline pumping, in dimmer-than-ideal light, under mind-boggling stress. However, the question “did you make every reasonable effort to avoid shooting” will be decided by a cop at a secured crime scene after the fact, and – more importantly – by a county attorney in a nice, warm, brightly lit office, protected by sheriff’s deputies and a metal detector. How will they decide? If you live in Kandiyohi County, you’ll probably get the benefit of a doubt. If you live in Ramsey? Your fate will be decided by a former frat boy who graduated in the top 60% of his class at the U of M Law School, who got his job because of his DFL party connections with Susan Gaertner, and who keeps his job based on how he pleases his city and county’s DFL leadership, who believe as a matter of policy that a shooting is a shooting is a shooting, whether it’s a woman defending herself or a gang-banger shooting a 15 year old girl. Feel safer now? Uh-oh.
Back to “Spotty”.
And here are two subdivisions that deal with the consequences to the user of deadly force after the event.
The bill says that if some one even claims self defense, they are immune from arrest — which might include even detention at the place of an incident of the use of deadly force — until an arresting officer weighs all of the circumstances. The would be hard to gainsay the absurdity of subdivision five and the complete impracticality of its application. It makes the police into arraignment judges.
And he goes on to say…:
But subdivision six contains the most monumental change in the criminal law. Under current law, in both federal and state courts in Minnesota, a defendant has the burden of establishing self defense. Once the acts are established beyond a reasonable doubt, i.e., the weapon was used by the defendant, the defendant must show that the killing or wounding was justified. The proposed statute flips that burden around, placing it on the prosecution.
Now, I’m nothing if not a civil guy (unlike more than a few of my critics, including “Spotty”). But between this passage, and his little opening fantasy, it’s pretty clear he hasn’t the foggiest idea how “Self Defense” works.
Let’s say that you are the woman in my example above. As the stalker charges toward you, you shoot. Two shots to the chest; he drops like a dog. The cops respond; and say “Good shot, he had it coming, you had to protect yourself and your kids, there was no way you could have done it differently under the circumstances”. But there’s a body – so the county attorney opts to press charges, based on the fact that, in the County Attorney’s opinion (sitting in his brightly-lit office, with a cup of coffee on his desk and all the time he needs to think through all the angles) the fact that there was a shooting is all that matters; county policy is to “arrest and charge the gun” – no matter who used the gun, and why.
Which means the woman in my example will be arrested, and charged with murder, and have to float bail and hire a lawyer and go to court and say “yes, I killed the guy – but he came to me, he had a knife, and it was clear my kids and I were in lethal danger, and my response was reasonable, and under the circumstances retreat was, if not impossible, unreasonable “. After which the County Prosecutor gets to tell a jury – also working in a nice, brightly-lit room, with sheriff’s deputies guarding them and all the donuts they can eat – that no, you should have run up the stairs, or out the back door, or put your gun down and negotiated with him, or anything but end his unstably-minded life.
The best you can hope for is that your attorney can convince 12 people who couldn’t get out of jury duty that you were in the right (for between $10,000 and $50,000 in court costs and attorney fees); your life’s savings will be exhausted, your credit will be shot, you have a good chance of losing your job – but you will have proved your innocence of murder – something no actual murderer has to do (because they’re innocent until proven guilty, remember?) while you, a law-abiding citizen who shot in self-defense, are “guilty with an explanation”. The worst? That your lawyer does a bad job, and that your judge – a DFLer, maybe? – gives jury instructions that virtually ensure your conviction, and a prison term, and a lifetime in court defending “wrongful death” suits, because you were found guilty of…well, not “wrongfully killing” someone, so much as of not retreating far and fast enough. And in between the two, there’s the chance that the County Attorney fights you so aggressively on the case that, even though you were right to shoot, you have to take a plea bargain, because you are bankrupt and can’t afford to continually fight the entire weight of the County’s legal bureaucracy by yourself; to take a smaller felony in exchange for maybe, someday, getting your life back.
Unlike “Spotty’s” little flight of fancy at the top of the post, this scenario actually happens. Ask Martin Treptow.
So Cornish’s bill would allow two things:
- In cases where the shooter has met all of the criteria for self-defense (not a willing participant, and the fear of death or GBH, the lethal force and the attempt to disengage are all “reasonable”), it would allow law enforcement to recognize the fact that it was a justifiable shoot, without putting the defendant behind the legal eight ball from the very beginning.
- In shootings that meet all the criteria, it switches the burden of proof to where it belongs; the state.
The bill also immunizes the vigilante from civil liability — to anybody, including bystanders waiting at the bus stop or walking down the street.
Well, sort of. Here’s what Cornish’s bill says, with emphasis added:
7.23 Subd. 5. Criminal investigation; immunity from prosecution. (a) An individual|
7.24who uses force, including deadly force, according to this section or as otherwise provided
7.25by law in defense of the individual, the individual’s dwelling, or another individual is
7.26justified in using such force and is immune from any civil liability or criminal prosecution
7.27for that act.
7.28(b) A law enforcement agency may arrest an individual using force under
7.29circumstances described in this section only after considering any claims or circumstances
7.30supporting self-defense or lawful defense of another individual.
In other words, it gives clear-cut cases of self-defense a chance to be resolved without making a thoroughly-lawful shooter go through the entire judicial process as a criminal on trial, and protects people who carry out thoroughly legitimate self-defense shootings from retribution in civil court from the people they shot. (Not bystanders; the law would not legalize shooting bystanders; the imperative to “know your backstop” doesn’t change).
Back to Dog the Red Herring Hunter:
The practical effect is that if a defendant says “I felt threatened,” it is the prosecutor’s burden to show that the defendant was not “reasonably” threatened.
Again, I’m not the one who is going to come around with the personal insult – but “Spotty” is a lawyer in real life. I’m not sure if he’s just unfamiliar with how the system works, or if he’s being willfully disingenuous. But it’s not enough to say “I felt threatened”; it isn’t now, and it won’t be under Cornish’s law. If the body on your floor is not holding a knife or gun, it’d be well within the cop’s discretion to say I know you claim to have shot in self-defense, but it appears at the least you were mistaken” under Cornish’s proposal, whereas today he’s more likely forced to say “I know you’re innocent, but our county policy is “arrest the gun””.
The burden of proof for demonstrating, for example, insanity or diminished capacity as a defense to a crime also rests with the defendant. If this bill becomes law, it would give the user of deadly force a procedural advantage not shared by any other defendant seeking to use an affirmative defense.
“Spot” is begging the question here – using Minnesota’s current treatment of self-defense as “evidence” that Minnesota’s current treatment of self-defense is the right approach. It’s illogical, notwithstanding that it’s wrong. “Affirmative Defense” – saying “yes, I committed the crime, but there are some factors due to which you should modify my culpability” – makes sense, arguably, for modifying the consequences of acts committed under diminished capacity. An obviously legitimate self-defense shooting should not be treated as analogous to someone who hacks someone up and offers up the bits and pieces as a sacrifice to his invisible masters. Defending life and limb from predators is an unalloyed good; it should not be treated as an anomaly to be carefully screened and treated.
Under the bill, if an insane man shot somebody, he would have a better chance of beating the rap by claiming he used the gun in self defense than defending on the basis that was insane.
Only if you assume cops and, yes, county attorneys are complete idiots. Can “Spotty” spell out a case where an insane man…:
- …who was not a willing participant in a fight, and…
- …who had a legitimate fear of death or great bodily harm, and…
- …in a case where his use of lethal force was reasonable, and…
- …where he did whatever was reasonable to avoid the use of lethal force…
- …in a place where he had, as Cornish’s bill spells out, the “legal right to be”?
I’m guessing this doesn’t even rise to the level of a reasonable hypothetical.
And for my money, if you shoot somebody, or knife them, it ought to be you who has some explaining to do.
If “Spot” thinks no explaining will be involved after even a perfectly legitimate shooting, he’s clearly floating free of all reason.
Fortunately Spot’s “money” isn’t what governs us. Our elected legislature and governor are.
Cornish’s bill will come up in the Public Safety Committee on Thursday. It’ll likely pass on a straight party-line vote (although outstate Dems will likely support it as well – they know the power of the Gun Owners Civil Rights Alliance (GOCRA) outstate), but please contact everyone on the committee anyway (info below the jump). After that, it’ll likely pass the House and Senate the same way, and go to the Governor.
Who will face a conundrum; sign the bill and keep his promise to the outstate but largely pro-Second-Amendment DFLers who believed him when he said he kept a pair of .357s in a lock box in his bedroom for self-defense, and that he was (against his entire voting record) a pro-Second-Amendment guy, or veto it and lose still more outstate legislative seats in 2012 (because outstate DFLers who forget the power of GOCRA will live to regret it).
Update: Forgetful old dog that I am, I neglected to mention that the post was prepared with the able editorial assistance of MNO.
As I’m a kind and gentle guy, I’ll let that blooping slow-ball sail outside for an easy ball.
Here are the committee members. They could all use polite but firm calls and emails urging them to vote for Cornish’s bill. The outstate DFLers in the group may very well be receptive. Give it a shot!
Representative Kelby Woodard (Vice Chair)
Representative Joe Mullery (DFL Lead)
Representative Kerry Gauthier (DFL)
Representative Glenn Gruenhagen (R)
Representative Bill Hilty (DFL)
Representative Sheldon Johnson (DFL)
Representative Tim Kelly (R)
Representative Andrea Kieffer (R)
Representative John Kriesel (R)
Representative Ernie Leidiger (R)
Representative Carlos Mariani (DFL)
Representative Joe McDonald (R)
Representative Rena Moran (DFL
Representative Bud Nornes (R)
Representative Linda Slocum (DFL)
Representative Steve Smith (R)
Bulk email info below the jump:
You can email them all at once by pasting this list into your email client:
firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com