Strib: “You Better Run Like Hell”

If you’ve read this blog before, you’ve read this bit at least once.

In Minnesota, if you choose and need to defend yourself or your family with lethal force, you must meet all four of the following criteria:

  1. You can’t be a willing participant in the struggle: you can’t dive into a fist-fight and then shoot your way out of it.
  2. You must reasonably fear death or “great bodily harm”: That means “a jury’s gotta buy it”.
  3. The force you use must be reasonable under the circumstances: If the police come to your house to find a body with no knife or gun, but clutching your TV, Tivo and monitor, you might have trouble with this one.
  4. And finally, You must make every reasonable means to de-escalate the confrontation: That meansyou must back away from the altercation.  In the home, that means you have to try to back away.  There are limits, of course; if you are in a wheelchair, you’re not expected to develop superhuman strength and agility; if it’s -40 outside and there’s a howling wind and you have an infant, no jury and few prosecutors would fault you for shooting; if you have kids sleeping upstairs and your abusive ex-spouse has come through the door with a chainsaw, backing away is a very relative thing.

This last one is one of the most confusing.  Does it mean, assuming that you got parts 1-3 right, that you:

  • can defend yourself in your house, but not in your garage?
  • must retreat from the first floor to the second floor?
  • must – barring any other people in the house or other circumstances – back into the far corner of your house before you shoot?
  • can’t defend yourself if a rapist catches you on the patio or in the far corner of the back yard?
  • are legally vulnerable to a zillion other situational permutations?

The answer – as for so many of life’s persistent questions – is “it depends”.  In this case, it depends on the zeal of your county prosecutor; if you have a zealous one who hates citizen self-defense (like Amy Klobuchar was, or Sue Gaertner is), that translates to “big legal bills” at best, prison time and a lifetime in civil court at worst.

Solving that – removing some of the vagaries of defending ones’ own home against a serious threat covered by all four of the criteria above – is the point of an eminently sensible bill introduced in the Minnesota House by Rep. Tony Cornish (R, naturally, Good Thunder) that would, as I read it, clarify that corner of Minnesota’s self-defense law.

Naturally, since it empowers real people against criminals, the Strib opposes it, for reasons that are stupid and misleading even by the Strib Editorial Board’s standards.

Oh, it starts out with the truth.

Well, at least conveniently-redacted bit of it:

It’s one of the most frightening scenarios imaginable: While enjoying the sanctity of your own home, intruders break in. When that happens, shouldn’t you have every right to defend yourself?

Under current Minnesota laws, you can.

Which is true, in the same sense that I “can” get a date with Scarlett Johannsen.  The devil – or, in this case, the “long prison term” – is in the details.

Minnesota statutes already indemnify citizens from criminal charges if they wound or kill an intruder inside their home.

I’m no lawyer (and either is Joel Rosenberg, but I’ll page him anyway, since he both wrote the book and taught my concealed carry class), but that indemnification is subject to your shooting being legally justified – and that fourth criterion, “backing away”, is so legally ambiguous and open to so much interpretation.

Hence, the Strib is being technically accurate, but literally misleading.

However, a proposed change would allow the use of deadly force in a garage, a deck, a porch or an occupied car.

The revision would give citizens more legal leeway to shoot or kill anyone they perceive as a threat. On the street or any other public place, there would no longer be an obligation to try to avoid trouble before using a gun in self defense.

This, however, isn’t even technically accurate.  You’ll still have to “avoid trouble”; see condition #1, above.  The trouble still has to come to you, and not go away when asked.  Cornish’s bill merely makes the fourth criterion, “backing away” or “disengaging”, less legally ambiguous and prone to the prosecutor’s caprice.

And the proposal would lower the standard for firing from fear of “great” harm to fear of “substantial” harm.

I’d like to know if the Strib editorial writer knows the difference between the two.

It’s not an obtuse question; indeed, both terms have legal definitions.  And it’s a legal technicality (where “Technicality” means “term of technique or art” rather that “niggling obtusion”) that can put people in jail – people who otherwise met every criterion for self-defense, but whose prosecutors were able to convince a jury that the threat they faced, under duress, was only of “substatial” rather than “great” bodily harm.  If someone’s swinging a razor blade rather than a butcher knife, should it mean the difference between freedom and prison?

Rep. Tony Cornish, R-Good Thunder, recently introduced the measure, arguing that it’s a logical extension of current law. Minnesotans should not “have to be lawyers,” he says, to determine whether and how they can protect themselves. He contends his bill would give armed law-abiding citizens confidence that they wouldn’t be prosecuted for using deadly force.

This is a classic case of proposed legislation in search of a problem. Neither Cornish nor local law enforcement can cite a single case of people wrongly jailed in this state for killing in self defense.

So what?

We have to wait until an honest, law-abiding citizen shoots a scumbag in his backyard rather than try to flee to his back porch?  Or because someone doesn’t try to run upstairs rather than shoot a charging attacker?

How many honest, law-abiding citizens’ lives and freedoms must be sacrificed to feed the Strib’s need to…keep the law vague?

Around the country, the National Rifle Association (NRA) is promoting such extensions of the so-called “Castle Doctrine,” laws that protect people who use firearms to defend themselves in their homes. NRA leaders believe the laws are needed to prevent crime victims from being prosecuted or jailed. In the last two years, 20 states have enacted laws that allow people to shoot first and ask questions later, if they catch a criminal in their homes.

And here, the Strib descends from “technically accurate” to “lying through its’ filthy teeth”.

In no case can a citizen legally “shoot first and ask questions later”.  

Each of those twenty laws merely enables a citizen to shoot without first being required to attempt to flee.

That is all.

The writer is lying.

Nationally and in Minnesota, county attorneys and major police associations rightly oppose that approach.

“Major police associations” are controlled by major-city cops, who are pretty universally beholden to the Tic party.  They are nothing but reliable quotes for anti-gun editorial writers.

And stop the presses – “county attorneys” oppose legislation that removes their discretion!  Who’da thunk it?

Still, those statements are merely dumb.  The rest of this editorial is almost too venally untruthful to be called a mere “lie”; indeed, it looks as if the Strib is farming out their editorial writing to Wes Skoglund:

Giving people carte blanche can encourage vigilantes and promote even more gunplay while weakening police powers. According to a state police official, it’s unreasonable to support laws that give citizens more authority to use force than cops.

Which is a lie for which the conveniently-anonymous “state police official” should be sanctioned.  Cornish’s law doesn’t change the standards for self-defense; it merely clarifies them.  Police standards for self-defense are vastly looser, and remain that way.

Extending the right to shoot an intruder in a garage, for example, sets the stage for spilling blood or taking a life over property.

Only if the law is amended to cover property! Until then, the four criteria for self defense – all four! – must be met to a standard that’ll convince a jury!

But the only rationale for employing force that can kill is protection of life and limb. It is indeed a slippery slope when the law could condone killing someone over the theft of a bicycle.

Only if prosecutors and juries lose the ability to discern what is a “threat of death or substantial bodily harm”.

Another unintended consequence could be giving legal cover to real criminals. The proposed legislation would eliminate the duty to retreat and avoid danger if reasonably possible. Prosecutors say that means crimes committed during bar fights or gang shootouts could become more difficult to prove.

Editorial writer!  Slapnuts!  See the first criterion!  One can not be a willing participant for self-defense to be legal

Nothing in Cornish’s bill changes that!

A House subcommittee chairman has promised to give the Cornish proposal a hearing this session. But the deadly force change should not advance beyond that stage. Under current gun laws, Minnesotans already have enough legal protection to defend themselves at home or anywhere else.

Provided they have the money to work a judge, prosecutor and jury through all the technicalities.

The Strib; telling the convenient half of the story, when it fits.

19 thoughts on “Strib: “You Better Run Like Hell”

  1. I have never understood the whole retreat thing. If you are in your bedroom at night on the second floor, what are you supposed to do? Jump out a window. Not to mention that fact that you’d better retreat with a cellphone in your hand because I know none of my neighbors would come to the door in the middle of the night if somebody was pounding on it. They best I could hope for would be that they’d call 911. And since it would probably would be coded as a “disturbance” call by the dispatcher, that means that the cops might ld show up in an hour, assuming it wasn’t a busy night.

  2. go to NRA.org and look at the armed citizen column and go back into the fifties. You will see examples of people who went well beyond the actions that this bill would cover. They were not charged. There wasn’t any concern about being charged. They fully believed that they were doing the right thing and law enforcement and the Media agreed.

    Today our Media throws a hissy fit when even law enforcement uses firearms to defend themselves.

  3. Wait a second; there is no duty to retreat in your home. Your post makes this a bit unclear, Mitch. Moreover, doesn’t the law state that deadly force is authorized to stop a felony from being committed on your property–which would include burglary?

    Margaret, the point about duty to retreat (apart from in your home) is to make it very clear who’s picking the fight. It goes along with “unwilling participant.” It also tends to be good tactics. When you retreat, you are a moving target (harder to hit), and you force the assailant to go to places where he doesn’t understand what he’s going to encounter–and possibly around a wall where he’s a sitting duck.

    (even in the home, it can be a good idea, depending on the situation)

  4. The one item that leaped out at me was the tag line “it’s unreasonable to support laws that give citizens more authority to use force than cops”. I’m an American citizen. According to the 10th Amendment (Amendment X as it were) I’m suppose to have more power than the cops. Who’s the first on the scene of a crime against me? I am! The victim, or in my case the INTENDED victim ,as I’m nearly always armed, is always the first one on the scene of a crime intended to make the victim the victim. So, as I’m going through the four step decision process as to whether or not I can use lethal force, Mr. Bad Guy is not going through any such decision process. he’s already decided to hurt, harm, kill, rob me. And I’m willing to bet good money that if I ask him if he (or she) is here to hurt me or my loved ones or just to rob me, that he (or she) will be less than honest with me.
    So, as I’m waiting that 5-7 minutes for Mr. Cop Guy to show up (assuming he will show up as he has no legal responsibility to do so) to start the paperwork process over my body, it may occur to me in that time period that that branch of the decision tree is not viable to my desire to keeping sucking oxygen.
    So, supposedly as the cops have more power than I do to protect my life, but don’t have the legal obligation to do so and will, in less than 5% of the time ,arrive in time to either stop the attack or arrest the perpetrator, it would appear that Mr.Butthead Editorial Writer desires and prefers that I and other innocent victims should be dead. Or that a woman be raped and murdered (as that way she won’t be a witness to put Mr. Vulnerable Rapist Dude behind bars there being no death penalty in Minnesota).
    Yup, better you dead, your wife dead, your children dead than Mr. Evil Perpetrator Guy.

  5. Bikebubba:

    Wait a second; there is no duty to retreat in your home. Your post makes this a bit unclear, Mitch.

    Actually, the law makes it unclear, too. You are supposed to use every “reasonable” means to avoid using lethal force.

    Since my carry instructor is a regular reader and commenter, I’m going to hope I get this right: the definition of “reasonable” means “would convince a jury”. There’s no “duty to retreat”, but if a zealous prosecutor tries to convince a jury that you COULD have retreated rather than shot someone, it could jeopardize one of the four criteria you MUST satisfy to win an affirmative “self-defense” claim.

    Moreover, doesn’t the law state that deadly force is authorized to stop a felony from being committed on your property–which would include burglary?

    In Minnesota? No!

    Run, don’t walk, to your bookstore and get a copy of Joel Rosenberg’s book. (Joel – invitation to plug the book is hereby extended).

    Margaret, the point about duty to retreat (apart from in your home) is to make it very clear who’s picking the fight. It goes along with “unwilling participant.”

    That, and the “Reasonable effort not to use lethal force” bit.
    (even in the home, it can be a good idea, depending on the situation)

    That, on the other hand, is true.

  6. Most cops will tell you that if you believe you have to use lethal force make sure it’s lethal. Much easier to convince the cops if there’s nobody around to argue the other side.

    And it’s much easier to live somewhere other than deep in the metro where you get those wacko cops and prosecutors who believe someone breaking into your house only wants to discuss existential nihilism.

  7. It doesn’t hurt to read the MN Statute. Nor is it a bad idea to have a phone number for a use-of-force attorney handy – and to even call him/her for a consultation on his/her understanding of what the law means.
    Any class that doesn’t prepare you for what’s likely to happen post-shooting – and how to handle it, who to call, etc. – is not giving you the whole enchilada.

  8. Most cops will tell you that if you believe you have to use lethal force make sure it’s lethal. Much easier to convince the cops if there’s nobody around to argue the other side.

    Arguably true, although going too far on that count can put an otherwise-honest guy in jail; “reasonable” use of lethal force ends when the threat ends.

  9. In many people’s mind, guns are BAD. The Minnesota Supreme Court just ruled that anybody seen carrying a gun is assumed to be a criminal carrying without a permit and therefore can be stopped/searched by the cops. Your permit to carry is a DEFENSE to the charge of unlawful carry.

    Similarly, self-defense is a DEFENSE to the criminal charge of murder or felony assault. That means the prosecutor has discretion to file criminal charges against you any time you pull the trigger, no matter how clear-cut the facts of the case may seem to you. See, for example, Treptow (JR has done yeoman work reporting on that on-going travesty).

    Only after the prosecutor begun the process of trying to put you in prison are you are allowed to bring up the self-defense argument, and then only if you plead the right things in your legal papers, give the right notices to the prosecutor at the right time, convince the judge to give the self-defense instrution to the jury, etc.

    In short, if you pull the trigger, you’ll likely need a lawyer. The going rate is around $200 an hour, more for big-name defense lawyers. Figure it’ll take 100 hours of lawyer work spread over the course of the grand jury, the preliminary hearings, and a short trial. You’re looking at $20,000. No, you don’t get reimbursed for being wrongly accused.

    Prosecutors know this. That’s why they charge you with murder, felony assault, drive-by shooting, and reckless discharge of a firearm for a combined total of 200 years in prison plus $20,000 lawyer’s fees if you lose, or just the $20,000 lawyer’s fees if you win. They hope you’ll plead guilty to something just to cut your losses.

    One advantage of changing the law to broaden the concept of self-defense is to make is less likely that a citizen will be charged in the first place, or that the criminal charges will survive the first motion to dismiss. That’s a worthwhile step in the right direction.

    .

  10. Mitch — you got it in one. As to the plug, try here.

    Bike Bubba: You definitely do not have the legal right to kill somebody to prevent a felony from happening on your property; Minn. Stat. 609.065 authorizes it only in your dwelling — your home, not your front lawn. And it’s more ambiguous than the statute suggests — the relevant appellate cases and the JIG make it clear that, no matter where you are, your election to use lethal force must be “reasonable,” and that means that twelve people who can’t get out of jury duty (which is, I admit, a bit of an exaggeration) get to decide months and months later, in a nice, safe courtroom, taking as much time as they want to, (and none of that’s an exaggeration at all) whether or not your choice was “reasonable” . . .

    . . . and if they get it wrong (and they can), you do not pass Go, but go directly to jail. If they get it right, you’re out a minimum of a few tens of thousands of dollars.

    And, yup, the Treptow case — even if, as I hope happens, he’s acquitted — is a case on point as to why the ambiguities in the law need to be fixed, for the benefit of law-abiding folks (whether or not they’ve got carry permits) who might be put in the situation where the sound economic decision is to just let themselves get killed and hope the insurance company pays their families off.

    PaulC: yup. That’s why it’s not possible to do a responsible carry class in two or three hours. Shooting’s easy, for those who have some experience with firearms (different deal for newbies, natch, and I’m surprised at how quickly total novices pick it up) — but how to deal with the aftermath to try to minimize the damage? That isn’t done in fifteen or twenty minutes.

  11. Got it already, Mitch–and OK, I’ll agree that for all practical purposes, many sheriffs and police departments DO insist on a duty to retreat and a very tight interpretation of the other three provisions. That said, here’s the text of the bill that makes the current official law very clear:

    https://www.revisor.leg.state.mn.us/bin/bldbill.php?bill=S0446.0.html&session=ls85

    It doesn’t appear that there is “officially” a duty to retreat in the home, and the commission of a felony is sufficient probable cause.

    And again, yes, taking the government up on this probably will cost you a bundle.

  12. Wait a second; there is no duty to retreat in your home. Your post makes this a bit unclear, Mitch. Moreover, doesn’t the law state that deadly force is authorized to stop a felony from being committed on your property–which would include burglary?

    From Minnesota Statute § 609.065 Justifiable Taking Of Life:

    “The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.”

    From State v. Carothers, 594 N.W.2d 897 (Minn. 1999):

    “We hold that the duty to retreat does not attach to defense of dwelling claims, and that it was error for the trial court to instruct the jury that appellant was under a duty to retreat from his home before using deadly force to prevent the commission of a felony, first-degree burglary, within his home. Further, we hold that the trial court’s erroneous instruction had a significant impact on the jury’s verdict, and we therefore reverse appellant’s conviction and remand this case for a new trial in accordance with our ruling.”

    So basically (a) in Minnesota there is no duty to retreat when using deadly force to defend your home against the commission of a felony PERIOD and (b) if the court instructs the jury otherwise, it’s grounds for reversal.

  13. thorleywinston: yes and no. The prosecution in Carothers was a head-on assault on Minn. Stat. 609.065; it failed in part because of that.

    The loophole — and it may or may not be big enough for a clever prosecutor to drive a conviction through is in the CRIMJIG, which I don’t have in front of me at the moment — is the question of whether or not the election to use lethal force was “reasonable”, and that’s one of the many loopholes (prosecution loopholes) that the Cornish bill addresses, by creating a presumption (not, let me hasten to add, an irrefutable presumption) that the stealthy or tumultuous intruder (not resident) is there to commit a felony.

    It’s an assault on a clever prosecutor’s ability to sell a bill of goods to a jury, which is why some prosecutors who fancy themselves clever (perhaps with good reason) are opposed to this mainstream, commonsense reform package.

    Please, please, please don’t believe my unsupported word on this; read HF 498 and Pat Parieseau’s companion Senate bill for yourself.

  14. And, just to add on: I think you’re right, BikeBubba, about what some sheriffs departments and police departments try to insist on, even though there’s nothing in the law that says that they can.

    The nerve of those arrogant, uppity bastards. (Strong language to follow, right about now:) No, not all sheriffs or PDs — those who think that they have the right to insist on regulating — at gunpoint — our conduct beyond the sometimes too broad way in which the law allows them to.

    Since when is it the job of the servant to instruct — and, for that matter, handcuff, haul off, and jail — the master for doing anything that is lawful but which the uppity servant thinks shouldn’t be?

    And no, it’s obviously not all PDs — note, for example, what Tony Cornish’s day job has been for most of his adult life.

  15. Here is an example of the change in our culture.

    Dispatch, St. Paul, MN
    State: MN
    American Rifleman Issue: 7/1/1962
    After being aroused by a homemade burglar alarm in his grocery store next door, Clifford Carlson of Minneapolis, Minn., armed himself and surprised two men in the act of looting the store’s cash register. Carlson downed one with a chest shot. While hunting for the second burglar, he found a car with motor running near the store. Shortly thereafter he had the second man trapped and held him for police. The incident brought Carlson’s bag of burglars to six since 1959.

    Today the Dispatch would classify Clifford as a vigilante. Ramsey County Attourney Susan Gaertner would surely charge him, and he probably would have to plea bargain.

  16. They were handing out Strib’s for free at Southdale the other day:

    “Sir, would you like a copy of the Star Tribune at no charge?”

    “Why, is the rest room out of toilet paper?”

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