Why Is Dakota County Attorney Jim Backstrom Lying?

There are people you expect to lie through their teeth about Second Amendment issues.

Heather Martens, the president-for-life of Citizens for a Supine “Safer” Minnesota?  You know she’s lying about Second Amendment issues when her lips are moving.  It’s her job.  No surprises there.

Wes Skoglund – the former Rep from South Minneapolis who famously claimed on the floor of the House that reforming the state’s concealed carry laws would result in legally-armed gang-bangers and permittees talking Wes Skoglund through Minneapolis?  The guy’s practically deranged about the issue – “lying” is the least of his issues.  (Dissociative behavior might be closer).

But Jim Backstrom, the tough-on-crime County Attorney from Dakota County (the southeast metro)?  A poster-boy for good, conscientious county prosecution?  A county attorney for whom I’ve expressly proclaimed admiration?  One would not expect him to write something chock-full of misleading claims and just plain hysterical buncombe more worthy of Wes  Skoglund than one of Minnesota’s most respected county attorneys.

Which is why it’s hard to explain Backstrom’s op-ed in the Strib last week, which has launched a lot of ill-informed but vigorous head-nodding in the local Sorosphere.  If I didn’t know better, I’d suspect it was ghostwritten by Heather Martens.

Or at least, if I were a gun owner in Dakota County, I’d hope it were.  Sorta.

Let’s take a look:

The Legislature is considering a significant expansion of our law regarding the authorized use of deadly force. Not only is this expansion unnecessary, it would be harmful to efforts to prosecute dangerous criminals who commit violent crimes.

When talking about “the bill”, it will be handy for the curious reader to be able to refer to the bill.  Read it here; I’ll also paste it below the fold.

The proposed law would allow the use of deadly force to resist or prevent any reasonably perceived threat of substantial or great bodily harm or death in any location and when responding to a reasonably perceived felony or attempted felony in a person’s dwelling or occupied vehicle.

Right, pretty much.  Backstrom doesn’t bother telling the reader that “resonably perceived” means “would convince a jury”, of course, but we’ll let that slide for now.  

It eliminates the duty to retreat, authorizes meeting force with superior force, creates a presumption that the response is “reasonably perceived” whenever someone enters a dwelling or occupied vehicle by force or stealth, and expands the definition of “dwelling” to include decks, porches, fenced-in areas and tents.

Backstrom is, at the very least, being misleading here. 

Once again – under Minnesota law, claiming self-defense requires that…:

  1. You’re not a willing participant in the altercation
  2. You have a reasonable fear of death or “great bodily harm”. 
  3. You make a reasonable effort to disengage
  4. The force used is reasonable

“Reasonable” and “Great Bodily Harm” are both legal terms, meaning “would convince a jury” and loss of limbs/eyesight/bodily functions/becoming crippled for life, respectively. 

There is no “duty to retreat” – merely to make “reasonable” efforts to get away from the threat (criterion 3, above).  What is “reasonable”?

Whatever your attorney can convince the jury.  And “unreasonable” is “whatever the prosecutor can convince the jury isn’t reasonable”. 

Someone beats your door down.  You come out of your bedroom with a gun.  You’re standing in the hallway by your kitchen as you see someone charge with a knife.  Do you shoot?  Or do you try to run through your kitchen and out your back door, with someone chasing you with a knife? 

You have one second to make that decision; run, or shoot? 

The county prosecutor – Jim Backstrom in this case – has weeks, even months, to decide whether you “should” have retreated, and whether or not to file charges.  He or she can judge your actions while sitting in their cozy office in Minneapolis or Hastings, while having lunch at the Oceanaire, wherever.  The county prosecutor can contruct their argument to try to sway the jury as to the “reasonable”-ness of your claim over the course of weeks or months, at taxpayer expense.  Along the way, he or she can (and will) try to influence the jury any way he or she can; race, gender, previous associations, all are fair game. 

Your attorney will try to argue, of course – at immense expense to you.

The jury – in a nice, cozy jury room, with bathroom breaks and armed guards keeping them safe – gets to take all the time they want to decide on the “reasonableness” of a life or death decision that you had exactly one second to make.

The Cornish bill merely gives the law-abiding home owner who meets all four criteria of legal self defense the legal cover, by taking away the prosecutor’s discretion to say “the defendant should have run away!”. 

As to “opposing force with greater force” – again, that takes away the prosecutor’s discretion to say “the attacker only had a knife; shooting him with a .45 automatic was not reasonable”. 

Supporters see these changes as merely affording law-abiding citizens the right to stand their ground and protect themselves when confronted by dangerous criminals. In truth, this proposal greatly alters the standards associated with the legal authority to use deadly force and will have some significant unintended consequences.

This proposal creates a subjective standard of reasonableness rather than the objective standard in current law.

What on earth  is Backstrom talking about?

There is no “objective standard of reasonableness” under current law!  It’s all up to a jury! 

 The issue becomes what was in the mind of the person using deadly force, rather than how a reasonable person would react under the same circumstances.

This is pure doubletalk.  The four criteria involved in a claim for legal self-defense, whether modified by Rep. Cornish’s bill or not, are all about the shooter’s perceptions – “what was in the mind” of the person – and whether the action was “reasonable” (in the mind of a jury). 

Such a law would in essence allow people to shoot first and ask questions later whenever they believe they are exposed to harm, regardless of how a reasonable person would respond under the circumstances.

This is more double-talk.  The Cornish bill does not change the citizen’s responsibility to follow the four criteria above.  It merely modifies the criteria, slightly, to give the genuinely law-abiding citizen a stronger legal standing, and more-clearly define the prosecutor’s options in trying to undercut a claim of self-defense.

It wouldn’t be a Heather Martens piece without a “Wild West” reference…

We’d be returning to the days of the Wild West, when two gunmen could face off in the street and the winner could walk away without fear of consequences, under a claim of self-defense. Such lawless frontier days should remain in our past.

…but this isn’t Heather Martens.  This is an ostensibly-responsible county attorney. 

This is irresponsible hysteria-mongering of the most contemptible order.  Nothing about the Cornish bill changes the citizen’s legal obligation to act responsibly – to act reasonably.  The Cornish bill merely codifies more clearly what is considered “responsible” – or, more accurately, what it enjoins prosecutors from trying to persuade juries is “irresponsible” in an otherwise legal case of self-defense.

Do we really want cases of road rage to result in a shooting death, when the surviving party could have stepped on the gas and driven away?

This is misleading, and – again – hysterical.  See the first and third criteria of a self-defense case; one must not participate in a fight (say, a “road rage” incident), and one must step on the gas to try to get away, under current law.  Nothing about Rep. Cornish’s bill changes this – merely that if someone comes into your car swinging, you’re allowed to presume that he’s not there to discuss things like a grownup.

This expansion of the right to use deadly force would apply equally to criminals as to law-abiding citizens. It would create viable self-defense claims in situations like bar fights.

This is worse than callow hysteria-mongering.  This is an outright lie.  Nothing about the Cornish bill would change the injunction against being a willing participant – which scuppers the whole “criminals in bar fights” argument.   

 It could allow rival gangs to shoot at one another with impunity.

Again, this is a lie.  No jury would find a shooting in furtherance of a crime – gang activity, blasting away at their rivals in public – either “Being an unwilling participant” (criterion 1),  or a “Reasonable use of force” (criterion 3).  If any gang-banger walks because of the Cornish bill, it’d be purely because they drew an incompetent prosecutor. 

With no duty to retreat, anyone could claim they were responding to a threat of serious harm and were therefore justified in killing a person.

“Anyone” can already “say” anything they want.  A jury has to believe it.  It would seem that Jim Backstrom wants the citizen to believe the police and the state’s prosectutors (and jurors!) are helpless to tell the difference between legitimate use of force and criminal thuggery!

Current Minnesota law concerning the right of self-defense and the justified use of deadly force adequately protects our law-abiding citizens. 

Where “adequate” means “subject to the caprice of county attorneys to play word-games with juries over the citizen’s decision to shoot rather than run away from an otherwise-reasonably-deadly threat” – or “subject to the semantic difference between “substantial” and “great” bodily harm, which is adequately clear for a lawyer writing an op-ed in a cozy suburban office, but not so much for someone reacting to someone charging at her in the dark”.  And where the price of “inadequacy” might be jail for an honest person.

Do you feel like banking your freedom on that? 

The taking of a life should be a last resort. It should not be encouraged as a first response unless the danger is reasonably apparent to us all.

There is nothing about the Cornish bill that would make shooting a “first response”; it merely makes an otherwise law-abiding shooting easier to justify.   

We should not return to the days when shootouts were commonplace and few or no questions were asked of the last man standing.

Either County Attorney Backstrom has very little faith in this state’s cops and prosecutors, or even less in the law-abiding Minnesotan. 

I’ll take votes. 

James C. Backstrom is the Dakota County attorney and president of the Minnesota County Attorneys Association.

And in that capacity, I’ll be soliciting his comments on this piece, via email or – preferably – on the NARN this weekend.

The show’s in Eagan.  Deep in the heart of Dakota County.  It shouldn’t be out of his way.

I’ll keep you posted.

UPDATE:  I’ve requested an interview with Mr. Backstrom:

This is a media request.

I’m Mitch Berg.  I’m a talk show host with the “Northern Alliance Radio Network”, at AM1280 the Patriot.  I’m also a blogger, at “Shot in the Dark” and “True North”.

I have taken serious issue with County Attorney Backstrom over his op-ed in the Star-Tribune last week:

http://www.shotinthedark.info/wp/?p=2254

I am requesting the opportunity to interview Mr. Backstrom about what I consider to be *seriously misleading claims* in his article. 

I would like to offer Mr. Backstrom the chance to appear on my radio show during the 2PM hour this coming Saturday, March 13, to discuss his op-ed and my questions about it. 

If he’s not available for this interview, I’d like to request an interview, either by phone or email, regarding some of the claims he makes in the Star-Tribune.

I’ll eagerly await Mr. Backstrom’s response.

Sincerely,

Mitch Berg
Northern Alliance Radio Network
AM1280 The Patriot

Shot In The Dark (www.shotinthedark.info)
True North (www.looktruenorth.com)

S.F. No. 446,  as introduced – 85th Legislative Session (2007-2008)   Posted on Jan 31, 2007

1.1A bill for an act
1.2relating to public safety; clarifying law on use of force in defense of home and
1.3person; codifying and extending Minnesota’s self-defense and defense of home
1.4laws; eliminating the common law duty to retreat in cases of self defense outside
1.5the home; expanding the boundaries of dwelling; creating a presumption in the
1.6case of a person entering a dwelling or occupied vehicle by force; extending the
1.7rights available to a person in his or her dwelling to a person defending against
1.8entry of his or her occupied vehicle;amending Minnesota Statutes 2006, section
1.9609.065.
1.10BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

1.11    Section 1. Minnesota Statutes 2006, section 609.065, is amended to read:
1.12609.065 JUSTIFIABLE TAKING OF LIFE USE OF DEADLY FORCE IN
1.13SELF DEFENSE.
1.14    Subdivision 1. Definitions. The intentional taking of the life of another is not
1.15authorized by section 609.06, except when necessary in resisting or preventing an offense
1.16which the actor reasonably believes exposes the actor or another to great bodily harm or
1.17death, or preventing the commission of a felony in the actor’s place of abode.
(a) For
1.18purposes of this section, the following terms have the meanings given them.
1.19(b) “Substantial bodily harm” and “great bodily harm” have the meanings given
1.20them in section 609.02, subdivisions 7a and 8, respectively.
1.21(c) “Court order” means an order for protection or no contact order issued under
1.22section 518B.01, or a restraining order or no contact order issued under section 609.748,
1.23or a substantively similar order issued by any court in any state.
1.24(d) “Deadly force” means force used by an individual with the purpose of causing,
1.25or which the individual should reasonably know creates a substantial risk of causing,
1.26great bodily harm or death. The intentional discharge of a firearm by an individual at
2.1another person, or at a vehicle in which another person is believed to be, constitutes
2.2deadly force. A threat to cause great bodily harm or death, by the production of a weapon
2.3or otherwise, constitutes reasonable force and not deadly force, so long as the individual’s
2.4objective is limited to creating an expectation that the individual will use deadly force if
2.5authorized by law.
2.6(e) “Dwelling” means a building or a conveyance of any kind, designed to be
2.7occupied by one or more persons lodging therein, including its curtilage and any attached
2.8deck, porch, appurtenance, or connected structure, whether the building or conveyance is
2.9used temporarily or permanently, is mobile or immobile, or is a tent.
2.10(f) “Felony” has the meaning given in section 609.02, subdivision 2.
2.11(g) “Vehicle” means “motor vehicle” as defined in section 168.011, subdivision 4.
2.12    Subd. 2. Circumstances when authorized. The use of deadly force by an
2.13individual in self defense is authorized by this section when the act is undertaken:
2.14(1) to resist or prevent an offense or attempted offense by an assailant, which the
2.15individual reasonably believes constitutes an imminent threat that exposes the individual
2.16or another person to substantial or great bodily harm or death; or
2.17(2) to resist or prevent the commission, in the individual’s dwelling or occupied
2.18vehicle, of an offense or attempted offense that the individual reasonably believes is
2.19a felony.
2.20    Subd. 3. Degree of force; retreat. An individual using defensive action under
2.21circumstances described in subdivision 2 may stand the individual’s ground in any place
2.22where the individual has a legal right to be, and may use all force and means, including
2.23deadly force, that the individual believes is required to succeed in defense. The individual
2.24may meet force with superior force, so long as the individual’s objective is defense.
2.25The individual is not required to retreat, and may continue defensive actions against an
2.26assailant until the assailant is no longer an imminent threat.
2.27    Subd. 4. Presumptions. (a) A person who enters or attempts to enter by force or by
2.28stealth the dwelling or occupied vehicle of another person is presumed to do so with the
2.29intent to commit an unlawful act involving a life-threatening level of force.
2.30(b) An individual using deadly force is presumed to possess a reasonable belief
2.31that there exists an imminent threat of substantial or great bodily harm or death to the
2.32individual or another person, if the individual knows or has reason to know that:
2.33(1) the person against whom the defensive action is being taken is entering or
2.34attempting to enter by force or by stealth, or has entered by force or by stealth and remains
2.35within, the dwelling or occupied vehicle of the individual or other person; or
3.1(2) the person against whom the defensive action is being taken is in the process
3.2of removing or attempting to remove by force the individual or another person from the
3.3dwelling or occupied vehicle of the individual or other person.
3.4(c) The individual is not entitled to the benefit of the presumption set forth in
3.5paragraph (b) if the individual knows that the person against whom the defensive action
3.6is being taken:
3.7(1) is a lawful resident of the dwelling or a lawful possessor of the vehicle, or is
3.8otherwise lawfully permitted to enter the dwelling or vehicle; or
3.9(2) is the parent, grandparent, or guardian, or another person who has lawful custody
3.10of the person being removed or being sought to be removed from the dwelling or vehicle.
3.11A person who is prohibited by a court order from contacting another individual or
3.12from entering a dwelling or possessing a vehicle of another individual is not a lawful
3.13resident of that individual’s dwelling and is not a lawful possessor of that individual’s
3.14vehicle.
3.15    Subd. 5. Criminal investigation; immunity from prosecution. (a) An individual
3.16who uses deadly force according to this section is justified in using such force and is
3.17immune from any criminal prosecution for that act.
3.18(b) A law enforcement agency may arrest a person using force under circumstances
3.19described in this section only after considering any claims or circumstances supporting
3.20self-defense.
3.21EFFECTIVE DATE.This section is effective August 1, 2007, and applies to
3.22qualifying uses of deadly force occurring on or after that date.

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10 thoughts on “Why Is Dakota County Attorney Jim Backstrom Lying?

  1. Thirty years of government in MN having a near-complete monopoly on the legal use of force is a hard habit to break.
    Also, the “authorities” don’t trust citizens to handle their own situations – never mind that no one has their own personal police force with which to do so officially. At the end of the day, the cops are a reactive force – they’re like the State Patrol, trying to reconstruct a bad highway accident. If you can call the cops in time, if they can get there in time – maybe they’ll be able to prevent a crime or at least limit the mayhem that is already in motion. If something goes sideways, citizens are on their own, at least temporarily. And government doesn’t like “amateurs” taking action. Because no one can do the job quite like government can, right?

  2. I assume you’ll get no reply. He’s got nothing to gain by going on your show.

    But if he did, I’m sure you’d ask him to answer the “shoot or run away” question posed in your column. It’d be great to be able to repeat, endlessly, “So in Dakota County, if a criminal breaks into your house, the County Attorney says you are REQUIRED to run away from your own home. You cannot defend your home and family because if you do, he’ll devote the full weight of government to seeing you rot in jail.”

    Say, doesn’t Learned Foot live out there? Maybe he can ask for an phone interview, being a constituent and all. If he happens to phone from your studio, well, we are talking about ambushes here . . . .

    Nate Bissonette

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