As Long As The Bridge Doesn’t Collapse…

Joe Doakes from Como Park emails:

If this had occurred in a state park in Minnesota and the boyfriend had been equipped with a revolver and Permit to Carry, could he have shot the rapist dead and escaped prosecution?

The boyfriend was not being threatened, personally, so he can’t use self-defense.  His girlfriend is being threatened so he might be able to claim he killed the rapist in Defense of Others.  Ah, but what about the Duty To Retreat?

“Finally, Bishop also fails to prove the final element of a defense-of-others claim. A person claiming self-defense has a duty to retreat and to avoid danger if reasonably possible. State v. Austin, 332 N.W.2d 21, 24 (Minn. 1983); see State v. Soukup, 656 N.W.2d 424, 428-29 (Minn. App. 2003) (stating that principles of self-defense in homicide cases apply to assault cases as well, including duty to retreat or avoid physical conflict). The evidence demonstrates that Bishop did not attempt to retreat or to avoid the danger. Bishop had ample opportunity to retreat into the secure apartment building or to have avoided any danger or physical conflict by not leaving the building in the first place. There is also no indication in the record that D.B. was moving toward Bishop in such a way as to prevent Bishop from retreating to safety, but rather the evidence demonstrates that D.B. was walking away from Bishop when Bishop stabbed him. Further, Bishop’s family was either inside the locked apartment building or close enough to be able to easily retreat inside before D.B. could become an imminent threat. There is no evidence to support that Bishop took advantage of the reasonable opportunities to retreat or avoid the danger.”  — State v. Bishop, A07-1435, A08-1339, unpublished (Minn. App. 2009).

Bishop was convicted because he failed to retreat when he acted in defense-of-others.

Yes, I know: the quoted paragraph makes no sense.  The first sentence talks about defense-of-others but the next three talk about defense-of-self, then back to others before concluding his failure to retreat deprived him of ALL defenses, self and others.  The court seems to blend the two theories.  And this is the appeals court, the one that is supposed to correct mistakes of law made at the trial level, but they don’t seem to understand the law, either.

I was taught the defender stepped into the shoes of the victim.  If the victim could not retreat, the defender didn’t need to retreat.  But read the quoted paragraph again.  It’s perfectly possible to read that language to mean the boyfriend with the revolver was required to leave his girlfriend while he retreated to safety, that he was not allowed to intervene to defend her.  Is that really the law of the land so the boyfriend must stand there and watch?  Or is the court mistaken so he can safely pull the trigger?

This is where Duty To Retreat leaves us – confused and bewildered and uncertain of our rights.  Are we allowed defend our loved ones, or must we leave them to be raped or killed?  If for no other reason, clarity and certainty make Stand Your Ground so important.

Joe Doakes

As the memes from MN Gun Owners Coalition put it, you need to be familiar with a dozen bits of case law if you plan to be ready to defend yourself or others outside your home.

Otherwise, “duty to retreat” is just a make work program for lawyers.

2 thoughts on “As Long As The Bridge Doesn’t Collapse…

  1. I saw this story yesterday and immediately thought to myself that the boyfriend either must be the world’s biggest wimp or he couldn’t get out of the tent to do anything. If he wasn’t inside the tent and didn’t grab a rock or a tree branch and go after the scumball. If said perv was raping the girl, there had to be at least one point where he could have struck back. So many factors unknown though.

  2. I don’t know how each police chief and prosecutor would have dealt with this–though I’ve got a good hunch in Hennepin County and Chaska (Scott Knight)–but I do know that if I happened to be on a jury trying a case where an enraged husband had killed a man who tried to rape his wife, I don’t know that I could convict.

    And it also strikes me that one reason the man may not have defended his lover is, well, that she was just his lover and not his wife. He can just go get another one.

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