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…:
- You’re not a willing participant in the altercation
- You have a reasonable fear of death or “great bodily harm”.
- You make a reasonable effort to disengage
- 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:
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.
Northern Alliance Radio Network
AM1280 The Patriot
Shot In The Dark (www.shotinthedark.info)
True North (www.looktruenorth.com)