{"id":19550,"date":"2011-04-26T11:00:36","date_gmt":"2011-04-26T17:00:36","guid":{"rendered":"http:\/\/www.shotinthedark.info\/wp\/?p=19550"},"modified":"2013-10-30T12:22:17","modified_gmt":"2013-10-30T17:22:17","slug":"you-know-how-you-can-tell-theres-a-second-amendment-bill-in-the-hopper-part-ii","status":"publish","type":"post","link":"http:\/\/www.shotinthedark.info\/wp\/?p=19550","title":{"rendered":"You Know How You Can Tell There&#8217;s A Second-Amendment Bill In The Hopper (Part II)?"},"content":{"rendered":"<p>This morning, we <a href=\"http:\/\/www.shotinthedark.info\/wp\/?p=19534 \">went over the claims from &#8220;Spotty&#8221; from <em>Cucking Stool<\/em> <\/a>that Rep. Cornish&#8217;s &#8220;Stand Your Ground&#8221; bill (HF 1467, <a href=\"http:\/\/www.shotinthedark.info\/wp\/?p=19386\">which we discussed at great length <\/a>last week) would allow people to make spurious claims of self-defense and, literally, get away with murder.<\/p>\n<p>It won&#8217;t, of course &#8211; although Minnesota&#8217;s &#8220;progressives&#8221; want you to think so.\u00a0 We&#8217;ll come back to that.<\/p>\n<p>What it <em>will <\/em>do is bring some much-needed rationality to Minnesota&#8217;s self-defense law.<\/p>\n<p>Let&#8217;s go through a\u00a0 hypothetical example that, unlike Spotty&#8217;s, actually occurs in the real world.<\/p>\n<p>&#8212;&#8212;&#8212;-<\/p>\n<p>Say that you are a woman.\u00a0 You&#8217;re walking from your garage back to your\u00a0 house, coming home from a picnic.\u00a0 It&#8217;s dusk.\u00a0 Your two kids are indoors, but the back door is open.\u00a0 Suddenly, you hear a shout; it&#8217;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.\u00a0 You told him you weren&#8217;t feeling it, and he&#8217;s been stalking you ever since.\u00a0 You&#8217;ve even explored taking out a restraining order &#8211; but there&#8217;s no restraining him now.\u00a0 He&#8217;s standing where he could come between you and the back door of the house.\u00a0 He has a knife &#8211; a big, long knife.\u00a0 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:<\/p>\n<ul>\n<li>He&#8217;s got a knife &#8211; so you have <em>reasonable fear of death or great bodily harm <\/em>to yourself and your children.\u00a0 <strong>Check.<\/strong><\/li>\n<li>You <em>are not a willing participant <\/em>in this incident; you&#8217;ve made your lack of interest clear (which is one of the things that&#8217;s set the little fella off). <strong>Check.<\/strong><\/li>\n<li>If someone is coming at you with a knife, then you can probably convince a sane jury that <em>lethal force is reasonable<\/em>. <strong>Check. <\/strong><\/li>\n<li>You are in the back yard of your house.\u00a0 The law re self defense says that you have to be sure of all of the above <em>and <\/em>make  every &#8220;reasonable&#8221; effort to disengage and avoid the use of lethal  force.\u00a0 As you stand in the back\u00a0 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?\u00a0 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?\u00a0 You need to decide this <em>immediately<\/em>, under life or death pressure, with your adrenaline pumping, in dimmer-than-ideal light, under mind-boggling stress.\u00a0 However, the question &#8220;did you make every <em>reasonable <\/em>effort  to avoid shooting&#8221; will be decided by a cop at a secured crime scene  after the fact, and &#8211; more importantly &#8211; by a county attorney in a nice,  warm, brightly lit office, protected by sheriff&#8217;s deputies and a metal  detector.\u00a0 How will they decide?\u00a0 If you live in Kandiyohi County,  you&#8217;ll probably get the benefit of a doubt.\u00a0 If you live in Ramsey?\u00a0  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&#8217;s DFL leadership, who believe as a matter of policy that a shooting is a shooting is a shooting, whether it&#8217;s a woman defending herself or a gang-banger shooting a 15 year old girl.\u00a0 Feel  safer now? \u00a0<strong>Uh-oh.<\/strong><\/li>\n<\/ul>\n<p>Back to &#8220;Spotty&#8221;.<\/p>\n<blockquote><p>And \u00a0here are two subdivisions that deal with the consequences to the user of deadly force after the event.<\/p>\n<p>The bill says that if some one even claims self defense, they are  immune from arrest &#8212; which might include even detention at the place of  an incident of the use of deadly force &#8212; 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\u00a0arraignment\u00a0judges.<\/p><\/blockquote>\n<p>And he goes on to say&#8230;:<\/p>\n<blockquote><p>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.<\/p><\/blockquote>\n<p>Now, I&#8217;m nothing if not a civil guy (unlike more than a few of my critics, including &#8220;Spotty&#8221;).\u00a0 But between this passage, and his little opening fantasy, it&#8217;s pretty  clear he hasn&#8217;t the foggiest idea how &#8220;Self Defense&#8221; works.<\/p>\n<p>Let&#8217;s say that you are the woman in my example above.\u00a0 As the stalker  charges toward you, you shoot.\u00a0 Two shots to the chest; he drops  like a dog.\u00a0 The cops respond; and say &#8220;Good shot, he had it  coming, you had to protect yourself and your kids, there was <em>no way <\/em>you  could have done it differently under the circumstances&#8221;.\u00a0 But there&#8217;s a  body &#8211; so the county attorney opts to press charges, based on the fact  that, in the County Attorney&#8217;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 &#8220;arrest and charge the gun&#8221; &#8211; no matter who used the gun, and why.<\/p>\n<p>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 &#8220;yes, I killed the guy &#8211; <em>but <\/em>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 &#8220;.\u00a0 After which the County Prosecutor gets to tell a jury &#8211;  also working in a nice, brightly-lit room, with sheriff&#8217;s deputies  guarding them and all the donuts they can eat &#8211; that no, you <em>should <\/em>have run up the stairs, or out the back door, or put your gun down and negotiated with him, or <em>anything <\/em>but end his unstably-minded life.<\/p>\n<p>The <em>best <\/em>you can hope for is that your attorney can convince 12 people who couldn&#8217;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&#8217;s savings will be  exhausted, your credit will be shot, you have a good chance of losing  your job &#8211; but you will have <em>proved your innocence of murder<\/em> &#8211;  something no actual murderer has to do (because they&#8217;re innocent until  proven guilty, remember?) while you, a law-abiding citizen who shot in  self-defense, are &#8220;guilty with an explanation&#8221;.\u00a0 The worst?\u00a0 That your  lawyer does a bad job, and that your judge &#8211; a DFLer, maybe? &#8211; gives  jury instructions that virtually ensure your conviction, and a prison  term, and a lifetime in court defending &#8220;wrongful death&#8221; suits, because  you were found guilty of&#8230;well, not &#8220;wrongfully killing&#8221; someone, so much as of not retreating <em>far and fast <\/em>enough.\u00a0 And in between the two, there&#8217;s the chance that the County Attorney fights you so aggressively on the case that, <em>even though you were right to shoot<\/em>,  you have to take a plea bargain, because you are bankrupt and can&#8217;t  afford to continually fight the entire weight of the County&#8217;s legal  bureaucracy by yourself; to take a smaller felony in exchange for maybe, someday, getting your life back.<\/p>\n<p>Unlike &#8220;Spotty&#8217;s&#8221; little flight of fancy at the top of the post, this scenario actually happens.\u00a0 Ask <a href=\"http:\/\/www.google.com\/search?q=treptow+site%3Awww.shotinthedark.info&amp;ie=utf-8&amp;oe=utf-8&amp;aq=t&amp;rls=org.mozilla:en-US:official&amp;client=firefox-a\">Martin Treptow<\/a>.<\/p>\n<p>So Cornish&#8217;s bill would allow two things:<\/p>\n<ul>\n<li>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 &#8220;reasonable&#8221;), 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.<\/li>\n<li>In shootings that meet all the criteria, it switches the burden of proof to where it belongs; the state.<\/li>\n<\/ul>\n<p>Spot:<\/p>\n<blockquote><p>The bill also immunizes the vigilante from  civil\u00a0liability\u00a0&#8212; to  anybody, including bystanders waiting at the bus  stop or walking down  the street.<\/p><\/blockquote>\n<p>Well, sort of.\u00a0 Here&#8217;s what Cornish&#8217;s bill says, with emphasis added:<\/p>\n<blockquote><p>7.23    Subd. 5. Criminal investigation; immunity from prosecution. (a) An individual|<\/p>\n<p>7.24who uses force, including deadly force, <strong>according to this section or as otherwise provided<\/strong><br \/>\n7.<strong>25by law <\/strong>in defense of the individual, the individual&#8217;s dwelling, or another individual is<br \/>\n7.26justified in using such force and is immune from any civil liability or criminal prosecution<br \/>\n7.27for that act.<\/p>\n<p>7.28(b) A law enforcement agency may arrest an individual using force under<br \/>\n7.29circumstances described in this section only after considering any claims or circumstances<br \/>\n7.30supporting self-defense or lawful defense of another individual.<\/p><\/blockquote>\n<p>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 <em>thoroughly legitimate self-defense shootings <\/em>from retribution in civil court from the people they shot. \u00a0(Not bystanders; the law would not legalize shooting bystanders; the imperative to &#8220;know \u00a0your backstop&#8221; doesn&#8217;t change).<\/p>\n<p>Back to Dog the Red Herring Hunter:<\/p>\n<blockquote><p>The practical effect is that if a defendant says &#8220;I felt  threatened,&#8221; it is the prosecutor&#8217;s burden to show that the defendant  was not &#8220;reasonably&#8221; threatened.<\/p><\/blockquote>\n<p>Again, I&#8217;m not the one who is going to come around with the personal  insult &#8211; but &#8220;Spotty&#8221; is a lawyer in real life.\u00a0 I&#8217;m not sure if he&#8217;s  just unfamiliar with how the system works, or if he&#8217;s being willfully  disingenuous.\u00a0 But it&#8217;s not enough to say &#8220;I felt threatened&#8221;; it isn&#8217;t  now, and it won&#8217;t be under Cornish&#8217;s law.\u00a0 If the body on your floor is \u00a0not holding a knife or gun, it&#8217;d be well within the cop&#8217;s discretion to say \u00a0I know you <em>claim to have <\/em>shot in self-defense, but it appears at the least \u00a0you were mistaken&#8221; under Cornish&#8217;s proposal, whereas today he&#8217;s more  likely forced to say &#8220;I know you&#8217;re innocent, but our county policy is &#8220;arrest  the gun&#8221;&#8221;.<\/p>\n<blockquote><p>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.<\/p><\/blockquote>\n<p>&#8220;Spot&#8221; is <a href=\"http:\/\/www.nizkor.org\/features\/fallacies\/begging-the-question.html\">begging the question here <\/a>&#8211;  using Minnesota&#8217;s current treatment of self-defense as &#8220;evidence&#8221; that  Minnesota&#8217;s current treatment of self-defense is the right approach.\u00a0 It&#8217;s illogical, notwithstanding that it&#8217;s wrong.\u00a0\u00a0 &#8220;Affirmative  Defense&#8221; &#8211; saying &#8220;yes, I committed the crime, but there are some  factors due to which you should modify my culpability&#8221; &#8211; makes sense,  arguably, for modifying the consequences of acts committed under  diminished capacity.\u00a0 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.\u00a0  Defending life and limb from predators is an unalloyed good; it should  not be treated as an anomaly to be carefully screened and treated.<\/p>\n<blockquote><p>Under the bill, if an insane man shot somebody, he would  have a better chance of beating the rap by claiming he used \u00a0the gun in  self defense than defending on the basis that was insane.<\/p><\/blockquote>\n<p>Only if you assume cops and, yes, county attorneys are complete idiots.\u00a0 Can &#8220;Spotty&#8221; spell out a case where an insane man&#8230;:<\/p>\n<ul>\n<li>&#8230;who was <em>not <\/em>a willing participant in a fight, and&#8230;<\/li>\n<li>&#8230;who had a legitimate fear of death or great bodily harm, and&#8230;<\/li>\n<li>&#8230;in a case where <em>his <\/em>use of lethal force was reasonable, and&#8230;<\/li>\n<li>&#8230;where <em>he <\/em>did whatever was reasonable to avoid the use of lethal force&#8230;<\/li>\n<li>&#8230;in a place where he had, as Cornish&#8217;s bill spells out, the &#8220;legal right to be&#8221;?<\/li>\n<\/ul>\n<p>I&#8217;m guessing this doesn&#8217;t even rise to the level of a reasonable hypothetical.<\/p>\n<blockquote><p>And for my money, if you shoot somebody, or knife them, it ought to be you who has some explaining to do.<\/p><\/blockquote>\n<p>If &#8220;Spot&#8221; thinks no explaining will be involved after even a perfectly legitimate shooting, he&#8217;s clearly floating free of all reason.<\/p>\n<p>Fortunately Spot&#8217;s &#8220;money&#8221; isn&#8217;t what governs us.\u00a0\u00a0 Our elected legislature and governor are.<\/p>\n<p>Cornish&#8217;s bill will come up in the Public Safety Committee on  Thursday.\u00a0 It&#8217;ll likely pass on a straight party-line vote (although  outstate Dems will likely support it as well &#8211; they know the power of  the Gun Owners Civil Rights Alliance\u00a0 (GOCRA) outstate), but please  contact everyone on the committee anyway (info below the jump).\u00a0 After  that, it&#8217;ll likely pass the House and Senate the same way, and go to the  Governor.<\/p>\n<p>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).<\/p>\n<blockquote><p>Update: Forgetful old dog that I am, I neglected to  mention that the post was prepared with the able editorial assistance of  MNO.<\/p><\/blockquote>\n<p>As I&#8217;m a kind and gentle guy, I&#8217;ll let that blooping slow-ball sail outside for an easy ball.<\/p>\n<p><img decoding=\"async\" title=\"More...\" src=\"..\/wp-includes\/js\/tinymce\/plugins\/wordpress\/img\/trans.gif\" alt=\"\" \/><!--more-->THE JUMP:<\/p>\n<p>Here are the committee members. \u00a0They could all use polite but firm calls and emails urging them to vote for Cornish&#8217;s bill. \u00a0 The outstate DFLers in the group may very well be receptive. \u00a0Give it a shot!<\/p>\n<p>Representative Kelby Woodard (Vice Chair)<br \/>\n651-296-7065<br \/>\nE-mail: rep.kelby.woodard@house.mn<\/p>\n<p>Representative Joe Mullery (DFL Lead)<br \/>\n651-296-4262<br \/>\nE-mail: rep.joe.mullery@house.mn<\/p>\n<p>Representative Kerry Gauthier (DFL)<br \/>\n651-296-4246<br \/>\nE-mail: rep.kerry.gauthier@house.mn<\/p>\n<p>Representative Glenn Gruenhagen (R)<br \/>\n651-296-4229<br \/>\nE-mail: rep.glenn.gruenhagen@house.mn<\/p>\n<p>Representative Bill Hilty (DFL)<br \/>\n651-296-4308<br \/>\nE-mail: rep.bill.hilty@house.mn<\/p>\n<p>Representative Sheldon Johnson (DFL)<br \/>\n651-296-4201<br \/>\nE-mail: rep.sheldon.johnson@house.mn<\/p>\n<p>Representative Tim Kelly (R)<br \/>\n651-296-8635<br \/>\nE-mail: rep.tim.kelly@house.mn<\/p>\n<p>Representative Andrea Kieffer (R)<br \/>\n651-296-1147<br \/>\nE-mail: rep.andrea.kieffer@house.mn<\/p>\n<p>Representative John Kriesel (R)<br \/>\n651-296-4342<br \/>\nE-mail: rep.john.kriesel@house.mn<\/p>\n<p>Representative Ernie Leidiger (R)<br \/>\n651-296-4282<br \/>\nE-mail: rep.ernie.leidiger@house.mn<\/p>\n<p>Representative Carlos Mariani (DFL)<br \/>\n651-296-9714<br \/>\nE-mail: rep.carlos.mariani@house.mn<\/p>\n<p>Representative Joe McDonald (R)<br \/>\n651-296-4336<br \/>\nE-mail: rep.joe.mcdonald@house.mn<\/p>\n<p>Representative Rena Moran (DFL<br \/>\n)651-296-5158<br \/>\nE-mail: rep.rena.moran@house.mn<\/p>\n<p>Representative Bud Nornes (R)<br \/>\n651-296-4946<br \/>\nE-mail: rep.bud.nornes@house.mn<\/p>\n<p>Representative Linda Slocum (DFL)<br \/>\n651-296-7158<br \/>\nE-mail: rep.linda.slocum@house.mn<\/p>\n<p>Representative Steve Smith (R)<br \/>\n651-296-9188<br \/>\nE-mail: rep.steve.smith@house.mn<\/p>\n<p>Bulk email info below the jump:<\/p>\n<p>You can email them all at once by pasting this list into your email client:<\/p>\n<p>rep.kelby.woodard@house.mn; rep.joe.mullery@house.mn;   rep.kerry.gauthier@house.mn; rep.glenn.gruenhagen@house.mn;   rep.bill.hilty@house.mn; rep.sheldon.johnson@house.mn;   rep.tim.kelly@house.mn; rep.andrea.kieffer@house.mn;   rep.john.kriesel@house.mn; rep.ernie.leidiger@house.mn;   rep.carlos.mariani@house.mn; rep.joe.mcdonald@house.mn;   rep.rena.moran@house.mn; rep.bud.nornes@house.mn;   rep.linda.slocum@house.mn; rep.steve.smith@house.mn<\/p>\n","protected":false},"excerpt":{"rendered":"<p>This morning, we went over the claims from &#8220;Spotty&#8221; from Cucking Stool that Rep. Cornish&#8217;s &#8220;Stand Your Ground&#8221; 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&#8217;t, of course &#8211; although Minnesota&#8217;s &#8220;progressives&#8221; want you to [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[30,2,132,22],"tags":[270],"class_list":["post-19550","post","type-post","status-publish","format-standard","hentry","category-liberty","category-minnesota-politics","category-mn-legislature","category-victim-disarmament","tag-2nd-amendment-grass-roots"],"_links":{"self":[{"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/posts\/19550","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=19550"}],"version-history":[{"count":9,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/posts\/19550\/revisions"}],"predecessor-version":[{"id":19556,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/posts\/19550\/revisions\/19556"}],"wp:attachment":[{"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=19550"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=19550"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=19550"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}