You Know How You Can Tell There’s A Second-Amendment Bill In The Hopper (Part II)?

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This morning, we went over the claims from “Spotty” from Cucking Stool that Rep. Cornish’s “Stand Your Ground” 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’t, of course – although Minnesota’s “progressives” want you to think so.  We’ll come back to that.

What it will do is bring some much-needed rationality to Minnesota’s self-defense law.

Let’s go through a  hypothetical example that, unlike Spotty’s, actually occurs in the real world.

———-

Say that you are a woman.  You’re walking from your garage back to your  house, coming home from a picnic.  It’s dusk.  Your two kids are indoors, but the back door is open.  Suddenly, you hear a shout; it’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.  You told him you weren’t feeling it, and he’s been stalking you ever since.  You’ve even explored taking out a restraining order – but there’s no restraining him now.  He’s standing where he could come between you and the back door of the house.  He has a knife – a big, long knife.  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:

  • He’s got a knife – so you have reasonable fear of death or great bodily harm to yourself and your children.  Check.
  • You are not a willing participant in this incident; you’ve made your lack of interest clear (which is one of the things that’s set the little fella off). Check.
  • If someone is coming at you with a knife, then you can probably convince a sane jury that lethal force is reasonable. Check.
  • You are in the back yard of your house.  The law re self defense says that you have to be sure of all of the above and make every “reasonable” effort to disengage and avoid the use of lethal force.  As you stand in the back  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?  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?  You need to decide this immediately, under life or death pressure, with your adrenaline pumping, in dimmer-than-ideal light, under mind-boggling stress.  However, the question “did you make every reasonable effort to avoid shooting” will be decided by a cop at a secured crime scene after the fact, and – more importantly – by a county attorney in a nice, warm, brightly lit office, protected by sheriff’s deputies and a metal detector.  How will they decide?  If you live in Kandiyohi County, you’ll probably get the benefit of a doubt.  If you live in Ramsey?  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’s DFL leadership, who believe as a matter of policy that a shooting is a shooting is a shooting, whether it’s a woman defending herself or a gang-banger shooting a 15 year old girl.  Feel safer now?  Uh-oh.

Back to “Spotty”.

And  here are two subdivisions that deal with the consequences to the user of deadly force after the event.

The bill says that if some one even claims self defense, they are immune from arrest — which might include even detention at the place of an incident of the use of deadly force — 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 arraignment judges.

And he goes on to say…:

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.

Now, I’m nothing if not a civil guy (unlike more than a few of my critics, including “Spotty”).  But between this passage, and his little opening fantasy, it’s pretty clear he hasn’t the foggiest idea how “Self Defense” works.

Let’s say that you are the woman in my example above.  As the stalker charges toward you, you shoot.  Two shots to the chest; he drops like a dog.  The cops respond; and say “Good shot, he had it coming, you had to protect yourself and your kids, there was no way you could have done it differently under the circumstances”.  But there’s a body – so the county attorney opts to press charges, based on the fact that, in the County Attorney’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 “arrest and charge the gun” – no matter who used the gun, and why.

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 “yes, I killed the guy – but 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 “.  After which the County Prosecutor gets to tell a jury – also working in a nice, brightly-lit room, with sheriff’s deputies guarding them and all the donuts they can eat – that no, you should have run up the stairs, or out the back door, or put your gun down and negotiated with him, or anything but end his unstably-minded life.

The best you can hope for is that your attorney can convince 12 people who couldn’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’s savings will be exhausted, your credit will be shot, you have a good chance of losing your job – but you will have proved your innocence of murder – something no actual murderer has to do (because they’re innocent until proven guilty, remember?) while you, a law-abiding citizen who shot in self-defense, are “guilty with an explanation”.  The worst?  That your lawyer does a bad job, and that your judge – a DFLer, maybe? – gives jury instructions that virtually ensure your conviction, and a prison term, and a lifetime in court defending “wrongful death” suits, because you were found guilty of…well, not “wrongfully killing” someone, so much as of not retreating far and fast enough.  And in between the two, there’s the chance that the County Attorney fights you so aggressively on the case that, even though you were right to shoot, you have to take a plea bargain, because you are bankrupt and can’t afford to continually fight the entire weight of the County’s legal bureaucracy by yourself; to take a smaller felony in exchange for maybe, someday, getting your life back.

Unlike “Spotty’s” little flight of fancy at the top of the post, this scenario actually happens.  Ask Martin Treptow.

So Cornish’s bill would allow two things:

  • 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 “reasonable”), 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.
  • In shootings that meet all the criteria, it switches the burden of proof to where it belongs; the state.

Spot:

The bill also immunizes the vigilante from civil liability — to anybody, including bystanders waiting at the bus stop or walking down the street.

Well, sort of.  Here’s what Cornish’s bill says, with emphasis added:

7.23 Subd. 5. Criminal investigation; immunity from prosecution. (a) An individual|

7.24who uses force, including deadly force, according to this section or as otherwise provided
7.25by law in defense of the individual, the individual’s dwelling, or another individual is
7.26justified in using such force and is immune from any civil liability or criminal prosecution
7.27for that act.

7.28(b) A law enforcement agency may arrest an individual using force under
7.29circumstances described in this section only after considering any claims or circumstances
7.30supporting self-defense or lawful defense of another individual.

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 thoroughly legitimate self-defense shootings from retribution in civil court from the people they shot.  (Not bystanders; the law would not legalize shooting bystanders; the imperative to “know  your backstop” doesn’t change).

Back to Dog the Red Herring Hunter:

The practical effect is that if a defendant says “I felt threatened,” it is the prosecutor’s burden to show that the defendant was not “reasonably” threatened.

Again, I’m not the one who is going to come around with the personal insult – but “Spotty” is a lawyer in real life.  I’m not sure if he’s just unfamiliar with how the system works, or if he’s being willfully disingenuous.  But it’s not enough to say “I felt threatened”; it isn’t now, and it won’t be under Cornish’s law.  If the body on your floor is  not holding a knife or gun, it’d be well within the cop’s discretion to say  I know you claim to have shot in self-defense, but it appears at the least  you were mistaken” under Cornish’s proposal, whereas today he’s more likely forced to say “I know you’re innocent, but our county policy is “arrest the gun””.

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.

“Spot” is begging the question here – using Minnesota’s current treatment of self-defense as “evidence” that Minnesota’s current treatment of self-defense is the right approach.  It’s illogical, notwithstanding that it’s wrong.   “Affirmative Defense” – saying “yes, I committed the crime, but there are some factors due to which you should modify my culpability” – makes sense, arguably, for modifying the consequences of acts committed under diminished capacity.  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.  Defending life and limb from predators is an unalloyed good; it should not be treated as an anomaly to be carefully screened and treated.

Under the bill, if an insane man shot somebody, he would have a better chance of beating the rap by claiming he used  the gun in self defense than defending on the basis that was insane.

Only if you assume cops and, yes, county attorneys are complete idiots.  Can “Spotty” spell out a case where an insane man…:

  • …who was not a willing participant in a fight, and…
  • …who had a legitimate fear of death or great bodily harm, and…
  • …in a case where his use of lethal force was reasonable, and…
  • …where he did whatever was reasonable to avoid the use of lethal force…
  • …in a place where he had, as Cornish’s bill spells out, the “legal right to be”?

I’m guessing this doesn’t even rise to the level of a reasonable hypothetical.

And for my money, if you shoot somebody, or knife them, it ought to be you who has some explaining to do.

If “Spot” thinks no explaining will be involved after even a perfectly legitimate shooting, he’s clearly floating free of all reason.

Fortunately Spot’s “money” isn’t what governs us.   Our elected legislature and governor are.

Cornish’s bill will come up in the Public Safety Committee on Thursday.  It’ll likely pass on a straight party-line vote (although outstate Dems will likely support it as well – they know the power of the Gun Owners Civil Rights Alliance  (GOCRA) outstate), but please contact everyone on the committee anyway (info below the jump).  After that, it’ll likely pass the House and Senate the same way, and go to the Governor.

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).

Update: Forgetful old dog that I am, I neglected to mention that the post was prepared with the able editorial assistance of MNO.

As I’m a kind and gentle guy, I’ll let that blooping slow-ball sail outside for an easy ball.

THE JUMP:

Here are the committee members.  They could all use polite but firm calls and emails urging them to vote for Cornish’s bill.   The outstate DFLers in the group may very well be receptive.  Give it a shot!

Representative Kelby Woodard (Vice Chair)
651-296-7065
E-mail: rep.kelby.woodard@house.mn

Representative Joe Mullery (DFL Lead)
651-296-4262
E-mail: rep.joe.mullery@house.mn

Representative Kerry Gauthier (DFL)
651-296-4246
E-mail: rep.kerry.gauthier@house.mn

Representative Glenn Gruenhagen (R)
651-296-4229
E-mail: rep.glenn.gruenhagen@house.mn

Representative Bill Hilty (DFL)
651-296-4308
E-mail: rep.bill.hilty@house.mn

Representative Sheldon Johnson (DFL)
651-296-4201
E-mail: rep.sheldon.johnson@house.mn

Representative Tim Kelly (R)
651-296-8635
E-mail: rep.tim.kelly@house.mn

Representative Andrea Kieffer (R)
651-296-1147
E-mail: rep.andrea.kieffer@house.mn

Representative John Kriesel (R)
651-296-4342
E-mail: rep.john.kriesel@house.mn

Representative Ernie Leidiger (R)
651-296-4282
E-mail: rep.ernie.leidiger@house.mn

Representative Carlos Mariani (DFL)
651-296-9714
E-mail: rep.carlos.mariani@house.mn

Representative Joe McDonald (R)
651-296-4336
E-mail: rep.joe.mcdonald@house.mn

Representative Rena Moran (DFL
)651-296-5158
E-mail: rep.rena.moran@house.mn

Representative Bud Nornes (R)
651-296-4946
E-mail: rep.bud.nornes@house.mn

Representative Linda Slocum (DFL)
651-296-7158
E-mail: rep.linda.slocum@house.mn

Representative Steve Smith (R)
651-296-9188
E-mail: rep.steve.smith@house.mn

Bulk email info below the jump:

You can email them all at once by pasting this list into your email client:

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

24 thoughts on “You Know How You Can Tell There’s A Second-Amendment Bill In The Hopper (Part II)?”

  1. I’m not a really smart lawyer like Spotty, but isn’t it unlikely that an “insane person” would ever be issued a gun permit of any kind? Maybe in his world guns cause insanity.

  2. Well to be fair, this isn’t necessarily about people with permits. It’s about self-defense law – and you don’t need a permit to use a gun for self-defense in your home.

  3. Kermit; well, most of the Chicago Board of Aldermen and the mayor have carry permits…… :^)

    OK, but here, not for a known mental deficient.

    One minor quibble with your example, Mitch; I’d set it with a mother and two kids camping, or at a picnic, where retreat towards one child endangers the other. Reason is that there is no duty to retreat in one’s own home or business, nor is there a requirement for a carry permit there to begin with.

  4. Again, carry permit is irrelevant in the home (as I noted above) – but you have to meet the same four criteria for self-defense, even in the home. There is no “duty to retreat”, in as many words, anywhere – but the affirmative defense of “Self Defense” requires the shooter to make reasonable efforts to avoid shooting. What “Reasonable” means is enirely a function of what a Prosecutor can convince a jury. HF1467 would help address this.

  5. I was thinking handguns. Don’t you need a permit to purchase one, even if you don’t have a CC?

  6. In Minnesota, you need a “permit to purchase” to take a handgun home immediately after buying it. The alternative is a five day waiting period during which time the store runs your background check (the Permit to Purchase means the check’s been run already).

    A carry permit serves as a permit to purchase. They have basically the same background check.

  7. In Minnesota, you need a “permit to purchase” to take a handgun home immediately after buying it.

    Speaking of which, I have 3200 rounds of .22LR and nothing to shoot them with…best remedy that situation before Zombie Apocolypse/SHTF day.

  8. So with the “permit to purchase” they do a criminal background check. Is there any check for, oh say, commitment to mental hospitals or being legally declared a vulnerable adult?

  12. Back to the bill… in politics, as in when you get an email from somebody who wants to put several dozen millions through your bank account, leaving you a good chunk of it . . .

    If it looks too good to be true, it is. You’ve been focusing on the Stand Your Ground portion of the bill, Tony Cornish’s ongoing campaign to reform Minnesota’s self-defense laws. It’s a good bill — and it was, when I organized a major showing-up in (well, outside of) the smallest room in the EOB that wasn’t a broom closet, several years ago (the DFL metrocrats were nervous about it) — and, some day, it should be law.

    But that’s not, alas, going to happen this year.

    Look at the rest of the bill, and you’ll see why it’s too good to be true.

    1. Were it to become law, it would give permit to purchase applicants the same rights (badged bureaucrats hate that whole “rights” thing) to take the issuing authority to court that carry permit applicants do. It’s not a secret that the majority of local PDs (PDs still issue purchase permits) almost never bother to send out a purchase permit in the seven days *required* by law, and when the peon complains, basically say I’ll get to it when I get to it. Know your place, peon.

    The reason why there are so few bogus denials and bogus delays on carry permits is that, if that happens, the applicant can fire up his lawyer, take the sheriff to court, and then, when he wins, the judge *must* issue an order for costs, including lawyers’ fees. Marc Berris has funded his kids’ college fund with successful appeals from Ramsey County alone.

    So… watch for the howling from Dolan and Laux and the representative of the MCA . . . and if it’s anything that looks even a little vaguely pro forma it will be because they know that they’re not going to actually have to start doing their job on purchase permits…

    2. Universal carry permit reciprocity. I argued — strongly — in favor of pushing that back in early 2006, as a way to, among other things, protect the permit holder community (and the permit instructor community) from a repeat of the Secret Meetings scandal in late 2005, about which I’ve written quite a lot.

    It’s a great idea. Too great. It would give outstate carry permits — including the Florida permit; I’ll come back to that — the same status, precisely, as a MN carry permit, and that would solve all sorts of problems….

  13. … like the (unsuccessful) Florell “shakedown” attempt — see https://docs.google.com/document/pub?id=1WvQgh51hJlhtsB3HiKgOD1JeMLUA94EcF2rc_5UEquA — as well as the whole Secret Meetings plan to restrict the number of instructor orgs to very few, all of them under the thumb of the MSA and the BCA. And the bad sheriff problem? It took years of work and lots of arrogance by Bob Fletcher to get him out; this would obviate the problem, too easily. An applicant in a county with a recalcitrant sheriff would simply skip getting the MN permit, and get the Florida one, without the sheriff being able to just veto it, and force the new permit holder to put up several thousand bucks for a lawyer; the sheriff would have to persuade the County Attorney to take the permit holder to court to have his permit ruled invalid, putting the burden on him.

    Now, while the law doesn’t allow it, there’s no real question that the MCPPA has been a gold mine for at least some sheriffs — at last count, there was close to a million dollars in the Dakota County Sheriff’s permit fund, which is only segregated in theory, not in Dakota County. (I’d like to move to Theory; things work better there.)

    Let’s do some math… right now, while the sheriffs are required by law to set their permit fee at their actual direct costs, with very few exceptions, they simply peg it at $100 for a first permit, and $75 for a renewal, throw the profits into their general fund in some cases, or sit on a growing pile of money in other cases. Short form: the MN permit costs $20/year, and covers you in Minnesota and about a dozen other states.

    The Florida permit, on the other hand, costs $117 . . . for a seven-year permit, and covers just under three dozen states right now, not including Minnesota.

    But, under this bill, were it to become law, not only would the power of the sheriffs to arbitrarily deny an applicant and suffer no consequences unless and until the applicant came up with $3000 for a lawyer, but many people would, sensibly, just apply for their Florida permit.

    And you’d hear the howling from the sheriffs. (And some of it might be reasonable; I’ll get to that on the next rock.) What little authority they have to control who gets carry permits would be taken away from them, by a stroke of the governor’s pen . . . and all those lovely dollars would go with it.

    So the MSA should be howling. But they’re not.

  14. Next rock.

    There’s probably around 400 MN-certified carry permit instructors; there certainly are around 150 “approved business organizations” (including, by the way, mine) that can and often do certify instructors to be able to conduct MN-approved classes. And there’s at least several of those organizations whose “business model” relies — heavily or less so — on getting their subordinate instructors to pay them for certification. At the inexpensive side, Andrew Rothman’s nonprofit MADFI charges $75 for initial (supplementary; previous certification by AACFI and/or NRA is required) training and certification; Joe Olson’s and Tim Grant’s AACFI charges just around $1000 per instructor (they have around 50, now, although it used to be around 100) for initial certification, and $350 per year per instructor for continuing certification. (Full disclosure: as an author of their permit course and the author of the book that they use in all of their classes, I get a royalty every time one of those classes is taught and/or one of those books is sold.)

    If the Florida permit, by law, gives a permit holder the same status as a MN permit does, that’s going to mess with a lot of folks’ “business plans.” Florida, for example, doesn’t even require training for honorably discharged veterans, and any NRA class, or class taught by an NRA instructor, that includes so much as a single shot being fired, qualifies . . . for Florida.

    Continued on next rock…

  15. There are a fair number of the “Coconut Charlie” type permit instructors who, basically, treat their certificates as a commodity. You’ll never get your permit any cheaper!!!! and such. The value of that commodity would drop — dramatically — if anybody with an NRA instructor certificate for, say, Basic Pistol can slap together a quickie course, and run a non-vet (the vet doesn’t need it) through it.

    But there’s no howling from that group, either.

    (It might or might not hurt my carry permit training business; http://twincitiescarry.com/courses is, whatever it is, not the low-end commodity; the people who come to me are not trying to just get their ticket stamped.)

    Holmes: “Have you noticed the strange thing the dog did during the night?”

    ….

  16. The strange thing that the dog did was to not howl.

    So why all the non-howling?

    Again: the bill is too good. Great policy; it’s so good that there’s not a chance in hell that Governor Mark “Why do you WANT cop killer bullets?!?!?!” Dayton is going to do anything but veto it, if (as it well might) reach his desk.

    Do the math — in order to get this through, the Republicans who (yay!) control both House and Senate would have to keep their respective caucuses together (quite possible) and flip 8 DFL Senators and 16-count-’em-16 DFL reps, in order to overturn a veto.

    So… there’s a great bill there, and, if it’s not compromised at this point, will be a great starting point for reform in 2013 (if the Republicans manage to pick up eight seats in the Senate and 16 in the House in the ’12 elections), and a terrific bit of campaign ammo to try to flip swing districts next year…

    … unless, instead of getting a veto-proof lege, they don’t. In which case, the earliest this bill could possibly become law would be 2015, assuming that a: Dayton is unseated (yay!) by a pro-self-defense Republican and b: the Republicans (or a working self-defense Republican+someDFL) majority holds both Houses.

    In January of 2015.

    Short form: it’s possibly not too good to pass, in this legislative environment; it definitely is too good to become law, given the combination of a non-veto-proof self-defense majority in the lege, and Mark Dayton sitting in the governor’s office.

    I wish it were otherwise.

    I don’t hate to say “I told you so”, but I did. Back in 2006, when there was a Republican House majority, and a cobbled-together Republican+DFL pro-self-defense Senate majority, and Tim Pawlenty in the governor’s office, I argued — loudly and publicly — that 2006 was the right time to push universal reciprocity (among other things) through, or it would be years before a real opportunity would come our way again.

    It didn’t happen then, and it hasn’t come close to happening since. I wish it were otherwise, but that window has closed . . . and won’t open again until 2013, at the earliest, and more likely not until well after 2015.

    Sometimes — and this is one of those times — it sucks to be right.

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  21. The bill may not pass, but it’s still good to point up the philosophical differences between us. Same idea as forcing Congress to read the Constitution.

    One group thinks honest citizens should be able to Stand Their Ground to resist attackers, that present self-defense law is backwards.

    The other group cedes society to the most brutal and echos Sir Robin the Chickenhearted: “Run Away, Run Away.”

    Which group are you in?
    .

  22. Might be cool to add a section to the bill saying anybody who receives Social Security or disability payments or has a handicapped parking sticker is presumed to be unable to retreat and is therefore justified in standing her ground in self-defense; all others on a case-by-case basis.

    Be lovely to see the Libs explain why the aged, the halt and the lame should be investing in track shoes instead of hollowpoints.

    .

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