Saturday, July 27, 2013

The Story Of 'Stand Your Ground'

In the wake of the Zimmerman decision, the Obama administration- pursuing its usual strategy of race-baiting and rabble-rousing- has committed itself to a "national dialogue" on "Stand Your Ground" laws; ironically, exactly the sort of laws the President supported as a state senator in Illinois.

The claim against SYG goes something like this: a duty to retreat from a deadly confrontation deescalates deadly confrontations, which leads to fewer deaths. Personally, I wouldn't shed a tear over the deaths of violent criminals who are killed by their intended victims, but, the Obama administration does.

There is no question that the administration is pursuing an "all avenues" approach to gun control, and one of these avenues is the attempt to dismantle self-defense for individuals. This is nothing new: such attempts have been made throughout the history of our country, and have often been alarmingly successful. The most common means of accomplishing this is through the courts; prosecutorial and judicial abuse of people who lawfully use force. These abuses, cumulatively, are intended to create so much uncertainty about lawful self-defense that common citizens are afraid to defend themselves.

The mechanism used in most such cases is re-interpretation of the "duty to retreat", where such duty exists.

Background: The old common law "duty to retreat" was intended (and for centuries, it was faithfully interpreted this way) to require an individual to retreat under a very limited set of circumstances. Namely:

1) When the immediate need for deadly force became apparent (i.e. at the exact moment that the encounter turned deadly);
2) When retreat could be accomplished safely (i.e. turning to run wouldn't mean getting shot in the back);
3) When no other persons in the area would become potential victims of the aggressor.

This is a very sensible policy. It permits individuals to protect others in their vicinity, it doesn't create a dangerous requirement to retreat under all circumstances, and it doesn't require a person to exercise psychic powers to predict a future deadly encounter.

Unfortunately, this is not how "duty to retreat" is interpreted today. Today, when it is applied, it is often applied in a manner which is unthinkable to reasonable people.

The first SYG case was a U.S. Supreme Court case, Beard v. United States (1895). Beard confronted three men trespassing on his property; two of them menaced him with firearms and he responded by using the butt of his rifle to strike them. One died of the head injury Beard inflicted. Beard was denied a self-defense claim at trial, because the law in Arkansas at the time mandated a duty to retreat from all places, including one's own property. SCOTUS overturned his conviction, stating that no person could be reasonably held to a duty to retreat under his circumstances.

Consider the implication of this: Had Beard not successfully appealed his conviction, the precedent in Arkansas would've required him to a) abandon his own home, b) expose himself to being shot in the back, and c) psychically predict that his attempt to "knock out" his attacker- a relative of his wife, incidentally- would, by freak chance, kill him.

As a result of this decision, states started changing their self-defense laws to conform. The first was Virginia, in Jackson's Case (1898). This decision abolished all duty to retreat in cases where the defender was otherwise acting lawfully.

Other states, however, have not changed, and have continued to permit the persecution of law-abiding people. Although I could cite hundreds, perhaps thousands of examples, I'll use a few of the more illustrative cases.


State of West Virginia v. Tanya Harden (2009): During a "night of domestic terror", Harden was beaten and raped repeatedly by her husband, who also beat their son. When Harden said she was leaving the home, her husband beat her head with the buttstock of his shotgun, breaking bones in her face, and pressed the barrel of the loaded shotgun against her, telling her "nobody's leaving this place tonight". Harden, believing any attempt to leave the home would alert her husband, who would carry out his threat to shoot her, waited until he dozed off, then snatched the shotgun and killed him. The state's prosecutor argued Harden had a duty to retreat from her own home because her husband "had a legal right to be there" and that she wasn't justified in shooting because the husband was asleep and "didn't pose an imminent threat", and Harden was convicted of manslaughter in 2004. Mercifully, the West Virginia Supreme Court overturned her conviction; however, she spent more than four years in prison before this relief occurred.

Since she was denied a self-defense claim by the trial judge, her defense counsel resorted to a backup option: "Battered Spouse Syndrome". This case was the impetus for states to adopt "battered spouse" rules of evidence- as opposed to changing their self-defense laws.


In State of Hawaii v. Van Dyke on behalf of Montez (2003), Hawaii Supreme Court reversed the manslaughter conviction of Montez, an attorney who, while visiting the area, was forced to defend himself in his temporary lodgings. His conviction was based on the trial court denying his claim of self-defense (since his home was a "temporary" one), and allowing "character assassination" evidence to be used against him, such as an expert witness who testified that Montez was "predisposed to violence" because he was intoxicated at the time. Montez died in prison while awaiting appeal; his sister, Van Dyke, continued the appeal on his behalf.

Consider that: A man who lawfully defended himself died in prison because of a judge and prosecutor with a political agenda. His sister worked after his death to clear his name.


State of Indiana v. Richard Barnes (2011): This is a case I have covered extensively here, here, here, and the state legislature's solution here. Barnes' home was unlawfully entered by police, who subsequently arrested him for a violation of law which didn't occur. Barnes was, despite Indiana's SYG law, held to the standard of "retreating" (i.e., allowing the police to enter unlawfully) in his own home.


Occurrences of this nature aren't the exception in states without "duty to retreat", they are the norm. They occur more rarely in states with "Stand Your Ground", as in the Indiana case above.

And for those who succumb to the race-baiting, and believe that SYG laws "allow white people to shoot black people" or some such nonsense, consider this: Minorities benefit far more often from SYG than whites. Most cases of prosecutorial and judicial abuse of this nature are inflicted on minorities, and women defending themselves from an abusive spouse or partner.

Make no mistake: The current attempt from the left to strip away Stand Your Ground has nothing to do with "safety". It has everything to do with creating in the public a greater degree of fear and uncertainty in the legal system. As the saying goes, "a right not exercised..."

Wednesday, July 17, 2013

"The Florida Package"- Clarifying 'New' Self-Defense Terminology

During the lengthy news coverage of the George Zimmerman case, from the initial encounter through the trial and now in trial post-mortems, a number of different terms referring to Florida's self-defense laws have been thrown around and mixed together, resulting in some degree of confusion as to the meaning of these terms. I didn't really consider this a problem, until US Attorney General Eric Holder's speech yesterday at the NAACP convention- where he called for an effort to 'combat' changes in self-defense laws, claiming these changes "cause more violence than they prevent".

Let's clarify some terminology. I will likely use this post as a reference for other posts on the subject.

First, I use term "Florida package" to refer to a set of self-defense law improvements first passed in Florida in 2006 and subsequently adopted in more than 20 other states. In most cases, these states wrote Florida's language, verbatim, into their own state law. Since it is the entire package which is under attack, or will be soon, this is an important distinction.

The package consists of the following changes:

1) "Stand Your Ground"- a provision which states that the individual has 'no duty to retreat' when confronted with a potential deadly threat. In another post, I will go into greater detail as to the need for this provision.

2) "Castle Doctrine"- every state already has (or had) a "castle doctrine" law- a provision which, at the very least, exempted a person from the duty to retreat when confronted in their home. There are two "castle doctrine" changes found in the package: 1) An extension of the doctrine to include a person's temporary lodgings, place of business, and occupied motor vehicle; and 2) a 'rebuttable presumption' that a person using deadly force in one of these places did so out of a reasonable fear of imminent danger. This is important because it adds a 'layer of protection' in the event of prosecution- the prosecutor must disprove the presumption in order to prove his case.

3) Lawsuit immunity- To prevent the defender from being sued by the aggressor or someone else on the aggressor's behalf. The worst cases of this, by the way, were cases from Florida, which is why Florida was the first to enact this.

4) Self-defense hearings- This was discussed during the Zimmerman trial, because his defense attorneys opted not to request this hearing. It also varies the most among the states which have adopted it. In basic terms, the defendant may request a hearing to have charges dropped, in the judge believes there is insufficient evidence to prove that the defendant's actions were not consistent with state self-defense laws.

Some states prohibit the arrest or detention of the accused, unless the state can establish probable cause (to a judge's satisfaction) that the accused's actions were inconsistent with state self-defense laws. This differs from the traditional procedure, where the state only has to show probable cause that the accused committed a criminal offense (easy to do, since the accused essentially admits this, claiming self-defense as a defense to the criminal charge).

One major point of contention: Zimmerman's defense counsel, and virtually all of the media coverage, have suggested that these changes to state law are 'isolated', if you will, from the rest of the self-defense law, and form a separate legal defense- i.e. "We're claiming 'self-defense', not 'Stand Your Ground'"; "We're reserving the right to invoke 'Stand Your Ground'"; "If (Zimmerman) wants to be immune from lawsuit, he'll have to have a 'Stand Your Ground' hearing", etc. I have seen nothing to suggest that this is the case; in fact, in reading these statutes, I can't see how they can be read in this fashion. Each section of the package deals with a different aspect of self-defense laws.

For example- there has been considerable commentary on the last example I gave- that Zimmerman would have to request a "Stand Your Ground" hearing in order to claim lawsuit immunity. This notion ignores the following points:

1) That hearing, as described above, is a pre-trial hearing to determine whether the defendant may be prosecuted at all;

2) The lawsuit immunity appears to be automatic- i.e. the defender is already immune from lawsuit from his aggressor, until he is convicted in criminal court (which Zimmerman was not).

Is this a case of various authorities attempting to limit the application of this package of laws, or is it legal commentators on TV succumbing to the same confusion TV watchers have?

Wednesday, July 10, 2013

OK, Fine, I'll Talk About Abortion; or, "The Bumper Sticker War"

I've had a rule since I started this blog: I wouldn't write about abortion. The subject is simply too much of a minefield, since very few people want to hear any discussion which doesn't involve mindless regurgitation of their sides' bumper sticker slogans. I skirted that rule on only one occasion, but I wasn't talking about abortion per se, but rather, talking about legislative language.

Well, now I'm going to cross that minefield.

I'll start with this: Abortion is a horrifying thing. Absolutely horrifying. If you've ever watched one, or know someone who works in medicine and has performed one, you know this. If you're staunchly pro-choice, you probably haven't experienced this, and you should. First-hand experience with the subject really does take the starch out of most people's "pro-choice" fervor. It changes the context of the abortion conversation from "ON DEMAND!" to "is this really necessary?".

Once upon a time, "is this really necessary?" was the context. Prior to Roe v. Wade (and the bumper stickers which followed), there was a much more sober discourse on the subject. From this more-conscientious discourse came the slogan "Safe, Legal, and Rare"- the notion that clinical abortion was preferable to back-alley abortion.

What ever happened to the "Rare" part? Our government started subsidizing abortion with taxpayer money, and abortion became free-of-charge (or nearly so) for many women. Yes, it's true, Federal law prohibits direct subsidy of abortion. But organizations like Planned Parenthood receive taxpayer money for other services, and since money is fungible, it all goes into one big pot. It should go without saying, but collecting tax money from a taxpayer who believes abortion is wrong, and using it to (indirectly) pay for abortions, is a mortal sin of government; any honest pro-choicer should recognize and respect this.

Any honest pro-lifer, on the other hand, must recognize the fact that the abortion rate will never be "zero", and has never been zero in our nation's history. Indeed, the Founding Fathers were aware of the primitively-performed abortions of their day, but didn't address them in the law (the first state ban on abortion was passed in Connecticut in 1829). A nationwide ban on abortion, in addition to being politically impossible, would also fail in its objective: the demand would still exist, and- as has happened in every developed country with an abortion ban in the modern era- would be filled by a black market, operating outside the scrutiny of government regulation. There is no better example of this than the black market in Chile, which has lined the pockets of organized crime families with obscene wealth (yes, I know, that's an odd phrase for a libertarian to use) and where, despite every effort of law enforcement and policy makers, abortion can be obtained quickly with very little risk of prosecution. Instead of the horror show of the Kermit Gosnell case being an exception, it would be the rule of abortion.

"Politics is the art of the possible", said Ben Franklin. Let's face reality: A ban on abortion isn't possible, either politically or legally. Continuing to expend manpower, money, and clout on an impossibility damages our credibility (what little we have left, at the federal level) and erodes our ability to do anything else. Those of us who are horrified by abortion should seek to do what can reasonably be done: Reduce the "need" for abortion as much as possible, thereby saving as many lives as possible, without creating the conditions for a black market and without violating Constitutional liberties.

So, I propose a new bumper sticker slogan: "Your Body, Your Choice, Your Dime".

As a matter of practicality rather than strict libertarian principle, I have no issue with subsidizing contraception if it prevents pregnancies which might be aborted. This is a critical component of the concept: If contraception is available, free or nearly free for low-income women, and they choose not to use it, then they have no moral claim to a taxpayer-subsidized abortion. They made the choice to not use the available options to prevent pregnancy. The welfare culture is a culture: It will adapt to the lack of cheap abortions by adopting contraception en masse, in the same way it adapts to changes in the rules for disbursing welfare dollars and administering programs.

Likewise, nobody has a moral claim to use another person's money for a purpose that person finds unconscionable. Since there's no way to separate tax dollars from pro-choicers from tax dollars from pro-lifers, it's wrong to subsidize abortion providers with tax money- directly or indirectly. But in order to approach this, we need an acceptable alternative. Here's my suggestion: an income tax return line, for voluntary contributions to a fund to subsidize abortion in rape and incest cases (which current federal law allows). If you, the taxpayer, want your tax dollars to fund abortions in these cases, then put your money where your mouth is. Add another line for donations to pregnancy crisis centers and adoption agencies, so the pro-lifers have a way to put their money where their mouths are, too. Personally, I'd be interested to see which fund receives more donations (I already have a guess).

I am, by the way, opposed to limiting abortion in rape and incest cases. Rape is a weapon of terrorism, class warfare, and racial warfare (see the current situation in Sweden).

And there it is- a way to drastically reduce the number of abortions performed, and save as many lives as possible, without advancing an agenda which has no hope of success, and while taking the blood out of the water on the subject and pulling together the sensible pro-lifers, the honest pro-choicers who actually believed the word "rare" in "Safe, Legal and Rare", and the people in the middle who are just tired of the abortion debate, while excluding the worst elements of both sides.

If one needs an example of this blood in the water effect, look no further than Justice Clarence Thomas' comments on the abortion debate and how it has ravaged the federal judiciary.

If we take the sensible road, the vitriolic pro-choicers- people like Wendy Davis- will, through their actions and their rhetoric, expose themselves for the lying rabble-rousers they really are. They only gain credence because our side's antics make them look reasonable by comparison.

And one other thing: For the pro-lifers who believe a total, nation-wide ban via Constitutional amendment is a good idea, let me point something out: Andrew Breitbart was right when he said "Politics is downstream of culture". Your current strategy is wholly ineffective. If ever you want to get people to listen to you, and possibly change their minds- leading to, eventually, a policy shift reflecting that changed culture- the only way to do so is to adopt a strategy of this nature.

Or, you can continue being totally ineffective, and projecting a sense of smug moral superiority, while not saving one single baby from termination.