The Volokh Conspiracy

That’s the title of my forthcoming article in the University of Michigan Journal of Law Reform. My co-authors are Clayton Cramer and Joe Olson. The abstract:

This Article is the first scholarly analysis of knives and the Second Amendment. Knives are clearly among the “arms” which are protected by the Second Amendment. Under the Supreme Court’s standard in District of Columbia v.  Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.

Bans of knives which open in a convenient way (bans on switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives which, after being opened, have a safety lock to prevent inadvertent closure.

Prohibitions on the carrying of knives in general, or of particular knives, are unconstitutional. There is no knife which is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on the carrying of handguns set the upper limit for restrictions on knife carrying.

The Article is just the beginning of long overdue scholarly analysis of laws about knives. Not all households own firearms, but almost every household owns a knife, even if we do not count table knives. Issues involving knife carrying come up quite frequently in state criminal courts, but the legal academy has thus far failed to provide the courts with useful guidance. Persons who are interested in writing on Second Amendment issues, and who wish to make an original contribution, will find that there is plenty to write about.

The Prologue to my book No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix it, includes a section on the Ruby Ridge case. Much more on Waco and Ruby Ridge is available on the Waco page on my website.

The case is People v. Moreno (Mich. Apr. 23, 2012) (5 to 2). A 2004 Michigan Court of Appeals decision had held the contrary, but the Michigan Supreme Court overruled that precedent.

Under the old common law rule, people were allowed to use nondeadly force to resist an illegal arrest or search. But, to quote the dissent, “As of 1999, 39 states had eliminated the common-law right, ‘twenty-three by statute and sixteen by judicial decision.’” The question in this case was whether a Michigan statute had likewise eliminated the common-law right; the majority concluded that the statute hadn’t done so. The decision was on its face about how to interpret the statute, but I take it that the majority thought the common-law rule at least made enough sense that they shouldn’t reverse it themselves.

Note that the same issue has recently come up in Indiana, where the Indiana Supreme Court (by a 3 to 2 margin) eliminated the common-law right using its own power to change the common law; a month ago, the Indiana Legislature in turn reinstated the right.

The so-called “duty to retreat” has been in the news recently, and has long been of interest to people interested in self-defense law. Some have argued that the duty to retreat is a special case of the general requirement that lethal force may only be used when necessary to prevent death, serious bodily injury, rape, kidnapping, or perhaps some other serious crimes. But I think this “corollary of the necessity requirement” view misses an important point, which I want to blog about briefly here.

1. The necessity theory goes like this: “The use of deadly force,” to quote the Model Penal Code, “is not justifiable ... unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or [rape].” (Similar formulations are used in many states that haven’t adopted the MPC, though many of those states add robbery and sometimes burglary to the crimes that may be prevented through deadly force.)

If someone “knows that he can avoid the necessity of using such force with complete safety by retreating,” then deadly force isn’t really necessary. Hence the duty to retreat: Even when threatened with death, serious bodily injury, rape, etc., you must retreat if that’s safe (e.g., by driving away from someone who’s threatening you with a knife from across the street, if you’re safely in your car), or else lose the right to use deadly self-defense.

2. But wait: Let’s say that someone tells me “Give me your wallet or I’ll seriously injure you,” and I know that (1) if I give over the wallet, I won’t be seriously injured, and (2) if I don’t, then I will be seriously injured. (I acknowledge that it’s rare to have such confidence, but let’s assume this — perhaps because I know the attacker and his habits — just as duty-to-retreat law assumes that one can sometimes “know” that one can retreat with “complete safety.”) Under the “necessity” definition we’re discussing, here too deadly force isn’t really necessary, since I can avoid the need to use deadly force by handing over the wallet. Yet even under the Model Penal Code — which has a quite narrow view of permissible lethal self-defense (see below) — I can refuse to hand over the wallet without losing my right to use lethal self-defense.

Or say that someone credibly tells me “Beg for your life or I’ll kill you,” and instead of begging I shoot the person. Again, under the “necessity” definition we’re discussing, deadly force wouldn’t really be necessary, since I could have avoided the need to use deadly force by begging. But again, even under the Model Penal Code, I could refuse to beg without losing my right to use lethal self-defense. Likewise if someone tells me “Renounce your apostasy or I’ll kill you” or “reveal this-and-such secret to me or I’ll kill you.”

This, I think, highlights the point I noted in my earlier post on the duty to retreat: Even under a formulation such as the MPC’s, one doesn’t lose the right to lethal self-defense just because one could avoid the need for lethal self-defense with complete safety. Rather, one loses this right only when one could avoid the need for lethal self-defense with complete safety and without undue sacrifice of one’s liberty.

Even the MPC doesn’t require one to give up one’s liberty not to hand over the wallet, or one’s liberty not to beg, as a condition of lethal self-defense. The MPC duty to retreat is thus not just an application of the “use deadly force only when necessary” requirement. Rather, it embodies a judgment that requiring someone to leave a place where he has the right to be is not an undue sacrifice of one’s liberty — even though requiring someone to comply with a demand for money, or a demand that he beg for his life or renounce his apostasy, is an undue sacrifice of liberty.

3. This is made even clearer if we look more broadly at the MPC provision, which reads:

(b) The use of deadly force is not justifiable ... unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if ...

(ii) the actor knows that he can avoid the necessity of using such force with complete safety
[1] by retreating or
[2] by surrendering possession of a thing to a person asserting a claim of right thereto or
[3] by complying with a demand that he abstain from any action that he has no duty to take, except that:
(A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be ....

(c) Except as required [above], a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act that he has no legal duty to do or abstaining from any lawful action.

This provision makes clear that people need not comply with a demand that they beg or hand over their wallets, even if doing so would “avoid the necessity of using [deadly] force.” They may have to comply with a demand to turn over property under a claim of right (i.e., if there’s a good-faith dispute about whose property it is). They may have to comply with a demand to abstain from an action. But they don’t have to comply with a demand to turn over property without a claim of right (“give me your wallet”), or a demand to engage in an action (“beg for your life”). Nor do they have to comply with a demand that they leave their homes or their workplaces.

Again, this is a judgment, I think, about acceptable restraints on liberty: The MPC’s view is that (as I argued above)

1. one loses the right to self-defense only when one could avoid the need for lethal self-defense with complete safety and without undue sacrifice of one’s liberty,
2. having to leave a place where one has a right to be, having to comply with a demand to abstain from action, and having to turn over property as to which there’s a good-faith dispute is an acceptable sacrifice of liberty, and
3. having to leave one’s home or workplace, having to comply with a demand to engage in action, and having to turn over property as to which there’s no good-faith dispute is not an acceptable sacrifice of liberty.

4. One may well disagree with the MPC about what counts as undue sacrifice of one’s liberty and what counts as an acceptable sacrifice. One may conclude that the law shouldn’t demand any sacrifice of liberty on the defender’s part when someone is threatening the defender with death, serious bodily injury, and the like — one would therefore reject the duty to retreat and the other duties the MPC identifies.

But the one thing that should be clear is numbered item (1) above: Even the MPC concludes that one loses the right to self-defense only when one could avoid the need for lethal self-defense with complete safety and without undue sacrifice of one’s liberty. And the common-law rule in the duty-to-retreat states embodies this view as well. The duty to retreat is thus not just an application of the “necessity” requirement; it’s a judgment, whether right or wrong, that a particular sacrifice of liberty — though not other sacrifices of liberty — on the defender’s part is acceptable in order to prevent bloodshed.

Incidentally, note that a half dozen or so states have adopted the MPC rule that I quote above, but I haven’t found even a single case that applies the provision that a defender can’t use lethal self-defense if he “knows that he can avoid the necessity of using such force with complete safety ... by complying with a demand that he abstain from any action.” I’ve looked hard, because I wanted to see how this provision plays out in practice, and yet I found nothing.

This suggests to me that prosecutors, judges, or juries likely don’t really buy this provision: Though the MPC, and the legislatures that adopted the MPC, seem to conclude that requiring a defender to comply with a demand to abstain from action is an acceptable limit on liberty, the legal system on the ground doesn’t seem to adopt this view. Please let me know if you know of any cases to the contrary.

I blogged a while ago about how the presence of a “duty to retreat” probably (though not certainly) wouldn’t have affected the outcome of any possible prosecution of George Zimmerman for killing Trayvon Martin. The issue in that case would likely be whether Zimmerman reasonably feared death or serious bodily injury or some similarly serious crime, a requirement that’s present in pretty much all states, whether or not they adhere to the “duty to retreat” doctrine (Florida and most other states don’t).

But I want to talk a bit more generally about the duty to retreat, both in this post and (I hope) in a future post. Recall that this isn’t a true duty, such as the duty to testify when subpoenaed, but rather a rule that

1. even if D reasonably believes that he is facing an imminent threat of death, serious bodily injury, rape, kidnapping, or, in many states robbery and some other crimes from V,
2. so long as D can escape this threat with complete safety
3. by leaving the altercation
4. except when D is in his own home (or, in some states, in his workplace),
5. D does not have the right to engage in lethal self-defense because such lethal self-defense is no longer necessary given the availability of a safe retreat.

And the question raised by the duty to retreat is this: Should D have to surrender his liberty to be in a place where he has every right to be — e.g., a street, a bar, a party at a friend’s house — in order to retain his right to lethal self-defense? The answer might well be “yes.” Perhaps some surrender of this liberty is indeed proper in order to minimize the risk of a shootout, which could lead to death or injury to D, to V, to innocent bystanders, or to others who may be caught in some escalating cycle of retaliation (as in inter-family feuds or gang wars). But we have to recognize that there is a surrender of liberty involved.

Under a duty to retreat, D must leave V’s presence, or else if he stays he will be subject to V’s potentially deadly attack (or at least seriously injurious attack) without any legal right to use potentially deadly force in self-defense. The law thus ends up supporting V’s thuggery, not with the specific purpose of doing so but with that effect: If V credibly tells D “go away or I’ll kill you,” D must flee (if he can do so with safety, which usually means that he’s fleeing a knife or an unarmed attack rather than a gun). Even if V just says “I’ll kill you,” D must flee; that might not play as much into V’s hands (if V’s goal is really to kill D and not just chase him away), but it will still help V exercise unresisted power over D.

In any case, that’s the theory. Here is a real case in which this issue came up, in one of the substantial minority of states in which a duty to retreat exists. Such relatively recent, simple, and factually well-described cases are pretty rare, and this is the first such one that my quickie query revealed, the Massachusetts Supreme Judicial Court decision in Commonwealth v. Benoit, 452 Mass. 212 (2008) (some paragraph breaks added):

By the time the trial began in January, 2007, there was no dispute between the Commonwealth and the defendant that the victim had died as a result of stab wounds inflicted by the defendant with a knife during a fight between the two young men outside of the victim’s home in Pittsfield.... In particular, at the time of his arrest on May 30, 2005, some hours after the fight with and resulting death of the victim, the defendant gave a statement to the police in which he said that immediately before the actual physical confrontation between him and the victim began, the victim “was on his porch saying that, ‘I’m going to stab you nigger, this and that.’” The Commonwealth was intending to introduce the defendant’s statement in evidence at trial.

In addition, the Commonwealth had given notice that it would seek to introduce evidence of an earlier statement of the defendant to his brother, describing an encounter between the victim and the defendant approximately one year before the confrontation leading to the victim’s death. The defendant had stated to his brother that in that earlier encounter, the victim, accompanied by one friend who was white, had called the defendant, who was with three friends who were black, names, like “nigger this, nigger that,” causing a fight to erupt, and in that fight the victim ultimately “got the best of” the defendant and his friends....

The defendant claims that he was entitled to an instruction on self-defense and that the judge erroneously refused to instruct the jury on this theory. When deadly force is used, such as in this case, the deadly force standard is applied. “In order to create a right to defend oneself with a dangerous weapon likely to cause serious injury or death, it must appear that the person using the weapon had a reasonable apprehension of great bodily harm and a reasonable belief that no other means would suffice to prevent such harm.” Moreover, the privilege to use self-defense arises only in circumstances in which the defendant uses all proper means to avoid physical combat.

A self-defense instruction is not required unless there is some evidence that the defendant availed himself of all means, proper and reasonable in the circumstances, of retreating from the conflict before resorting to the use of deadly force. “This rule does not impose an absolute duty to retreat regardless of personal safety considerations; an individual need not place himself in danger nor use every means of escape short of death before resorting to self-defense.... He must, however, use every reasonable avenue of escape available to him.” Although we resolve all reasonable inferences in favor of the defendant, as we must [when determining whether an instruction should have been given -EV], there was no such evidence in this case.

The defendant did not testify; thus we examine his statements to the police (which were in evidence) and any other evidence relevant to the feasibility of escape. In the defendant’s statement to the police, he said that, as he was about ten feet from the victim on the porch, the victim yelled, “I’m going to stab you niggers,” and that the victim jumped or “skipped” off the porch and “came at” the defendant and the defendant’s friend, Brandon Johnson. The defendant “figured that [the victim] had a knife, too, because he was going to stab us.” At that point, the defendant and Johnson talked about what to do, and Johnson gave the defendant a knife.

Viewing this evidence in the light most favorable to the defendant, after the victim’s threat to stab him, the defendant had the opportunity to go over to Johnson, get the knife, and then engage in combat with the victim. Whether Johnson was ten feet away from the victim, or somewhat closer, all these events transpired outdoors in front of the victim’s house and apparently in the vicinity of a public street. Nothing indicated that his escape was impeded in any way. Because there was no evidence of an attempt to avoid further physical combat or of the defendant’s inability to retreat, no self-defense instruction was required....

Again, the question was: Did the victim’s “I’m going to stab you niggers” require defendant to give up the right to be where he was, or else be legally stripped of the right to defend himself with deadly force if he stayed? (I infer that he was on a sidewalk or a place that’s similarly open to the public, and not on the threatener’s property, or else the court would have noted that. [UPDATE: I should have said, to be precise, that I infer that the evidence seen in the light most favorable to the defendant was that the defendant was in a place open to the public, since that's the test for when such an instruction is given; that way, the jury gets to apply the instructions to the facts as it ultimately concludes they were. And in any event, the court's decision is precedent for other situations in which a defendant is in a place open to the public.] Or should the defendant be free to remain where he was, while retaining the right to defend himself with deadly force, even when that meant a much higher chance of a deadly encounter? The Massachusetts court said the former. Most states say the latter. Which is right, in this case and in others?

By the way, here’s what ultimately happened to the defendant: The conviction was overturned on the grounds that the trial judge didn’t adequately investigate the possibility that a juror was removed because she was black. On remand, the defendant pled guilty to manslaughter before the retrial — presumably in part because the Massachusetts Supreme Judicial Court had concluded that he wasn’t entitled to a self-defense defense — and was sentenced to 18 to 20 years in prison. The defendant was 17 at the time of the incident; the man he killed, Anthony Hopkins, was 18.

Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws actually say. Continue reading ‘Florida’s Self-Defense Laws’ »

To arrest someone for a crime, the police need probable cause to believe that he committed the crime. But what if it’s clear that the person committed the act (e.g., intentionally killed someone), but it seems likely that he has a good affirmative defense (e.g., self-defense)? My view is that probable cause should be probable cause to believe that the conduct was indeed criminal, and if the self-defense case is strong enough, that negates probable cause to believe that a crime (as opposed to a justifiable homicide) was committed. But when I looked into this several years ago, I saw that the few courts that had discussed the matter were split.

Florida law, though, clearly resolves this: “A law enforcement agency ... may not arrest [a] person for using force [in a self-defense situation] unless it determines that there is probable cause that the force that was used was unlawful.”

So in Florida, the police must have probable cause to believe that the defendant wasn’t acting in lawful self-defense in order to arrest the defendant. It’s not enough to say, “we have probable cause to believe that you killed the victim, so we’ll arrest you and then sort out later how strong your self-defense case is.”

I can’t speak with confidence to whether in the Martin/Zimmerman case the police indeed have such probable cause (which, as you may recall, is a not very clearly defined standard that is well below proof beyond a reasonable doubt, and probably somewhat below preponderance of the evidence).

The tragic death of Trayvon Martin has led to more discussion of self-defense and the “duty to retreat.” I wanted to offer a few thoughts about the broad issues.

1. The costs of the legal acceptance of lethal self-defense: To begin with, I think both self-defense enthusiasts and self-defense skeptics have to acknowledge that the law’s accepting lethal self-defense poses very serious risks, not just to criminal attackers but to the law-abiding. (When I say self-defense, by the way, I generally also include defense of others.) First, there is a risk of accidents, where a well-intentioned defender erroneously assumes he is being attacked.

Second, there is a risk of false claims of self-defense being used as a cover for murder. When D kills V in alleged self-defense, there is often only one witness left: D himself. He can say, “I heard V threaten to kill me, saw him reaching for his waistband, and was sure that he was going to shoot me”; and unless the jury concludes beyond a reasonable doubt that D — again, the only witness — is lying, D will be off the hook, even if D was well aware that V was no threat at all and just wanted to kill him. (This could happen either if D was planning to kill V all along, if D and V are involved a dispute and D kills V in a moment of anger, or if D and V are involved in a fight that doesn’t suffice to authorize deadly force, but D uses deadly force in any case.)

Third, there is a risk — especially with guns — of an innocent bystander being hit. And, fourth, there is a risk that even a justifiable killing will lead to a cycle of retaliation, including not just against the defender but also against others in the defender’s family or community, perhaps with innocent bystanders being accidentally killed as a result. Blood feuds, race riots, and gang wars often happen this way.

As I said, this is something that bears on the arguments of both self-defense enthusiasts and self-defense skeptics. The former group has to acknowledge that the legal acceptance of lethal self-defense is a mixed blessing, with real costs (and, again, not just to criminals). The latter group has to acknowledge that our legal system (and, to a large extent, most of the world’s legal systems) protects self-defense despite these costs. The costs of forbidding lethal self-defense, or cutting down on it in dramatic ways (e.g., accepting only the use of lethal force against an immediate threat of death, and not, for instance, of serious bodily injury or rape), are seen — in my view, rightly so, as exceeding the costs of accepting it.

2. What the legal system does about these costs: The question, then, is: Given our acceptance of lethal self-defense, what does the legal system do and what should it do in an attempt to minimize the costs? Let’s briefly discuss several approaches.

a. Bans on possession of deadly weapons: One possible solution is to ban the possession of various kinds of deadly weapons — whether for all people or for some, and whether just in public or both in public and at home. This is indeed the American approach with regard to felons and some other prohibited categories, and the approach of about 10 states as to guns in public places. (The remaining 40 or so states generally allow any law-abiding adult to carry a gun in public places; a few don’t requite a license, and the rest do require a license but give it to pretty much all law-abiding adults who apply.) I don’t want to rehearse the arguments on this in detail here, but they are in many respects similar to some of the cost and benefit arguments related to self-defense: The availability of a gun can make a mistaken killings more likely, or can increase the likelihood of situations where someone (who is otherwise law-abiding enough to comply with a gun carry ban, if such a ban was in place) kills in anger but then is able to cover it up with a false claim of self-defense. The unavailability of a gun can make it harder to resist those attacks that people should be able to resist. Again, this is familiar territory, which I leave to others.

b. Allowing convictions unless the defendant proves self-defense by a preponderance of the evidence: This appears to be the old common-law rule: While a murder defendant’s identity, intentional action, and the like have to be proven by the prosecution beyond a reasonable doubt, the affirmative defense of self-defense has to be proven by the defense by a preponderance of the evidence. If the jury thinks that, say, there’s a 40% chance that the defendant is telling the truth when he says he heard the victim threaten to kill, and reach for his waistband, then the defendant would be convicted of murder (or manslaughter, if that’s what he’s charged with).

This approach was upheld as constitutional in Martin v. Ohio (1987), but is now the law in only one state, Ohio. In all other states, once the defense introduces some evidence of self-defense, the prosecution must rebut that with proof beyond a reasonable doubt. If the jury thinks there’s a 40% chance that the defendant is telling the truth when he says he heard the victim threaten to kill, and reach for his waistband, then the defendant would be acquitted. The theory that “better that [say] 10 guilty men go free than one innocent man be convicted” extends to self-defense claims: “Better that 10 men who committed murder and lied about the need for self-defense go free than one man who killed in justifiable self-defense be convicted.” The worry about fake claims of self-defense has not been seen as serious enough to retain the old common-law/now just Ohio rule.

c. The duty to retreat: Another means of trying to preserve the right to self-defense while minimizing the costs of lethal self-defense has been the so-called “duty to retreat.” This is something of a misnomer — it’s not a true duty, such as the duty to testify when subpoenaed, but rather a rule that

1. even if D reasonably believes that he is facing an imminent threat of death, serious bodily injury, rape, kidnapping, or, in many states robbery and some other crimes from V,
2. so long as D can escape this threat with complete safety
3. by leaving the altercation
4. except when D is in his own home (or, in some states, in his workplace),
5. D does not have the right to engage in lethal self-defense because such lethal self-defense is no longer necessary given the availability of a safe retreat.

I hope to say more about the duty to retreat in a separate post, but for now let me observe a few things. First, most American states rejected the duty to retreat even before the recent flurry of new “Stand Your Ground” laws. That’s what the LaFave & Scott 1986 treatise reports, and I have no reason to doubt it. Now that many states like Florida have, in recent years, have rejected the duty to retreat, the “no need to retreat” rule appears to be the supermajority rule in the United States, though there is still a substantial minority of the states that adopt a duty to retreat.

Second, the duty to retreat has always been, at least in principle, a narrow doctrine. There is generally no duty to retreat from an assailant with a gun, since any retreat in such a situation would be quite likely to increase your risk of being shot as you’re retreating (compared to what the risk would be if you shoot first). A typical “duty to retreat” scenario would instead be when there’s a fistfight, and you fear serious bodily injury since even a fistfight can cause such injury, but you can easily leave (for instance, this is right outside your home, or a friend’s home, and you can go inside and close the door, or you’re in your car and can just drive away). The same may apply to someone who is at some distance from you, and is threatening to attack you with a knife (that is not likely to be thrown) or a stick, and you can get away without risk that the person will run up and indeed attack you.

Third, if the worry is that someone will lie about the alleged need for self-defense in an “only two people were there, and now one of them is dead” scenario, the duty to retreat doesn’t really do much about this worry: The killer’s lie could just as easily rebut the applicability of the duty to retreat, for instance if the killer claims that the victim seemed to be reaching for a gun.

Fourth, even when there are some witnesses, the question will often turn on what the facts were, and neither story would yield a different result in duty-to-retreat vs. no-duty-to-retreat states. I don’t want to speak in detail about the Martin/Zimmerman case, because the facts are so unclear. But if the dispute is between “Martin was trying to leave, and Zimmerman started shooting” and “Martin was on top of Zimmerman beating him, and Zimmerman reasonably feared serious bodily injury so he started shooting,” the duty to retreat would be irrelevant under either scenario. It would only be relevant if the facts show that (1) Zimmerman did reasonably fear death or serious bodily injury (or some other forcible felony) — since absent such a fear, lethal self-defense wouldn’t be allowed — but (2) the fear didn’t stem from a worry about Martin possibly pulling out a gun and shooting him (since in such a situation, one can’t retreat with complete safety), and (3) Zimmerman could have avoided the threat of death or serious bodily injury with complete safety by leaving. That’s possible, but there’s only a pretty narrow range of possible circumstances that fits all these criteria.

[UPDATE: I meant to include this paragraph, but neglected to in the first version.] Note that the duty to retreat is generally seen as arising only when the threat of death or serious bodily injury, and therefore the need to use deadly force in self-defense, arises. So even in duty-to-retreat states, a person does not lose his right to self-defense by simply doing something that’s potentially dangerous, such as approaching or following a potentially dangerous person, or going into a dangerous park. Instead, he loses his right to self-defense only if, once he sees the mortal peril, he is able to retreat with complete safety but doesn’t. See, e.g., Matter of Y.K. (N.Y. 1996). (He might also lose his right to self-defense on the different basis that he is the initial aggressor, but that’s a separate doctrine with separate requirements; I discuss it below.)

d. The aggressor exception: The duty to retreat, then, is a much less important factor in self-defense cases than many seem to assume, partly because it’s a minority rule and partly because it applies only a narrow set of cases. There is, however, another long-established means that the law has used to limit lethal self-defense: The principle that someone can’t use lethal self-defense (or, in some situations, any self-defense) if he was the aggressor in the first instance, at least unless he tries to withdraw from the fight first.

Sometimes, this principle can stem from the basic principle that self-defense can only be used against unlawful force. If someone tries to kill me, and I take out a gun and shoot him, he doesn’t then have a legal right to take out his gun and shoot me in supposed “self-defense.” My action would be legal because it was defense against unlawful force, but his wouldn’t be because it is defense against lawful force. (Note that this is something of an oversimplification. For instance, if you reasonably mistakenly believe that you need to inflict serious bodily injury to defend against me, or if you’re a small child or insane or acting under duress, you might not be acting unlawfully in your use of deadly force; but I can still defend myself against you. If you’re really interested in that, check out Model Penal Code § 3.11, which deals with this by defining “unlawful force” as nonconsensual force “the employment of which constitutes an offense or actionable tort or would constitute such offense or tort except for a defense (such as the absence of intent, negligence, or mental capacity; duress; youth; or diplomatic status) not amounting to a privilege to use the force.”

But the aggressor principle also has some independent scope as well. Here is the Florida version:

The [self-defense defense] is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

So in principle the duty to retreat does exist under Florida law for those people who have “[i]nitially provoke[d] the use of force.” (Recall that the duty to retreat arises only as to lethal self-defense, which is available only when the person reasonably believes he’s in imminent danger of death or great bodily harm, so that clause of (2)(a) does nothing there.) And it’s possible that, depending on the factual circumstances — and on how Florida courts interpret “initially provokes” — Zimmerman’s actions might have been a provocation. (Say, for instance, that Zimmerman started unjustifiably chasing Martin in a way that made Martin worry that he himself was going to be attacked, or started a fistfight with Martin, or perhaps even grossly insulted Martin.)

And this might possibly be a stronger duty to retreat than the norm; for instance, the question is whether the provoker “exhausted every reasonable means” to escape the danger, and not whether he could escape the danger with “complete safety.” On the other hand, courts might read “exhausted every reasonable means” as referring only to means that allow a retreat with “complete safety.” If that’s so, then, as I noted above, the duty to retreat would likely make a difference only in very narrow circumstances.

In any case, these are some thoughts that I had on the subject. I hope to blog a bit more about the “duty to retreat” soon, and perhaps on other matters, though I hope to stay away from debates about what actually happened in the Martin/Zimmerman situation, given how contradictory the various factual accounts are.

The case is People v. Richardson, decided by the Michigan Supreme Court Friday. The big dispute is not about the law, but about whether the instructions were clear enough; but many cases indeed turn on that very question. If you’re interested in self-defense cases as they are actually litigated — especially in situations where the facts are ambiguous (was the defendant reasonably afraid of imminent death or great bodily harm, or was the threat over and the defendant attacked just because he was angry or worried about harm at some future time?), where the jury might well have been confused, and where the instructions weren’t as clear as they could have been — you might check this out.

The brief supporting the petition for rehearing was filed in Barnes v. State, the decision Orin blogged about last month. The brief was also signed by 31 of the 100 Indiana House of Representatives members, but the overwhelming support in the Senate struck me as especially striking.

The brief argues that the Indiana self-defense statute, which allows the use of force “if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle,” is applicable whether the unlawful entrant is an ordinary citizen or a police officer. Neither the Barnes majority nor the dissent cited this statute, and my quick look through the briefs suggests that the parties didn’t mention it on appeal; I suspect that means they didn’t bring up at trial, either.

Friday, the Michigan Supreme Court handed down an interesting case — People v. Dupree on this. The case is not novel, and my sense is that the defense is generally recognized: Just as what would otherwise be the crime of murder, attempted murder, battery, and the like might be justified if done in defense against an imminent threat, so a felon’s taking possession of a gun is justified if done in defense against an imminent threat. (The defense does not apply to a felon’s arming himself against a possible threat of attack at some indefinite future time.) Still, the case struck me as an interesting illustration. Thanks to Jason C. Miller for the pointer.

From People v. Srnec (Mich. Ct. App. Jan. 26, 2010) (italics added):

Defendant next argues that the trial court erred in denying his motion for a new trial and to dismiss because the Second Amendment safeguarding the right to bear arms affords every citizen a right of self-defense against unlawful arrest or seizure. Defendant claims that MCL 750.81d unconstitutionally deprives every citizen of this right because it allows officers to seize the citizen, regardless of the lawfulness of the seizure, and then penalizes the citizen for resisting through the use of self-defense. We disagree.

Under the plain language of the Second Amendment of the United States Constitution and Const 1963 art 1 § 6, the right to keep and bear arms involves the right to use firearms in self-defense. See District of Columbia v Heller. Defendant claims he has a constitutional right to use firearms to resist an unlawful arrest or seizure. Defendant’s argument fails because the Second Amendment does not give any citizen a constitutional right to use deadly force to resist an unlawful arrest or seizure. The right to bear arms does not safeguard an individual’s right to self-defense short of deadly force. In People v Dillard, 115 Mich App 640, 645 (1982), this Court noted that “the [common law] right to resist an unlawful arrest can never include the right to use deadly force where the only danger perceived is loss of liberty.”

The right to use self-defense to resist unlawful arrest has only been afforded protection at the common law and is not a constitutional right.

Now the result might be right: I think it’s plausible to conclude that the right to keep and bear arms in self-defense presupposes a certain sort of right to self-defense (see PDF pp. 16-17 of this article), but how this plays out as to self-defense against unlawful arrest is a complicated question. (Even if you don’t think the right to keep and bear arms in self-defense provides any constitutional basis for a right to self-defense, 21 state constitutions expressly secure a right to defend life, liberty, and property, so the issue would still arise in those states.)

But can it really be the case that the right safeguards only the right to use deadly force, but not the right to use nonlethal force? Even if “arms” is read as being limited to firearms, firearms can be used in ways that are nearly certain to be nonlethal — if, for instance, one only brandishes them. Why would one interpret the constitutional provision as securing a right to deadly self-defense but not a right to nondeadly self-defense?

Note, though, that the defendant in this case used “arms” in a different sense than that used in “keep and bear arms”: His resisting arrest consisted of “continu[ing] to thrash and struggle and buck his arms out.”

You wouldn’t think that it would take a statute to do this. After all, if it’s OK to kill someone to defend against a threat of death or serious injury, the lesser harm of threatening to kill someone should be fine, too.

But last year the Kansas Supreme Court held that existing Kansas law only allowed a defense for actual use of force, which didn’t include threats; earlier this year, the Kansas Court of Appeals faithfully applied this principle. Fortunately, the Kansas Legislature (apparently prompted by the urging of gun rights advocates) passed a law that — among other things — makes clear that threats of force should qualify as justifiable self-defense, to the same extent that the actual use of force qualifies; and just yesterday, the governor signed the bill. Good work.

From the Chicago Daily Herald. Throwing a rock through a car window might not at first seem like much by way of self-defense, especially if the fear is that the car will run you over. But I take it that the court’s rationale — which seems sensible — must have been that showing signs of a willingness to retaliate might deter bullies, who might worry that the next rock will hit them directly, or might even just psychologically intimidate them:

A [17-year-old] girl who hurled a rock through a car window after its occupants repeatedly drove by yelling threats and homosexual slurs [at her 15-year-old] male companion] was found not guilty of a criminal damage to property charge Tuesday by a McHenry County judge who ruled she acted in self-defense....

“I believe she believed she was in danger of being hit by a car and her feeling was that (the harassment) wasn’t going to end,” [Judge Charles] Weech said while issuing his verdict....

Note this quote from the judge:

“Was there another way to handle it? You bet,” the judge added. “Two wrongs don’t make a right, and you made a wrong move by throwing the rock.”

The judge’s verdict — and self-defense law more broadly — does reflect that one wrong (the initial harassment, which is reasonably interpreted as threatening violence) may make the other wrong (throwing a brick) into a right.