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Illegal To Use Nonlethal Self-Defense If You Can Safely Retreat?

A substantial minority of American states allows people to use lethal force in self-defense (against a reasonably perceived threat of death, serious injury, rape, or some other serious crimes) only when the person can't avoid the danger by safely retreating. This requirement — which is sometimes called a "duty to retreat," but is really a limitation of the right to self-defense — generally doesn't apply when the defender is in his own home, and doesn't apply when retreat would be unsafe: For instance, a defender doesn't have to turn his back on an assailant with a gun in order to retreat.

But the theory is that when a safe retreat is possible, the use of lethal force is no longer necessary to avoid the threat, and therefore no longer justifiable. Better that the defender feel obligated to retreat than that even a guilty attacker get killed. Better that the defendant retreat than that there be a shootout which needlessly injures or kills bystanders, or leads to vendettas. And better that the "defender" retreat than kill someone in ostensible self-defense, but an ostensible self-defense that could be used as a cover for outright murder, for instance if the supposed defender really wasn't in danger, but made up the self-defense story (especially likely when the other witnesses to the confrontation are either the "defender"'s buddies or are dead).

The majority of American states disagrees, probably based on a combination of factors: that limiting self-defense this way interferes with defenders' liberty by denying them the right to stay where they have the right to be and at the same time defend themselves against illegal attack; that limiting self-defense this way interferes with defenders' dignity by forcing them to run away from danger; and that in practice it's so hard to determine when retreat is really safe that it's better not to second-guess defenders' judgment to stand their ground. In those states, lethal self-defense may be used against a reasonably perceived threat of death, serious bodily injury, rape, and some other serious crimes even when the defendant had the opportunity to safely retreat. My understanding is that some states have recently shifted to the no-duty-to-retreat camp.

But it turns out that in a few states, it's illegal to use even nonlethal self-defense if you can safely retreat. The treatises report that this is a very small minority view; even the Model Penal Code, which firmly endorses not just a duty to retreat but also a duty to give in to certain threats as a limit on lethal self-defense, rejects a duty to retreat before using nonlethal self-defense. Still, it appears that Iowa and possibly Minnesota (plus perhaps a few other states) take this view.

This means that if someone threatens you in a public place — even with just a fistfight — you are not entitled to defend yourself, again even only with your fists, if you are able to retreat safely. Your legal right to stay where you want to stay can thus practically be constrained by any bully who threatens you with a fight, even if you think you could physically defend yourself. Someone doesn't like your being with a date of a different race (or of the same sex) and threatens to beat you up if you don't leave a bar (or a street corner)? You have to leave, or if you stay and he starts beating you you would be guilty of assault if you defend yourself. Someone is just a bully who wants to have the fun of making you do what he asks (which is to get away from him)? Same situation.

A case in point, from an Iowa court [UPDATE: link fixed]: Michael Mette, an off-duty Chicago police officer, was sentenced to 5 years in prison in Iowa for punching Jake Gothard in the face, which led Gothard to fall, hit his head, and be seriously (though apparently not permanently) injured.

Gothard had a blood alcohol level of .270 when he got to the hospital. The judge agreed that Gothard and a friend of his were going after Mette and five of his friends, outside of Mette's house. The judge agreed that "It was reasonable under the circumstances to believe that harm might come to [Mette or his friends]." Mette and his friends were not the aggressors. (They may have behaved badly in one respect, which is by taking Gothard's cell phone out of his hand and leaving it in Jake's mailbox, but the judge didn't seem to conclude that this was what made Mette's later actions unjustified.) The evidence the judge related seemed to say, without contradiction, that Mette had hit Gothard only once, and that Gothard had just "pushed [Mette] at least two times, maybe three."

Yet the judge convicted Mette (who had opted for a trial without a jury) simply because "the defendant failed ... to retreat ... or walk away and call the police about the disturbance. Because of his failure to take these steps, the court cannot find that the self-defense justification is available to permit the striking of [Gothard]."

That seems to me wrong: Mette should not have been under a legal obligation to either (1) leave the street where he had every right to be, or (2) surrender the right to self-defense if he didn't leave the street. Perhaps the result should be different when one is using lethal force, though I'm not sure; and I realize that even seemingly nonlethal punches can end up being lethal (or can end up escalating a fight into something more lethal). But on balance, it seems right that the duty to retreat has been almost everywhere rejected as to nonlethal force: It in effects allows bullies far too much legal authority to constrain people's freedom.

Still, State v. Washington, 160 N.W.2d 337 (Iowa 1968), which seems to still represent Iowa law, does indeed put Mette in precisely that position. See also State v. Baker, 160 N.W.2d 240 (Minn. 1968). Mette is apparently appealing; let's hope Iowa courts will revise or limit the duty to retreat on appeal.

Thanks to Sean O'Brien for the pointer; thanks also to this Chicago Tribune opinion column by John Kass for providing an account of the situation, though I recommend that people who are interested in the facts of the case read the judge's opinion.

UPDATE: Thanks to commenter ak47pundit for pointing me to a recent Michigan law that generally abolished the duty to retreat, including the duty to retreat before using nonlethal force; I had originally mentioned Michigan as a state in which such a duty might exist, but have since removed that reference.

scote (mail):

Your legal right to stay where you want to stay can thus practically be constrained by any bully who threatens you with a fight, even if you think you could physically defend yourself. Someone doesn't like your being with a date of a different race (or of the same sex) and threatens to beat you up if you don't leave a bar (or a street corner)? You have to leave, or if you stay and he starts beating you you would be guilty of assault if you defend yourself. Someone is just a bully who wants to have the fun of making you do what he asks (which is to get away from him)? Same situation.

This seems vaguely related to the Vehicle Code in California, which requires drivers to pull over to let tailgaters pass even if the driver is going at the full speed limit. In this case while it seems that the driver legally driving the maximum speed shouldn't have to move over to let a lawbreaker have his way, the law does not see it that way. In any case, not getting out of the way of fast lane speeders can result in dangerous Road Rage, so the law probably prevents violence even if it makes drivers "retreat" when the should be in their rights to "stand their ground."
7.16.2007 4:45pm
Richard Aubrey (mail):
Are we required to believe we're faster than our assailants? If somebody wants to chase me and catches me, is it my fault? I'm doing the best I can. But I'm sixty-two.
Problem is, my age hit my legs first. Other capacities, paid for in part by the tax dollars of the parents and grandparents of some readers, and my sweat, have not aged as quickly.
If I get caught?

This is a stupid law. And I live in Michigan.

And if I'm hit first, my ability to retreat may be compromised anyway. Back on my heels, head spinning, bad knee aching. Now what?
7.16.2007 4:48pm
Bill Poser (mail) (www):
Based on my experience, the California law requiring people to let tailgaters pass is a good one. It not only reduces road rage, but it reduces attempts at passing in unsafe conditions. It also has some restrictions that weren't mentioned. I no longer have my copy so I'm working from memory, but as I recall you are only required to pull over if it is safe to do so and only if five or more vehicles are packed closely behind you, meaning that there is somewhat of a consensus that road conditions allow for a higher speed (even if not for you or your vehicle). It doesn't apply to the case where a lone nutcase zooms up behind you and sits on your bumper, though of course you may be well advised to pull over then too.
7.16.2007 5:08pm
JohnThompson (mail):
scote:

I'm not sure that one's right to self-defense and one's right to impede traffic and generally be a jerk are on quite the same level.
7.16.2007 5:11pm
karrde (mail) (www):
Michigan's law recently transitioned to a "Stand Your Ground" model of self-defense. The law was passed in June of 2006, and strengthens the right of state residents to use deadly force in self-defense.

I would be mildly surprised if law and policy are sill unclear on the use of non-lethal force in self-defense in Michigan...
7.16.2007 5:16pm
Pub Editor:

the judge convicted Mette (who had opted for a trial without a jury)

It may be that opting for a bench trial was a mistake. I realize that a defense lawyer can't openly argue for jury nullification, but I wonder if a jury would have been more sympathetic to Officer Mette than this judge. At least, Prof. Volokh's post, reworked into a closing argument, probably would have hung one or two jurors. (As always, a jury trial would have called for great care by the defense attorney in voir dire, with attention to jurors who might be sympathetic to the right to self-defense. How would you screen or look for that trait?)

Like I said, it may be that opting for a bench trial was a mistake, but I don't have all of the facts and don't have time to read the opinion.

If Mette wins a retrial on appeal, can he opt for a jury trial on his second go-round?
7.16.2007 5:19pm
paul lukasiak (mail):
I looked for the judges opinion to get a better idea of the facts in this case, but the link doesn't work.

There are a number of facts you cite, however, that suggest that the judge was correct in this case....

1) Gothard was drunk

2) Gothard an his friend were outnumbered 2-6

I think there is a distinction that you are glossing over... the difference between "retreating" and "standing your ground." Mettes could have "stood his ground" without escalating the violence --- he chose to escalate after being pushed. With five guys backing him up against a drunk, the common sense thing to do would have been to stand his ground, and send someone to call the cops. (Did Mettes and his buddies take Gothard's cell phone before or after Gothard pushed Mettes? WHo was Gothard trying to call? Why didn't Mettes use the cell phone to dial 9-11?)

"self defense" should mean just that --- "defense against an actual or imminent attack." It should not mean that if someone is acting like an idiot, that you have the right to hit them.
7.16.2007 5:20pm
Clerking in the Sun:
In Florida, we think the "duty to retreat" is for wimps:

Florida Statute section 776.013
1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
7.16.2007 5:22pm
Bill Poser (mail) (www):
Scote,


I'm not sure that one's right to self-defense and one's right to impede traffic and generally be a jerk are on quite the same level.


I agree. One big difference between self defense and driving relatively slowly ("impeding traffic" is really unfair - sometimes there is a good reason for driving below normal speed, and sometimes the tailgater is nuts) is that if those behind you want to pass and you let them, that will end the matter. On the other hand, if you are threatened and retreat, that may well not end the matter. The enemy may follow you or come after you again. In some circumstances, whatever the law may be, the only prudent action is to stand your ground and disable the enemy, or even retreat temporarily and attack him before he comes after you again.
7.16.2007 5:23pm
jimbino (mail):
Refusing to pull right while driving at the speed limit in the fast lane to let some speeder pass is totally sensible. Changing lanes is one of the most dangerous maneuvers in highway driving, and it makes no sense to require the driver observing the law to put himself and his passengers at risk for the sake of the lawbreaker.

Furthermore, it often occurs that the lawbreaker tailgates the sane driver who is passing a slow truck, for example. If I were in a situation like that, even in CA, I would be sure to slow down to crawl along with the truck, denying the lawbreaker any chance to pass whatsoever until I had the opportunity to pull over BEHIND the truck. My slowing down is rational self defense, of course, since it is crazy to drive fast with someone tailgating you!
7.16.2007 5:24pm
ras (mail):
Driving is a licensed activity, not a right. The comparisons are inapt.
7.16.2007 5:28pm
ak47pundit (www):
Karrde is correct that Michigan's law has changed. The change does include the right to not have to retreat whether responding with deadly force or non-deadly force (as long as you are not committing any crime at the time when you act in self defense):

MCL 780.972
Use of deadly force by individual not engaged in commission of crime; conditions.

(1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:

(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.

(b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.

(2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.
7.16.2007 5:29pm
Constitutional Crisis (mail):
I'm pretty sure George Carlin addressed this issue...
7.16.2007 5:45pm
Clayton E. Cramer (mail) (www):

Mettes could have "stood his ground" without escalating the violence --- he chose to escalate after being pushed. With five guys backing him up against a drunk, the common sense thing to do would have been to stand his ground, and send someone to call the cops.
At least according to John Kass' description, it was five relatively normal sized guys against two very large guys--one of them 6'8". (The link to the judge's decision is broken.) I don't think you have any idea what a difference it makes when someone you are fighting has almost a foot of height (and therefore longer reach) and 60 pounds on you.
7.16.2007 5:55pm
Philistine (mail):
Here is a link to the Court's opinion.

In a nutshell, Out-of-state, off-duty copy, his brother and 4 friends go to a party at 3 a.m., nobody's there but two guys, they start to leave and are told they have to pay $5 for beer. They say no, guy at the party starts verbally abusing them and says he's going to call the cops, one of them (not the defendant) snatches the cellphone from the victim's hand (and hides it in a mailbox). The 6 leave, and go to the defendant's brother's house, which is nearby.

The 2 from the party come out, 1 of them confronts a couple of the others, the victim confronts the defendant, pushes him a couple of times, and the defendant punches him.

Of note (though not really all that relevant)--the defendant initially lied to the police about what happened, denying punching him, and saying he fell (and there is some dispute about when he told officers that he was pushed).

My question--what's the deal with a 5 year sentence?

The two guys from the party
7.16.2007 6:13pm
John Kunze:
As a grand juror in Manhattan 10 years ago I found that NY has a duty to retreat. The case involved two carloads of people from NJ, who started insulting each other coming over the GW bridge. They ended up in a vacant lot and "A" from one car taunted "B" from the other and showed a knife. B then showed a knife, they approached, and on the first swing B killed A.

We were told A was more aggressive in the lead-up to the fight, but were told by the prosecutor that B had a duty to retreat. We indicted B for manslaughter.

I am not uncomfortable with this, although you can't argue that this law flows easily from libertarian principles. It promotes civil order and protects idiots from themselves in a small set of extreme cases.

But I would not want to slide down the slippery slope and prohibit all voluntary combat. I would vote against the duty to retreat if it were used to prevent organized boxing matches or football.

And the application of the duty should allow large scope for judgement by the individual who is under attack. If he thinks he cannot safely retreat, judge and jury should give him the benefit of the doubt.

(By the way, A and B were young women.)
7.16.2007 6:16pm
Cato:
I think it was Lincoln who once said that the best way to change a bad law is to enforce it strictly.
7.16.2007 6:16pm
JB:
Were I on a jury, I would be unable to second-guess the defendant as to whether retreat was in fact open.

I question whether anyone would be, in fact.
7.16.2007 6:22pm
PatHMV (mail) (www):
Yes, it's important to realize that the defendant and his friends had already left the "victim's" residence and were walking home, when the "victim" and his buddy came after them and started pushing the defendant and acting aggressively. In doing so, they were pursuing an encounter which had begun in the "victim's" house to begin with. The defendant had already retreated once. The judge says they could have just gotten in the car or gone inside the house, but how can it be proven, beyond a reasonable doubt, that that would have ended the matter, that the "victim" would have allowed that to happen?

There was a verbal and mildly physical altercation in the house. The defendants retreated by leaving the house and heading for home. The "victim" followed the defendant, chased after him. Why would any reasonable person in the defendant's shoes believe that further retreat would be any more successful than the prior retreat?
7.16.2007 6:24pm
bigchris1313 (mail):

Driving is a licensed activity, not a right. The comparisons are inapt.


Driving on public roads is a licensed activity. Driving on your own private property is A-OK sans license.
7.16.2007 6:26pm
Federal Dog:
MA has a duty to exhaust all reasonable avenues of retreat before resorting to non-lethal force in self-defense. I am handling an appeal now in which that is a live issue.
7.16.2007 6:26pm
Frater Plotter:
I got in an argument about the tailgating matter recently.

I take "tailgating" to mean following another car so closely that you cannot expect to stop in time to avoid an accident, if that car stops or slows down quickly. Thus defined, deliberate tailgating is a threat to the driver in front: "Speed up, get out of my way, or else I will continue to put your life (and your property) at unjustifiable risk."

It isn't quite "Get out of here or I'll cut you." But it's not far from "I'm going to throw knives around at random. Get out of here if you don't want to get cut."

It seems to me that for individuals to give in to such threatening behavior is not a very good idea for society, because it means that (most of the time, anyway) the threateners will get what they want, and thus be encouraged to keep getting their way by making threats.
7.16.2007 6:28pm
scote (mail):

(link)
ras (mail):
Driving is a licensed activity, not a right. The comparisons are inapt.

Well, first off, I used the phrase "vaguely related" not "completely analogous." However, there are a number of related issues. One is that the non-lawbreaker is required to take pro-active steps to allow the lawbreaker to go by, presumably because it is in society's interest to discourage a road rage fight when one could be avoided by giving in. This is in spite of the fact that aggressive driving, like speeding and tailgating, can lead to deadly accidents.

Next, your notation that driving is a licensed activity neglects that that is true for the tailgater as well. Since both drivers are licensed under the same standards then they are on equal footing and the fact that driving is "licensed" is irrelevant.
7.16.2007 6:38pm
martinned (mail) (www):
L.S.,

Again with the screwed up perspective. Even criminals' lives have value, so it would be nice if we can establish some laws that result in as few people getting killed as possible.

And, incidentally, giving an example of where retreat is not possible or viable is not an argument against my position. (cf. Richard Aubrey comment, 2nd from the top.)
7.16.2007 6:39pm
Bill Poser (mail) (www):
Frater Plotter,

I suspect that the California law was intended to deal with the case in which the lead driver is driving unusually slowly and holding up people who want to go at normal speed. In that situation, requiring the lead driver to pull over from time to time and let the others by is reasonable. In such situations I find that people often do tailgate in the sense of driving too closely to the vehicle ahead. The crazy, aggressive tailgater, on the other hand, indeed should not be encouraged, but my concern about letting them by is that they may do something even stupider, such as passing unsafely.

Years ago, I was driving on a narrow country road, on a curve, going up hill, right at if not slightly above the speed limit. Some nut came zooming up behind me, slammed on his brakes so as to pull up about six inches behind me, hung there for ten seconds or so, then pulled out and passed illegally. That stretch of the road was double-lined for good reason - you couldn't see what was coming any distance ahead because of the curve and the hill. Luckily, nobody was coming. I got the idiot's license number as he went by and reported the incident to the sheriff.
7.16.2007 6:40pm
Owen Hutchins (mail):

The evidence the judge related seemed to say, without contradiction, that Mette had hit Gothard only once, and that Gothard had earlier "pushed [Mette] at least two times, maybe three."



If Gothard pushed him earlier, I'm not sure "self-defense" covers punching him later. Mette's and his friends' actions also seem to have escalated the encounter.
7.16.2007 6:41pm
happylee:
Having participated in and watched a few drunken fights, it amazes me that some guy in a black robe can sentence one fighter for injuring another. Then again, it was a drunk Chicago cop. (Personal sidenoe: Don't mess with drunk off-duty Chicago cops! It appears this fellow actually held back a lot; back home in the windy city the outcome would've been, er, more definite.) I guess in Iowa bullies are special. I know that bullies are a special, protected species in NY and IL public schools. Perhaps Iowa wants to lead the country in expanding protections for bullies. I am sure the UN will one day draft some treaty making bully protection and adoration a legal obligation the world over. Cue touchy feely song...
7.16.2007 6:49pm
happylee:
Whoa, I missed this on the first go-around. The judge is a woman! That explains a lot. How many women have practical experience in street fighting? Not many. I do believe that this might have a been a good case for a jury of "peers."
7.16.2007 7:10pm
Eugene Volokh (www):
Owen Hutchins: Sorry for the confusion; as I read the opinion, the evidence suggested that Hutchins had just pushed Mette, and I've revised the post accordingly. But please feel free to read the opinion for yourself and comment on the facts as recited there, if you'd like.
7.16.2007 7:12pm
paul lukasiak (mail):
"Yes, it's important to realize that the defendant and his friends had already left the "victim's" residence and were walking home, when the "victim" and his buddy came after them and started pushing the defendant and acting aggressively."

to me, the most salient fact is that a cell phone was stolen during an effort to call the police prior to the alternation. The reason why Nick and Jake came running after the six was the stolen cellphone -- and when they demanded the cellphone back, they were laughed at.

I have a hard time with a "self defense" defense given the theft of the cell phone. That was a "provocative" act which resulted in retaliation (pushing) and then escalation (the punch).
7.16.2007 7:12pm
Deoxy (mail):
Even criminals' lives have value, so it would be nice if we can establish some laws that result in as few people getting killed as possible.

Yes, every lif has value. Unfortunatly, some of those values are negative. :-/

But that's really beside the point. The point is that the aggressor makes the decision that something is worth risking life and limb for, not the defender.

Don't want me to shoot you? Don't break into my house or threaten me or my family. The choice is yours; I can't choose to defend myself from someone who is not attacking me.

So don't attack me.
7.16.2007 7:15pm
theobromophile (www):
Good points re: giving bullies a legal right by eliminating the ability to fight them.

Not to go all feminist on y'all, but consider that this applies to women who are being harassed or stalked. Under the duty to retreat laws, if you drive up to your house and find your psycho ex-boyfriend standing on your front porch, you would be legally prohibited from trying to get into your own freakin house.

(As always, a jury trial would have called for great care by the defense attorney in voir dire, with attention to jurors who might be sympathetic to the right to self-defense. How would you screen or look for that trait?)

Gun owners? Kick-boxers? Redheads? Fire signs (voir dire includes birth dates,right)?
7.16.2007 7:20pm
American Psikhushka (mail) (www):
Correct me if I'm wrong, but most states still have the imminence requirement, don't they? That takes care of a lot of false self-defense claims.

No imminence = No self-defense
7.16.2007 7:22pm
happylee:
There goes another hour of my life... I googled this Judge Monica Ackley and discovered that she graduated law school in 1990, worked as a law clerk and then was in "private practice" for a few years before becoming a magistrate in 1997 and then judge in 2003.
In other words, she had close to zero experience before stepping up to the bench. Give me some old guy with scars and missing teeth over some young woman with good skin and teeth any day. Well, at least for this kind of case.
7.16.2007 7:25pm
happylee:
My ranting notwithstanding, I think the post by paul lukasiak above makes sense. I forgot the cell phone -- but why use that fact in the trial of Mette? Unless he took the phone and planted in the mail box, why is that relevant, except to show the judge was looking to punish the drunken stupidity of the group by adjudging guilty one member of the group who performed the last act in a series of actions?
7.16.2007 7:33pm
American Psikhushka (mail) (www):
Deoxy-

Yes, every lif has value. Unfortunatly, some of those values are negative. :-/

Let me guess - you're the one that decides that value? Should we call you god, chairman, or fuhrer?

Don't want me to shoot you? Don't break into my house or threaten me or my family. The choice is yours; I can't choose to defend myself from someone who is not attacking me.

It's not "or" above. You don't get to "choose" to do anything to anyone that isn't directly assaulting you or breaking into your house, that's what "imminent" means.

And of course any claim of "threats" fall away if you have been found to be participating in an organized effort to harass, stalk, menace, and threaten the person you allege is making the "threats".
7.16.2007 7:46pm
PDXLawyer (mail):
Right result but probably wrongly reasoned.

1. The defendant acted in "self defense" in the immediate aftermath of commission of a crime (conspiracy in theft of the cell phone) against a crime victim in hot pursuit. If his party had either not stolen the cell phone, or given it back, or told the "agressor" where they had put it, they would have been on better ground.

2. The defendant apparently escalated the violence and used unnecessary force. Obviously this is a factual issue, and the judge did not so expressly find, but it would not have been an unreasonable ultimate finding for the judge to have reached based on these facts.

I agree that the "duty to retreat" is probably not a useful legal concept. This looks to me more like a case of mutual combat, though.
7.16.2007 7:51pm
American Psikhushka (mail) (www):
My ranting notwithstanding, I think the post by paul lukasiak above makes sense. I forgot the cell phone -- but why use that fact in the trial of Mette? Unless he took the phone and planted in the mail box, why is that relevant, except to show the judge was looking to punish the drunken stupidity of the group by adjudging guilty one member of the group who performed the last act in a series of actions?

Because it negates the defendant's initial retreat out of the house. Taking the cell phone and not returning it immediately escalated the situation. The complainant or what have you had a right to pursue the defendant and confront him about the stolen property.
7.16.2007 7:52pm
Anonymous Chicken:
The problem is that he didn't avoid confrontation. As far as I understand Iowa law, the public policy is aimed at rewarding those who seek to avoid confrontation by seeking and using an alternative course of action (running away, not escalating the force). He could of pushed back, that would of been reasonable, but a punch wasn't a reasonable response to a push, or even several pushes. Running away or going into his friends apartment would of been the reasonable and prudent thing to do. Instead he decided to escalate the force. By failing to retreat he provoked a confrontation -- which a reasonable person in that situation should of known was likely to occur.
7.16.2007 7:57pm
Spartacus (www):
I chime in once mroe just to remind that Texas allows deadly force in defense (even) of property, if the actor reasonably believes it is the only way to retrieve the property. Thus, you probably cannot use deadly force if someone is stealing your (parked) car, because you can probably get it back, but if someone is stealing your hubcaps (which you will probably never get back), deadly force may be ok. While this example is extreme, fact is Texas really believes people who are getting robbed or otherwise ripped off have the right to get their stuff back. As for a duty to retreat before using deadly force in self (or third person) defense, we just passed a law making sure you don't have to do that anywhere you have a right to be, not just at home.
7.16.2007 8:01pm
Dave N (mail):
I agree with Paul Lukasiak, too. The victim and the victim's roommate didn't pursue the other group because they wanted to rumble, but because they wanted their cellphone back.

Had the cellphone not been taken by someone in Mette's group in the first instance (and any of the six could have told Nick Boyd and Jake Gathard where the cellphone was and de-escalated the confrontation), this tragedy would not have happened.

I agree that everyone was probably intoxicated. I agree that there should not be duty to retreat for self-defense to be a viable defense. I disagree that Mette and his friends were innocents being bullied Boyd and Gathard.
7.16.2007 8:06pm
Dave N (mail):
Oh I also agree that five years seems like too long of a sentence--though I do not know the sentencing range under Iowa law. If anyone from Iowa does, that might put the five-year sentence in perspective.
7.16.2007 8:11pm
Elliot123 (mail):
"With five guys backing him up against a drunk, the common sense thing to do would have been to stand his ground, and send someone to call the cops."

It would appear that in Iowa the law says one guy can force five, ten, or twenty to retreat. What good does having a back-up of five guys do?
7.16.2007 8:20pm
Brooks Lyman (mail):
Federal Dog: MA has a duty to exhaust all reasonable avenues of retreat before resorting to non-lethal force in self-defense. I am handling an appeal now in which that is a live issue.


I thought that the requirement to retreat (at least in one's home or place of business) was scrapped (in a hurry!) by the MA legislature back in the '70s after the Supreme Judicial Court declared that a person faced with home invasion, etc. had a duty to retreat (and leave the pickings to the burglar, presumably...). Or does this only apply to home or place of business, but not to encounters on the street? And you mention "non-lethal force;" what about lethal force?
7.16.2007 8:27pm
Dilan Esper (mail) (www):
"Promise me son you won't do the things I did, you walk away from trouble if you can...."
7.16.2007 8:39pm
Dave N (mail):
Dilan Esper,

Interesting. The Kenny Rogers ballad is about a guy whose father died in prison and didn't want his son to follow in his footsteps. The final stanza is also appropriate:

"I promised you, Dad, not to do the things you done.
I walk away from trouble when I can.
Now please don't think I'm weak, I didn't turn the other cheek,
and Papa, I sure hope you understand:
Sometimes you gotta fight when you're a man."
7.16.2007 8:59pm
Harry Eagar (mail):
'2) Gothard an his friend were outnumbered 2-6'

So what? I've known aggressors to go against odds a lot worse than that?

One I particularly remember was a bar fight. It came before the Liquor Adjudication Board (where the defendant was the licensee, not anyone in the fight).

The guy who started the fight, which he admitted, was about 115 pounds. He had taken on three much bigger guys, and they beat him to a pulp.

The chairman, a banker, couldn't get his head around this:

Q: You say you started the fight. Didn't you think you might get seriously hurt? Why did you do it?

A: I like fight.

Retreating from a guy like that is a good way to get a shiv in the back.
7.16.2007 9:05pm
PersonFromPorlock:
Anonymous Chicken:

As far as I understand Iowa law, the public policy is aimed at rewarding those who seek to avoid confrontation...

Nope. As described here, it punishes those who don't "seek to avoid confrontation." "Rewarding" isn't in it, except that you get to feel the warm glow of civic virtue in the hospital.
7.16.2007 9:09pm
whit:
that's not "civic virtue" giving off the warm glow. it's the dilaudid in your IV tube.
7.16.2007 9:17pm
Alaska Jack (mail):
These "obligation to retreat" laws -- what's their history? I mean, were all or most of them generally enacted in the same time frame? And if so, how recently?

I ask because they seem to embody 1960s-1970's type thinking, but then again, for all know, they've been in place since the American Revolution.

- Alaska Jack
7.16.2007 9:26pm
American Psikhushka (mail) (www):
Spartacus-

Does Texas law require imminence for the self-defense doctrine to even apply, like most other states?
7.16.2007 9:53pm
ras (mail):
scote,

Since both drivers are licensed under the same standards then they are on equal footing and the fact that driving is "licensed" is irrelevant.

It's relevant in that it means that both drivers are required to know and to obey the driving regulations: the tailgater can be ticketed for tailgating and the blocker can be ticketed for blocking.

More importantly, either could lose their license and their right to drive if they persist in their behavior (and keep geting caught, of course). In contrast, one need not get a license to defend oneself, nor can one's right to do so be taken away as a result of previous infractions.

As to your other pt, that you merely called the circumstances "vaguely related" ... correct, and I apologize for overstating that portion of your argument. Nonetheless, I think the difference between a licensed activity vs a right is fundamental here.
7.16.2007 10:21pm
Dilan Esper (mail) (www):
Dave N:

I know-- although I think a fair reading of the song is that it indicates both viewpoints could be reasonable depending on the person's perspective. Bear in mind, though: I wasn't opining; I just thought the song is relevant to the debate.
7.16.2007 10:27pm
Spartacus (www):
<i>Does Texas law require imminence for the self-defense doctrine to even apply, like most other states?</i>

With some exceptions,in Texas "a person is justified in using force against another when and to the degree he reasonably believes the force is <i>immediately </i>necessary to protect himself against the other's use or attempted use of unlawful force." Texas Penal Code, 9.31(a) (emphasis added). So, in short, yes.
7.16.2007 10:43pm
Spartacus (www):
Oh, and the same rule applies to deadly force.
7.16.2007 10:44pm
pete (mail) (www):
So was Jake Gothard prosecuted for assaulting Mette? It seems clear that he pushed Mette several times, but it is not clear that he was prosecuted for this.

Was this considered appropriate violence for recovering his property, is his prosecution not mentioned, or did the prosecution not bother to prosecute him even though he seems about as guilty as Mette does?
7.16.2007 10:54pm
dwlawson (www):

Because it negates the defendant's initial retreat out of the house. Taking the cell phone and not returning it immediately escalated the situation. The complainant or what have you had a right to pursue the defendant and confront him about the stolen property.


Granted I'm no lawyer, but it seems odd that you have to retreat from physical threats but can pursue a thief. Seems a little contradictory...but that's the law for ya.
7.17.2007 12:24am
ReaderY:
I don't have a firm opinion on the issue, but it doesn't seem appropriate to criticize these laws on purely abstract theories of rights -- the liberty to be wherever in the street one wants -- without some sense of whether they accomplish their purpose or not.

Do these laws result in fewer people getting killed? Some evidence would be helpful. If they do, it would seem perfectly legitimate for those states which value life over liberty to, at least some times, require discretion as the better part of valor.
7.17.2007 12:25am
dwlawson (www):

These "obligation to retreat" laws -- what's their history? I mean, were all or most of them generally enacted in the same time frame? And if so, how recently?


I believe they were part of English Common Law prior to the founding of this country.
7.17.2007 12:27am
American Psikhushka (mail) (www):
ras-

In contrast, one need not get a license to defend oneself, nor can one's right to do so be taken away as a result of previous infractions.

This may be belaboring the point, but that assumes the "defense" is legitimate. If the defense is not legitimate under self-defense doctrine it is actually a crime and tort, not defense.
7.17.2007 12:28am
American Psikhushka (mail) (www):
Reader Y-

Do these laws result in fewer people getting killed? Some evidence would be helpful.

I don't know how you would "test" that, the rules and laws seem designed to classify these events when they happen, I don't know that you could control for how often the events happen in a particular place and how the rules and laws influence outcomes.

If they do, it would seem perfectly legitimate for those states which value life over liberty to, at least some times, require discretion as the better part of valor.

On the other hand - do you want to hand over your life, livelihood, property, peace, etc. to obnoxious, threatening people that can't leave other people alone? What if all greedy, obnoxious bullies had to say was "I'm scared of Reader Y" to justify assaulting, robbing, etc. you? What if they didn't stop at your property line - they claimed that they had to cripple or surveil you to feel "safe"? What if they claimed they had to follow you to other states? (Remember that many people have irrational feelings about safety.)
7.17.2007 12:43am
ReaderY:
It just seems that a state could decide, as a faceless person once put it, that


It doesn't matter who's wrong or right
It doesn't matter who starts the fight


After all, this ain't no truth or dare.
I understand that the idea that one should call the cops and let the state take care of it wouldn't be thrilling to libertarians, and the state can sometimes be ineffectual.

But if it did its job, in addition to the safety issue, there is also the issue of avoiding miscarriages of justice. Once someone is dead, how is the state to know who attacked and who acted in self-defense? It's a kind of no-fault policy, something like the policy behind no fault insurance.

If one assumes both that the state is ineffectual and that's it's obvious that the other person is in the wrong -- i.e. one sees things solely from ones own perspective -- one can certainly criticize the approach. If one assumes a strong state and imagines seeing theings from the state's persepective, where my and your story is no more credible than the other guy's story, it starts to make more sense.
7.17.2007 3:19am
K Parker (mail):
martinned,

I agree with part of your premise (even criminal's lives have some value) but completely differ with your conclusion (minimization of total loss of life.) Paraphrasing the cliche, I'd rather have violent-but-non-murderous criminals lose their lives than one innocent citizen lose his because he failed to defend himself adequately out of fear of prosection.

And ReaderY, "Do these laws result in fewer people getting killed?" is imo not the proper question. Rather, it should be "Does it result in fewer innocent people being killed?" (Please note I might well concede this case is not a good example of that.)

And yes, beyond the slighest doubt the state is MASSIVELY ineffectual at the moment when you need to actually defend yourself.

theobromophile,

Uhh, "fire signs"? Could you explain this to the layman?
7.17.2007 4:21am
American Psikhushka (mail) (www):
Reader Y-

I understand that the idea that one should call the cops and let the state take care of it wouldn't be thrilling to libertarians, and the state can sometimes be ineffectual.

But the thing is with the self-defense laws you aren't limited to that. You could turn your house into a fortress and have all kinds of lethal and non-lethal force on hand - you just have to be in imminent danger to use force, and be either in your habitation or have no place to retreat. This isn't rocket science.

Assailant is actually breaking down your door = Self-defense, you can use force.

"Assailant" is in their own house, sleeping = Isn't self-defense, if you lay a hand on them YOU are the criminal.

But if it did its job, in addition to the safety issue, there is also the issue of avoiding miscarriages of justice. Once someone is dead, how is the state to know who attacked and who acted in self-defense? It's a kind of no-fault policy, something like the policy behind no fault insurance.

The self-defense doctrine also makes it somewhat easy to prove. If you shoot someone breaking down your door it is pretty easy to prove what happened. If you mutilate someone in their own bed and YOU broke into their residence its pretty obvious it wasn't self-defense.

I don't agree with the comparison to insurance. There is a lot of unjustified, one-sided violence. Claiming that it's "no one's fault" when someone breaks into your dwelling and assaults you is nonsensical.

If one assumes both that the state is ineffectual and that's it's obvious that the other person is in the wrong -- i.e. one sees things solely from ones own perspective -- one can certainly criticize the approach. If one assumes a strong state and imagines seeing theings from the state's persepective, where my and your story is no more credible than the other guy's story, it starts to make more sense.

Not particularly. Again, the doctrine makes it relatively easy to prove. If you break into my dwelling and assault me, you weren't "defending yourself", you were committing an assault. If the state can't sort that out, it seems like there would have to be some kind of corruption, abuse of power, or discrimination involved.
7.17.2007 5:17am
Richard Aubrey (mail):
Re: Value of criminals' lives.

One need not be God, a judge or something else to make an accurate value judgment.
If a person voluntarily puts my life and my family's welfare at risk by attacking me, his life is of no value, nor should it be. That's a matter of definition. He chose to do it. Wrong choice. In fact, society ought to consider it the worst possible choice he could make. And if he succeeds with me, or survives the encounter unprosecuted, or unconfined, he will go on to do it to others.
At a certain point, the number of outraged innocents total a figure that even a liberal ought to notice.
7.17.2007 9:06am
Kenvee:
Just a quick note about Texas law regarding use of deadly force to protect property -- yes, it's allowed, but in more limited circumstances than seem to have been described here. Deadly force to protect property is only authorized if the person reasonably believes (1) it's immediately necessary to prevent another from either committing or fleeing immediately after committing arson, burglary, robbery, or theft or criminal mischief at night and (2) the property can't be protected or recovered by any other means and using force short of deadly force would expose the actor to a substantial risk of serious bodily injury. (Texas Penal Code section 9.42)

So no, you can't use deadly force against someone who stole your hubcaps, unless he stole them from you at gunpoint or at night. You have to catch him in the act to do it. You can't have any other reasonable means of protecting or recovering the property. And most importantly, you have to have a reasonable belief that just using ordinary force against him would be too dangerous for you, such as he's got a knife or a gun to use against you.

Oh, and all that only applies to your own property. If it's someone else's property, you have to have all of the same justifications plus show that the owner requested that you protect the property, you had a duty of care to protect the property, or the property belongs to a spouse, parent, child, roommate, or someone under your care. (Penal Code section 9.43)

Regarding just plain defense of a person, Texas law requires for deadly force that a reasonable person in your situation wouldn't have retreated, unless the other guy is breaking into your house at the time. (Has to be a habitation, not a business, and it doesn't apply if you're just confronted on the street.) So there's a duty to retreat, but you just have to convince a Texas jury that it wasn't a reasonable option. ;)
7.17.2007 10:26am
ReaderY:
The case at hand involved a fight in public, not a break-in in a private residence. One could take a middle position requiring retreat in some cases but not in all. I don't believe discussion of burglaries affects the case at hand.
7.17.2007 12:17pm
ReaderY:

If a person voluntarily puts my life and my family's welfare at risk by attacking me, his life is of no value, nor should it be. That's a matter of definition. He chose to do it. Wrong choice. In fact, society ought to consider it the worst possible choice he could make. And if he succeeds with me, or survives the encounter unprosecuted, or unconfined, he will go on to do it to others.
At a certain point, the number of outraged innocents total a figure that even a liberal ought to notice.


Not so. Since people first began abusing alcohol, any number of people who get drunk and get into bar fights at night turn into sober, peacable, and valuable citizens in the morning. The same is true for people who occassionally get into quarrels. The law compassionately recognizes that for many people, violence is a state that ordinary people sometimes get themselves into temporarily. It is intended to help brawlers and quarrelers live into the morning.

It is doubtless for these cases -- the vast majority in an ordinary society -- that laws of this type are designed. The case at hand could easily be described evenhandely as a quarrel between two sides, each with a point of view. Only a lawyer whose profession has cause loss of all sense and reason could not only brand his client as pure and innocent and the other side as the embodiment of evil -- doing so is often a lawyers job -- but come to personally believe this. Legislatures have to be more neutral, and more sanguine, about these things.
7.17.2007 12:24pm
Richard Aubrey (mail):
Reader Y.
As to booze. I've consumed more than my share over the years. I've been a grunt, played smash-mouth sports, and been in a fraternity.
I have never, nor has any individual I ever saw, done violence under the influence. With the exception of those who had, to my direct knowledge, done it while perfectly sober.

Nevertheless, the problem remains: What am I to do with the moron, drunk or sober, who is assaulting me? Take some hits which might kill or cripple me based on the unsupported proposition that he might be okay when sober? What happens when he's next drunk and encounters, say, a seminarian who, although thinking Gandhi was entirely too macho, retains a slight claim to the privilege of life?
What's the point of letting somebody go on who is, while sober, just fine, knowing that his periodic bouts of drunkenness endanger innocent bystanders? Is the victim of a drunken assault okay because the booze was talking?
Assholes are assholes. When they assault others, they lose major points. Including the right to be secure from the self-defense of their victims. Booze, drugs, the phase of the moon, or boredom don't count.
7.17.2007 12:33pm
Andy Freeman (mail):
> The law compassionately recognizes that for many people, violence is a state that ordinary people sometimes get themselves into temporarily.

Actually, no. Lots of people get drunk, but the people who get violent are rarely first-timers. Some of them may only get violent when they get drunk, but that just means that they're violent drunks.
7.17.2007 1:02pm
American Psikhushka (mail) (www):
Richard Aubrey-

One need not be God, a judge or something else to make an accurate value judgment. If a person voluntarily puts my life and my family's welfare at risk by attacking me, his life is of no value, nor should it be. That's a matter of definition. He chose to do it. Wrong choice. In fact, society ought to consider it the worst possible choice he could make. And if he succeeds with me, or survives the encounter unprosecuted, or unconfined, he will go on to do it to others. At a certain point, the number of outraged innocents total a figure that even a liberal ought to notice.

You assume a perfect knowledge of the facts. What if you're an obnoxious buffoon that goes around threatening (a crime) and harassing (also a crime) people to get them riled up and then assaulting them, claiming you were "afraid" or felt "in danger". Everyone seems to assume every moron with a family is an innocent family man, when many of them are obnoxious, troublestarting criminals. So in that hypothetical, the wrong choice would be to let troublestarting criminal morons claim "self-defense". The right choice would be to use the law to teach them to leave innocent people alone.
7.17.2007 1:11pm
American Psikhushka (mail) (www):
Reader Y-

The case at hand involved a fight in public, not a break-in in a private residence. One could take a middle position requiring retreat in some cases but not in all. I don't believe discussion of burglaries affects the case at hand.

The rules of retreat are a seperate issue and they vary by jurisdiction and the facts. But there is no such thing as "no fault" self-defense, it's either self-defense or its not. And the example wasn't burglary, it was breaking and entering to commit an assault, which is definitely not self-defense for the person committing assault.
7.17.2007 1:22pm
Richard Aubrey (mail):
American Psi.

So, while the law is teaching them to leave innocent people alone, are you supporting the widow and children?

Now, do I understand you to say that somebody with a family is a moron? Or that somebody who is a moron and has a family is a troublemaker?
7.17.2007 1:29pm
Spartacus (www):
Kenvee: thanks for the elabioration on Texas deadly force in defense of property law; I was being a little bit too glib.

However, regarding deadly force in defense of person, your claim that, "Texas law requires for deadly force that a reasonable person in your situation wouldn't have retreated, unless the other guy is breaking into your house at the time. (Has to be a habitation, not a business, and it doesn't apply if you're just confronted on the street.)" will be changed when S.B. 378 becomes effective on Sept. 1, (Texas' "castle doctrine" law), allowing for use of deadly force in defense of person if the actor enters the defendants "vehicle, or place of business or employment" under certain circumstances. The new law also adds language that states:

"(e) A person who has a right to be present at the location
where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.
"(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat." Section 9.31, Texas Penal Code, as amended by S.B. 378, 80th Regular Session, effective Sept. 1, 2007.
7.17.2007 1:39pm
Interested Party:
Mette did retreat. Over a number of city blocks and tens of minutes. Gothard followed them to Mette's brother's residence
7.17.2007 2:42pm
Harry Eagar (mail):
'I believe they were part of English Common Law prior to the founding of this country.'

My understanding is that you could not offer resistance unless you had retreated to a wall or ditch that blocked further retreat. Thus the phrase, 'back to the wall.'

I don't know if that was common or statute law.
7.17.2007 3:34pm
MBW (mail):
So here's another real-life situation which is currently working its way through California court and may run into use of non-lethal force in self-defense/defense of another.

Father and young son are walking on a short (100 feet long) park road with no sidewalk or shoulder. Pedestrians have the right of way. Motorist drives up behind pedestrians and honks horn to move them out of the way. To where, it is unclear, as there is oncoming traffic and no shoulder (dense underbrush lines road.) Father turns to motorist and says, "don't do that" and continues to walk forward with child. Motorist drives up within a few feet of pedestrians and lays on the horn. Father then walks to the driver's door and kicks off the side mirror, effectively stopping the forward motion and honking of the car. The pedestrians then wait for oncoming traffic to pass and walk to ranger station to call for law enforcement. Motorist follows (at high speed in 5mph zone). Father is arrested by rangers.

An added issue - the child is profoundly autistic and subject to bolting (documented) when startled or frightened. The child, like many autistics, is highly sensitive to noise, so that the 120 decibels (a typical car horn at 5 feet) would seem much louder and painful.

Was there reasonable self-defense or defense of another (the child), or was it just malicious vandalism? Was there a duty to retreat into oncoming traffic or into the underbrush?

(Note, this case goes to trial in LA next week.)
7.17.2007 6:21pm
vinnie (mail):
I think in the case of the Chicago police officer we need to consider if his ability to call the police, as he attempted to do, was thwarted by the removal of his cell phone.
If the police had been called when the subject was first broached this would have been a non issue.
I find it suspicious that an off duty or out of jurisdiction officer would balk at calling the police. Thats what you are supposed to do, or so they tell us.
7.17.2007 7:54pm
American Psikhushka (mail) (www):
Richard Aubrey-

So, while the law is teaching them to leave innocent people alone, are you supporting the widow and children?

So should people with families get a free pass to commit felonies? Maybe we should allow a form of genocidal robbery - people with children get to steal from those without children yet, even though it prevents or delays those without children from having a family. So if your neighbor has children first he should get to subsidize his brats by stealing from you. Something tells me that there may be something a little unfair, dishonest, greedy, and genocidal about that. Not to mention your neighbor seems to inherently think he and his family are superior to you for some reason.

Now, do I understand you to say that somebody with a family is a moron? Or that somebody who is a moron and has a family is a troublemaker?

I would say people that can't leave other people alone are morons, whether or not they have a family.
7.17.2007 9:26pm
Richard Aubrey (mail):
Who said anything about people with families committing felonies?
The question is whether somebody, possibly with a family, is eligible to defend himself, possibly at the cost of the assailant's life.
Whether that is a felony or not is the subject of the discussion.
If it is not, then he does not have a free pass to commit a felony, since it would not be a felony. Hey, I like arguing like an attorney, although I will have to shower pretty soon.

The other question remains. Under your scheme, the guy with the family who is assailed is dead because he's supposed to let the state explain to his assailant that it isn't nice to assault people. Are you prepared to support his widow and children?
7.17.2007 10:27pm
American Psikhushka (mail) (www):
Richard Aubrey-

The question is whether somebody, possibly with a family, is eligible to defend himself, possibly at the cost of the assailant's life.

And the answer is, not if it isn't self-defense. For example if the danger isn't "imminent" or if the person in question is actually an assailant, not a "defender".

The other question remains. Under your scheme, the guy with the family who is assailed is dead because he's supposed to let the state explain to his assailant that it isn't nice to assault people. Are you prepared to support his widow and children?

What are you talking about? My "scheme" is the same as the standard self-defense doctrine, which doesn't allow "pre-emptive" force or force where there is no imminent danger. You're using widows and children as emotional distractors.
7.18.2007 1:35am
Richard Aubrey (mail):
American Psi.
I never said anything about self-defense if the threat wasn't legit.
And the reason I used the widow and children is to point out that some folks have dependents. And if the folks are dead, somebody has to support the dependents. Your idea is that the state should be the one to take on the assailants. Well, if that's the case, the assailed has to be dead or crippled, waiting for the state to step in.

Your "scheme" presumed the assailed got assailed because he was threatening other people. His kids were doing something something something unspecified, he bugged people until the retaliated. Nothing "standard" about that doctrine.
7.18.2007 7:41am
American Psikhushka (mail) (www):
Richard Aubrey-

Your idea is that the state should be the one to take on the assailants. Well, if that's the case, the assailed has to be dead or crippled, waiting for the state to step in.

That's standard self-defense doctrine - if the danger is imminent the individual can use force themselves, if the danger is not imminent they are supposed to contact the state.

Your "scheme" presumed the assailed got assailed because he was threatening other people. His kids were doing something something something unspecified, he bugged people until the retaliated. Nothing "standard" about that doctrine.

The hypothetical mentioned was someone harassing and threatening other people - agitating them - and then using this agitation (which he caused by committing crimes) to claim that he was "afraid" or "concerned for his family's safety" and then assaulting the agitated parties. Perhaps I should have been more clear, the agitated parties in that hypothetical were not assaulting or attacking the agitator - it was meant as an example of force that was not appropriate self-defense.

The hypothetical was meant to illustrate the importance of the imminence requirement. Otherwise you would have people going around baiting people, them claiming they were "afraid" and assaulting the people they baited.
7.18.2007 8:57am