Stand Your Ground And The Trayvon Martin Incident

There are plenty of great discussions on this tragic event and a whole lot of speculation. I want to focus on an area that I actually know something about, self-defense laws. The media, as is typical, seems to be asking the wrong questions and doing very little in terms of research. One question that has popped up deals with Florida's "stand your ground law" and asks if the law goes too far. The simple answer is No, but I will get more into the details later. The other obvious question is whether this law would allow someone to chase down an unarmed person and kill them. Again, the simple answer is No.

From what I can tell, Florida's self-defense laws are very similar to those in Michigan. That being said, I am not familiar with Florida law and Case law. I will mostly discuss Michigan law and try to generalize. Fortunately, for our discussion, self-defense laws are very similar across the 50 states.

So, when can a person use lethal force? Basically, if it is necessary to prevent an imminent attack that could cause death or serious injury, or a sexual assault. This is the common law rule that has mostly stayed the same for hundreds of years. Most states kept this and never bothered to codify it. A small minority of states also had a duty to retreat in a narrow set of circumstances. This said that if a person reasonably believes that they are facing an imminent threat of death, serious bodily injury, rape, kidnapping, or, in many states robbery and some other crimes from another person, and:
1. they can escape this threat with complete safety,
2. by leaving the altercation,
3. except when they are in their own home (or, in some states, workplace),
4. a person 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.

It is important to note that this was only the rule in a handful of states. Most had rejected this prior to the 'stand your ground' laws or had limited to very specific situations.

There is also another principle that may be relevant. Florida has what is called an aggressor exception to self-defense. It states that self defense is not available to a person that:

(1) 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, if it turns out that Zimmerman was chasing Martin or trying to detain him, then lethal force would be highly questionable and he would have had a duty to retreat from Martin. I found this information with a minimal amount of searching and wonder why it has been absent from any media coverage. I caught part of the Diane Rehm Show on NPR. She is typically pretty biased when it comes to guns and self-defense, so it wasn't a complete surprise that the discussion omitted much of the reality of what the law says when it comes to self-defense.

I can't make any guesses as to what will happen in this case because many of the facts are in dispute, but I can say that it does not appear that Florida law or case law encouraged or allowed this to happen. On the contrary, almost every watch group discourages confrontation and trains people to be good observers. Every reputable firearms instructor emphasizes that a gun is a tool of last resort and that you don't look for trouble or knowingly put yourself in situations where you need to defend yourself.

My concern is that groups will use this to push for changes in laws that are completely unnecessary.

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Michigan's Proposed Anti-Bullying Law

There is a good discussion over at Streak's Blog on "religious" exception. In looking at the rest of the law, I see some potential problems, but before I get on my soapbox, I wanted to see what other people thought. Here is the main portion of the Bill.

SB 137, Section 10:

(b) "Bullying" means any written, verbal, or physical act, or any electronic communication, by a pupil directed at 1 or more other pupils that is intended or that a reasonable person would know is likely to harm 1 or more pupils either directly or indirectly by doing any of the following:
(i) Substantially interfering with educational opportunities, benefits, or programs of 1 or more pupils.
(ii) Substantially and adversely affecting the ability of a pupil to participate in or benefit from the school district's or public school's educational programs or activities by placing the pupil in reasonable fear of physical harm.
(iii) Having an actual and substantial detrimental effect on a pupil's physical or mental health or causing substantial emotional distress.
(iv) Causing substantial disruption in, or substantial interference with, the orderly operation of the school.


Does anyone see any potential problems with the language of this bill?

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Snyder v. Phelps

As many of you probably know, the Phelps case is set for oral argument today at 10 a.m. Scotusblog has an excellent in-depth analysis of issues and arguments by both sides. Basically, what is at stake is whether funerals will receive some level of heightened protection from protests or that there is a "funeral exception."

Not surprisingly, I am not a fan of Phelps and I finds his beliefs indefensible and outrageous. I wish the 'free speech' side had a more likable and sympathetic advocate, but that is not the case. While I find Snyder's arguments to be decent and compelling, I am not sure that I want to carve out an exception for funerals and wonder if the better approach would be to go after the Phelps cult in a different manner. What do you think?

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Why was Fred Phelps disbarred?

I knew he was disbarred, but never heard the reasons. I always assumed it was because he was an obnoxious asshole. The decisions can be found at State v. Phelps, 598 P.2d 180 (Kan. 1979) and In re Phelps, 459 P.2d 172 (Kan. 1969). From the first one:

Phelps has, by his conduct, shown that he does not have the proper concept of the obligations devolving upon an attorney requiring him to deal fairly and honorably with his clients, and enjoining him to demean himself in such manner as not to bring embarrassment to nor discredit upon his profession.

(h/t to Volokh)

I believe that one or more of his kids still practice law, but I wasn't able to find anything on them.

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A Small 2nd Amendment Victory

A federal court in Utah issued a ruling that is mostly favorable to the 2nd and will hopefully be followed by other courts. The Volokh article gives a good, detailed explanation, but I will try to summarize it. Federal law prohibits anyone convicted of any kind of domestic assault from ever possessing a firearm. In this case, the defendant, following a "domestic dispute", was charged with violating this law. It is important to note that, while not a sterling character, he had no history of violence with a gun, nor was there any evidence that he ever even fired his gun.

The court said a few important things:

The Second Amendment to the United States Constitution guarantees the fundamental right of individuals to keep and bear arms. That right may only be infringed when the restriction is narrowly tailored to meet a compelling government interest.

Basically, they said that a law that deals with the 2nd triggers strict scrutiny. This has not been the case up until now. They also said:

If you find that the government has proved beyond a reasonable doubt the elements of the charge against him, as set forth in Jury Instruction Number ____, regarding Count I, you are instructed that Defendant is presumed to pose a prospective risk of violence. However, Defendant is entitled to offer evidence to rebut that presumption and show that he did not pose a prospective risk of violence. It is the burden of the Defendant to prove to you, by a preponderance of the evidence, that he did not pose a prospective risk of violence.

This is part of what they said would be part of the jury instructions. They will allow the defendant to use this non-risk of violence as an affirmative defense. In other words, if the defendant is able to show that he is not at risk for hariming someone with a gun, then he will be found not guilty of violating the gun possession law. Without this, if he is found (beyond a reasonable doubt) of possessing a gun, he would be guilty.

I think this is a reasonable rule. At first glance, it is hard to argue that domestic abusers should be allowed to have guns, but that rule isn't always far and people should be allowed to challenge it under certain conditions. Let's say that a 19 year old is convicted of misdemeanor domestic assault. Under 18 U.S.C. § 922(g)(9), they would never be allowed to ever legally possess a gun. It doesn't matter what kind of life they have lived or how much time has elapsed. It is a lifetime ban. People should be offered some mechanism to challenge the ban and show that they are no longer dangerous.

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I'll say what ever I want around my %*&$ing kids!!!

In an effort to find something slightly more interesting than a low level Obama appointment, I stumbled upon a story from Volokh on a New Jersey law that says abuse of a child can consist of:

the habitual use by the parent or by a person having the custody and control of a child, in the hearing of such child, of profane, indecent or obscene language.

N.J. Stat. Ann. § 9-6-1

New Jersey is the home to many stupid laws, but this one seems to have a great deal of potential for abuse. While I generally think that parents shouldn't use naughty language around their kids, is this something we want to criminalize?

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