Tuesday, June 4, 2013

Just curious about the “get away with murder” laws

Yet another wrinkle in the assertion that the Second Amendment in some way allows for “self-Defence”:
The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause. Due process deals with the administration of justice and thus the Due Process Clause acts as a safeguard from arbitrary denial of life, liberty, or property by the Government outside the sanction of law.
The general common law principle is that the law allows only reasonable force to be used in the circumstances and, what is reasonable is to be judged in the light of the circumstances as the accused believed them to be (whether reasonably or not). The jury should be directed to look at the particular facts and circumstances of the case in deciding whether a defendant had used only reasonable force.  After all, the defendant will always be of the opinion he used reasonable force.

Only reasonable force may be used.  Despite a common belief to the contrary, one is not at liberty to shoot dead a burglar wandering around one’s house if one does not fear for one’s own life in common law.
Anyway, historically Clause 39 of Magna Carta provided:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
This came into US law via the Due Process guarantees of the US Constitution found in the Fifth and Fourteenth Amendments.

The Fifth Amendment to the United States Constitution provides:
[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law .
The Fourteenth Amendment to the United States Constitution provides:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law .
The issue here is that these laws allow for summary justice and vigilantism outside of the legal process.  One should not take the law into his/her own hands for the purposes of revenge, retribution, or sheer vigilantism.  The rule of law must be maintained and violence discouraged by a proper legal system for it to have any authority.

Of course, this is just a musing, but perhaps it will be taken up by someone else who is offended by the allowance of murder by an out of whack US legal system.

Additional thoughts on this topic:

I should have mentioned the concept of wergild, which was a value placed on every human being and every piece of property in the Salic Code. If property was stolen, or someone was injured or killed, the guilty person would have to pay weregild as restitution to the victim’s family or to the owner of the property.

The important aspect of this was that the payment of weregild performed an important legal mechanism in early Germanic society since the other common form of legal reparation at this time was blood revenge.

The foundation of the American legal system rests on the Rule of Law, a concept embodied in the notion that the United States is a nation of laws and not of men. Under the rule of law, laws are thought to exist independent of, and separate from, human will. Even when the human element factors into legal decision making, the decision maker is expected to be constrained by the law in making his or her decision. In other words, police officers, judges, and juries should act according to the law and not according to their personal preferences or private agendas.

Vigilantism is the people’s complete disregard for the rule of law. The problem is that vigilantes risk starting a cycle of violence and lawlessness in which the victims of vigilantism take the law into their own hands to exact pay-back.

There is a reason that Clause 29 of Magna Charta provided that:
NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.
These laws are a denial of justice and right which has been sanctioned by the state.
There is a reason that the force used for self-defence is that which is reasonable to stop the threat yet respecting life.

And justice.    There is a long case line that works to promote the rule of law and discourage vigilantism in the Common Law (and other legal systems)

13 comments:

  1. If these laws excused any killing of a burglar, they would be going too far. However, these laws are merely monkeying with the presumptions--something quite common.

    You know that in most cases, once you assert the affirmative defense of self defense, you have the burden of proof to show that you were in reasonable fear for your life and used appropriate force rather than the state having the burden of proving that you used excessive force.

    In the example you gave, a burglar in your home, the legislature just decided to say that under those circumstances the burden of proof is on the state to show that your force was excessive. The law does not license you to murder someone regardless of your fear for your safety. In fact, if the state can convince the jury that you were not in fear for your life, your goose is cooked.


    Your analysis, as always, shows that you are capable of understanding that this is a shifting of the burden of proof, not a license to get away with Murder, so why do you not argue accordingly. Tell us why you don't think the presumption should shift in that situation, or what other conditions you'd place on it. Propose an improvement to the bill, not a lie that it excuses murder.



    Similarly, on the stand your ground laws, the reason so many people support them and pushed for them boils down to the whole duty of retreat issue: if you're walking down the street and a few guys with knives step out in front of you demanding your money or your life, must you first try to run away, and only shoot at them if they chase you, or can you pull your gun at that time, whether you shoot or not, because even brandishing is considered the use of lethal force.

    People wanted the law to state that there was no duty to retreat in such a situation: that you could defend yourself without being required to try to run away first. This seems pretty reasonable to most people, and to me. Do you have a problem with this concept, or is it a problem in the execution? Was the bill badly drafted?

    We don't know the answer to these questions because you and your side spend your time telling us that these laws were written so that bloodthirsty gun owners could act like assholes, pick a fight in any way except throwing the first punch, and then shoot the other person. Forget that, again, there's always the ability of the state to prove the picking of the fight and using that to negate the self defense argument.

    I again have to ask, if you think the first example I gave (the mugging) would be an appropriate situation where a person shouldn't have to run away first, but you are concerned that the law is written in an overbroad fashion so that the second example could get away with murder, then why don't you point out the errors in the law and how to fix it. Otherwise, you appear to support the idea that you must first run away from attackers before you are allowed to defend yourself. If you do support that idea, I think you're wrong, but you could at least be honest and come out and say it. Otherwise, if you don't support that idea, then point out problems and propose a better law--light a candle instead of just cursing the darkness.
    If

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    1. Tennessean,

      Laci and Mike expect good citizens to trust criminals -- whether the criminal is in the citizen's home or on the streets -- because almost all criminals are basically good people (in their minds) that are simply disenfranchised and just want a little of your money, or body (rape), or whatever.

      Mike has said something astounding in this blog. He only condones deadly force in a home invasion after the criminal has started shooting at or stabbing, bludgeoning, etc. the home owner. And he recognizes that this will cost several homeowner their lives. But it is better (in his mind) for a few home owners to die than for 20 criminal home invaders to die at the hands of homeowners who didn't wait for the criminal to shoot/lunge first.

      Mike and Laci don't want criminals to be responsible for their actions. But they do want to screw people who own guns. This is the mindset of the people who want almost everyone disarmed.

      - TruthBeTold

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    2. TruthBeTold, I've been around for a while and seen the posts that could be interpreted that way. I had just hoped that I might get an answer on this matter so that we would have some clarity to know if your interpretation is right, or if the truth is a bit different. However, it looks like Laci isn't going to respond.

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    3. And Laci,

      You've been back since I asked these questions. Can I expect an answer, or are they just "gibberish" and not worth your time? (translated, you're scared to engage in anything more than a hit and run because you might have another Chernobyl style meltdown)

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    4. T., I have come out and said it. If the choice is between retreating and using your gun, I say you have a moral requirement to retreat. The SYG and castle doctrine mentality opposes this basic premise and you know why? Because macho assholes who have their egos in the way came up with those ideas and wrote those laws and pushed them through. And then the rest of you weak, fearful, insecure gun owners feel empowered.

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    5. But no personal attacks are allowed, right, Mikeb?

      The mentality here is that if I have a right to be somewhere, I shouldn't have to run away if someone offers violence to me. Your answer is to retreat before evil. Mine is to say that morally speaking, we are right to resist it. Tactically, retreat might be the better option, but not always. Still, I can't understand the mentality that believes that surrender or fleeing is better than standing firm.

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    6. As long as you leave at "moral requirement" instead of legal requirement I am in agreement. I don't want to see good people rot in prison because some prosecutor thought they could have run away.

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    7. Mike,

      I'll ignore the insults that would get one of my comments moderated out.

      For some more clarity: If a guy steps out of a dark alley while I'm walking home and pulls a gun on me, do I have to run and risk getting shot in the back, only getting to shoot at him if he fires at me or pursues me, or can I pull my gun?

      I'm not talking about a situation where I sit down and someone says, "Hey, that's my seat, and I'll kick your ass if you don't get out of it." I say, "Fuck off." A fight ensues, and I plug him when I start getting the worst of it.

      I'm, instead, talking about a distilled scenario of immediate, lethal threat that calls for an immediate lethal response. Maybe you agree with my immediate right to defend myself in the former scenario. Maybe you see another way to deal with it--instead of a stand your ground law, a law that says that if there's an immediate threat of lethal force--e.g. a pulled or openly displayed knife or gun--that negates the ability and thus duty of retreat.

      I'm honestly trying to get you or Laci, or both of you, to the table to discuss what your specific problem is, and if there's a better way to tailor the law.

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    8. "Still, I can't understand the mentality that believes that surrender or fleeing is better than standing firm."

      Greg, why do you have to mischaracterize what I say? If your argument is so sound, wouldn't you be able to be honest about what my position is?

      I believe it is better to flee than to kill someone if by fleeing you can avoid it. I know there are times this is not possible and you may have to stand your ground and kill the other guy, but you want that to be the default situation. You want to kill the guy first and then figure it out, which means justify it by claiming your life depended on it. You want to never give in to evil, which is another way of saying you put your ego into the mix. You'll never back down.

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    9. " I don't want to see good people rot in prison because some prosecutor thought they could have run away."

      How about if a jury of their peers thought they could have run away?

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    10. Explain to me the kind of society we'll have when thugs can drive good citizens from public spaces merely by being aggressive. Oh, wait, you don't have to. It's called Chicago.

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  2. What are you talking about, Laci? Are you disputing Castle Doctrine laws?

    In my state our Castle Doctrine is not a license to kill anyone. Our Castle Doctrine simply states that it is a rebuttable presumption for a person to reasonably believe that their life is in danger when a criminal invades their home. In other words the burden of proof is on the state/prosecution to prove that a homeowner's fear of great bodily harm or death was not reasonable when they defended themselves during a home invasion. And our Castle Doctrine also provides civil immunity to the homeowner if they acted lawfully. In other words if a homeowner's self defense was lawful, the invader or the invader's family cannot sue the homeowner. That's it.

    I believe that is exactly the way it should be.

    If a petty thief truly intends to steal your $300 television, they will immediately leave -- without the television -- if they suddenly realize that you are home. If they do not immediately leave, they are not a petty thief and they just told you loud and clear with their actions that they want more than your $300 television.

    - TruthBeTold

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  3. Laci, since you edited this article to include Germanic tribal law, let's mention the fact that free men in many of those tribes were expected to be armed.

    But, of course, in your opinion, only the quotations that can be twisted into appearing to support your position are relevant.

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