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JohnDeBellisSecondEssay 2 - 29 May 2016 - Main.EbenMoglen
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Brief History of self-defense justification | |
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< | The United States has a long history of allowing and even encouraging self-defense. English common law traditionally set limitations to self-defense, namely that an individual must retreat as possible before using deadly force. “One may meet force with force, but may not exceed the amount of force required to repel the threat, nor can he be the original aggressor who brought on the situation.” (Ross 1). The individual needed to have their proverbial back against the wall in order to use deadly force. This is called having a “duty to retreat.” In the United States, the history was not as clear-cut, and courts in some states did not find a duty to retreat. | >
> | The United States has a long history of allowing and even encouraging self-defense. English common law traditionally set limitations to self-defense, namely that an individual must retreat as possible before using deadly force. “One may meet force with force, but may not exceed the amount of force required to repel the threat, nor can he be the original aggressor who brought on the situation.” (Ross 1). The individual needed to have their proverbial back against the wall in order to use deadly force. This is called having a “duty to retreat.” In the United States, the history was not as clear-cut, and courts in some states did not find a duty to retreat.
Perhaps it is
worth considering the nature of the armament of personal
defense in relation to the rule. Common law assumed that
the weapons of personal defense relevant are effective at
the distance of a drawn sword or a staff strike. Deadly
force was effectively socially monopolized by those classes
entitled to wear swords. Firearms change the nature of the
discussion altogether. Even British colonial North America,
always the United States from the time of its formation, are
completely different societies from that point of legal
origin.
| | | Additionally, there is the castle doctrine, in which an individual has the right to use lethal force against an intruder without withdrawing (Ross 13). This right exists regardless of force or reasonable threat of force by the intruder. A number of states retain this doctrine in lieu of “stand your ground laws” or “duty to retreat” laws.
Stand Your Ground Laws
“Stand your ground” laws, among other things, eliminate the duty to retreat. Over 30 states currently have these laws, all of which have been passed since 2005 (Jonsson). The National Rifle Association has been the major sponsor of such legislation, arguing that it empowers citizens against criminals. They claim to balance “the scales between the criminals and the victims” (Ross 16-17). When first proposed, Florida’s law, which was the first passed in the nation, would not only have provided justification to an individual who used deadly force regardless of threat level, but also would have deterred police and prosecutors from even charging an individual due to cost and fee liability. This was eventually taken out of the bill, but the disincentivizing mechanism simply shifted from police and prosecutors to judges and juries. | |
>
> | Once again, the
relevance of the armaments, and the armaments businessmen,
to the analysis is the most important "non-formal" legal
factor. It's not helpful to concentrate only on the legal
formalism, the modification of a duty, when the realism
about who gets dead and why is the whole point.
| | | Presence/Absence
“Stand your ground” laws represent an expression of too much presence. We talked in class about the importance of both absence and presence, depending on the circumstances. “Stand your ground” laws discourage withdrawing in the face of a perceived threat, and encourage the use of deadly force. On a physical level, these laws promote presence in an environment that is not safe. Although relying on withdrawing and waiting for the police to arrive assumes that the police will in some capacity be willing to aid you, the statistics do not support the claim that “stand your ground laws” necessarily improve those particular individuals’ outcomes. For example, black-on-white homicides are ruled justified in only 1.2% of cases nationwide regardless of “stand your ground” law. The implementation of “stand your ground” laws did not increase that figure significantly, although it did increase the likelihood that white-on-black, white-on-white, and black-on-black homicides would be ruled justified. (Roman 6). | |
>
> | | | | Additionally, “stand your ground” laws encourage mental presence in undesirable ways. They feed one’s baser instincts, and disincentivize a more detached, rational way of acting. Instead of encouraging individuals to evaluate a situation in a way that allows for de-escalation, it helps animate one’s most reactive impulses. This is especially problematic when taken in the context of pre-existing prejudices that many people have. This is true of both the person “standing his ground,” and the juries that will eventually judge him. Implicit biases are just that; they do not reside in thoughtful rational analysis. The kind of high-intensity, emotionally charged environment that probably occurs before the use of deadly force in perceived instances of self-defense emboldens the emergence of those biases. Additionally, the statistic that only 1.2% of black-on-white homicides are ruled justified supports the fact that juries are also relying on these baser, too-present assumptions. | |
>
> | Not unless we
know about the rate at which other configurations of
homicide are so found, which you should have told us.
Without anything to compare to, the invocation of an
implicit comparison can't work.
| | | Balancing Absence and Presence
Absence and presence should both exist in a balance. Here, laws support too much presence, where absence should also be encouraged. Regardless of whether an individual uses deadly force because they feel threatened, the law should not incentivize that force. Even the castle doctrine has its own problems. There was a case in Louisiana where a homeowner shot and killed a Japanese exchange student who mistakenly knocked on his door looking for a Halloween party. He was acquitted of manslaughter in part because of the castle doctrine. (Acquittal in Doorstep Killing of Japanese Student). | |
>
> | | | | Eliminating the duty to retreat encourages too many type I errors, and ultimately harms society. | | | Eliminating the duty to retreat encourages too many type I errors, and ultimately harms society. | |
>
> |
But really the discussion is about weapons. People who do not
believe in the "personal right" supposedly contained in the Second
Amendment will agree with this argument about "duty to retreat."
People who do, won't, which is why the firearms sellers have been so
successful over the last decade in framing and moving such laws (and
other "bring your gun and use it" laws) through state legislatures.
Formalist discussion, in which we neither explain the common law
position on a factual basis nor reach the real reasons that people
are for or against these statutes now, will only persuade those
already persuaded, while changing no minds whatever. Utilitarian
arguments against the laws, on the other hand, can only be effective
to the extent that the real attraction of the laws (making gun use
more likely, thus forcing other people to buy guns to "protect
themselves" against more guns in others' hands that are more likely
to be used) are surfaced and responded to, not overriden by language
in support of the gun control in which we (but not any interlocutor
we are trying to persuade) already believe.
| | | Works Cited
“Acquittal in Doorstep Killing of Japanese Student,” The New York Times http://www.nytimes.com/1993/05/24/us/acquittal-in-doorstep-killing-of-japanese-student.html?pagewanted=all (May 24, 1993) | | | Ross, P. Luevonda. “The Transmogrification of Self Defense by the National Rifle Association-Inspired Statutes,” 35 S.U. L. Rev. 1 (2007-2008) | |
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> |
Why not link to sources, so that readers are actually helped to find what you are telling them should interest them? Writing for the Web means doing what citation styles only encourage.
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JohnDeBellisSecondEssay 1 - 01 Apr 2016 - Main.JohnDeBellis
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Presence/Absence and “Stand Your Ground” Laws
-- By JohnDeBellis - 01 Apr 2016
Brief History of self-defense justification
The United States has a long history of allowing and even encouraging self-defense. English common law traditionally set limitations to self-defense, namely that an individual must retreat as possible before using deadly force. “One may meet force with force, but may not exceed the amount of force required to repel the threat, nor can he be the original aggressor who brought on the situation.” (Ross 1). The individual needed to have their proverbial back against the wall in order to use deadly force. This is called having a “duty to retreat.” In the United States, the history was not as clear-cut, and courts in some states did not find a duty to retreat.
Additionally, there is the castle doctrine, in which an individual has the right to use lethal force against an intruder without withdrawing (Ross 13). This right exists regardless of force or reasonable threat of force by the intruder. A number of states retain this doctrine in lieu of “stand your ground laws” or “duty to retreat” laws.
Stand Your Ground Laws
“Stand your ground” laws, among other things, eliminate the duty to retreat. Over 30 states currently have these laws, all of which have been passed since 2005 (Jonsson). The National Rifle Association has been the major sponsor of such legislation, arguing that it empowers citizens against criminals. They claim to balance “the scales between the criminals and the victims” (Ross 16-17). When first proposed, Florida’s law, which was the first passed in the nation, would not only have provided justification to an individual who used deadly force regardless of threat level, but also would have deterred police and prosecutors from even charging an individual due to cost and fee liability. This was eventually taken out of the bill, but the disincentivizing mechanism simply shifted from police and prosecutors to judges and juries.
Presence/Absence
“Stand your ground” laws represent an expression of too much presence. We talked in class about the importance of both absence and presence, depending on the circumstances. “Stand your ground” laws discourage withdrawing in the face of a perceived threat, and encourage the use of deadly force. On a physical level, these laws promote presence in an environment that is not safe. Although relying on withdrawing and waiting for the police to arrive assumes that the police will in some capacity be willing to aid you, the statistics do not support the claim that “stand your ground laws” necessarily improve those particular individuals’ outcomes. For example, black-on-white homicides are ruled justified in only 1.2% of cases nationwide regardless of “stand your ground” law. The implementation of “stand your ground” laws did not increase that figure significantly, although it did increase the likelihood that white-on-black, white-on-white, and black-on-black homicides would be ruled justified. (Roman 6).
Additionally, “stand your ground” laws encourage mental presence in undesirable ways. They feed one’s baser instincts, and disincentivize a more detached, rational way of acting. Instead of encouraging individuals to evaluate a situation in a way that allows for de-escalation, it helps animate one’s most reactive impulses. This is especially problematic when taken in the context of pre-existing prejudices that many people have. This is true of both the person “standing his ground,” and the juries that will eventually judge him. Implicit biases are just that; they do not reside in thoughtful rational analysis. The kind of high-intensity, emotionally charged environment that probably occurs before the use of deadly force in perceived instances of self-defense emboldens the emergence of those biases. Additionally, the statistic that only 1.2% of black-on-white homicides are ruled justified supports the fact that juries are also relying on these baser, too-present assumptions.
Balancing Absence and Presence
Absence and presence should both exist in a balance. Here, laws support too much presence, where absence should also be encouraged. Regardless of whether an individual uses deadly force because they feel threatened, the law should not incentivize that force. Even the castle doctrine has its own problems. There was a case in Louisiana where a homeowner shot and killed a Japanese exchange student who mistakenly knocked on his door looking for a Halloween party. He was acquitted of manslaughter in part because of the castle doctrine. (Acquittal in Doorstep Killing of Japanese Student).
Eliminating the duty to retreat encourages too many type I errors, and ultimately harms society.
Works Cited
“Acquittal in Doorstep Killing of Japanese Student,” The New York Times http://www.nytimes.com/1993/05/24/us/acquittal-in-doorstep-killing-of-japanese-student.html?pagewanted=all (May 24, 1993)
Jonsson, Patrick. “Racial Bias and ‘Stand Your Ground’ Laws,” Christian Science Monitor. http://www.csmonitor.com/USA/Justice/2013/0806/Racial-bias-and-stand-your-ground-laws-what-the-data-show (April 6, 2013).
Roman, John K. “Race, Justifiable Homicide, and Stand Your Ground Laws: Analysis of FBI Supplementary Homicide Report Data,” The Urban Institute http://www.urban.org/sites/default/files/alfresco/publication-pdfs/412873-Race-Justifiable-Homicide-and-Stand-Your-Ground-Laws.PDF (July 2013)
Ross, P. Luevonda. “The Transmogrification of Self Defense by the National Rifle Association-Inspired Statutes,” 35 S.U. L. Rev. 1 (2007-2008)
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