Thursday, February 01, 2007

The Castle Doctrine and its detractors

There are a few hot-button topics in American political life: abortion, gays, gay marriage, gays in the military, gay military weddings, etc. One button that has gotten less hot in the last few election cycles has been gun control. Less hot because while once guns were public enemy number 1 for anyone espousing "progressive" political views, it has become such a losing issue for Democrats that they have essentially thrown in the towel. Americans can feel confident that their right to own and bear arms is safe - for now.

One sign of this emerging consensus on gun rights can be seen in the new front in the gun rights movement, which involves where and when citizens can use their guns for self defense. Many states including Minnesota, where I live, have passed Concealed Carry laws which authorizes citizens to obtain permits which allow them to lawfully carry handguns in public. Another movement to expand self defense rights takes the form of "Castle Doctrine" laws, otherwise known by its proponents as "Stand your Ground" laws, and by its detractors as "Shoot First" laws.

Most states have some form of legislation that permits citizens to protect themselves inside their homes with deadly force, if necessary, against intruders if f they feel that their life or safety is threatened. In some states the law is not explicitly documented but is ensconsed in judicial precedent that recognizes traditional rights of self defense under English Common Law.

"Stand your Ground" laws aim to both make such traditional protections explicit and safe from judicial erosion, and also to expand the reach of where such protections are recognized, to include a persons car, workplace and any public place where the person has a legal right to be. It would absolve citizens of the duty to retreat from a violent attack, and allow a person to answer force with force.

Here in Minnesota two lawmakers have introduced such a measure in the state legislature. Other states, including Florida have already passed Stand your Ground laws.

Contrast this trend with the situation in the home of English Common Law, England:

On a June evening two years ago, Dan Rather made many stiff British upper lips quiver by reporting that England had a crime problem and that, apart from murder, "theirs is worse than ours." The response was swift and sharp. "Have a Nice Daydream," The Mirror, a London daily, shot back, reporting: "Britain reacted with fury and disbelief last night to claims by American newsmen that crime and violence are worse here than in the US." But sandwiched between the article's battery of official denials -- "totally misleading," "a huge over-simplification," "astounding and outrageous" -- and a compilation of lurid crimes from "the wild west culture on the other side of the Atlantic where every other car is carrying a gun," The Mirror conceded that the CBS anchorman was correct. Except for murder and rape, it admitted, "Britain has overtaken the US for all major crimes."

In the two years since Dan Rather was so roundly rebuked, violence in England has gotten markedly worse. Over the course of a few days in the summer of 2001, gun-toting men burst into an English court and freed two defendants; a shooting outside a London nightclub left five women and three men wounded; and two men were machine-gunned to death in a residential neighborhood of north London. And on New Year's Day this year a 19-year-old girl walking on a main street in east London was shot in the head by a thief who wanted her mobile phone. London police are now looking to New York City police for advice.

None of this was supposed to happen in the country whose stringent gun laws and 1997 ban on handguns have been hailed as the "gold standard" of gun control. For the better part of a century, British governments have pursued a strategy for domestic safety that a 1992 Economist article characterized as requiring "a restraint on personal liberty that seems, in most civilised countries, essential to the happiness of others," a policy the magazine found at odds with "America's Vigilante Values." The safety of English people has been staked on the thesis that fewer private guns means less crime. The government believes that any weapons in the hands of men and women, however law-abiding, pose a danger, and that disarming them lessens the chance that criminals will get or use weapons.

The results -- the toughest firearm restrictions of any democracy -- are credited by the world's gun control advocates with producing a low rate of violent crime. U.S. Supreme Court Justice Lewis Powell reflected this conventional wisdom when, in a 1988 speech to the American Bar Association, he attributed England's low rates of violent crime to the fact that "private ownership of guns is strictly controlled."

In reality, the English approach has not re-duced violent crime. Instead it has left law-abiding citizens at the mercy of criminals who are confident that their victims have neither the means nor the legal right to resist them. Imitating this model would be a public safety disaster for the United States.


The article points out the ridiculous lengths to which English courts have upended the traditional deference to the rights of individuals to self-defense:

� In 1973 a young man running on a road at night was stopped by the police and found to be carrying a length of steel, a cycle chain, and a metal clock weight. He explained that a gang of youths had been after him. At his hearing it was found he had been threatened and had previously notified the police. The justices agreed he had a valid reason to carry the weapons. Indeed, 16 days later he was attacked and beaten so badly he was hospitalized. But the prosecutor appealed the ruling, and the appellate judges insisted that carrying a weapon must be related to an imminent and immediate threat. They sent the case back to the lower court with directions to convict.

� In 1987 two men assaulted Eric Butler, a 56-year-old British Petroleum executive, in a London subway car, trying to strangle him and smashing his head against the door. No one came to his aid. He later testified, "My air supply was being cut off, my eyes became blurred, and I feared for my life." In desperation he unsheathed an ornamental sword blade in his walking stick and slashed at one of his attackers, stabbing the man in the stomach. The assailants were charged with wounding. Butler was tried and convicted of carrying an offensive weapon.

� In 1994 an English homeowner, armed with a toy gun, managed to detain two burglars who had broken into his house while he called the police. When the officers arrived, they arrested the homeowner for using an imitation gun to threaten or intimidate. In a similar incident the following year, when an elderly woman fired a toy cap pistol to drive off a group of youths who were threatening her, she was arrested for putting someone in fear. Now the police are pressing Parliament to make imitation guns illegal.

� In 1999 Tony Martin, a 55-year-old Norfolk farmer living alone in a shabby farmhouse, awakened to the sound of breaking glass as two burglars, both with long criminal records, burst into his home. He had been robbed six times before, and his village, like 70 percent of rural English communities, had no police presence. He sneaked downstairs with a shotgun and shot at the intruders. Martin received life in prison for killing one burglar, 10 years for wounding the second, and a year for having an unregistered shotgun. The wounded burglar, having served 18 months of a three-year sentence, is now free and has been granted �5,000 of legal assistance to sue Martin.

There has to be a tremendous lode of irony to be mined from this sad state of affairs, though only a certified and trained professional ironist should attempt it.

60 Comments:

Blogger Oroborous said...

You can take away the right of the average citizen to defend herself, but only if the state is brutal on her behalf.

I believe that's the way they do things in Japan.

If the average person isn't allowed to fight back, and the state is squishy, then it's bad news all around.

February 01, 2007 9:45 PM  
Blogger Mark Frank said...

I will look up the figures and references later today but I must make a short initial response. The Mirror is a rag - not that far from the National Enquirer - and should be ignored. However, the article about the UK is equally deceptive. The US homocide rate is not just a bit higher than the UK - it five times the rate. Gun crimes in the UK are increasing but they are still a tiny proportion of overall crime. The "Tony Martin" anecdotes are just that - anecdotes that make good headlines but they are single instances that are often distorted in the retelling. Have a look on the internet for the real details and also note how old these examples are.

Most importantly you have to look at these things in the context of the overall culture of the country. It is part of the UK culture that citizens are not expected to defend themselves against crime. They are expected to leave that to authorities. In that context gun control makes a lot of sense. There aren't a lot of people out there desperate for the right to defend themselves. A party that tried to repeal gun control laws would be onto a massive vote loser.

To understand the rise in crime in the UK (which has been dropping fairly steadily in recent years)you have to look way beyond anything to do with the presence or absence of guns.

February 02, 2007 12:04 AM  
Blogger Brit said...

I would bring back hanging for people who quote Tony Martin myth as a witness for the pro-gun defence. Tony Martin was a very strange man who shot a boy who was running away in the back.

Contrary to these ker-ker-krazy stories, you are allowed to defend yourself with force in Britain.

Crime here is mostly driven by heroin addiction, which should be the government's number one priority, but they are frightened of the obvious conclusions.

February 02, 2007 1:36 AM  
Blogger Duck said...

What are the obvious conclusions? Arresting people and putting them in jail?

Mark, what about the rate of violent crime in England? Not all violence involves guns. Is an increased incidence of violence worth the tradeoffs?

And doesn't the fact that gun crimes are increasing argue against the effectiveness of the gun ban?

If either of you can point me to a site that talks about what an Englishman can and can't do to protect himself I'd appreciate it.

To bring in a point from the capital punishment debate on TofE, I'd say that giving the police an absolute monopoly on defending citizens from violence is statism in the extreme.

February 02, 2007 7:27 AM  
Blogger Brit said...

Putting people in jail is what they do now and it has made the problem infinitely worse.

You're allowed to use reasonable force in self-defence, including killing someone. It's context-dependent and up to the court to decide if you were reasonable or, like Tony Martin, unreasonable.

Does the US allow vigilantism? We had those Angels geezers on the tube for a bit but I don't know what happened to them. We do have Neighbourhood Watch schemes so I suppose its a matter of degree.

One more thing you've got to realise about Britain is that we are a massively urban place.

February 02, 2007 7:37 AM  
Blogger Duck said...

From the link:
Reasonable Force
A person may use reasonable force against another if in self-defence. Reasonable force can be used to protect both property and you. Also, if an intruder enters a property at night it is reasonable to assume that they intend to cause harm to the occupants and no just take possessions. In extreme cases the killing of another person can be self-defence.


I have a few problems with this. One is that deadly force is only considered reasonable in extreme cases. What do the courts consider extreme? Isn't the presence of an intruder in your home extreme enough? And why the distinction between day and night? Why is it unreasonable to assume that an intruder in your home during daylight has the intent to cause you harm? Why is it incumbent on the resident to determine motive? That puts a resident in the quandary of having to choose between making the wrong decision on motive that will either get him killed by the intruder or get him sent to prison for manslaughter.

The second and most obvious problem is that without access to a gun defending oneself from a violent criminal is a pretty dicey proposition, especially for women and elderly people.

This seems a right in name only. In reality a resident has very little control over his own safety in such a legal scheme.

February 02, 2007 8:32 AM  
Blogger Brit said...

The point is that it will all depend on the individual circumstances. It's not really the sort of thing you can make universal rules about.

But isn't it the same in the States? You can't shoot someone just because they're on your property, surely? Suppose they're looking for their cat, or sleepwalking, or senile, or just a neighbour wanting to borrow some teabags? Or just happen to be a drunken Scotsman doing a jig?

Being scared and thinking they were burglars would be mitigation, but still...

Also, surely even in the States the courts have to decide levels of reasonableness. If you catch a 16-year old burglar in your shed, shooting him once might be justified, shooting his prone body ten times might not.

February 02, 2007 8:54 AM  
Blogger Duck said...

I would bring back hanging for people who quote Tony Martin myth as a witness for the pro-gun defence. Tony Martin was a very strange man who shot a boy who was running away in the back.

Strange men have the right to self defense. He shot a "boy" with a long criminal record who had broken into his house at night. His house had been broken into on six earlier occasions. Tell me why this wasn't a reasonable action?

drunken Scotsman

Isn't this redundant? I noticed that you included Scotsmen in with children and enfeebled elders. Is that a common opinion in England?

February 02, 2007 10:00 AM  
Blogger Brit said...

The reason the Tony Martin case is so famous and divisive is that it was far from simple. You can read a typically neutral Wikipedia article about it here.

But among the various strangenesses are:

1) he shot dead a 16-year old boy who was running away, so it was not self-defence.

2) he seems to have made up some or all of those six earlier burglaries

3) his sentence was reduced from murder to manslaughter on the grounds that he was a nut with a specific paranoia about burglars.

The UK public was mostly in favour of Martin at the time, but they didn't know everything the courts knew. No doubt the US public would have been equally or more sympathetic, but it's far from clear that a US court would have come to a different decision.

February 02, 2007 10:19 AM  
Blogger Oroborous said...

In many American states it's perfectly fine to shoot someone that's unexpectedly in your home, no explanation required.

There have been cases where drunks being obnoxious have been shot outside the home, and while a trial was conducted, the shooters got off.

The bottom line is that in many but not all states, the burden of avoiding conflict rests where it properly belongs, on the intruder.

February 02, 2007 10:38 AM  
Blogger Oroborous said...

And yes, it's OK in America to shoot an intruder in the back, as long as it's on residential and not commercial property.

If you're a security guard at a commercial property, you have to get them to turn around before you kill them.

February 02, 2007 10:40 AM  
Blogger Brit said...

Yep, you yanks are crazy.

February 02, 2007 10:46 AM  
Blogger Mark Frank said...

This is far more than just gun control laws. It is a matter of culture and the role of the citizen. The US has a long tradition of self-reliance and personal, as opposed to public, rights. e.g. public footpaths are almost unknown and the right to roam would be anathema. This has its attractions and is traditionally associated with freedom. But it can also be a burden and a loss of freedom. In the case of public footpaths the loss of freedom is obvious - but it can apply to guns. If you allow the citizen to arm themselves as they wish, this can easily become an expectation or even a duty (in fact I think some counties in the US do require every householder to own a gun - but this may be the equivalent of a Tony Martin anecdote?). For someone who does not want the expense, time to become competent, and responsibility, this becomes onerous.

Duck when you talk of the "trade-off" you seem to suggest that UK gun control laws are somehow responsible for the increased level of violence or that liberalising them would reduce violence. There is no evidence for that at all. Gun control in the UK has been much higher than the US for many, many decades. During that time violent crime has been at a lower level than the US for several decades, increased and passed the US in the 90s, and now has has become very confused with the BCS figures showing a drop and the recorded crime figures showing most crime dropping but violence still increasing (but the basis of recording has changed). You can't draw any conclusions from that. What has been consistently true is that the level of homicide in the US has been many times higher than the UK throughout the period. I wouldn't put that down specifically to low gun control. I would put it down to a different culture, of which low gun control is a part. It is a culture with enormous attractions. But a lack of gun control, a high homicide rate, a high imprisonment rate, and the death penalty are all part of it. Whether low crime is part of it, is hard to say as relative crime levels have varied so much.

Picking up on some other points.
I am not giving the police a monopoly on defending us against violence. I am saying that the the vast majority of UK citizens prefer to leave that to the professionals and there is no obligation or expectation to defend yourself (nor is there much requirement if we are honest - fear of violent crime is far more of a problem than crime in both countries).

February 02, 2007 2:28 PM  
Blogger Oroborous said...

[S]ome counties in the US do require every householder to own a gun...

Yes, that's true, but such regulations are pretty rare, and their purposes are primarily to sow doubt among criminals as to how much of the populace is actually armed, and secondarily to make political and cultural statements.

In all of the cases of such regulations that I am aware of, there are very liberal provisions for exemption and opting out, so that nobody is forced to purchase a gun who doesn't want or feel capable of handling one.

The high homicide numbers in the U.S. are symptoms of dysfunctional subcultures, and are not really representative of mainstream American culture.
Many homicides in America involving firearms are criminal-on-criminal violence, mostly involving organized crime or drugs.

Still, there are significant numbers of gun deaths that are attributable to anger + ready weapons, and of course there are a lot of accidental shootings.

As you say, it's a cultural thing.

But the gap between homicides in mainstream American culture and mainstream British culture is smaller than it might first appear.

February 02, 2007 3:03 PM  
Blogger Oroborous said...

O/T: Somehow, in the move to Blogger II, I have been separated from the "DD" team.

I will apparently need another invite to join the DD, if you want me to
continue to post on the main page.

February 02, 2007 6:07 PM  
Blogger Hey Skipper said...

Duck is completely correct in his objections to

Reasonable Force
A person may use reasonable force against another if in self-defence ...


It is applied completely post-hoc, by people who weren't there. There is no way for a homeowner to know, no matter the situation, what someone else's 20-20 hindsight will yield.

Last year in Michigan there was a biggish fight over changing the state law to overturn the "reasonable force" doctrine in favor of the Castle doctrine.

The Castle doctrine won. I simply don't know how anyone can argue that someone breaking and entering should expect any help from the law, when what they should expect is a warning after being shot.

Brit:

One more thing you've got to realise about Britain is that we are a massively urban place.

OT, I know, but outside London and, say, Birmingham, my impression of England was a place where a fairly high percentage of people live in the countryside. Sure looks that way from the air.

Mark:

Echoing what Oro said, much of our murder rate is symptomatic of something else, or many other things, going on.

That is why I advocated comparing similar populations. The African - American portion of the population has been the recipient of all kinds of abuse (among the worst being welfare) that has largely ended only recently. The murder rate there is a consequence of wholly dysfunctional communities.

If you exclude the African American murder rate, then the numbers aren't nearly so disparate.

BTW, if you and Brit want to be sure you do not have any aneurysms lurking, get Duck to send you any issue of the the NRA's magazine.

If you survive the reading, you are aneurysm free.

Of course, that no-cost medical test doesn't work everywhere.

Wouldn't bother me in the least.

February 02, 2007 6:40 PM  
Blogger Hey Skipper said...

Oro:

According to Blogger's dashboard, you still listed as admin. However, there is no Google account associated with your name, which could be the root of all evil.

I don't know how to fix it from my end, unfortunately.

February 02, 2007 6:50 PM  
Blogger Duck said...

Oro,
I sent you another invite, once you accept you should be good to go.

February 02, 2007 7:22 PM  
Blogger Harry Eagar said...

It doesn't sound as if Martin's feelings about burglary were paranoid.

From what I've read, not only is Britain a 'massively urban' place (though Martin was rural, was he not?), it is so lawless that regiments and brigades of private cops infest every place. Much more so than the peaceful United
States, where it is unusual to encounter anyone but a nightwatchman armed with nothing more deadly than a cell phone.

'Isn't the presence of an intruder in your home extreme enough?' Is for me. Once he's intruded, pretty much anything that happens to him after that is his fault.

I apply the same rule to riots. If you don't leave, don't complain, either.

That said, the NRA is crazy. They not only defend your right to shoot burglars but any nut's right to hunt kindergarteners with a machine gun.

A last point, which I've made before but which nobody seems to get: when you look at violence rates in America (and probably in any rich country) over a longish period of time, the number of homicides is going to show an increase (or fail to show an expected secular decrease), because today's firearms are far more reliable than my father's firearms.

Many, many incidents that in 1935 would have resulted in no injury at all because of misfires, now end up with seriously wounded or dead participants.

The effect is orders of magnitude greater in really violent, poor places like, say, Somalia or the Philippines or Columbia, thanks to Comrade Kalashnikov.

February 02, 2007 8:17 PM  
Blogger Harry Eagar said...

Hmmm. So now you've switched off word verification, Mr. Duck?

I was unable to send that last post from work, where I use, but less and less, the crappy IE for Mac, because it would not show the magic word. But now at home, no word necessary.

February 02, 2007 8:19 PM  
Blogger Mark Frank said...


From what I've read, not only is Britain a 'massively urban' place (though Martin was rural, was he not?), it is so lawless that regiments and brigades of private cops infest every place.


Harry I suggest you change your reading material. I am not aware of any private cops in the UK - just the usual building security staff - and they are definitely not armed. I think this is what annoys me. Just as it must be very frustrating to have the Mirror make all sorts of false accusations about the US (I lived in Atlanta for a few years in the 80s) it is very frustrating to read right wing US articles based on a deep misunderstanding of the UK.


The high homicide numbers in the U.S. are symptoms of dysfunctional subcultures, and are not really representative of mainstream American culture.
Many homicides in America involving firearms are criminal-on-criminal violence, mostly involving organized crime or drugs.


This is also true of the UK. For both of us (assuming you are not in a dysfunctional subculture) the threat of violent crime is almost negligible. That's the irony.

February 02, 2007 11:54 PM  
Blogger Brit said...

Skipper:

OT, I know, but outside London and, say, Birmingham, my impression of England was a place where a fairly high percentage of people live in the countryside. Sure looks that way from the air.

Good heavens no. And actually this isn't off topic.

The US's population density is 31 people per sq km.

The UK's is 246! (And that includes the great empty wastes of northern Scotland which brings the average down). England is tiny and stuffed to the gills with people. (This is why comparing crime overall between the US and UK is a bit silly: you'd need to compare, say, Manchester with LA for a true comparison).

In the other gun thread you quite rightly pointed out to me the chalk-and-cheese nature of this debate: in the US guns can't be wished away because the mainstream gun culture is already there. Well, the same applies when Duck tried to suggest that loosening gun laws in the UK could help reduce crime.

Just wouldn't work. There just isn't the space for a US style attitude to property. You are ALWAYS on somebody's property here. The other night I found out that if I need to turn the water mains off I have to go into next door and open up their floorboards. (Even in the countryside - there isn't enough to go round. That's why Madonna got into such a tiz about ramblers using public footpath laws to walk on her mansion's estate. American attitude to property.)

For the majority of the population, the police are never more than a few minutes away. We all live on top of each other. Why would we want all the houses full of guns? If you shot everyone who walked onto your property here there'd be nobody left alive inside a week.

Also, nobody wants a gun. We're just not interested in them, so it's the mirror opposite problem to yours with gun restriction: if they allowed us to have guns, the only people who'd want to buy them would be those with criminal intentions.

February 03, 2007 1:02 AM  
Blogger Duck said...

That's why Madonna got into such a tiz about ramblers using public footpath laws to walk on her mansion's estate. American attitude to property.

Water valves in your neighbor's house? Public footpaths? You Brits are crazy all right!

Tell us more about this public footpath law. What is the attitude about building fences? Actually this is something that bugs me about Minnesota. I don't know whether it is the self-conscious "progressivism" or the residual infuluence of Swedish ancestry, but some neighbors have a cow when you suggest you might build a fence around your backyard. In my neighborhood there is a covenant that says you must get it approved by the homeowners association. Bloody Bolsheviks! I was cursed out by a man who cut through my yard once because I told him that there was an actual public footpath that he could take that is only one house over. One neighbor on the street behind me, that isn't in my association, finally cut off the unofficial footpath by fencing in her backyard. So it isn't as uniformly territiorial here as you might think.

February 03, 2007 7:10 AM  
Blogger Duck said...

I am saying that the the vast majority of UK citizens prefer to leave that to the professionals and there is no obligation or expectation to defend yourself

I'm trying to grasp what you mean by this. If you are attacked your defense is something that requires immediate attention, it isn't something that you can delegate to the police expecting them to bd right there. They are not a bodyguard service. Why would anyone not defend themselves? This is your life we are talking about. It isn't a matter of preference, like your hairstyle. No obligation or expectiation? It's like saying there is no obligation or expectation to save yourself from drowning! Am I missing something here?

February 03, 2007 7:17 AM  
Blogger Peter Burnet said...

Duck/Skipper/Oro:

I've gotta go with our English friends here. It seems to me you are trying to force rational pegs into irrational holes. It's one thing to say self-reliance and self-defence depend on the right of a citizen to pack heat, quite another to then go on and insist it reduces the collective homicide rate and makes everybody safer. They are two different issues and maybe at bottom you don't really care about the big picture, especially when you start subtracting huge minorities and urban areas from your statistical proofs. Why don't you just admit you are all gun nuts and that your rugged individualism carries a price in violence you are prepared to pay?

It may be true an individual gun-free house is not as safe as an armed one if an armed or crazed intruder breaks in, but overall I think it is pretty clear gun-free societies are safer on the whole.
Also, why the focus on handguns if the objective is just to protect the castle? Everybody in Switzerland has a rifle and lots of rural Canadians do too, but handguns are pretty much verboten. Those aren't exactly high-crime areas. And almost nobody in Canadian urban areas has a gun of any sort or wants one, but the homicide rate is a lot lower than yours.

Although to be fair, unlike those girly Brits with their sissy public footpaths, we do have special legal rights to protect our castles. It's well-settled Canadian law that if an intruder breaks in, you are allowed to high-stick at will and cross-check him in the corners.

February 03, 2007 8:55 AM  
Blogger Peter Burnet said...

Duck:

Although it seems that Minnesota bolshevism is eating away at your freedoms and precious bodily fluids.

February 03, 2007 9:45 AM  
Blogger Duck said...

Indeed it is. While perusing Google for some some notion as to what Minnesota trespass law states, I found this sorry example of the dastardly creeping influence of international law, of all things:

A jury of six women returned a verdict of “not guilty” in the trial of 4 Christian peacemakers in Minneapolis today. John and Marie Braun, Carol Masters, and Steve Clemens were charged with criminal trespass on July 21, 2004 when they attempted to enter the corporate headquarters of Alliant TechSystems in Edina, MN. The four were attempting to deliver a letter and documents to corporate officers concerning “Employee Liabilities of Weapons Manufacturers Under International Law.” After requesting to meet with one of four corporate officers, the four were arrested after they refused to leave the premises without at least an appointment to meet with them at a future date.

If convicted, the defendants could have faced up to 90 days in jail and/or a fine of up to $1,000. They chose to request a jury trial instead of accepting an offer to plead guilty in exchange for “community service”. Speaking to a jury, they felt, can help spread the word about International Law and the realities of these weapons.

The trial, presided over by Judge Regina M. Chu, focused on a provision in the MN trespass law which provides for “a claim of right”. The defendants successfully argued that it was reasonable for them to be on the property of this weapons manufacturer because of treaties signed by the United States. Quoting Article VI of the US Constitution where International Treaties signed by our government are identified as “the supreme law of the land”, the defendants then offered into evidence excerpts from the Hague and Geneva Conventions, the CCW Treaty, and the Nuremberg Principles. The Judge also permitted inclusion of articles the defendants had read prior to their nonviolent action that influenced their intent that day.


There is a happy ending, though. Edina later passed a more stringent trespass law, and now the "peacemakers" are liable for their trespassy ways.

February 03, 2007 9:55 AM  
Blogger Harry Eagar said...

Mark, my source for the overreliance (in Yank terms) on private police comes not from rightwing American diatribes but from English 'tec novels.

Not recent ones, though. '70s vintage.

February 03, 2007 11:40 AM  
Blogger Mark Frank said...

Duck - you said I'm trying to grasp what you mean by this. If you are attacked your defense is something that requires immediate attention, it isn't something that you can delegate to the police expecting them to bd right there. They are not a bodyguard service. Why would anyone not defend themselves? This is your life we are talking about. It isn't a matter of preference, like your hairstyle. No obligation or expectiation? It's like saying there is no obligation or expectation to save yourself from drowning! Am I missing something here?

You are right - I should have said "crime" not "violence". If you are personally attacked then you will presumably either defend yourself or runaway. But, as discussed, that is a very small risk unless you live in a dysfunctional community. I am talking about defending yourself against crime e.g burglary or robbery.

Harry - it strikes me as even odder to base your opinions on 70s novels. Did anyone explain to you that novels are fiction i.e. not true? It is also true that some US right wing writers do say the most extraordinary things about crime in the UK. I can think of examples from John Lott, Thomas Sowell and Clayton Cramer just off the top of my head. I was particularly disappointed with Sowell who I often find perceptive and well-informed - but not in this case.

February 03, 2007 1:09 PM  
Blogger Duck said...

Mark,
Thanks for clarifying, that makes more sense. To tell you the truth, I am not going to risk my life to just save property. I'd prefer if the police could always arrive on time to handle violent confrontations for me.

Speaking of the population density of England, I get a certain sense of claustrophobia watching the EastEnders. It seems wherever they shoot a scene, indoors or out, the location is cramped and crowded. Is this a fair assessment? Does it seem that way to you, or does it just feel normal?

February 03, 2007 1:25 PM  
Blogger Duck said...

BTW, do you have a link to the Sowell article that disappointed you?

February 03, 2007 1:27 PM  
Blogger Brit said...

Mark:

What you've got to understand about Harry is that nobody in the history of human letters has more of that there booklearnin' filling his brain.

February 03, 2007 2:14 PM  
Blogger Oroborous said...

[M]aybe at bottom you don't really care about the big picture, especially when you start subtracting huge minorities and urban areas from your statistical proofs.

There are valid statistical reasons to adjust the raw data, so that we can compare apples to apples. It's the same with, say, infant mortality.

Whenever we compare the U.S. to other nations, it must always be kept in mind that although the states make up one nation, that nation is composed of many large and somewhat different cultures.

That difference matters, sometimes enormously, depending on what is being compared.

That dynamic is the reason that the Purchasing Power Parity measure exists, for example.

Why don't you just admit you are all gun nuts and that your rugged individualism carries a price in violence you are prepared to pay?

You may wish to read my comment of February 02, at 3:03 PM.

Brit:

You've almost got it - for a true rural American south accent, it should be "bookl'arnin'".

February 03, 2007 2:35 PM  
Blogger Peter Burnet said...

Oro:

Point taken, and I'm sorry I said "gun nuts" rather than "love guns" because I wasn't intending to be mocking and am actually quite fascinated by the self-reliance ethic that surrounds this question. But I wonder whether the payback is more indirect than a simple statistical reduction in crime. Up here, every increase in violent crime is met with a pretty predictable call for more regulation and disarming of the citizenry, which is a mindset that brings its own downside in other areas. But I confess I have a very hard time squaring free handgun ownership with the reality of modern urban life.

February 03, 2007 3:14 PM  
Blogger Hey Skipper said...

Duck:

Again possibly OT, but

What is the attitude about building fences? Actually this is something that bugs me about Minnesota. ... In my neighborhood there is a covenant that says you must get it approved by the homeowners association.

In my experience, that is a regional thing. In the northeast, fences and walls simply aren't done.

In contrast, in the Southwest everyone has a wall around their yard.

Brit:

Yes, I know the population density is much higher in the UK, even after subtracting London, Birmingham and Liverpool.

But the overhwelming impression I had is of a countryside scattered with villages and small towns. Are not Ascott-under-Wychwood and Duns-Tew, never mind the ever popular Hinton Under the Hedges, Horton cum Studley and Upper Dicker just as typical of England as dense urban areas?

(No, I'm not making any of those up.)

Peter:

Why don't you just admit you are all gun nuts and that your rugged individualism carries a price in violence you are prepared to pay?

Well, for one I'm not a gun nut. Don't own one, never have. I don't get any gun magazines -- I just happened to browse through one left on the flight deck a few days ago.

Mark is right when he says that fear of crime is often worse than crime itself.

Except for a few dysfunctional communities, whose murder rate is a symptom for which guns are not the cause, I think you could say the same about guns.

Also, why the focus on handguns if the objective is just to protect the castle?

Because, given the proximity, handguns are a far better choice than a rifle.

There is no way to know, but I think it a fair guess that the tradeoff one makes when prohibiting guns is a greater reliance on the state, and more crime.

But less potentially fatal violence.

February 03, 2007 3:20 PM  
Blogger Harry Eagar said...

Mark, the old-timers have heard this lecture before, but you are new, and it's a good lecture, which they can skip.

As a young reporter, I was vastly influenced by the English historian John Morris in his 'Age of Arthur,' in which he disputed the belief that there were almost no reliable documents from England in the 5th c.

He contended that if you are going to sell a lie (eg, saints walking on water), then all the 'furniture' of your story, the setting, must match exactly what your intended victims know in their own lives.

The selling of a plot in a 'tec novel is not quite as restrictive as selling phoney religious miracles, but still . . .

February 03, 2007 6:18 PM  
Blogger David said...

The lawyers in the audience are cringing.

First, I'm not aware of any state that allows the use of deadly force to protect property, and I'd be astonished if there were such a state. Self defense requires a reasonable fear of imminent death or serious bodily harm to yourself or others.

Second, a lot of what's being discussed here is what is called the duty to retreat. Ordinarily, if you're facing down an armed assailant, you have the duty to retreat to a safe place and you cannot use deadly force if you can retreat in reasonable safety. In most states, if not all states, however, there is no duty to retreat from someone unlawfully in your own home. For example, see Mass GL c. 279, Section 8A. Note that even in your home, you still have to reasonably fear that violence is about to be used against you before you can use deadly force.

Third, in most southern or western states, however, it is notoriously hard to get a jury to convict a homeowner of murdering an intruder under any circumstances.

Fourth, there is some good evidence that burglars in the US avoid entering a dwelling in the night time because guns are ubiquitous and they're afraid of being shot. The burglary rate in the UK (about 14 per 1000 people) is about twice that of the US. Rates of robbery and assault are similarly greater in the UK. Murder is still much more common in the US.

February 03, 2007 8:38 PM  
Blogger Mark Frank said...

Duck

I couldn't find the Sowell article that I was thinking of - but a quick Google produced this one:

http://www.realclearpolitics.com/articles/2006/08/the_left_and_crime_part_ii.html

It contains the quite extraordinary sentence:

Given the prevailing view in the British criminal justice system that burglary is a "minor" offense and the fierce hostility to guns, even toy guns, the homeowner is far more likely to end up behind bars than the burglar is.

As written this is just false. Presumably he means, "if the homeowner is armed, they are more likely to end behind bars than the burglar". There are so few armed homeowners in the UK I don't think there is any way to test it. It depends on the nature of the weapon, the nature of the burglary, what the homeowner did with the weapon etc. In other words it was empty rhetoric, painting a false picture of the situation in the UK where gun ownership by the ordinary citizen is just not an issue.

Also he seems obsessed with toy guns. I suspect he is thinking of a single case in the mid-90s which he also referred to in the other article I mentioned (omitting the date) where the police did indeed behave in an extraordinary way, arresting a home owner for threatening intruders with a toy gun. The case was overturned and the police heavily criticsed in parliament. (I am sorry I can't find the reference)

It is possible that is referring to the recent concern over replica guns. They are such good replicas they are being used to threaten people while committing crimes and indeed the police think that a significant proportion of the increase in reported gun crime may not be real guns at all. I read that some of them can also be converted to real guns quite easily - but that sounds a bit like a "Tony Martin" story.

February 03, 2007 11:25 PM  
Blogger Brit said...

David:

I thought Duck's picture seemed unlikely, even in a crazy place like the US. There can't be a law that says you can happily shoot away at any senile old biddy who wanders across your lawn in her nightie looking for her cat.

Shooting somebody because they are on your property would be extraordinarily irresponsible.(Unless they are Jehovah's Witnesses, of course.)

February 04, 2007 2:48 AM  
Blogger Duck said...

To be fair (to me) I think you're referring to Oro's description of what can be done to intruders on one's property, but not inside one's home. I'm not fully familiar with the law but I know that distinctions are made between inside the home and on property.

Texas is held up as the state that has the most liberal (for the property owner) self defense laws. Even my coworker who hails from Houston says that a property owner can shoot a trespasser, no questions asked, which sounds like overreach. This might be the result of braggadocio or a "don't mess with Texas" type posture to deter the criminally minded, but I think it is more of what David said, that prosecutions are rarely brought because juries tilt so far in favor of property owners.

Here's a good description of the more recent "stand your ground" legislation as it was enacted in Florida.

February 04, 2007 6:44 AM  
Blogger Duck said...

Also here's a blog dedicated to armed self-defense. The author clips new articles from across the country involving self-defense related shootings. In many of these cases it appears that homeowners are charged or may be charged with prosecution.

February 04, 2007 6:53 AM  
Blogger Peter Burnet said...

Skipper:

There is no way to know, but I think it a fair guess that the tradeoff one makes when prohibiting guns is a greater reliance on the state, and more crime.

But why do you make that correlation. Surely you won't argue that totalitarian states aren't often more effective at reducing crime than free ones? That's their appeal. Would you rather do a midnight walking tour of Pyongyang or Lagos?

True, it's not the only factor at play, but I don't understand why you think more freedom equates with less crime. Got any before/after examples to substantiate that?

February 04, 2007 12:22 PM  
Blogger Oroborous said...

* As to using deadly force to protect property:

California:

Two would-be robbers were wounded in a shootout with a security guard in a North Hollywood liquor store, police said.

The shooter was not arrested, pending the outcome of an investigation.

Columbus, Ohio:

Store Clerk Fights Back Against Would-Be Robbers

Police said 19-year-old Shandos Young and 18-year-old Justin Cockrell entered the market with bandanas over their faces and threatened the owner and another employee.

"I seen these guys storm in with their guns. I dropped the phone, backed away, drew my gun and fired two shots," said Clive Weidle, the store clerk.

Investigators said set of footprints leading away from the store guided officers to the alleged weapon, a coat and latex gloves.

Both teenagers were captured a few blocks away and charged in connection with the robbery.

* On shooting at people running away, or otherwise not in one's house, but on one's property:

Blacksburg, South Carolina:

A Blacksburg homeowner fired three shots while two burglary suspects were running from his home at 2:50 p.m. Tuesday.

Police have charged R.J. Osborne, 19, and his brother, Ronald Franklin Osborne Jr., 20, each with 2nd degree burglary.

Muskegon, Michigan:

Joseph Ingalls, 36, originally of Norton Shores but who also lives part-time in Traverse City, was arrested and lodged in the Muskegon County Jail on Wednesday and arraigned Thursday in Muskegon County District Court on a charge of first-degree home invasion. He is a fourth-time habitual offender, according to court documents.

According to police, Ingalls entered a garage in the 800 block of Farr Road at about 9:30 a.m. Tuesday. The homeowner, who was not identified by police, spotted the intruder carrying a toolbox and other items from his attached garage, and opened fire on his vehicle with a handgun.

* On America as the Wild, Wild West:

Kokomo, Indiana:

Jurors acquitted a defendant who said he acted in self-defense in a shootout that killed a man at a busy commercial area of the city.

Prosecutors say Winston exchanged gunfire with Moore on Jan. 27, 2006, outside a fast-food restaurant near Markland Mall on the city’s east side.

February 04, 2007 8:31 PM  
Blogger Oroborous said...

OK, links are not working. References on request.

February 04, 2007 8:33 PM  
Blogger Hey Skipper said...

Peter:

But why do you make that correlation [between greater reliance on the state, and more crime.

First, because when people completely disarm themselves, they must rely entirely upon the state for protection.

Second, because I had in mind what David posted:

The burglary rate in the UK (about 14 per 1000 people) is about twice that of the US. Rates of robbery and assault are similarly greater in the UK. Murder is still much more common in the US.

I happened to see a report on BBC International this evening about the plague of robberies on Paris streets -- they even had film of an amateur snatch-and-dasher getting it wrong a half dozen times before finally succeeding in running off with a woman's purse.

He wouldn't do that in a US locale that allows concealed carry. Or, at least, not for long.

Surely you won't argue that totalitarian states aren't often more effective at reducing crime than free ones?

That absolutely depends upon what kind of crime you are talking about.

David:

You are, of course, correct on the law. The change (IIRC) in the Michigan law relieved people from having to retreat from their homes.

February 05, 2007 1:55 AM  
Blogger David said...

O: If you're being robbed by someone using a gun or other weapon, you have at least a colorable claim that you were in reasonable fear of grevious bodily harm.

The only story I'd have to know more about is the guy who shot at the robbers while they were fleeing his house, but apparently he didn't hit them.

February 05, 2007 4:56 AM  
Blogger David said...

This seems to be a decent summary of South Carolina law on the use of deadly force. It seems pretty clear that you can't legally shoot at burglars running away from your house.

February 05, 2007 5:08 AM  
Blogger Peter Burnet said...

That absolutely depends upon what kind of crime you are talking about.

I assume we are talking about the personally menacing kind. I doubt too many folks carry guns to protect freedom of speech and the right to habeas corpus.

February 05, 2007 5:21 AM  
Blogger Oroborous said...

I doubt too many folks carry guns to protect [...] the right to habeas corpus.

I do.









OK, just kidding.

David:

Thanks for the clarification.

February 05, 2007 7:35 AM  
Blogger Duck said...

Exactly how would a drive-by Habeas Corpus infringement go down? I'm trying to picture that and I'm not being successful.

February 05, 2007 7:53 AM  
Blogger Peter Burnet said...

Oro:

With anyone else I would know they were kidding. With you I couldn't be sure. I'm still not. :-)

February 05, 2007 7:58 AM  
Blogger Harry Eagar said...

When I lived in Iowa, we had a case.

A criminal or suspected criminal (convicted I believe though I cannot remember) was being escorted into the county courthouse, which is in the middle of downtown Des Moines.

He made a break for it and started running up the sidewalk of a very busy street. After he'd got four or five blocks away, he was probably thinking he had it made.

A deputy sheriff dropped to one knee and shot him through the back from a distance of something like 100 yards with (as I recall) an S&W .38.

There was some discussion about the propriety of that, centering mostly upon whether the shooter had endangered innocent people.

When he showed that he was a good shot, the discussion faded.

It was a hell of a shot.

Not even the redhot liberals at the paper I worked for saw much of an issue. If you don't wanta get shot, don't run from the deputy. Simple as that.

February 05, 2007 12:55 PM  
Blogger Oroborous said...

Consistently hitting a human-sized target with a handgun at 100 yards is mighty fine shootin'.

February 05, 2007 4:11 PM  
Blogger Harry Eagar said...

As far as I know, he did it only once.

February 05, 2007 6:38 PM  
Blogger Hey Skipper said...

Peter:

I assume we are talking about the personally menacing kind. I doubt too many folks carry guns to protect freedom of speech and the right to habeas corpus.

The history of statism is pretty clear that governments can get up to some pretty serious crime that is completely legal by their own definition.

In other words, there are more kinds of crime than just street crime.

Keep in mind, though: my approach to gun legislation is derived from "it is what it is." I am not the least bit certain that, if the US had always been like Canada is, that restrictive handgun laws would be a bad idea.

Unfortunately, that would be a case of "that is what it isn't."

February 06, 2007 5:54 AM  
Blogger Peter Burnet said...

Skipper:

Don't you see I'm trying to help out you gun fanat..umm..hobbyists by injecting a little needed platonism into the cause? Dwelling on "what works" will just keep you on the defensive and drown you in endless statistical studies that may not end up proving what you expect. On the other hand, "blowing away the scumbag like he richly deserved" has that ring of objective morality that will keep you and your house safe from intruders and leftists.

February 06, 2007 8:03 AM  
Blogger Harry Eagar said...

Now we fast forward from Iowa about 15 years to a Honolulu case. In the intervening years, something has happened: cable television and mobile TV vans for hotly competitive local 'news' shows.

Unknown to the police, a guy has just gone on a rampage against his family and is driving toward his estranged wife, armed with a MAC10. Sunday morning, empty streets. Cop pulls him for some driving violation.

Guy sprays the cop, hitting him 9 times, none too serious. Cop replies with his 9 mm pistol, kills machinegunner.

Americans will know the rest, because what Lileks calls the dirtball demographic has learned the rap: brutal, the cop didn't need to use deadly force, we demand an investigation, hang the cop, sue city for $10M etc.

The new widow is loudest in her denunciation, although it is evident that if the cop hadn't shot her husband, he was on his way to kill her.

So now we are evolving in the opposite direction from the foreigners -- to a disarmed police force but an armed citizenry.

I don't have any strong feelings about all this. I grew up among heavily armed and touchy people and am accustomed to being careful.

Just sayin'.

February 06, 2007 8:58 AM  
Blogger Hey Skipper said...

All I know is that the Chinese, who are kind of new to mass automobile ownership, would be a lot further along the learning curve if handguns were widely available.

February 06, 2007 4:35 PM  
Blogger Peter Burnet said...

Now Skipper, you have to admit that is kind of cute:

Don't know much about history,
Don't know much trigonometry,
Don't know much about science books,
Don't know much about the French I took.


"But I do know that the Chinese, who are kind of new to mass automobile ownership, would be a lot further along the learning curve if handguns were widely available."

February 06, 2007 5:20 PM  
Blogger Hey Skipper said...

Peter:

You are absolutely right, I must admit that is pretty darn clever, because it is.

But still, I'd bet if you spent an hour on, say, Shanghai, roads, you might very well change your attitude towards handguns.

February 06, 2007 6:15 PM  

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