The topic of self-defense in this ridiculously over-armed culture is a fraught one, with many contradictions. On one hand, there are the people who insist that “good guys with guns are needed to stop bad guys with guns” and on the other they implicitly assume that the police cannot be relied upon to be the “good guys” – thereby supporting the notion of armed vigilantism, e.g.: Bernie Goetz or (maybe) Kyle Rittenhouse, George Zimmerman, and many others.
I remember when Bernie Goetz was the big news item and the debate swirled around what self-defense meant. In fact, as I pointed out before, Goetz suffered severe financial and personal consequences. Zimmerman has failed to achieve a level of stardom with the cryptofascist set, possibly for racist reasons, and Rittenhouse is still “wait and see.” My prediction is that, after his 15 minutes are up, he’ll reveal himself to be ridiculous; after all, he’s the quintessential dumb kid that let a situation go to his head – he’s going to find a way to screw up, publicly, worse than he already has. That’s just a guess, but I don’t see any way to interpret Rittenhouse as anything more complicated than a gullible fuckup. But what’s happening surrounding these characters is a series of dramatic changes to how the US’ law interprets self-defense. If you step back and look at it, it’s actually an honest-to-goodness slippery slope.
Typically for a slippery slope, it’s hard to point at the edge. Was it the “stand your ground” laws? George Zimmerman slid us collectively a bit further down the slope when he used a foolish law for protecting your home to “protect” his neighborhood, stalking, harassing, and killing a harmless kid. American fantasies of home invasion attacks are what brought us to this, fueled by NRA propaganda and racist fears of the anonymous (but dark-skinned) other. Meanwhile, militarized cops continue to serve “no knock” warrants and shoot people in their homes, so as usual Americans are worrying about the wrong threat model. It is unquestionable, in my mind, that Rittenhouse and Zimmerman went looking for trouble and found/became it. Goetz, as I have argued before, also created trouble – drawing a gun and opening fire is not negotiation and it’s not really self-defense, either. Self-defense used to mean that a person used deadly force when their life was in danger. Unfortunately, in order to justify absurd levels of police violence, Americans have been fed a diet of “he was scary so I had to shoot him.” Being scared is not being in danger, but the NRA, American police, and toxic American masculinity would tell you otherwise. Being scared and overreacting with stupid levels of jaw-dropping violence is the American way, after all.
I know some of you disagree with me about some or all of that, and you’re welcome to. But I think that many of us are too far down that slippery slope that justifies a person’s deciding that they’re under threat and therefore can deploy radically overpowered weapons. If we want to talk about who’s scary, in what situation, a 17 year-old midwestern goober with a .223 is pretty damn scary. Not as scary as a squad of militarized cops, under-trained and over-geared, ready to enforce their obsession with obtaining compliant submission no matter what – but, still, scary. If we want someone to deal with skateboard-wielding rioters or kids with packs of skittles, the cops are in theory society’s preferred option. That gets lost in the shuffle: the “good guys with guns” were not in any position to intervene in any of these situations, by design. After all, in New York City, Bernie Goetz would have been face down with handcuffs being applied if the cops knew he was carrying a gun. And, perhaps, the cops would have recognized George Zimmerman as a creepy stalker-dude if they had been able to intervene in that situation, in time. I also see what happened to Ahmaud Arbery as fitting on that slippery slope; the men who killed him tried to claim that they were doing some neighborhood watch-ish stuff because Abery was scary, etc., it’s familiar. They just sort of decided they were the neighborhood
lynching party watch and got to work. The pattern is that these over-reactions are driving down out barriers of what is acceptable, and it’s just going to fuel more of the same until some bunch of cops walk into a faceful of bullets, or two groups of fueled-up white people blaze away in rough order. Which brings me to another part of the grease on the slope: some incredibly irresponsible dickheads began promoting the idea that “open carry” is an appropriate way to go to a protest. How did that happen? Well, I’m going to tag NRA propaganda feeding white fear, once again. There are suckers who can apparently be convinced that the right to peacefully assemble includes the right to bring guns, which I’ll say is inherently un-peaceful. We are far down that slippery slope, as well, and unfortunately we got there because white cops don’t want to disarm their bowling league buddies and because it became the norm, it somehow became acceptable.
What I never got about any of that is how the justice department, police, and everyone else, wrapped their brains around the idea that coming to a protest with weapons you brought to intimidate is not being a threat. The slippery slope there leads to a dumb chucklefuck like Rittenhouse concluding that he was going to saddle up and grab his (straw purchased, illegally “owned”) rifle and go make his stand someplace quite a distance from his “ground.” The cryptofascist movement in the US concluded that they were going to “peacefully protest” with weapons in their hands, and got away with it – and they shouldn’t have. As long as “open carry” protests continue eventually both sides will be bringing guns (as has already happened) and we’re no longer talking about ‘protests’ we’re talking about ‘militias’ – and militias aren’t protected free speech. They never were.
Anyhow, I’d like to drop a bunch of reality about this topic, from someone who arguably knows about it. My experience with self-defense and “standing ground” is specific to Pennsylvania, where I’ve had to chase armed hunters off my property while they yelled threats and pointed deer rifles at my back. And, when I called the state police they a) knew the guys and told me that “they’re OK folks they’ll just vent at you and leave” (oh, great) and I’ve been mugged at gun-point back when I lived in Baltimore, and escaped without violence, lightened to the tune of the $60 I had in my wallet. But, without further ado, from [counterpunch] we have a piece by who is a Professor of Law at Harvard Law School. The way he puts it is: “Rittenhouse Verdict Flies in the Face of Legal Standards for Self-Defense” but I’m more inclined to hyperbole – I think the verdict is ridiculous:
In delivering its verdict, a Wisconsin jury decided that Rittenhouse’s conduct was justified, even though the prosecution argued that he provoked the violent encounter and, therefore, should not be able to find refuge in the self-defense doctrine.
As prosecutor Thomas Binger said in his closing argument: “When the defendant provokes this incident, he loses the right to self-defense. You cannot claim self-defense against a danger you create.”
The Wisconsin jury disagreed, and its decision may portend a similar outcome in another high-profile case in Georgia, where three white men are on trial for the shooting death of Ahmaud Arbery after they claimed the Black man was a suspect in a rash of robberies. Like Rittenhouse, the three men claimed they were acting in self-defense.
Self-defense arguments are often raised during trials involving loss of life. Juries are then asked to determine whether a defendant’s conduct is justified by principles of self-defense or whether the offender is criminally liable for homicide.
My prediction is that the shit will truly hit the fan when someone shoots a cop and says it was self-defense. If you want to tolerate people stomping around with guns in military-looking gear, sooner or later someone is going to confuse a cop with some other proto-fascist goon and shoot the cop. Their defense will be “I thought he was an Oath Keeper” or something like that. It won’t be funny.
But here is the part that I remember from the 80s:
As a professor of criminal law, I teach my students that the law of self-defense in America proceeds from an important concept: Human life is sacred, and the law will justify the taking of human life only in narrowly defined circumstances.
The law of self-defense holds that a person who is not the aggressor is justified in using deadly force against an adversary when he reasonably believes that he is in imminent danger of death or serious bodily injury. This is the standard that every state uses to define self-defense.
To determine whether this standard is met, the law looks at five central concepts.
First, the use of force must be proportionate to the force employed by the aggressor. If the aggressor lightly punches the victim in the arm, for example, the victim cannot use deadly force in response. It’s not proportional.
If someone uses harsh language on you, you are not to respond with bullets.
Second, the use of self-defense is limited to imminent harm. The threat by the aggressor must be immediate. For instance, a person who is assaulted cannot leave the scene, plan revenge later and conduct vigilante justice by killing the initial aggressor.
Third, the person’s assessment of whether he is in imminent danger of death or serious bodily injury must be reasonable, meaning that a supposed “reasonable person” would consider the threat to be sufficiently dangerous to put him in fear of death or serious bodily injury. A person’s own subjective view of this fear is not enough to satisfy the standard for self-defense.
Fourth, the law does not permit a first aggressor to benefit from a self-defense justification. Only those with “clean hands” can benefit from this justification and avoid criminal liability.
Finally, a person has a duty to retreat before using deadly force, as long as it can be done safely. This reaffirms the law’s belief in the sanctity of human life and ensures that deadly force is an option of last resort.
That is the understanding of self-defense that I learned in the 80s, though my iaido instructor modified them slightly by arguing that if you’re wearing a sword you are signaling that you are prepared for violence and therefore you must actually be prepared to the point where someone attacking you gets the first move. Is that fair? No, it sucks and it might cost you a lot. But that’s life in the big leagues and you don’t get to kill someone for looking at you funny. Unless you’re a cop, of course. Sensei’s reasoning still extends itself to my understanding of a gun as an offensive weapon that cannot be used, effectively, to defend because you have to be sure you’re under attack even if that means accepting a bullet will be coming your way so you know the other guy shot first. The key bit of Sullivan’s very lucid summary is: “a person has a duty to retreat before using deadly force, as long as it can be done safely” – I have to admit I’m a bit sanguine (so to speak) about the sanctity of human life, but I think it’s a beautiful aspirational goal. My opinion remains that the person who is prepared and trained for violence has a proportionally increasing duty not to be violent because their ability to do so ought to restrain them. That is why I have absolutely no respect for Zimmerman or Goetz or the many over-armed and under-brave cops who shoot unarmed people: if you’re being tough in the line of duty, let the other guy take a shot. Be dodging and heading for cover, naturally, but courage does not come out of the barrel of a gun – Mao was right, power does. But courage doesn’t.
The proliferation of states that have adopted “stand your ground” laws in recent years has complicated the analysis of self-defense involving the duty to retreat.
Dating back to early Anglo-American law, the duty to retreat has been subject to an important exception historically called the “castle doctrine”: A person has no duty to retreat in his home. This principle emerged from the 17th-century maxim that a “man’s home is his castle.”
The “castle doctrine” permits the use of lethal force in self-defense without imposing a duty to retreat in the home. Over time, states began to expand the non-retreat rule to spaces outside of the home.
In the Zimmerman case, for example, under traditional self-defense law, the combination of first-aggressor limitation and duty to retreat would not have allowed Zimmerman to follow Martin around and kill him without being liable for murder.
But, in a stand-your-ground state such as Florida, Zimmerman had a lawful right to patrol the neighborhood near Martin’s home. As a result, during his trial, all Zimmerman had to prove was that he was in reasonable fear of death or serious bodily injury.
In Wisconsin, Rittenhouse was also able to put in evidence that he was in reasonable fear of death. “I didn’t do anything wrong,” Rittenhouse testified. “I defended myself.”
I am uncomfortable with the language of fear regarding self-defense. There is “being in mortal danger” and then there is “being afraid one is in mortal danger.” Professon Sullivan’s language is used precisely, because I suppose there is no sure way of knowing you are in moral danger until you are. In the Goetz case the situation was definitely complicated by the fact that Goetz told the same story over and over (well-rehearsed, in fact) but the stories of the people he shot varied a bit, as one would expect. That uncertainty translates to fear. But, rather obviously in my mind, a guy with a loaded .38 cannot truly be said to fear a couple of unarmed men; if, in fact, he was afraid, he’d have given them his wallet.
The prosecution was unable to prove beyond a reasonable doubt that Rittenhouse was not reasonably in fear for his safety. This represents a high bar for the prosecution. They were unable to surmount it.
That’s a good summary. It steps away from the question of fearing for one’s safety, though. In my mind a person with an AR-15 or a katana cannot say that they are legitimately afraid of an unarmed person. I don’t know how the laws can reasonably encompass that, but its inherently disproportional “fear” to say “I was afraid he might punch me” when he’s afraid I might blow his heart out through his spinal column. What’s really going on, is that perhaps one of the people involved in the incident didn’t really think that they were going to get shot, so they weren’t afraid for their life until it was too late for them.
The important take-away, for me, from Professor Sullivan’s article, was the realization that the sphere of space around us which we can claim to need to defend, has grown considerably, as has our fear. That’s the slippery slope. Our fears are not rational, either – not by a long shot: the US is the greatest power on Earth, yet we are bombarded with fear that, I dunno, Russia might attack Ukraine (because they sure as fuck aren’t going to invade Los Angeles). Our police are absurdly over-powerful and violent yet we are bombarded with fear of home invasion by gun-toting baddies and therefore the NRA says we should become gun-toting baddies, ourselves. In samurai culture, the sword was the indicator of elite status. In France, under absolutism and empire, only court nobles wore swords. Are we heading back to some ridiculous “preparedness-signaling” in which the fully-fledged American is known by the muzzle of the AR protruding above their shoulder? In reality, we have little need to defend ourselves and the rational response to much danger remains to run away. That’s the part of the puzzle everyone seems to be missing: Goetz, Zimmerman, Rittenhouse – all were armed men who didn’t run away when they could have. And I say “should have.”
It’s a failure of strategy to put yourself into a position that you can only shoot your way out of.