Disparity of Force and Self-Defense

As a defender of self or others from criminal violence, you’ll be aware of the situation and make your best assessment in the moment. As you do, you will consciously or unconsciously note various factors that will guide your mental attitude and response actions.

In the event of the use of force in self- defense, you may be required to justify your use of force, legally. Most of the factors that a jury, judge, law enforcement officer, media, and the community will consider will be the same as the factors you consider at the moment of threat to your personal safety. The big difference is that people judging you will not experience the stress of being under attack, the time pressure, and will have the benefit of hindsight – access to information you did not have at the time.

Sometimes it seems that no matter what choice a person makes, someone imagines they could have done better. That gap between the ideal and the real may seem inevitable, but how can we reduce it? Physical self-defense training is vital, but it’s also important to consider these issues deeply, so that when they come up we will be better prepared to make the right choices. What are the factors that help make up the totality of circumstances for lawful use of force in self-defense?

Situational awareness

The first foundation of personal safety is situational awareness. We strive for a high level of awareness of our situation at all times. But humans have a limited ability to pay attention. When we divide our attention across multiple objects, our awareness is degraded. Our situational awareness should be heightened depending upon time, place and immediate circumstances. For example, relaxing within the safety of our home, we may have no problem multitasking. But while driving our car, or walking – dividing our attention between those tasks and say, attending to our smart phone will degrade our awareness and safety.

Awareness is also degraded by alcohol and other intoxicants. When police stop a driver on suspicion of DWI, they will generally ask the driver to perform roadside field exercises. These are divided attention tests. A person impaired by alcohol has a reduced ability to divide her attention and perform two tasks at the same time. We can avoid the use of alcohol or impairment by alcohol if we wish to maintain our ability for situational awareness.

When it comes to criminal violence, we need to be aware of other humans. We need to be aware of proximity, threat potential, and potential responses to any threat presented (plan B). We can adjust to potential threats before the risk of criminal violence grows, for example if we are situationally aware and spidey-sense a potential threat, by crossing the street or moving away from the threat.

Sometimes situational awareness will not help us avoid trouble. If we are suddenly presented with a physical attack or the threat of one, situational awareness can help us respond in the best possible way under the circumstances.

woman-defeats-manDisparity of threat or force

Since the core of self-defense law is the use of reasonable force under the circumstances, the question of proportionality is key. If you are presented with a threat of criminal attack, or are attacked, you are expected to act reasonably or to use force reasonably proportionate to the threat or force used upon you.

Size and strength disparity

If you are a 100 pound, 65-year-old woman facing a 200 pound, 20-year-old man threatening rape or robbery, would that disparity in size and strength justify your greater use of force than if the situation were reversed? We know it would.

Single attacker vs. multiple attackers

It is far more difficult for one person to defend against a criminal attack by multiple attackers than a single assailant. As a result, it would be necessary for a person defending against multiple attackers to use more aggressive and more lethal force.

Against a single unarmed attacker, forcing the assailant to deliver the first blow not only may have tactical advantage but also a legal one. But against multiple attackers, it may be necessary for the self-defender to strike the first blow, perhaps against the apparent leader.

Sobriety vs. intoxication

Alcohol (and other drugs) is a wild card. It can cut in multiple directions. It deserves consideration, since alcohol is involved in most assaults. Assuming a two person conflict, either or both may have been drinking. Generally voluntary intoxication is not a defense to criminal liability, but it can have a big effect on both intent and physical ability. And even those can vary with the person’s level of intoxication.

In terms of the threat level of an intoxicated attacker, there can be the potential for that intoxication making the aggressor a greater threat than if sober. If so, the use of greater or more lethal force could be justified.

The use of force continuum

The force continuum is the range of levels force that can be used. Implicit within the term, use of force continuum, is proportionality. Depending upon the circumstances, calling 911 and the presence of a police officer; or a verbal warning and display of a weapon, might be on the lower end of the continuum (lower than another potentially reasonable option).

The law, the community, would like us to use the lowest level of force possible to avoid or resolve a physical or potentially physical conflict. Yet the law and the community recognize that this must be viewed from the perspective of the person being judged, given what they knew at the time, and the pressures of their situation at the time.

Verbal and nonverbal communication

To the extent possible, it’s a good idea to communication verbally and non-verbally with the criminal assailant. You may want to give clear verbal warnings.  Depending upon circumstances, you may be communicating de-escalation or escalation – whichever is then most likely to stop the threat or the criminal act. Escalation, where used, should avoid fighting words or provocation, but rather verbal commands to stop the attack, disarm, and the like. You may also be communicating so that your intentions are clear to any witnesses or electronic observation. Where possible, you can call 911 both to request police assistance as well as to create an audio record of what is happening.

Empty-hand defense

It’s good to have options, and it’s nice to have a weapon if attacked. Having a weapon does not mean it must be used. Empty-hand defense can also vary in level of force. For example, an unarmed attacker could be disabled with a snap kick to the knee to break their leg. But if we are capable of stopping the attacker effectively with a lower level of force or injury, we will. We will try to use the lowest level of force to effectively stop the threat from the assailant.

Empty-hand vs. armed with weapon

What if either you or the criminal attackers are armed with a weapon? Usually a person with a weapon will try to conceal its presence. We use our situational awareness to best detect whether they have a weapon, either within reach, on their person, or in their hand. Since a weapon in hand is the greatest threat, we do what we can to determine whether they have a weapon in their hand. A common clue is that one or both hands are concealed behind or otherwise out of sight. If it seems possible, a verbal command may be in order: “Drop the weapon! Now!”

If you have a weapon, depending upon circumstances, you may choose to keep it hidden. Most trainers advocate keeping a weapon out of sight until it is necessary to use it.  In certain circumstances, it could be reasonable to display a weapon in self-defense as part of an effort to warn the opponent and avoid injury.

Legally, afterwards, the issue may arise of whether the defendant (you) reasonably believed the assailant had a weapon, though none later could be found.  This can be a serious problem.  To reduce this risk, try to be sure the criminal does have a weapon; verbalize the presence of a weapon; and if possible be sure police later are able to locate it.

Lethality of weapon

When it comes to weapons, some have the potential for lesser or greater levels of force – for example pepper spray vs. a handgun. It’s nice to have choices, when it comes to lethality of weapons. Police officers generally have more equipment than other folks do. But whether we are at home, in the car, or out and about, most adults have choices available to them. The limiting factors on choice here may be, on the one hand knowledge and training, and on the other hand convenience.

Range and distance

Distance is important when it comes to reasonable fear of imminent bodily harm or death. Some open-hand fighting styles are said to be long-range or short-range. A kick can reach farther than a punch. Different weapons have different effective ranges. A baton has a shorter range than an arrow.

We know the law of self-defense has no bright line, just a totality of circumstances test –and means discretion. Discretion is rooted in the experience of the beholder. Rather than personal training, today the average person’s “experience” is indirect – from  stories they’ve read, seen or heard, most often in entertainment media such as songs, books, and especially movies or television. These mythological “experiences” are problematic since they tend to be wrong more often than not. For example, in the movies when someone is shot with a gun, they usually drop dead immediately.  But in real life, that rarely is exceptionally rare. A criminal attacker armed with a knife who is shot by a lawful defender twenty-one feet away can still survive long enough to kill the defender with the knife. See The Tueller Drill.

Once engaged, do not stop until the threat is stopped. Once the threat is stopped, disengage.

After you’ve been attacked, continue the necessary, reasonable use of force in self-defense until the threat is over. Once the attacker is disarmed, disabled and otherwise clearly is no longer a threat, the use of force is no longer necessary and stops.  It may be a challenge to determine when this point has been reached, depending upon the situation. It’s often a good idea to leave the area as soon as it can be safely done – again, depending upon the situation.  It’s a good idea to get help for the injured criminal if possible, possibly via 911.  If it is clearly safe to do so, render First Aid.

We do not seek retribution.

We do not take it upon ourselves to punish, or teach a lesson to the wrongdoer. Once the threat is disabled or stopped, we stop using force.

What do you think?

Are there other factors that can be weighed in the totality of circumstances when considering whether a person’s use of force was in self-defense?

Thomas Gallagher is a Minneapolis Criminal Lawyer whose practice includes asserting the defense of self-defense and defense of others on behalf of clients.

Comments are welcome below.

Self-defense: Dominance, Escalation and Deception

Whether you think little or a lot about self-defense, you can live a better life when you consider self-defense from two perspectives: the practical and the legal.  The different schools of self-defense training agree on many things.  Similarly, the law of self-defense agrees in many ways across jurisdictions, cultures, even history.   And though practical self-defense training (how to do it) and the law of self-defense seem to be quite different perspectives, they share much in common.

Whether a legal defense of self-defense is accepted will depend partly upon what people believe the defendant’s situation was at the time – a totality of the circumstances.  Inevitably jurors, judges, all of us will compare what we believe the person being judged did, with what we imagine we would have done in those hypothetical circumstances.

“Better judged by twelve than carried by six.”

A wise aphorism in the lore of self-defense is “better judged by twelve than carried by six.”  The person required to use force in self-defense faces a two-fold threat: first surviving the physical attack; and second surviving the potential legal threat of being wrongly accused of a crime.

Dominance, Escalation and Deception

Some physical attacks are part of a robbery, a rape, a riot, or planned.  Putting those to one side for now, let’s look at the other sort – attacks that spontaneously rise from anger, conflict or a sense of having been treated disrespectfully by someone.  What are some strategies and tactics that can be used to both good practical and legal effect?

The Social Reality

Humans are social animals.  We have always lived in groups, each with our roles within the group.  Like other social animals, we have orders of social dominance, and individual competitions for dominance ranking.  These can be in part based on coercion (such as laws and law enforcement) as well as the actual use of force – lawful and unlawful.  Generally we are unaware of our social dominance orders and roles.

But when it comes to self-defense, awareness can be a powerful tool to help us avoid trouble – to avoid both physical attacks as well as legal attacks.

A person may present to you their subjective belief that you have treated them unjustly or wronged them in some way.  How can you use dominance, escalation and deception to avoid trouble?

call-of-the-wild-image-excerptWhen animals compete for social dominance, they often will display an escalation of threatening physical posturing, sometimes followed by an attack and fight.  They know what they are competing for – social dominance, a recognition by the other of their superior position.  If at some point one of the competitors backs down and shows surrender, this submission will cause the winner to cease the attack.  The dominant animal will not normally hurt the submitting one.  One great story about this in literature is Jack London’s The Call of the Wild.

Your humility may not be as deep and sincere as you might like – but you can use some tactical deception and adopt an attitude of humility.  If backing down helps avoid a conflict, you win.  You can’t stop someone from baiting you.  But you can refuse to take the bait.

Though humans can’t necessarily be trusted to stop attacking a person who is clearly not competing for dominance, it is a strategy that may work in some situations.  If the conflict is about the person’s perception of honor, justice, having been wronged – it doesn’t matter if they are justified – this may be a situation where conceding dominance, and de-escalation of conflict tactics may resolve the situation enough so that you can leave the situation, and move on.

Asserting dominance, escalation of conflict, can be just the thing

When a person or group threatens attack or attacks as part of a plan, like robbery or rape; conceding dominance and de-escalation of conflict tactics are unlikely to work.  In these situations, the aggressor is a predator with a goal, acting with rational purpose not just emotion.  Here, asserting dominance authoritatively, escalation of threat displays and the use of force may be best.  Why?  Predatory behavior seeks an easy target.  To ward off predators, be a hard target.  Show strength, confidence, and dominance.  Lead the escalation of conflict.  To the extent that the predator is primarily opportunistic, they may be deterred. Where not discouraged, the predator may be effectively disabled by force.

Evade, Escape, Engage.

Where practical, it’s best to avoid a potential physical concentration.  No one wins a fight, when everyone gets hurt.  This could mean crossing the street, walking the other way, driving away – any way out of there, away from the threat.  Sometimes it’s not a reasonable option to retreat – for example if the threat is already close and would simply attack you from behind if you turned and ran.  But in unarmed combat especially, creating some distance can increase safety.  Even when the attacker is armed, creating distance can sometimes reduce risk of harm.

In many traditional martial arts disciplines, for example Wing Tzun, a general rule is that we do not initiate an attack.  This idea, dating back hundreds – perhaps thousands of years, is not based on any legal considerations.  It’s a fighting tactic to either avoid a fight by not initiating; or forcing the opponent to physically commit to an action that can then be exploited with various combative counter-techniques.  This practice of not initiating a fight will also be helpful in the event of legal trouble, and the assertion of a legal defense of self-defense.

Before and once an attack is underway, we assess the threat and seek to bring a proportionate, reasonable response.  We don’t want to respond disproportionately, but the perfect is the enemy of the good.  Too little force to mount an effective defense could result in serious injury or death for ourselves or loved ones.  Too much could lead to legal trouble.  Those who judge us from outside the situation have the stress-free benefit of hindsight.  The arm-chair quarterbacks often think they could’ve done better, even though they weren’t there.

Stop the Threat

Once force is used, when should it stop?  Self-defense systems generally teach that you should use necessary force until the threat is no longer a threat.  Contrary to the impression in many films and television shows, the self-defender does not seek to hurt or to kill, but rather to disable the attacker or attackers – to stop the threat.  If an attacker is hurt or killed that is a consequence of the goal of self-defense – to simply stop the threat.  Once the attacker is disabled from continuing the attack, the use of force against them should stop.

After the use of force in defense of self or another

Once you have confirmed that the threat has been stopped or disabled, if it is safe to do so (being aware of third parties and weapons), it’s a good idea to render First Aid or whatever assistance can be rendered to the now disabled attacker, and contact the police if possible.  We’ll look at how to handle police contacts in the future (what to do, what to say and when).  But what you do, and knowing what to do, before police contact stemming from the use of force in self-defense is far more important.  Prepare yourself by learning and training in self-defense – not only for your sake but for the sake of your family, co-workers, and those around you.

Thomas Gallagher is a Minneapolis Criminal Lawyer whose practice includes asserting the defense of self-defense and defense of others on behalf of clients.

Comments are welcome below.

Self-defense and The Other

Self-defense is a legal defense to certain criminal charges in Minnesota.  The types of crimes alleged where a defense of self-defense might be asserted include: assault, murder, disorderly conduct and others.

It is not a bright-line sort of law.  If there were, the law would be easier to apply but justice and fairness would be sacrificed.  Instead, the law asks the finder-of-fact (the jury in the case of a jury trial) to look at the totality of circumstances to determine whether the accused person acted in self-defense.  A totality-of-the-circumstances test is more difficult to apply than a bright-line test, but can be more fair, more just.  Inevitably however, when a person judges another and their past choices under a totality-of-the-circumstances test (as with self-defense), that person must use their discretion; and in doing so will apply their own life experiences, biases, and point of view.

Who is The Other?

gran-torino-poster     Early in the popular Clint Eastwood film Gran Torino, the character Walt Kowalski leads a lonely existence but takes great pride in his lawn.  When gangbangers arrive to kidnap the young man next door, character Thao Vang Lor, causing a scuffle on his lawn, Walt appears with a rifle to defend the kid and his Hmong family, warning the gang members: “get off my lawn!”  Putting aside the application of self-defense law in this scenario, it is clear – in part by his use of racial slurs – that he views the kid he is defending and the kid’s family next door as The Other.

But by the end of the film, protagonist Walt Kowalski is fully connected with young Thao, who is like a son to him, and Thao’s family and Hmong culture.  Thao is no longer The Other, nor is his family or the Hmong culture.  Walt identifies with them completely.  This is one of the story arcs of the film, the movement from The Other to One of Us.

What difference does it make?

Whether we view another as The Other, or as One of Us, makes all the difference.  If another person is One of Us, then we are naturally empathetic.  We see each situation through their eyes, from their point-of-view.  But if someone is The Other, that means they are not like us, and we are naturally suspicious of their motives and behavior.

This may be hard-wired into our nature as humans.  Throughout human existence, until relatively recently, humans lived in small groups of ten to fifty people.  Each member of the group needed to help and be helped by other group members to survive.  But a person from outside the group was best viewed suspiciously, as a threat, at least until some reason came to light to assure otherwise.

You start out as The Other.

Imagine this scenario:  You have just left a bar downtown at closing time.  A few dozen people are standing around in the warm summer night chatting in small groups, before leaving for their next destination.  You are facing east, and notice three young men walking down the street towards the crowd that fills most of the sidewalk.  Suddenly you see one of the young men pull back his arm, form a fist, and strike a heavy blow into the side of the head of a man ten feet in front of you.  The man doesn’t see it coming, and is knocked to the ground.  Your jaw slackens in shock.  The man who was hit is on the ground, shaking it off, trying to comprehend what just happened.  The lone attacker squares off and goes after the man again, as he regains his feet.

The victim of the attack tries to defend himself, blocking and striking back with fists.   Then, you see other people in the crowd turning to look to see what the fuss is about.  They back away, to form a circle around the pair.  You overhear several people in different groups say: “why are those two guys fighting?” and “What the hell is wrong with them!”

Now, instead of being the bystander-witness, imagine you are the person who was attacked.  But 95% of the witnesses in the crowd did not see how it began or why.  They turned and noticed after that, to see “two guys fighting” – The Other.

Point-of-View matters.

Minnesota’s general self-defense statute is Section 609.06.  It includes the language “reasonable force may be used upon or toward the person of another without the other’s consent when the following circumstances exist or the actor reasonably believes them to exist: (3) when used by any person in resisting or aiding another to resist an offense against the person… .”

Two phrases in the quoted language are especially important: “reasonable force” and “circumstances exist or the actor reasonably believes them to exist.”

Whenever we see the word “reasonable” in the law, we have a totality-of-circumstances test, not a bright-line test.  All real crimes require proof of the element of criminal intent of the actor (the accused person).  This requires the fact-finder (the jury in the case of a jury trial) to evaluate the evidence from the point-of-view of the accused, not the point-of-view of anyone else, even a person claiming to be a victim of crime.  The statute emphasizes this point by saying the fact-finder must consider the circumstances that the actor (accused person) reasonably believed to exist at the time.  The law is curative – meaning that the law tries to fix a recognized bias endemic to our culture.  If that bias did not exist, we would not need legal language attempting to remedy it.

From this we can see some of the basic types of factors that are included in the totality-of-circumstances for self-defense:

  1. Was the force used reasonable?
  2. Was the force used reasonable under either the circumstances that actually existed, or the circumstances that the actor (defendant) reasonably believed existed?
  3. Was the force used proportionate to the circumstances, whether actual or reasonably believed to exist?

The reality is that when people in our culture see two people fighting they’ll generally view them both as The Other, with suspicion.  Similarly, when people hear about or think about people fighting they will tend to presume that the people are both guilty of something wrong.  This – despite their personal experience that many altercations involve an aggressor attacking or creating a fight with an unwilling, eventual participant, forced to defend herself.

This cultural bias has manifested itself in the form of the current Duty to Retreat in Minnesota.  In certain cases, the prosecuting attorney can try to reverse the burden of proof by forcing the accused person to show evidence that she met “the duty to retreat” prior to being entitled to a legal defense of self-defense.  The Duty to Retreat jury instruction gives the prosecuting lawyer a second bite at the apple of “was the force used reasonable?”  After all, what juror would find the use of force in self-defense reasonable, if the accused could have easily retreated before the altercation?  But the main point here is that the Minnesota duty to retreat is a manifestation of the cultural bias of viewing the abstract self-defender as one of “The Other,” with initial suspicion.

Implications for the future, and for the past

Every person should think about how they will defend against a future attack upon their person or upon another in their company, should it occur.  Ideally that will include self-defense training, whether it is one class or life-long learning and training practice.  As part of that preparation, we can consider: what can I do to better be perceived as a good guy (one of us) rather than The Other (a suspicious outsider)?  Our appearance can play a part in this, as can our words and conduct.

For those of us lawyers or defendants in criminal cases where in the past the defendant acted in self-defense, we can recognize one of the core issues will be “good guy vs. The Other.”  Here, not only the self-defender’s appearance, words and conduct will matter, but also the point-of view adopted by the fact-finder (jury) will be a key.  The law requires the fact-finder to look at what happened at the time, without the benefit of hindsight, from the point-of-view of the defendant.  But the defense lawyer, the judge and the other jurors will need to help the jurors overcome our initial cultural bias against The Other.  The defense lawyer will help the jurors get to know the person who is wrongly accused, is a good guy, acted in self-defense reasonably.

Thomas Gallagher is a Minneapolis criminal lawyer.  His practice includes cases where the accused person acted in self-defense.

Remove Marijuana from Schedule 1 in Minnesota? Amend SF 1219 & HF1376

Has the time come to remove marijuana from Minnesota’s Schedule 1 of the Minnesota Controlled Substances Act?  Yes, the time has come.  Here is an explanation of why; and how you can help make it happen before more lives are destroyed by this irrational and unjust law. we-the-people-norml

The Minnesota Controlled Substances Act (Minnesota Statutes Chapter 152) is similar to the Federal Controlled Substances Act (21 United States Code Sections 801 et seq) in that it creates lists, or “schedules” of drugs, numbered one through five.

Drugs listed in Schedule 1 are supposed to be a drug or other substance that has a high potential for abuse, has no currently accepted medical use in treatment in the United States, or lacks accepted safety for use of the drug or other substance under medical supervision.  Examples of Schedule 1 drugs include the opiates, such as heroin, morphine, etc.

A “Schedule 2” drug is meant to include drugs with a high potential for abuse, a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions, and, abuse of the drug or other substance may lead to severe psychological or physical dependence.  Examples of Schedule 2 drugs include cocaine, methamphetamine, and pentobarbital.

Schedules 3 and 4 are thought to include drugs less harmful or prone to abuse than those the government has listed in Schedule 1 and 2. Schedule 5 includes drug or concentrations of drugs the government thinks are less dangerous or prone to abuse relative to the drugs or other substances in schedule IV, has a currently accepted medical use in treatment in the United States, or abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV.

Where has the government seen fit to categorize marijuana within this scheme?  Currently, they still list marijuana as a “Schedule 1” category drug, right in there with heroin.  Apparently the government views marijuana as more dangerous than methamphetamine, which is only a Schedule 2 drug.

What difference does it make?  Lots.  But here are two big ways it makes a difference where the government categorizes marijuana within its laws: harming people and public safety with criminalization, and harming people and public health by creating a legal barrier to legal medical marijuana treatment.


As the Minnesota Controlled Substances Act (Minnesota Statutes Chapter 152) is currently written, removing marijuana from all “schedules” listed (sometimes called “descheduling”) would have limited impact since most controlled substance crimes specifically list marijuana by name.  Moving it from Schedule 1 to Schedule 2 would appear to make no difference at all, as far as criminalization is concerned.

Medical Treatment with Marijuana

How can  there be a legal medical marijuana program under Minnesota law, and yet still have marijuana listed as a “Schedule 1 drug,” which is defined as having no currently accepted medical use in treatment?  Is Schedule 1 marijuana really more dangerous than Schedule 2’s methamphetamine?  After all, at least 23 of the 50 states now have legal medical marijuana programs and nearly half the U.S. population lives in states where medical marijuana is legal today.  “No currently accepted medical use in treatment?”  Really?  To the contrary, marijuana is currently accepted medical treatment, across the United States.

Allowing inertia to continue marijuana in Schedule 1 has harmful implications for public health of the people of Minnesota.  It creates innumerable difficulties for sick people who are just trying to treat their illness, including insurance issues.  This in turn creates unfairness for the ill and disabled who have a low-income, or could be driven into the underground market for medicine.

We ought to take our laws seriously and change them to reflect reality and truth, as best we can.  We need to amend Minnesota law to remove marijuana from Schedule 1, either into Schedule 2 or complete descheduling (remove from all Minnesota Controlled Substances Act schedules).

A bipartisan Bill recently introduced into the United States Senate would move marijuana from the federal Schedule 1 to Schedule 2 (titled the Compassionate Access, Research Expansion and Respect States or “CARERS” Act.)  We should get this done in Minnesota at our state legislature, first. The Minnesota State Senate now has a Bill pending to amend the Minnesota Controlled Substances Act to add various drugs and substances to the various Schedules.

This is a perfect opportunity for us to urge the Minnesota Senate and Minnesota House to amend that Bill to either deschedule marijuana, or at least move it down to Schedule 2. In 2011, the Minnesota law was changed so that the Minnesota Pharmacy Board no longer has authority to move drugs or other substances out of Schedule 1.  Only the Minnesota legislature can do it now.

So pick up the phone, send a letter, or otherwise contact your Minnesota State Senator and House Representative and ask them to support an amendment to SF 1219 and HF1376 to deschedule marijuana or reschedule it to Schedule 2.

The Necessity Defense for Medical Marijuana Patients – 2015 Minnesota Proposed Legislation HF 542 – SF 404 Redux

The problem:  In Minnesota today, a medical marijuana patient charged with a marijuana crime is no longer allowed by the courts to tell the jury they were treating illness with marijuana.

shhhhThe solution:  A Bill in the 2015 Legislature would legislatively overrule the court decision that took away “the necessity defense” from medical marijuana patients facing marijuana charges.

Marijuana has been used as effective medicine for thousands of years.  In the 1930s, Minnesota joined a social experiment of Prohibition outlawing the plant – even for medical use. Today though, a majority in the U.S.A. believe that medical marijuana should not be a crime.

Trial by jury limits the power of the government to enforce laws in ways that violate the conscience of the community.  Yet when a chronic pain patient using marijuana as medicine is charged with a marijuana crime, but is not permitted to have their physician testify, or to testify about it themselves; there is no meaningful jury trial.  When the court prevents the jury from hearing defense evidence, excluding the defense, her right to present a defense is violated.

“Necessity” has been a recognized legal defense to what otherwise would be a crime, since ancient times. The New Testament cites examples of eating holy bread through necessity of hunger or taking another’s corn. Mathew 12:3-4. Old English cases recognize the defense of necessity. It was a defense to breaking a law that the accused committed the act to save a life or put out a fire. A person did not commit the misdemeanor of exposing an infected person in public if the person was being carried through the streets to a doctor.

  1. Like self-defense, the necessity defense is an affirmative defense to a criminal charge – a “lesser-of-two-evils” defense. After the accused presents evidence supporting the defense, the judge instructs the jury on the law of the defense of necessity.  If the jury accepts the defense: the defendant did the prohibited act intentionally, but did so reasonably to avoid a greater evil, out of necessity; so it is not a crime.
  2. The necessity defense was repealed by a 1991 Minnesota court decision, in State v. Hanson, 468 NW 2d 77 (Minn Court of Appeals 1991). FFI: http://wp.me/pAFjr-5U
  3. The Minnesota Legislature can restore the rights to a jury trial and to present a defense by passing HF 542 & SF 404. The Bill restores the necessity defense to medical marijuana patients charged with a marijuana crime.  Jurors have the right to know the relevant facts before judging a person’s fate.
  4. People like Angela Brown, and her 15 year-old son, should be allowed to present a necessity defense at her trial, so the jury can then have the power to decide her case based upon the true facts, not some version of the truth manipulated by the court.

Urge your Minnesota Rep. and State Senator to support the necessity defense Bill,  HF 542SF 404, to assure medical patients have the “right to introduce evidence or testimony of a medical need to use, … or [evidence of] a benefit derived from the use” of marijuana or derivatives.

Medical Marijuana: Minnesota Government Stalls Inclusion of Intractable Pain

According to a recent Associated Press article No quick decision on medical marijuana for pain Minnesota Governor Mark Dayton’s Commissioner of Health has decided to postpone adding Intractable Pain to Minnesota’s new,  legal medical marijuana program.  Apparently, Dayton administration officials are setting expectations at the delay being potentially for years.  The reason they cite is their fear that they may not be ready for an increased volume of demand should intractable pain be included in the list of medical problems that qualify for medical marijuana in the Minnesota program.

Arthritis_poster-sm-cr Marijuana has proven an effective treatment for intractable pain — and better than more commonly used narcotic medications.  Marijuana provides pain relief and relief from pain-related disability.  And it does not kill people or have the other side effects that toxic opioid pain medications have.

With 23 states now having legal medical marijuana — Minnesota being a laggard in this respect — one might wonder: how have other states managed to come up with an adequate, legal supply of marijuana to meet the legitimate demand of the sick and suffering for legal, medical marijuana?  One obvious answer could be that only one other of those 23 states has failed to allow the natural, plant-form of marijuana for lawful, medical use.  Minnesota could remove that restriction from its law, and so remove steps that would save time, reduce cost, and help more suffering people sooner.

Other possibilities come to mind to more quickly ramp up production of legal marijuana in Minnesota; including authorizing more than two producers, and authorizing legal home grow for qualified medical marijuana patients.  These would also reduce the expected high cost of medicine in Minnesota’s medical marijuana program.

Minnesota’s governor was not an enthusiastic supporter of the medical marijuana law that eventually passed last year, but did sign on to a compromise law that is one of the two weakest in the United States today.  This news of delay in including intractable pain, could be interpreted by some as more evidence of tepid support for medical marijuana from the Minnesota Governor.

What can be done?  The Minnesota legislature could pass additional legislation to strengthen and expand Minnesota’s medical marijuana program.  It could also pass the medical necessity defense Bill, to restore fairness for patients facing criminal charges for marijuana. The bill, HF 542 in the Minnesota House and SF 404 in the Minnesota Senate, would give medical marijuana patients the “right to introduce evidence or testimony of a medical need to use, … or [evidence of] a benefit derived from the use” of marijuana or marijuana products.

Marijuana Medical Necessity: Why Minnesota Needs a New Law Affirming Your Right to Present a Medical Necessity Defense to a Marijuana Charge

Minnesota needs to adopt a new statute affirming your right to present the defense of medical necessity to a marijuana criminal-charge.  Why?

Marijuana, or cannabis, has been used by humans as medicine for thousands of years successfully for relief and treatment of disease.  Modern medical research, as well as clinical practice, has proven its efficacy in relieving symptoms as well as curing diseases — from the bothersome all the way to cancer.

Marijuana had never been a crime.  But beginning in the 1930s in the United States, as the alcohol Prohibition regime was disintegrating, a new experiment in Prohibition was being developed to replace it — the marijuana Prohibition.  Marijuana was widely used as medicine at the time, and its medicinal use persisted for decades but was eventually driven underground after increased criminalization policies in the United States, and in Minnesota.  Its use, including medical use, continued but was made criminal.

Necessity has been a recognized legal defense to what otherwise would be a crime, since ancient times.  In The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil some of this history is summarized:

The English courts stated the principle of necessity in 1551 in Reninger v. Fagossa (1 Plowd. 1, 75 Eng. Rep. 1): “A man may break the words of the law, and yet not break the law itself … where the words of them are broken to avoid greater inconvenience, or through necessity, or by compulsion.” The case cites the New Testament example of eating sacred bread through necessity of hunger or taking another’s corn. Mathew 12:3-4. Older English cases contain many examples which recognize the general principle of necessity. It was a defense to breaking a law that the person committed the act to save a life or put out a fire. Jurors could depart without the permission of the judge in case of emergency. Prisoners might escape from a burning jail without committing a crime. A person did not commit the misdemeanor of exposing an infected person in public if the person was being carried through the streets to a doctor.

The necessity defense is sometimes called the lesser-of-two-evils defense.  It is a justification type defense.  If the defense is accepted by the jury, it does not mean the defendant did not intentionally do the prohibited act, but rather that he or she reasonably did so to avoid a greater evil, out of necessity.  It is a common law defense — old and widely accepted.  Like many other common law defenses, it has often been codified in statutes over the past several decades, in many jurisdictions.

med-mj-mn-signThe term “medical necessity defense” is a special application of the more general, necessity defense.  If you are sick with glaucoma or cancer and marijuana provides you with relief or cure, even though marijuana may be a crime to possess or grow in some states, you may decide that preserving your health (or your child’s life) is a greater necessity than complying with the criminal Prohibition.  The majority of people in the United States today, according to poll after poll, agree that medical use of marijuana should not be a crime.  As a result it is likely that many if not most jurors may share that majority view, that medical marijuana is not a real crime.  But in Minnesota jurors are not currently empowered to decide cases with all of the evidence.

Since you are constitutionally guaranteed the right to a jury trial, and the right to present a complete defense — to present the jury with your true defense, for the jury to do with it as it will —  how could it be that the Minnesota appellate courts have so far held that you have no right to present a medical necessity defense in a marijuana case?

To find out, you can read the Minnesota Court of Appeals case from 1991, State v. Hanson.  Though every court case is fact specific to a great extent, the court’s main rationales in the State v. Hanson case are captured in this excerpt:

“The statutory classification of marijuana as a Schedule I substance implies a determination that marijuana has “no currently accepted medical use in the United States.” Minn.Stat. § 152.02, subd. 7(1) (1990). The legislature has enacted a single exception, in the THC Therapeutic Research Act (TRA), exempting from criminal sanctions possession or use of marijuana for cancer patients undergoing chemotherapy who are receiving the drug under the strict controls of an approved medical research program. Minn. Stat. § 152.21, subds. 1, 3, 6 (1990). These statutory provisions demonstrate that the legislature has specifically addressed and determined the possible medical uses of marijuana.”

The first point, that marijuana has been classified by Minnesota as “a Schedule I substance” meaning they claim that it has “no currently accepted medical use in the United States,” if it has ever been true, is certainly not true today.  Though marijuana is still arbitrarily classified by Minnesota as “Schedule I,” the majority of the United States population now lives in states with legal medical marijuana programs, and marijuana is now currently accepted as having medical use — including by the United States Surgeon General.

The second argument advanced in Hanson, was that since the Minnesota legislature had enacted THC Therapeutic Research Act (which created a “research” program so restrictive that nothing ever came of it); that therefore the legislature must have intended to preclude any other consideration of any other exception or defense for medical use of marijuana (though it never said so).  Not particularly persuasive here, the argument is of the classic rhetorical form — expressio unius est exclusio alterius, a Latin phase meaning “the expression of one thing is the exclusion of the other.”

The Hanson case was from 1991.  Much has changed since then, politically, legally, and in the medical research community, has it not?  So would a modern Minnesota appellate court right this 1991 wrong?  In 2014, it didn’t. In a 2014 decision the Minnesota Supreme Court, in State v. Thiel left intact the Schedule I classification despite a constitutional challenge by a defendant convicted of marijuana possession who had not been allowed to let the jury know the truth about his medical  condition, his medical recommendation for marijuana as medicine, or his California medical marijuana card.

It seems reasonable to conclude then, that the Minnesota courts are unlikely to remedy this injustice and restore our right to a fair jury trial, and our right to present a complete defense in Minnesota — at least not in the near term.

That is why we need the Minnesota legislature to restore some measure of Liberty and Justice in Minnesota, by passing a Bill for a new statute guaranteeing your right to let the jury hear the truth, that medical marijuana is a lesser evil (if it is an evil at all) than violating the criminal law prohibiting marijuana.

The Bill currently in the Minnesota legislature would restore the necessity defense to medical marijuana patients charged with a marijuana crime in Minnesota.  It would guarantee that the accused could use this as an affirmative defense — meaning the defendant would have the burden of showing prima facie evidence of medical necessity, and if successful, the ultimate burden of proving criminal guilt would then shift to the prosecution.  This would help restore the right to a jury trial to an extent as well.  The jurors have the right to hear the truth before condemning a person.

Contact your Minnesota House of Representatives member, your Minnesota State Senator, and the Governor to urge support of the medical necessity Bill, HF 542.