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.

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