Category Archives: Defenses

Felony doesn’t always impair Minnesota gun rights

A Minnesota felony doesn’t always impair gun rights.  But many still believe that “a Minnesota felony conviction will mean a lifetime loss of gun rights.”  That’s wrong.

Upon completion of probation, gun rights lost after a felony conviction are automatically restored along with other civil rights, under the general rule of Minnesota law.  Exceptions to that general rule are discussed below.

The Right to Firearms

The right to self-defense and firearms is a natural, human right.  It belongs to you because you were born a human being.  The United States was born in revolution and violent struggle to force government to respect our natural rights.  The United States Constitution makes this respect clear.

Fighting for Natural Rights to Firearms, 1781

Fighting for Natural Rights to Firearms, 1781

As the U.S. Supreme Court recently ruled: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”  District of Columbia v. Heller, 554 US 570 (2008).

The law, however, does limit our rights under some circumstances.  Even so, strict scrutiny must be given to any legal limitations upon our fundamental rights. We are skeptical of legal limitations of our rights.

Certain pending criminal charges or convictions historically have limited our civil rights to firearms.   As criminal defense attorneys, part of our job representing our clients is to understand how to protect their civil rights.

Will any felony conviction cause a lifetime loss of civil rights to firearms?

A common misconception holds that “any felony conviction will cause you to lose your civil rights to firearms forever.”  But a Minnesota felony doesn’t always impair gun rights.

We have heard that wrong statement of the law (that a felony conviction always means a lifetime loss of gun rights) from people who should know better.  Is there any possible explanation for such a widespread misconception about the law?  The two main reasons for this common misunderstanding of the laws are:

  1. Gun laws are complex – short of in-depth study.
  2. The laws have changed – many have failed to update their knowledge.

Solution:  This article will walk you through the law and explain why “a felony conviction” doesn’t always impair Minnesota gun rights indefinitely.  Two common exceptions to that general rule are:  1) “felony crimes of violence” and 2) “misdemeanor crimes of domestic violence.”  If lost, these rights may either be automatically be restored by operation of law; or, their restoration may be possible through a court order or pardon.

Loss of gun rights upon certain pending criminal charges and convictions

Civil rights to firearms can be temporarily suspended while certain criminal charges are pending before the Minnesota court.  They can be also be temporarily or indefinitely lost upon conviction of certain crimes under Minnesota law.  For example, Minnesota Statutes §624.713, subd. 1 (10) (i), says:

Subdivision 1.  Ineligible persons. The following persons shall not be entitled to possess ammunition or a pistol or semiautomatic military-style assault weapon or, except for clause (1), any other firearm:
(10) a person who:
(i) has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;

For someone who has not fully studied the web of Minnesota gun laws, the above excerpt, in isolation, could be misleading.  It seems to say that a felony conviction will result in an indefinite loss of civil rights to forearms in Minnesota.  But below we discuss the other, specific Minnesota statutes to the contrary. 

Every person convicted of a Minnesota felony will lose their civil rights to firearms from the moment of adjudication or conviction until the moment the person is discharged from probation or sentence. Minnesota Statutes §624.713, subd. 1 (10) (i).  Unless their conviction was for a “felony” “crime of violence” or other exception; their rights are automatically restored upon completion of sentence (e.g., probation).

Why a Minnesota felony conviction doesn’t trigger loss of gun rights

The general rule:  Following a Minnesota conviction, civil rights to firearms are restored by operation of statute at the completion of, or discharge from sentence “the same as if such conviction had not taken place.”  Minnesota Statutes §609.165:

“RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION, Subdivision 1. Restoration. When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.”

Note that it doesn’t matter what level the conviction was – felony or misdemeanor.  Gun rights are restored under this general rule statute upon discharge from sentence.  Clearly, a Minnesota felony doesn’t always impair gun rights.

But a Minnesota “felony crime of violence” conviction now causes a default lifetime ban

One of the two major exceptions to the general rule stated above is Minnesota’s statute stripping away civil rights to firearms for life after a conviction for “felony crime of violence.”  Minnesota Statutes §609.165 RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION:

“Subd. 1a. Certain convicted felons ineligible to possess firearms or ammunition. The order of discharge must provide that a person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, is not entitled to ship, transport, possess, or receive a firearm or ammunition for the remainder of the person’s lifetime. Any person who has received such a discharge … whose ability to possess firearms and ammunition has been restored under subdivision 1d, shall not be subject to the restrictions of this subdivision.“

The specific list of crimes defined as “felony crimes of violence” is in Minnesota Statutes §624.712, subdivision 5.  A listed crime triggers a lifetime loss of civil rights.  Otherwise, discharge from felony probation or sentence will generally restore gun rights by law.  It’s important to check the list, since despite the label, many convictions on the list are factually non-violent and listed as a technicality, notably marijuana crimes.

Exception to the exception: restoration of gun rights after a Minnesota “felony crime of violence” indefinite ban

What if “felony crime of violence” conviction impairs civil rights to firearms?   A court order or a pardon can restore them.  For more on that see our page: Restoration of Civil Rights to Firearms in Minnesota

What about a federal statute saying a felony conviction triggers a loss of gun rights?

Federal laws are in need of some housecleaning, to convey clear meaning. Bottom line – federal law says that when it comes to taking away and restoring civil rights to guns, the state laws control, not federal.

The Untied States Supreme Court explains

This United States Supreme Court case offers the most succinct explanation:

A federal statute forbids possession of firearms by those convicted of serious offenses. An abbreviated version of the statute is as follows:

“It shall be unlawful for any person—

“(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; …

“to … possess in or affecting commerce, any firearm or ammunition …” 18 U.S.C. § 922(g). …

Until 1986, federal law alone determined whether a state conviction counted, regardless of whether the State had expunged the conviction. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119—122 (1983). Congress modified this aspect of Dickerson by adopting the following language:

“What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, …” §921(a)(20).

The first sentence and the first clause of the second sentence define convictions, pardons, expungements, and restorations of civil rights by reference to the law of the convicting jurisdiction. See Beecham v. United States, 511 U.S. 368, 371 (1994). …

We note these preliminary points. First, Massachusetts restored petitioner’s civil rights by operation of law rather than by pardon or the like. This fact makes no difference. Nothing in the text of §921(a)(20) requires a case-by-case decision to restore civil rights to this particular offender. While the term “pardon” connotes a case-by-case determination, “restoration of civil rights” does not.

Caron v. United States, 524 U.S. 308 (1998)

Minnesota law controls

Minnesota law controls

Minnesota law controls

Therefore, Minnesota law, not federal law determines whether a Minnesota felony conviction makes a person ineligible to possess a firearm in Minnesota.  See, also 18 U.S. Code § 921, (a) (20) The term “crime punishable by imprisonment for a term exceeding one year;” and, 27 CFR 478.11.

This is Black Letter Law.  The law is clear and unambiguous.  Minnesota law, not federal law, determines whether a person loses their civil rights to firearms for a felony conviction, and how those rights can be restored.

If you hear anyone repeating the old misinformation about this, refer them to this article for a simple, succinct explanation of the law.  At minimum, know that a Minnesota felony conviction doesn’t always impair gun rights.

“What if I had a felony conviction reduced to a gross misdemeanor after successful completion of a Stay of Imposition?

Short answer: When it comes to gun rights, it doesn’t matter.  Why?

Rights are automatically restored upon discharge from probation or sentence if the Minnesota felony conviction was for a crime not listed in the section 624.712, subdivision 5, list of “felony crimes of violence.”

If the conviction level was later reduced to a non-felony under Minnesota Statutes § 609.13, Subdivision 1; if the conviction was for a “felony” listed as a “crime of violence,” the person convicted is banned from possessing firearms under Minnesota Statutes §724.713, Subd. 1 (10), because the charge was “punishable by imprisonment for a term exceeding one year.” 

What about juvenile adjudications for felony crimes?

For purposes of gun rights a Minnesota juvenile adjudication will trigger the same civil rights disabilities for firearms as a conviction will for an adult.  A juvenile “adjudication” is the functional equivalent to an adult “conviction.”   See, Minnesota Statutes §242.31, RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS.  For juveniles, a Minnesota felony adjudication doesn’t always impair gun rights.

What about civil rights to firearms after a Minnesota “misdemeanor crime of domestic violence” conviction?

See our recent article for a thorough discussion of: Civil Rights to Firearms after a Minnesota “misdemeanor crime of domestic violence” conviction.

Significant events along a criminal law & gun rights timeline

Let’s consider a hypothetical timeline in a person’s life taking into account the effect of criminal law events on their civil rights to firearms.  The person is born in the U.S.A. with their natural rights to firearms subject to mild regulation for age, etc.

Then a felony or selected misdemeanor charge may temporarily suspend the person’s gun rights pending the outcome of those charges in court.  Dismissal, a not-guilty verdict, or a conviction could result. 

If convicted of a felony and selected misdemeanor crimes, the person loses their civil rights to firearms.  After that, the general rule Minnesota statute restores their civil rights to firearms upon completion of sentence (including completion of probation), with exceptions.  For some felony and selected misdemeanor crimes, the Minnesota law exceptions trigger an indefinite or lifetime ban.  Gun rights can later be restored, for example by court order or pardon for people so affected.

The key event periods along the timeline are:

  1. Pending criminal charge
  2. Pending sentence (after conviction, before completion of probation, sentence)
  3. After discharge from sentence, before restoration of civil rights to firearms
The legal grey area between the black letter law

Gun laws are more complex than they need to be.  And we have both Minnesota and federal laws to review – statutes and case-law.  Grey areas of ambiguity exist between the clear, unambiguous areas of gun laws on either side.  Looking forward, no one wants to be on the wrong side of the law or even in a legal grey area.  Once already charged with a crime, however, no one can change the past.  In criminal defense, the legal grey area usually means “not guilty.”

Retrospective view:

When defending against a criminal charge like “Ineligible Person in Possession of Firearm,” that grey area in between is something that we term “reasonable doubt.”  (A person with a pending criminal charge should be sure their defense lawyer is knowledgeable and capable of protecting their civil rights to firearms as part of the defense objective.)

Some prosecutors and some defense attorneys fail to understand gun laws.  This can result in a wrongful conviction for felony “ineligible person in possession of a firearm” of an innocent person, based on a non-listed past Minnesota felony conviction.  Be sure to to retain a criminal defense attorney who knows not only criminal law, but gun law.  One basic test: does the attorney know that a Minnesota felony doesn’t always impair gun rights?  Be sure your defense attorney knows the law.

Prospective view:

But a person with a past conviction, does not want to take any unnecessary chances of being on the wrong side of the law as interpreted by some random law enforcement officer or prosecutor.  Their civil rights may have been fully restored by law, but they may have trouble with a gun purchase permit denial by someone who fails to understand that a Minnesota felony doesn’t always impair gun rights.  To avoid grey-area trouble, that person may wish legal help to ensure recognition of their full civil rights as a citizen.

If someone says that a felony conviction always means a loss of civil rights to firearms, remember that a Minnesota felony conviction doesn’t always impair gun rights.  And recommend that they read this article for the map of the law.

Thomas Gallagher, Minneapolis Criminal Lawyer

Thomas Gallagher, Minneapolis Criminal Lawyer

About the Author:

Thomas C. Gallagher is a Minnesota Defense Attorney who handles criminal cases involving self-defense, and gun crimes cases.  A Second Amendment and Bill of Rights supporter, Gallagher has taught and written extensively on firearms law and the law of self-defense.

How to Avoid a Marijuana Arrest in a Car in Minnesota: Top Nine Tips

The other day I was talking to a prosecutor.  I let him know that my objective was to keep my client’s public record clean of words like “marijuana,” “drug paraphernalia,” and “criminal conviction.”  He responded mischievously with “You know how he could avoid all that don’t you?  Don’t get caught.”  He was joking, but like many jokes there was some truth in it.

“I’m late, for a very important date.”

“Officer, am I being detained? I’m late, for a very important date.”

As of this writing, eight states in the U.S.A. have legalized marijuana for responsible use by adults 21 years and older; and, the majority of the U.S. population now lives in a state with legal medical marijuana.  We should all know by now that marijuana is safer than alcohol.  There is no lethal overdose possible with marijuana, unlike alcohol, aspirin, and many prescription drugs.   But in Minnesota in 2017 despite a majority in the polls favoring legalization, criminal Prohibition lingers on, destroying innocent lives.

What can you do to reduce the chance of getting caught? Here are nine tips:

  1.  Situational awareness.  Guess where the vast majority of police contacts with people happen?  Correct – in or near a motor vehicle.  As a result, the most effective way to avoid a marijuana criminal charge is to avoid having marijuana in your vehicle.  Complacency can set in.  If it hasn’t happened yet, it never will.  Right?  The smart attitude is that if a scenario is unlikely, with repetition (miles traveled in the car), it will inevitably happen.  There will be a traffic stop.  When it does happen; marijuana should not be in the car.  If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, he or she keeps it under the “small amount” 42.5 grams if plant form (not concentrates), but always in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).
  2.   Odor.  The most common excuse used by police officers as probable cause to search a car after a traffic stop is “odor of marijuana” – either fresh or burned.  This is prone to abuse by police officers since it’s impossible to verify.  Even so, to prevent getting caught with marijuana in your car avoid having the odor of marijuana either on your person or in your car.  And, if you do have the odor of marijuana on your person or in your car, be sure not to have any actual marijuana in your car.  Have you or anyone you know experienced “nose blindness?”  A person who has smoked a cigarette may not be able to smell the odor of past cigarette use on another person.  The same for a person who has been drinking an alcoholic beverage – can’t smell the odor of alcohol on another person.  But non-users can smell it.  It’s best to assume that if you’ve been smoking it that day, there may be odor.  If it’s been smoked in the car, the odor is probably lingering in the car for a day or more.  (Tip: don’t ever smoke in the car.)
  3.   Consent?  “No, officer, I do not consent to a search.” Like Paul Simon’s song “50 ways to leave your lover,” there are at least fifty ways to tell a police officer that you do not consent to any searches.  Make an excuse if you like: “I’m late, for a very important date.”  But no excuse is necessary.  You should not offer any justification for refusing a search.  Be confident and politely insistent. It’s your legal right to be secure from searches and seizures by police unless they have a search warrant or an exception to the warrant requirement.  One of those exceptions is a consent search.  Police often ask people “do you mind if I search”?  The correct answer is, “I do not want to be searched.”   If you do consent to a search, you’ve waived your right to object later to the otherwise unlawful nature of the search.  Also, if police know they have no legal basis to search without “consent,” then they may leave without searching.
  4.   You can do both: don’t lie and don’t admit. How?    Remain silent.  Or if words come out of your mouth make sure that they are not lies, and do not relate to illegality.  More than half the people stopped by police in traffic, when questioned about “marijuana in the car?” after the police officer claims “odor” will either lie or admit having marijuana in the car, often then telling the police where it is.  Wrong!  Instead, remain silent – meaning words are not produced by you.  Tightening your lips may help your resolve.  If you do say something, change the subject and avoid talking about whether there is marijuana in the car or not.  And again, do not consent to a search.  Police will try to make you think: “Busted.  The jig is up. May as well come clean now.  Give up.  You cannot win at this point.”  But don’t believe it for a minute!  You need to be prepared.  Knowing the law can help keep your confidence level up, and help you avoid or minimize legal trouble.
  5.   Unlawfully prolonged detention: “Am I free to leave?”  Here is the scenario.  You’re stopped by police for a headlight out, or speeding.  Normally it takes five or ten minutes for a police officer to complete the process, hand you the ticket, encourage you to pay it without taking it to court, and walk away.  You understand that to mean that the government intrusion upon your liberty is now over and you are “free to leave.”  Now, let’s change the scenario.  You’ve been stopped for something normally resolved with a traffic ticket within five minutes, but this time the officer is prolonging the detention.Is that legal?  Suffice it to say that the courts will apply a balancing test under the “totality of the circumstances” to determine whether they think the greater intrusion upon your Liberty interest was balanced by a greater level of reasonable suspicion of criminal activity.  But one of the factors courts will consider is: “to what extent did the person acquiesce to the detention vs. assert and communicate a desire to end it and leave?”  A common game played by police in court is to claim that “at that point, the person was free to leave and the prolonged time was consensual.”  If believed, then the prolonged detention might need less justification, fewer facts supporting a reasonable suspicion of criminal activity. Since “Fleeing a police officer” is a crime in Minnesota – whether in a motor vehicle or on foot – whether a person is begin “detained” by police or not, ought to be a simple black and white question.  Either you are “free to leave” or not.  The best way to make a record of that is to ask: “Officer am I free to go now?”  And don’t just do it once.  Do it more than once.  Say it loud and clear, for the camera and microphones.  This will help your lawyer challenge the legality of the search and arrest later, should it come to that.  At times it can be a good idea to just start slowly walking away, to force the police officer to tell you to stop.  (Yes, you can walk away from a car stop even if you’re not the passenger.)
  6.   “You have the right to remain silent.” When you hear that, that is your cue to – what?    It’s your cue to stop forming words and allowing them to escape your mouth!  If you want to say anything, you can say:  “Officer, I realize you are doing your job but I am not a lawyer or a police officer.  I need to assert my legal right to remain silent, and to consult legal counsel before answering questions or talking about this situation at all.”  Repeat as necessary.  No matter what they do or say, they cannot require you to speak.  So don’t.  If police direct you to show your hands, lie down, hands behind your back, stand over there, and the like, follow their commands.  But do not speak.
  7.   Field Exercises. Sometimes police may want to build a case for impaired driving.  When they do, they will ask you to perform what they optimistically term “Field Sobriety Tests.”  These are not scientifically valid and are designed to incriminate.  Even completely sober people have a difficult time “passing” them.  What to do?  Don’t!  Police cannot legally require anyone to do these field exercises, such as the “Nine-step walk and turn,” “Horizontal Gaze Nystagmus” eye test.  You can and should refuse to do any of these.  When you do, the police officer may invite an excuse.  But don’t take that bait.  Any excuse could be incriminating, even if falsely.  Instead you can say: “Officer, I am aware of my legal rights and I respectfully choose not to do any field exercises or tests.”  You may get asked repeatedly.  If so, just keep repeating that you choose not to do them – no excuses.  (Who cares if you have one leg! That’s beside the point.)  It’s your legal right.  (Note that if the police officer has factual reason to suspect impaired driving and requests that you blow into a Preliminary Breath Test (PBT) machine and you refuse to blow, you can be arrested in Minnesota for that refusal.)
  8.   Smile, you’re being recorded. From the beginning of a traffic stop, to sitting in a squad car, to the police station or jail, it’s best to assume that you and all you say are being recorded.  This recording may later hurt you, or help you.  Even when alone or with another person in the back of a police car, this is normally recorded – even when no police officer is in the car.  Phone calls from jail are almost always recorded for potential later use as evidence.  Be aware of this.  Avoid talking about the case in any of these contexts.
  9.   Keep your cool if arrested. Hitting the panic button will only make it worse.  Police may try to exploit your trauma and emotional upset.  Remain calm.  The long game can be won, by playing defense in the short game.  You or someone on the outside can help you contact a Minnesota criminal defense lawyer and if need be a bail bond agent.  Most people will be able to get out with a few days or less.

Thomas C. Gallagher is a Minneapolis marijuana lawyer frequently representing people charged with possession of marijuana and related “crimes” in Minnesota.

Have a comment?  You are welcome to leave your comments and responses below.

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 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 created in many films and television shows, the lawful 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 an unintended consequence of the focused 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 also 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.”

Point-of-view makes all the difference

Point-of-view makes all the difference

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

Self-defense training EBMAS

Self-defense training

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.

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.

Thomas Gallagher is a Minneapolis Marijuana Lawyer working in criminal defense.

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.

By: Thomas C. Gallagher, Minneapolis Marijuana Lawyer and Minnesota NORML Board Member.