On September 16, 2017 the Board of Directors of Minnesota NORML elected Thomas C. Gallagher to the position of Chair of the Board. Gallagher is a Minneapolis Criminal Lawyer who twice campaigned for election as a Representative in the Minnesota House in District 61B (incumbent Paul Thissen) in 2014 and 2016. He was the endorsed candidate of Republican Party of Minnesota in both election cycles.
“Minnesota NORML is a non-partisan Minnesota Nonprofit with 501(c)(4) status,” Gallagher noted. “Our goal is legal marijuana in Minnesota for responsible adult use. Minnesotans should have equal rights to cannabis as to beer and wine. This means age 21 and older, taxed and regulated the same as beer and wine, and legal small batch home production.”
Thomas C. Gallagher, Chair, Minnesota NORML
“Home grow” Gallagher said, “is essential. Ending marijuana prohibition is only incidentally about marijuana; it is really about personal freedom. We want to empower the People, support Liberty for all. With legal home grow, anyone can grow their own cannabis for medicinal or personal use with little money. Freedom should not be limited to people with money.”
“Now that all major polling shows majority support for legalization of marijuana (and a super-majority for medical marijuana), why – in a democracy – is the will of the People not yet enacted into law?” Gallagher asks.
If our elected officials lack the political courage to enact the will of the People, then we say “Let the People Decide!” Bills in the Minnesota legislature would place a constitutional amendment on the general election ballot to, finally, legalize marijuana for responsible adult use like beer and wine. Even politicians unwilling to support legalization should be able to support democracy, the vote and “allowing” the People to decide. We support these Bills.
“It’s not inevitable. There are vested interests who now profit from the current Prohibition regime fighting hard to reverse the progress we’ve made, and to stop the return of Freedom to the People of Minnesota,” Gallagher warned. “’How soon will it be legal?’ people ask me. ‘How soon will you join us working hard to make it happen?’ is my smiling reply” says Gallagher.
Imagine that you are married to someone who has been struggling with alcohol addiction. Your spouse has been sober for an encouraging length of time. Then one day you get a call. Your spouse has had a slip and been arrested for DWI.
The police have seized your $40,000 car – the one he or she was driving at the time – for administrative forfeiture. That doesn’t feel right, does it? Could it be the last straw that stresses and breaks a struggling relationship, leading to another failed marriage?
Effective August 1, 2017 in Minnesota, as an innocent owner you will now be able to challenge the forfeiture of your vehicle to the government in court and assert the “innocent owner defense” even where your spouse was the DWI driver of that vehicle – thanks to the Minnesota legislature and Governor this year.
The new law, which amends Minnesota Statutes Section 169A.63, subdivision 7, effectively overrules a 2009 Minnesota Supreme Court case, Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431 (Minn. 2009). In that case the court’s majority held that “innocent owner defense” in Minn. Stat. § 169A.63, subd. 7(d) (2008), did not apply in a case of joint ownership of a vehicle if one of the joint owners is also the offender causing forfeiture of the vehicle.
Though spouses may be the most often affected, as co-owners of a vehicle with a DWI offender, the law in this area goes beyond spouses and applies to “family or household members” of the offender who are co-owners. The definition of “family or household member” is broad, and includes a parent, stepparent, or guardian; persons related by blood, marriage, or adoption as brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, great-grandparent, great-uncle, great-aunt; and persons residing together or persons who regularly associate and communicate with one another outside of a workplace setting.
Who is an “owner?” The innocent owner defense statute defines “owner” as “a person legally entitled to possession, use, and control of a motor vehicle, including a lessee of a motor vehicle if the lease agreement has a term of 180 days or more. There is a rebuttable presumption that a person registered as the owner of a motor vehicle according to the records of the Department of Public Safety is the legal owner.” Note that the car title is prima facie evidence of ownership. In other words, it creates a rebuttable presumption. Ownership can be proven by other evidence as well.
What is the innocent owner defense? As of August 1, 2017, Minnesota Statutes 2016, section 169A.63, subdivision 7 “Limitations on vehicle forfeiture.” will read:
“(d) A motor vehicle is not subject to forfeiture under this section if any of its owners who petition the court can demonstrate by clear and convincing evidence that the petitioning owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the petitioning owner took reasonable steps to prevent use of the vehicle by the offender. If the offender is a family or household member of any of the owners who petition the court and has three or more prior impaired driving convictions, the petitioning owner is presumed to know of any vehicle use by the offender that is contrary to law. “Vehicle use contrary to law” includes, but is not limited to, violations of the following statutes:
(1) section 171.24 (violations; driving without valid license);
(2) section 169.791 (criminal penalty for failure to produce proof of insurance);
(3) section 171.09 (driving restrictions; authority, violations);
(4) section 169A.20 (driving while impaired);
(5) section 169A.33 (underage drinking and driving); and
(6) section 169A.35 (open bottle law).”
The burden of proof is on the owner petitioning to get their car back, to prove by “clear and convincing evidence” either that he or she “did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law” or that he or she “took reasonable steps to prevent use of the vehicle by the offender.” The term “constructive knowledge” is not commonly used outside a legal context.
“Constructive” here means, essentially, circumstantial evidence proving “knowledge.” It may refer to the list that follows, for “family or household members” who are “presumed to know of any vehicle use by the offender that is contrary to law.” Though that last phrase may be ambiguous, it seems to refer to past (as opposed to future) “vehicle use by the offender that is contrary to law.”
This presumption is rebuttable, however, and so does not seem to change the burden of proof, already upon the owner asserting the innocent owner defense. In other words, the burden is on the owner asserting lack of knowledge that he or she did not know.
What can we learn about criminal law from the story of the Jesus and The Adulterous Woman in John Chapter 8 of the New Testament? We can learn about what criminal defense lawyers do. We can learn about the laws of evidence. We can learn about a jury’s right and power to sentence. We can learn about connecting persuasively with people. First, the story from John Chapter 8:
But Jesus went to the Mount of Olives. At dawn He went to the temple complex again, and all the people were coming to Him. He sat down and began to teach them.
Then the scribes and the Pharisees brought a woman caught in adultery, making her stand in the center. “Teacher,” they said to Him, “this woman was caught in the act of committing adultery. In the law Moses commanded us to stone such women. So what do You say?” They asked this to trap Him, in order that they might have evidence to accuse Him.
Jesus stooped down and started writing on the ground with His finger. When they persisted in questioning Him, He stood up and said to them, “The one without sin among you should be the first to throw a stone at her.”
Then He stooped down again and continued writing on the ground. When they heard this, they left one by one, starting with the older men. Only He was left, with the woman in the center. When Jesus stood up, He said to her, “Woman, where are they? Has no one condemned you?”
“No one, Lord,” she answered.
“Neither do I condemn you,” said Jesus. “Go, and from now on do not sin anymore.”
John 8:1-11 HCSB
Christ and the woman caught in adultery, Pieter Brueghel the Younger’s oil on panel version c. 1600
What do criminal defense lawyers do?
In this story, Jesus shows us what criminal defense lawyers do. We defend the human being accused of a crime, facing a punishment if convicted of a crime under the laws.
In this case the crime was adultery and the punishment for a person convicted under the laws could be death – death by a group of people throwing stones at you until eventually dead, a death by torture. No doubt the law and the proscribed punishment were designed to deter the criminal behavior.
The accused person could testify on her own behalf, though throughout our legal history at times the accused has not been allowed to testify due to presumed lack of credibility. But even with the right to testify on her own behalf, having an advocate speak for the accused gives her a better chance of being heard, fairly.
Here, Jesus speaks for her, and advocates for her life. This is the most important thing a criminal defense lawyer does. It is our sacred duty, our sacred honor.
The outcome sought by the advocate for the accused is the one desired by the accused. Anything else would make us not an advocate, unethical or a failed advocate.
The means of achieving that outcome is our knowledge of the law (including the law of evidence and the law of jury power), and our ability to connect with people persuasively.
The laws of evidence.
The laws of evidence in the early twenty-first century United States can be traced back to the time and place of Jesus, and earlier. Jesus knew the laws well.
The laws of Moses required that before someone could be sentenced to death there must be two or more witnesses to the crime – a rule against hearsay, a right of confrontation, and a corroboration rule. Deuteronomy 19:15.
One accusing witness was not enough to trigger the death penalty. Deuteronomy 17:6. Jesus and the crowd were told (“they said to him”) that the woman was reportedly “caught in the act.” Yet there is no witness or witnesses identified nor is there any witness testimony. This would make a death penalty illegal under the law.
Had there been two or more witnesses present to accuse and claim to be witness to the woman’s adultery, the law proscribed the death penalty for both the woman and the man. Deuteronomy 22:22 (“If a man is discovered having sexual relations with another man’s wife, both the man who had sex with the woman and the woman must die”).
Where is the man? How do we know the man is not any one of the men in the de facto jury? The prosecutors do not have the man who they claim committed adultery with the woman.
After the accusers all have left, Jesus asks a legal question: “Woman, where are they? Has no one condemned you?” With no accusers remaining, our attention is drawn to the requirement of eyewitnesses to the crime before guilt could be established and a sentence imposed.
Jesus’ statement: “Neither do I condemn you” can be interpreted to mean that Jesus was no eyewitness to any claimed behavior of the woman, especially in the context of what came before, concerning the lack of the legal requirement of eyewitnesses.
One interpretation of the story can be that Jesus gained her acquittal by skillful use of the laws accepted by the jury.
A jury’s right and power to sentence
We should note here that it is not at all clear that the woman was put on trial in the formal, proper manner proscribed by the laws of the time and place. The contrary appears more likely (not unlike the Trial of Jesus, later). And yet, we can still use the story to illustrate the jury’s traditional right and power to sentence.
Whether a proper, lawful trial or not – the accusers were urging a death by torture sentence be carried out by the crowd, right there on the spot. Jesus, acting as the woman’s advocate, invoked not only the law and its requirements; he also made a direct appeal to the right, the discretion, and the power of the de facto jury to refuse to convict her.
Today we have many terms for this including jury lenity and jury nullification. Jury lenity is the jury’s right to be more lenient than the law requires. Jury nullification is the right or power of the jury to acquit a person (not-guilty verdict) even where it believes the accused was lawfully proven to have violated the letter of the law.
As often is the case, it is difficult to know whether the de facto jury walked away after the appeal of Jesus in deference to the laws of evidence or out of compassion. But when Jesus said: “The one without sin among you should be the first to throw a stone at her,” was this not a plea for compassion?
His later statement to her: “Go, and from now on do not sin anymore,” implies that perhaps she did sin, but either lawful proof was lacking, or both he, the jury, and the accusers were blessed with compassion for her. If so, this could have been an appeal to jury nullification or lenity, as well as an appeal to follow the laws of evidence and of a fair trial – either or both.
Connecting persuasively with people.
The ancient Greeks, Aristotle, spoke of ethos, pathos, and logos as the paths of persuasion. Clearly the ethos of Jesus was also on trial.
“Ethos” is an appeal to ethics – a means of convincing someone of the character or credibility of the persuader – here Jesus. After all, Jesus had returned there again to teach his gathered students, writing on the ground.
The scribes and the Pharisees then brought a woman before him and his students and accused her of adultery demanding her death, “to trap Him, in order that they might have evidence to accuse Him.” It seems the poor woman may have been a pawn in a game designed to destroy the ethos, the credibility of Jesus to his students.
The description of his behavior shows Jesus’ confidence. He is a teacher, interrupted as he is writing on the ground while instructing his students. He is addressed with respect. (Ethos goes both directions.) He listens with respect. He makes his short argument on her behalf, then resumes writing on the ground quietly, waiting for the people for do the right thing. We see social mirroring. We see the invocation of shared values and laws. He is connecting. Jesus makes good use of his ethos to persuade.
“Logos” is an appeal to logic – a way of persuading an audience by reason. Jesus has pointed out the lack of an eyewitness, the lack of corroboration by two eyewitnesses, the unlawful hearsay accusation, the lack of an identified male accused adulterer (“caught in the act?”) , the lack of confrontation of witnesses — all contrary to law. These are all appeals to logic, that the proposed conclusion is not proven under the law by the evidence supplied by the prosecutors.
“Pathos” is an appeal to emotion – a way of convincing an audience of an argument by eliciting an emotional response. “The one without sin among you should be the first to throw a stone at her.” Jesus challenges each listener to publicly declare that he or she is without sin. He equates being the first to throw a stone at her with being the first to publicly declare being without sin – impossible for an honest person. This challenge pierces right to the heart of any human being, requiring us to shift focus away from the accused woman, and to look inside to search within ourselves instead. He correctly asks the jury to question whether the issue is really about them, not the lady accused. She is not “the other:” they are like her – connected by something in common. He inspires them to be greater than who they might have been, the low identity they had been invited to assume by the prosecutors.
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?
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.
Disparity 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 avoidfighting 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.
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?
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?
When 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.
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?
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.
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
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:
Was the force used reasonable?
Was the force used reasonable under either the circumstances that actually existed, or the circumstances that the actor (defendant) reasonably believed existed?
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.
Is religious use of marijuana a defense to a marijuana criminal charge? A recent Minnesota Court of Appeals case indicates the answer may be “yes.” In an unpublished opinion, In the matter of the Welfare of J.J.M.A., A13-0295, filed September 23, 2013, the Minnesota Court of Appeals reversed a juvenile’s delinquency adjudication based on his sincerely held religious belief as a Rastafarian, on a petty misdemeanor marijuana paraphernalia charge.
The fifteen year old boy was a practicing Rastafarian – a religion that has incorporated religious use of marijuana for nearly 100 years. The lower court found him guilty of the paraphernalia charge, despite also finding that “Rastafari is a true religion and that J.J.M.A. has a sincerely held belief in the tenets of that religion,” because he “failed to satisfy his burden of showing that the Rastafari religion requires him to carry his pipe with him at all times.” The Minnesota Court of Appeals reversed that adjudication of guilt, based on the Minnesota Constitution’s freedom-of-conscience clause, article 1, section 16:
“The right of every man to worship God according to the dictates of his own conscience shall never be infringed . . . nor shall any control of or interference with the rights of conscience be permitted . . . ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state.”
Minnesota’s Constitution provides more protection for religious freedom than the United States Constitution does. “’This language is of a distinctively stronger character than the federal counterpart’ because it ‘precludes even an infringement on or an interference with religious freedom.’” State v. Hershberger, 462 N.W.2d 393, 397 (Minn. 1990) (Hershberger II).
The court analyzed the four prongs of the compelling state interest balancing test:
whether the individual holds a sincerely held belief;
whether the regulation burdens the exercise of religious beliefs;
whether the state’s interest is overriding or compelling; and,
whether the regulation uses the least restrictive means to accomplish the state’s interest.
The court ruled that the evidence at trial satisfied the defense burden to establish a firmly held belief worthy of protection under section 16. It contrasted this case with past cases where the defendants had failed to meet the burden to establish a sincerely held religious belief, due to being unable to connect his conduct to a religious practice or principle.
The court stated, ”once an individual has demonstrated a sincerely held religious belief intended to be protected by section 16, the burden shifts to the state ‘to demonstrate that public safety cannot be achieved by proposed alternative means,’” and that the state failed to meet this burden in this case. Though the case did not expressly address the applicability of the defense to a marijuana possession case, it contains language that may be helpful in doing so.
Given the fact that marijuana is safer than alcohol, presumably the state will never be able to meet its burden of proving that restricting religious freedom with a statute that criminalizes marijuana possession somehow improves public safety.