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.
In Shakespeare’s Romeo and Juliet, Lady Capulet said her daughter is “not yet fourteen.” Juliet was two weeks from her fourteenth birthday. Ready for marriage, her mother said. Though we never are told her lover Romeo’s age, it’s apparent that he is also a teen. Romeo is older, but still of tender chin (without beard). Today, that would be “statutory rape,” a crime. Should we make young lovers into criminals? Should Romeo have to register as a predatory offender in Minnesota? Or should Minnesota pass a Romeo and Juliet law to spare them?
Each from families bearing grudges towards each other, the star-crossed lovers’ fate is tragic. But were they criminals? Not then, as Juliet’s mother makes clear.
Romeo and Juliet Law
Would prosecutors charge Romeo and Juliet with age-based sex crimes in Minnesota today? Prosecutions of young people like them are common in juvenile and adult criminal courts in Minnesota. Should we change the laws in Minnesota to decriminalize young love? Should foolish love be a crime?
“Oh, what a tangled web we weave; When first we practise to deceive!” (from Marmion; A Tale of Flodden Field, by Sir Walter Scott.)
Age-based sex crimes are crimes based upon some aspect of sex, plus a too-young age. Common law rape required an element of force, coercion or lack of consent. A more recent invention, “statutory rape” does not require force or lack of consent, involves quite consensual acts.
But it rests upon a legislative fiat that a person younger than 16, for example, is mentally feeble; incompetent to consent to sexual acts.
“Neither mistake as to the complainant’s age nor consent to the act by the complainant [sic] is a defense.”
The “complainant” usually opposes the prosecution. Minnesota could make a Romeo and Juliet law so that consensual acts by young people are no longer a crime.
Double standard in Minnesota law
This premise “incompetence to consent” appears false. After all, the minimum age for competence to be criminally prosecuted in a Minnesotadelinquency petition is ten years old. See, Matter of Welfare of S.A.C., 529 N.W.2d 517 (Minn. App. 1995).
Why would the same laws deem a ten-year-old competent intend a criminal act, but consider a thirteen-year-old like Juliet incompetent to intend sex? A tangled web, indeed.
“O Romeo, Romeo, wherefore art thou Romeo?”
O Romeo, Romeo, wherefore art thou Romeo? Rome and Juliet law, statutory rape in Minnesota
Do we really want to permanently label our Romeos and Juliets “sex criminals,” for the crime of being young lovers?
Many of Minnesota’s “statutory rape” laws contain exceptions for lovers within a range of 24 to 48 months. But for those outside these exceptions “mistake of age,” they say, is not a defense. Minnesota could pass a Romeo and Juliet law to end the criminalization of young lovers.
“The Party was trying to kill the sex instinct, or, if it could not be killed, then to distort it and dirty it.” — George Orwell (1984)
Sexting and proximity
These days, we can categorize the growing list of sex crimes based upon proximity: penetration, touch, and non-touch. When sexual penetration is criminal, it is a more serious crime than touch. Touch in turn is generally thought to be more serious than non-touch. Examples of non-touch sex crimes include child pornography or indecent exposure.
21st Century Romeo and Juliet
Before our modern-day Romeo and Juliet became lovers, their flirting included sexting.
Young lovers have been around long before Minnesota criminalized them. But some non-touch sex crimes are an artifact of recent technology, like smart phones. Most kids have them these days, and take pictures with them, sometimes naked and arguably sexual images of themselves.
Then they share them with each other over cell phone towers and Wi-Fi connections to the internet. The images may be on their phones or in the data cloud. Sextingis a new word. It merges and abbreviates “sex texting.” Sexting is sending images via text messaging applications.
Minnesota laws have not kept pace with the times. Should every foolish act be made a crime? Our laws criminalizing child pornography are now being used to prosecute young people. Prosecutors are charging young people for taking naked and arguably sexual images of themselves, then sharing them with each other.
Can a picture of yourself be child pornography?
A criminal Complaint or Petition for Adjudication of Delinquency accuses them of Possession or Dissemination of Child Pornography. Minnesota Statutes §617.247. Such prosecutions violate the young person’s right to freedom of speech and expression under the U.S. Constitution as well as the Minnesota Constitution.
We can do better. Let’s change the laws to make them less unfair. Let’s pass a Romeo and Juliet law to spare young people from being made into criminals.
Predatory Offender registration for juveniles
Can a juvenile be a “predatory offender” due to sexting or being a young lover?
Labeling juveniles “predatory offenders,” requires them to register their whereabouts, vehicles, schools, addresses, and on and on. And it sends them to prison if they slip up any little part of doing so. Is that what we really want to do after a juvenile had consensual sex with her beloved, or after sexting?
Rehabilitation vs. Predatory Offender Registration for ten years to life.
Juvenile courts were a result of social reform movements of the late 19th Century. Rather than criminally prosecute juveniles like adults, we set up a separate juvenile court. Juvenile courts have a greater focus on rehabilitation for those adjudicated responsible for some “criminal” act.
An important aspect of juvenile courts is that they have traditionally been non-public – confidential. This protects the juvenile from severe collateral consequences. It allows the kid to leave youthful mistakes in the past. In recent years, that has eroded.
In Minnesota, if a prosecutor charges juvenile 16 years or older with a felony, the case is now public. (Almost all “sex crimes” are felonies in Minnesota.)
Juveniles are not safe from predatory offender registration
Current Minnesota statutes contain no juvenile exception for “predatory offender registration.”See, Minnesota Statutes § 243.166. This conflicts with the main, rehabilitative purpose of juvenile court and its protection of juveniles from life-long public exposure.
Adjudication is the trigger
How can we save a juvenile from having to register as a sex criminal for ten years or more? We must get a dismissal of the entire case, an acquittal, or a stay of adjudication. An adjudication triggers registration, under current law.
Reform Minnesota laws
Criminal lawyers and courts can wrestle with these things. We can try to save some young people from the jaws of a bad law. But wouldn’t it be better to change the laws to make them less unfair and less harmful?
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.
Limited to first-timers, this law applies to a person “who has not been previously convicted of a violation of this chapter …” And the law applies to all “controlled substances” other than heroin.
Before this 2016 law, even these amounts of marijuana wax were charged as felonies. A felony drug conviction can trigger lost jobs, lost of civil rights, immigration consequences. The law steps in the right direction.
The statutory language:
Minn. Stat. §152.025, Subd. 4 (a)(1) “the amount of the controlled substance possessed, other than heroin, is less than 0.25 grams or one dosage unit or less if the controlled substance was possessed in dosage units …”
one-quarter gram of hash relative to the size of a lighter
Does this mean defense lawyers will no longer need to litigate trace amount issues and cases?
Also, this new law does not apply to heroin or federal cases.
What about marijuana, including derivatives such as marijuana wax, dabs?
Small Amount Currently Plant-form Only
Minnesota law defines possession of a “small amount” of plant-form marijuana as a petty misdemeanor (not a crime, violation-fine only). Minnesota Statutes §152.01, Subd. 16 defines Small amount: “‘Small amount’ as applied to marijuana means 42.5 grams or less. This provision shall not apply to the resinous form of marijuana.”
So, 0.24 grams or less of plant-form marijuana could be charged a petty misdemeanor violation, not a gross misdemeanor.
When could quantity be charged in dosage units, rather than weight?
We can be divide these into two categories: prescription drugs and underground-economy drugs. Most people possess prescription drugs in pill form. A “dosage unit” could be one pill, or more than one, depending upon the recommendation of the drug maker, pharmacist, or prescribing physician.
For underground economy drugs, “one dosage unit” could be more than one pill, or more than one square of blotter paper with LSD on it. For example, see State v. Palmer, 507 NW 2d 865 (Minn.App. 1993) (“four small squares on each sheet constituted a ‘hit’ or dosage unit”).
A grey area: What about edibles like THC gummies? Is one a “dosage unit?” What about a marijuana wax cartridge?
Medical marijuana produced by a legal-maker should be treated like prescription drugs.
Pre-trial Diversion & Statutory Stay of Adjudication
What about Minnesota Pretrial Diversion programs and statutory Stays of Adjudication under Minnesota Statutes §152.18?
They are still available for those charged with Minnesota Fifth Degree “Controlled Substance” Crime, Gross Misdemeanor, since the charge is a Fifth Degree charge against a person without prior drug convictions.
We, the People, should have our rights respected by government to marijuana and marijuana wax, equal to our rights to beer, wine and liquor.
Short of legalization, however, we should at least delete the “resinous form” exception to the definition of a “small amount of marijuana.” If Minnesota did so, at least People with a small amount of marijuana wax (42.5 grams or less) would not be treated like criminals.
Do you remember the story about Jesus as defense lawyer for the woman accused of adultery?
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. And we can learn about the laws of evidence.
We can learn about a jury’s right and power to sentence. And we can learn about connecting persuasively with people. The story of Jesus as defense lawyer is short and entertaining but filled with wisdom.
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
What do criminal defense lawyers do?
In this story of Jesus as defense lawyer, he shows us what criminal defense lawyers do.
Jesus as defense lawyer for the woman caught in adultery, Pieter Brueghel the Younger’s oil on panel version c. 1600
We defend the human being accused of a crime, to be punished if convicted under the laws.
In this case the crime was adultery. And if convicted under the laws, the punishment could be death – death by a group of people throwing stones at you until eventually dead, a death by torture.
Jesus as defense lawyer
The accused person could testify. Through much of our legal history the accused was incompetent to testify due to a presumption that they would lie to save themselves. But even with that right,the accused having an advocate speak for her gives her a better chance of being heard, fairly.
Jesus accepts, advocates for an unpopular person
Here, Jesus speaks for her, and advocates for her life. He accepts the challenge. Jesus as defense lawyer, advocates for a socially condemned person.
This is the most important thing a criminal defense lawyer does. It is our sacred duty, our sacred honor.
The advocate for the accused seeks the outcome desired by the accused. Anything else would make us not an advocate: unethical or a failed advocate.
Our tool for achieving that outcome 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
We can tracetoday’s laws of evidence back to the time and place of Jesus, and earlier. Jesus as defense lawyer, knew the laws well.
The laws of Moses required two or more witnesses to the crime before someone could be sentenced to death – 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 made 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.
Could this be the meaning of Jesus’ argument?: “The one without sin among you should be the first to throw a stone at her.” Was that was a challenge to the prosecutors to produce the guilty man, if they could?
Many presume the woman’s guilt in the story. But read carefully. It tells what the prosecutors said: “they said to Him, ‘this woman was caught in the act of committing adultery.‘” That statement is an accusation, just a charge, an unproven claim. Jesus as defense lawyer, points that out.
The prosecutors fail to produce evidence to prove claim
Presumption of innocence – not enough evidence
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. The presumption of innocence remains unless overcome by evidence of guilt. An accusation alone is nothing. Jesus as defense lawyer makes this clear.
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
Was the woman put on trial in the proper manner under the laws at the time? 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 urged a death sentence to be carried out by the crowd, right there on the spot.
Jesus as defense lawyer, invoked not only the law and its requirements. He also made a direct appeal to the right, and the power of the de facto jury to refuse to convict her.
Jury lenity and jury nullification
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 power of the jury to deliver a not-guilty verdict even when it believes the accused guilty of violating the letter of the law.
The modern practice of removing sentencing power from the jury destroys the true jury trial, as this story about Jesus as defense lawyer shows.
Law or equity?
As often is the case, it is difficult to know whether the de facto jury walked away after the argument 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 too weak; or both he, the jury, and the accusers had compassion. 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.
Criminal defense lawyers can relate to this experience of Jesus as defense lawyer. We often don’t know. It is enough that proof beyond a reasonable doubt was lacking. But we want our clients to avoid future accusations regardless.
Prosecutors attempt to set up Jesus for prosecution
They’ll stone you when you’re trying to be so good
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.”
The prosecutors used the poor woman as a pawn in a game designed to destroy the ethos; the credibility of Jesus to his students. The prosecutors would smear Jesus by association with an accused criminal. By baiting him to defend her, they hoped to make him complicit in her alleged crime. Criminal lawyers today understand this tactic used against Jesus as defense lawyer.
Connecting persuasively with people
The description of his behavior shows Jesus’ confidence. He is a teacher. The prosecutors interrupt as he is writing on the ground while instructing his students. They address him with respect. (Ethos goes both directions.) Jesus 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.
Using logical argument
“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 appeals to logic. Jesus shows that the prosecutors charge is not proven under the law by their evidence — or lack of evidence.
Why should we care?
“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.
I see you
This challenge pierces right to the heart of any human being.
It requires us to shift focus away from the accused woman, and to look inside, to search within ourselves instead.
Jesus 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.
Jesus invites them to be greater than the low identity that the prosecutors invited them to assume. Liberty and love go hand in hand.
The lessons of this story of Jesus as defense lawyer are memorable. We can all learn from it, regardless of religious belief. Criminal defense lawyer can learn much from it, too.
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.