Self defense, proportionality & gap between law and popular views
Earlier this month, I posted an entry on Prof. Renee Lettow Lerner's presentation at the George Mason Univ. conference. One of her themes had been that there is a considerable gap between legal standards (created by the legal elite portion of society) and popular feelings on self defense. The legal standard keys on proportionality: generally, one may use deadly force only to defend against deadly force, not to defend against non-deadly attack, property crimes, burglary, etc. as such. The popular view is more like -- shooting burglars is a public good, and if someone advances on you, unarmed, but with violent intent, despite warning that you are armed, well, he's going down and you're in the right. There's no moral equivalance between his life and yours (the core assumption of proportionality) if you're a defender and he's an intruder, burglar, or serious aggressor.
Just had a couple of illustrations of this. Earlier today I posted on the Massachusetts gubernatorial debates, where the candidates were rivalling each other in support for a Castle Doctrine law, presumably because ALL candidates knew the voters wanted it -- in *Massachusetts*, no less.
Now comes this story from Cincinnatti. In one case a thief physically attacks a convenience store owner, who shoots him as he flees. In the other, a man shoots a car thief. Neither would come close to meeting a proportionality test -- no reason to fear serious bodily harm at the time the shot was fired. But a former prosecutor tells the reporter:
"If either one of these two individuals is charged, I think the state may have a difficult time possibly getting a conviction because I think people in this community are fed up with crime and I think there would be some sympathy for the defendants in these cases. It might be a difficult case to get a conviction on."