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."
Here in 1L land, a fellow student and former sheriff's deputy told me of a story where a preacher interrupted the attempted rape of his neighbor and when the rapist was fleeing, shot him in the back with a 12 gauge. The local junior attorney was told by the state attorney that he would not get a conviction despite the apparent illegality of shooting fleeing criminals. The prosecutor ignored the advice and sure enough, the jury acquired him.
I think that Americans feel that criminals accept a certain level of risk in their professions, including getting shot by their intended victims. There is generally low approval of people who take things without earning them and high approval of people who fight back against physical aggressors and bullies.
Posted by: Beerslurpy at October 26, 2006 12:22 PM
Posted by: jdege at October 27, 2006 12:12 PM
Traditionally Lawyers have always (Sorry, David) regarded criminals as their bread and butter seeing it a better thing to recycle them in case after case not getting them killed without a multimillion dollar capital case to benefit all the associated criminal related personnel.
Posted by: The Mechanic at October 27, 2006 01:35 PM
"If either one of these two individuals is charged, I think the state may have a difficult time possibly getting a conviction..."
But a prosecutor, with the resources of the State behind him, could charge the individual with so many technical violations of the law that the defendant would be pressured into pleading guilty to something, even if it's only Disturbing the Peace.
Another mark in the "win" column for the prosecutor's office.
Posted by: Anonymous Coward at October 28, 2006 08:17 AM