2009 – Page 26 – Shall Not Be Questioned

Duty to Retreat in Common Law

With the Castle Doctrine having been heard by the Judiciary Committee yesterday, the media is starting to report on it. In the video linked here, you can see statements from John Hohenwarter, the NRA State Liaison for Pennsylvania, and Dan Pehrson, President of Pennsylvania Firearms Owners Association, as well as some of our opponents, who are against this change in the law.

But it’s really not so much of a change from the traditions of common law. In fact, to a large degree, it restores the common law concept of self-defense. If you go back to the authoritative source on the Common Law, Blackstone’s Commentaries on the Laws of England, you can find the common law source for many of the concepts enshrined in the proposed Castle Doctrine law:

Burglary, or nocturnal housebreaking, […] has always been looked upon as a very heinous offense: not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation, which every individual might acquire even in a state of nature; and invasion, which in such a state, would surely be punished with death, unless the assailant were the stronger […] And the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with impunity[.]

Emphasis mine. You will certainly find no duty to retreat there. A homeowner could “kill the assailant with impunity” for the offense of burglary under common law. So where did the duty to retreat come into play? You can find that in Book 4, Chapter 14 of Blackstone’s Commentaries. The Common Law Blackstone describes divides homicide into three types, “justifiable, excusable, and felonious.” In the realm of justifiable homicide, Blackstone speaks of “advancement of public justice” in the following context:

In the next place, such homicide, as is committed for the prevention of any forcible and atrocious crime, is justifiable by the law of nature; and also by the law of England, as it stood so early as the time of Bracton, and as it since declared by statue 24 Hen VIII. c. 5. If any person attempt to burn it, and shall be killed in such an attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets, or to the breaking open of any house in the time of day, unless it carries with it an attempt of robbery also.

Under common law, a citizen had a justification for committing homicide in order to stop a forcible felony. There was no duty to retreat here. It was, in fact, considered a civic duty for a citizen to stop felonies from being committed. We don’t get to a duty to retreat until we get to Blackstone’s commentary on self-defense, which under common law is not a justifiable homicide, but an excusable homicide. Blackstone notes that common law makes a distinction between these two.

Homicide in self-defense, or se defended, upon a sudden affray, is also excusable rather than justifiable, by the English law. This species of self-defense must be distinguished from that just now mentioned, as calculated to hinder the perpetration of a capital crime; which is not only a matter of excuse, but of justification. But the self-defense, which we are now speaking of, is that whereby a man may protect himself from an assault, or the like, in the course of a sudden brawl or quarrel, by killing him who assault him […] They cannot therefore legally exercise this right of preventive defense, but in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defense, it must appear that the slayer had no other possible means of escaping from his assailant.

Emphasis mine. It is here you can see the common law origins of the Duty to Retreat. But notice this only applies to “sudden affray” or “sudden brawl” with someone who was otherwise not feloniously attacking a person. Blackstone implies there’s an element of the defender having been a willing participant in the “quarrel” or “affray.” When states started to codify common law into statutes, many erroneously adopted this aspect of common law for all justifiable homicides, even ones which were meant to prevent felony. Most state statutes on self-defense no longer make any distinction between justifiable and excusable homicide, though there are many states that allow for the use of deadly force to prevent commission of a forcible felony. Pennsylvania was one of the states that codified common law improperly, and created a duty to retreat in the face of felonious assault. Castle Doctrine is not really a radical change from the Common Law, but a restoration of it.

What is Meant by “Good Enough”

I am believer in the old saying that perfect is the enemy of good, and there’s been no better example of that than George W. Bush’s presidency when it came to Second Amendment issues. It would be hard to argue the guy was our best buddy, after failing for years to deal with the National Park issue, then incompetently rushing it through toward the end, and after having his solicitor general argue against Mr. Heller’s position in front of the Supreme Court. But I’ve said that putting Alito and Roberts on the court was the best thing he did for us, and at the end of the day, saved the day. Here’s more evidence from the 7th Circuit’s decision on Lautenberg:

The Seventh Circuit opinion, which now has shifted the burden of proof to the Justice Department through an “intermediate scrutiny” standard, was written by Diane Sykes, a George W. Bush appointee, and joined by William Bauer, a Ford appointee, and John Tinder, a George W. Bush appointee.

Two George W. Bush appointees comprised that three judge panel making up the 3-0 decision to reverse and remand. Even though they did not find Lautenberg unconstitutional facially, they at least told the U.S. Attorney he had to take the Second Amendment seriously. And told the lower courts they had to as well. Many will say George W. Bush never deserved his NRA endorsement, and there were certainly times I agree with that, but we’ll probably be enjoying the benefits of the people he put on the bench for some time.

A Challenge From the Peanut Gallery

Got a person in the comments who is an opponent of concealed carry, and he’s made a claim I’m wondering if it can be disproved. Here’s the claim:

And it remains true that no private citizen without law enforcement background has ever used a legally concealed weapon to stop a mass murder involving more than two deaths in progress.

Can anyone find an instance of this happening? I know there have been citizens with guns that have stopped mass murders, but we’re talking about the very narrow, specific incident of a individual citizen, with no law enforcement background, carrying a legally concealed weapon, stopping a mass killer. Note that guys like Dan McKown don’t count, because he didn’t stop the killer. Mark Wilson doesn’t count either, because he was in the home when he saw the incident unfolding, and was killed before he could stop the shooter. Neither does Jeannie Assam because she had a law enforcement background.

Unexpected Bureaucratic Response

Let’s face it, when most people have to deal with government workers, they cringe. I’m one of them. From the stupid rule against water in the Social Security office to the lines & incompetence of the DMV, it’s maddening. Every once in a while, you get a surprise. Today is one of those days. My concealed carry license is ready after two days. Two freakin’ days.

Yes, I know I will get sh*t for waiting so long to get a PA license. Mostly, I forgot about getting everything for it. Then I had to remember to get all of the info for my references. Sebastian had to remember to ask one of his buddies in the county who was willing to vouch that I’m not a psycho. By the time we remembered it all, it was Monday. We swung by the county government building about an hour and a half before close, and most folks in there and calling during that time were either renewing or applying for a concealed carry license. (The next most frequent request was for a job application to work for the county sheriff. Lots of young men are out of work & swamped the office on the first day it was posted.) This morning the woman called to report that it is ready for me to pick up any time. Talk about customer service.

The only other time I’ve had such prompt service was again for a concealed carry license, but it was for my first one in Montgomery County, Virginia. I applied when I was at home for spring break, and it wasn’t ready for two weeks. The secretary who called apologized for the week plus delay because the judge who normally handled it was on vacation the week I applied. I thought that was cool.

The second state I applied in was Massachusetts. God bless the local police department who tried to speed things along, but the state held them up. I think it took them about 4 months to process mine. The thing is that the local PD wanted me to get mine quickly because they asked if I would help with training classes because of high demand and the fact that I was already an NRA certified instructor. In fact, they actually got excited when they saw that in my application packet. So I still give the local guys an A+, but the state failed.

When I renewed my Virginia permit in Fairfax County, I was told it would take at least 45 days. I pointed out to the clerk that I believed she meant to say 45 days or less. She tried to insist that it would be more than 45 days until I made clear that I knew the law required them to get me a license or denial in 45 days or less. I pointed out that Montgomery County took less than a week (not counting the judge’s vacation), and she said, “Well, we do background checks here in Virginia.” Apparently the government worker was unaware that Montgomery County is also in Virginia. And even if she only had the reference of Montgomery County, Maryland, the Old Line State also conducts background checks. I made the grumpy old lady even grumpier. Oops. I got the license on day 45.

So once again, kudos to Bucks County, Pennsylvania for great customer service. Now, I should grab a lozenge, a tissue, some hand sanitizer, and go pick it up.

Daily News on Castle Doctrine

The hearings are today. My friend Dan will be testifying before the House Judiciary Committee in favor of the bill on behalf of PAFOA. Stu Bykofsky of the Daily News reports on the “controversy.” I put that in quotes because I’m actually surprised there hasn’t been more of a media reaction to it. Really, this bill just codifies that which is already practice in most areas of the state, so it shouldn’t be controversial. The problems it’s meant to address are:

There is technically, in Pennsylvania law, a duty to retreat within the home. There’s no duty to retreat from the home, but technically speaking if someone breaks into your home, you have to retreat, and then only after the invader follows and attacks you can you resort to deadly force. Practically speaking, no jury in Pennsylvania is going to convict a homeowner for shooting a home invader, so this isn’t really a change from practice even if it’s a technical change.
Pennsylvania law currently has no castle doctrine for vehicles. If someone opens the door and gets in my car, I can’t threaten deadly force or use deadly force until he presents an active threat to me. this bill changes the presumption so that anyone attempting to enter your vehicle uninvited can be considered a deadly threat. Again, prosecution is unlikely because juries tend to be forgiving of law abiding people defending themselves, but it’s the law.
Pennsylvania currently does not provide civil immunity for people defending themselves, and it’s not uncommon for attackers to sue their victims for defending themselves. This should put a stop to that, and this alone, in my opinion, is reason enough to support the bill.
We also have a duty to retreat and a duty to surrender in the street. Technically speaking, you are required to flee an attacker if you can do so safely. Doing so safely ends up being in the eyes of jury members who weren’t there, and who will second guess your every move. If you use lethal force on a mugger holding a knife to you and demanding your wallet, you better hope there wasn’t some avenue of retreat you didn’t consider. This will eliminate that type of second guessing. If you’re in a place you have a legal right to be, and are threatened with grave bodily injury or death, you can defend yourself without having to worry about retreat.

Bryan Miller’s hysterics from the Daily News article fail to appreciate what Pennsylvania law and practices already are.

It’s an unwelcome expansion of the Castle Doctrine, he says, “to everywhere – to churches, schools, malls, everywhere, so that someone can claim they were threatened and use lethal force against the person who they claim [threatened them.]

“Our name for it is Judge, Jury and Executioner,” he says. Other critics have called it “Shoot now, ask questions later.”

The right of self-protection already exists, Miller says, but he sees it as limited.

“Walking on a street or going through a shopping mall,” he says, “we are protected by law and by law-enforcement officers,” and that’s preferable to giving lethal force to individuals.

Except that any claim of self-defense in a Court of Law, or before investigators involves a “claim” that they were “threatened.” Â It’s up to prosecutors, and ultimately, if it goes to trial, a jury of your peers, to determine whether or not you acted reasonably and within the law. This proposed Castle Doctrine law does nothing to change the calculus on what level of threat is necessary before deadly force can be resorted to. That standard is still the threat of grave bodily injury or harm, even under this proposal. Bryan Miller seems to be acting as if Pennsylvania has no self-defense justification at all, and that it’s only available to law enforcement. Truth is law enforcement operates under the same self-defense statutes as everyone else.

Conviction Vacated on Lautenberg

Very good news for the Second Amendment. The problem would seem to be the government made a really bad case for the constitutionality of Lautenberg, basically taking the line of “Of course, it’s constitutional!” which the Circuit Court in this case didn’t seem to appreciate. The statute is not ruled unconstitutional, but the Circuit Court basically said that government actually needs to make an argument that doesn’t rely on a presumption of constitutionality. They are holding the government to a higher standard, which is appropriate when constitutional rights are at issue.

It’s Not Just the Second Amendment

The First Amendment seems to be enjoying more public support these days too. I’m happy about this, but frankly, I’m disappointed free speech doesn’t have broader support than barely breaking a majority sometimes. That really shouldn’t Â be controversial.

More on Schumer the Hunter

From J.R. Absher over at Shooting Illustrated’s guns and hunting blog. We talked about this earlier when Jacob blogged about it. Is this standard operating procedure during election years for Chuck, or is he more worried this year than usual about his vulnerability on these issues?

Armed Deterrence

Somali Pirates apparently don’t learn easily. They attacked the Maersk Alabama again, but this time things were different:

An on-board security team repelled the attack by using evasive maneuvers, small-arms fire and a Long Range Acoustic Device, which can beam earsplitting alarm tones, the fleet said.

Vice Adm. Bill Gortney of theÂ U.S. Naval Forces Central Command, said the Maersk Alabama had followed the maritime industry’s “best practices” in having a security team on board.

“This is a great example of how merchant mariners can take proactive action to prevent being attacked and why we recommend that ships follow industry best practices if they’re in high-risk areas,” Gortney said in a statement.

However, Roger Middleton, a piracy expert at the London-based think tank Chatham House, said the international maritime community was still “solidly against” armed guards aboard vessels at sea, but that American ships have taken a different line than the rest of the international community.

The international maritime community can scoff at the idea all they want, but it worked. I’ve seen those high-tech noisemakers on the show Whale Wars, and they didn’t seem to be remarkably effective, so I’m going to guess that it was evasive maneuvers and small arms fire that won the day here.

More Gun Math Geekery

Not taking away from Caleb’s argument that we spend too much time arguing about stopping power. We do. Shot placement matters a whole lot more. But that aside, I do want to look at one thing Caleb mentions.

When you look at a 9mm, a .40, and a .45 ACP all right next to one another like that, the size difference is almost laughable

You have to look at it from a mathematical point of view, because your instincts when it comes to area and volume are deceptive. For the same reason, a 21″ monitor doesn’t look that much bigger than a 19″, but it is. Area for a circle is A=Ï€r². In that case, let’s take a look at 9mm vs. .40S&W vs. .45ACP. After all, it’s the area of the bullet that slices through the target, not the diameter.

Round	True Radius (D/2)	Surface Area (A=Ï€r²)
9mm Luger	4.51mm	63.9mm²
.40S&W	5.08mm	81.1mm²
.45ACP	5.74mm	103.51mm²

So you can see when it comes to diameter, the difference is minimal, but that doesn’t translate when you think about it in terms of surface area cutting through the target. In this view, .40S&W is 27% larger than 9mm, while .45ACP is 62% larger than 9mm and 28% larger than .40S&W. That’s not even considering expanding ammo, which is going to make the numbers even more dramatic.

That also holds when it comes to how much mass you can throw down range, and since stopping power is arguably derived from momentum, sending a 230gr bullet of a .45ACP downrange is going to matter a lot more than the 200gr .40S&W bullet or the 115gr 9mm. Never make the mistake of just thinking about bullets in terms of diameter (caliber). When you start thinking about area and mass, the numbers change more dramatically than instinct would have you believe.