It still exists, even if you use a pistol:
For thousands of Canadians who fully comply with the country’s strict, convoluted firearms regulations, this is a familiar story. Police officers and the Crown routinely deter citizens from taking steps to protect themselves, by forcing them to justify lawful acts of self-defence. Edward Burlew, Mr. Thomson’s lawyer, believes that there is indeed a deliberate, if unstated, desire among Crown prosecutors to send a message that discharging a firearm, even as intruders attempt to burn down your home with you inside it, is not condoned by authorities.
It appears in this instance the Crown dropped charges because they knew they weren’t going to find a jury that would be willing to convict. Even so, the authorities can still make your lives miserable without even taking the case to trial. It would appear they are trying to harass people out of defending themselves, particularly with firearms.
“Even so, the authorities can still make your lives miserable without even taking the case to trial.”
This is why continuing to treat self defense as an affirmative defense needs to be stopped. Affirmative defenses in most places don’t require the state to prove beyond a reasonable doubt that the act was not self defense first off. Second the judge controls whether or not the defense can even be raised. We need to treat SD as a negation of the crime. I have no problem with people who are forced to protect themselves from having the burden to raise the defense, but it must be A) a burden on the state to move forward that they can show a judge, even to a minimal standard like preponderance, that they intend to prove that it wasn’t SD. Following along that line, B) they must prove it is NOT SD beyond a reasonable doubt.
In MA, they must at least perform B, but this is still not enough as failing to make A a required step allows them to bring a complete jury trial to completion before anyone forces them to prove a crime actually was committed.
Although not an SD case, prosecutors can and do take un-winnable cases in order to effect change by intimidation. Take this example of a tragic accident which snowballed from what should have been a civil trial into a $50K criminal trial.
http://articles.cnn.com/2011-01-14/justice/massachusetts.gun.show.verdict_1_christopher-bizilj-westfield-sportsman-s-club-gun-show?_s=PM:CRIME
Now from another article, note what the prosecutor said…
“Bennett said he knows there was the idea that there are many other people that might be responsible.
“I still think it was important that we brought the charge,” he said. “At the very least we shut down machine gun shows. Although I am disappointed in the verdict I would certainly do it again.”
http://www.masslive.com/news/index.ssf/2011/01/jury_finds_edward_fleury_innoc.html
Get the picture…
I don’t see how you can not treat it as an affirmative defense, at least not without making murder generally lawful.
Murder is legal. The state does it all of the time in executions. There are plenty of examples of justified killings. Citizens acting in SD should not be on par with people claiming diminished capacity or insanity, which is where they are now.
At the very least, there needs to be no shifting of the burden onto the accused like there is most places (B above). But frankly, the situation in Canada and to some extent the situation in Philly with Ung would have been mitigated had there been more due process requirements placed onto the state. The situation as it stands now is untenable.
In most state criminal statutes, the use of deadly force in carrying out punishment is an explicit exception to what otherwise is murder.
Understand what an affirmative defense is:
A defendant offers an affirmative defense when responding to a plaintiff’s claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff’s claim. An affirmative defense is known, alternatively, as a justification, or an excuse, defense.[1] Consequently, affirmative defenses limit or excuse a defendant’s criminal culpability or civil liability.
In order to make self-defense something other than an affirmative defense, which would be quite unprecedented in common law systems, you essentially have to make it generally legal to shoot other people, and only make it illegal under certain defined circumstances. I’m having a hard time understanding why that would be desirable, because it would apply equally to police as well as citizens.
There are ways you can mitigate the problem of overzealous prosecutions without upending the way self-defense has traditionally been justified. That’s part of what Castle Doctrine is for. But you can’t totally eliminate overzealous prosecution because so much of law is circumstantial.
Well put Sebastian.
Castle Doctrine and the like don’t change the presumption that homicide must be justified to be legal, they simply eliminate the burden on the accused to justify every element of the context of the shooting.
With Castle Doctrine the facts of the case themselves can answer/justify certain questions for the accused without them being required to make a case for each one.
“Why were you there?” “I had a right to be.”
“Why didn’t you flee?” “I am not required to in that location.”
Castle Doctrine laws actually save law enforcement and grand/trial juries time and money and make their jobs easier.
All law enforcement has to do now is determine if the use of force occured during the commission of another crime and, if there’s any remaining question, all a jury has to do is determine if the use of force was reasonable given the circumstances, not judge the physical context.
There have been Castle Doctrines that lower the standard for proving self-defense. I believe some states required defendants to prove self-defense beyond a reasonable doubt, and in those states Castle Doctrine was tailored to only require preponderance of evidence. I believe Ohio did this, for instance. But it’s still generally unlawful to commit a homicide.
We’ve seen the same thing in the U.S. The lesson seems to be that if you fire a warning shot, the cops will assume you weren’t in danger in the first place.
You are not getting what I am saying. The state is shifting the burden of persuasion onto the accused to prove they were lawfully defending themselves. They are saying, you shot a guy, now prove to us it’s not murder/assault/battery/etc.
This has nothing to do with castle doctrines which basically allow you to not have to run away from a threat within some defined boundary. AKA the duty to retreat. But that in and of itself is a bastardization of the true meaning of retreat in the common law sense. Retreat was not high tail it and run if a guy pulls a knife on you and demands your wallet. It was tailored to the old world notion of crimes like affray and mutual combat where the idea was more about escalation and not “retreat” as we know the word today.
If you accept that SD is on the same level as insanity, then you are giving up ground. In the canadian case, there was no duty to retreat because he was not involved in a fight. The threat was real and palpable in the form of lit molotov cocktails. A castle doctrine wouldn’t be of any additional assistance to his case, nor would it have solved his persecution problem.
If you think I am so way off in my thinking here, read Herrington v. US out of the DC court of appeals (http://www.dcappeals.gov/dccourts/appeals/pdf/07-CF-98_MTD.PDF). The NRA hailed that as “an ammo ban ban”. What was really interesting in it was the bits about burden shifting. Read it carefully and pay particular attention to the section on burden shifting. Read patterson and in re winship which feed into the line of thought here.
Now, two points of clarification, one is that above I concede that one must raise the defense, so in that it must be some form of defense that needs to be raised. So in that, “affirmative” defense it can remain if it helps colloquially. But the state CAN NOT shift the burden of persuasion onto the accused to prove they were acting in self defense. Self defense is a RIGHT. We need to get back to treating it as such.
Second point is that I never said “murder must be legal” nor does murder need to be legal for the courts to demand that prosecutions put forth probable cause at probable cause hearings. I don’t see the problem with forcing the prosecution to have some notion of an investigation before taking someone to court and costing them a years salary and destroying their reputation. If with a minimal investigation they can’t have some form of proof that a person was not committing self defense then maybe there is reason to suggest that they should not be prosecuted or at least that more of an investigation is needed. Again, this does NOT have to mean that murder is legal, only that some forms of it are, which is why I brought up the execution exception. Similarly, SD is an exception, not a rule.
I think we agree on that… I was thrown off by affirmative defense, which only really means you have to admit to the act before you can raise the fact that you fall under an exception. I agree the state should carry the burden of proving beyond a reasonable doubt that the person was not acting in self-defense.
The problem is affirmative defense is the term of art that encompasses all of the possible mitigating factors, most of which are not rights and are in fact simply means for writing down a murder charge to manslaughter, etc. NYS is big on these mitigating factors which is why a good bit of the case law on the subject comes from there. We would need a new term in effect to discuss the issue. Lets say negation defense or simply that SD negates the culpability of x (x = murder, manslaughter, etc) action.
To put this into written law, you could simply write the law such that unlawful actions in the context of x action excludes SD. In common law, this is effectively how it is treated, but the states have layered on multitudes of procedure, burden shifting and penalty enhancements on top of the common law meanings of the core actions that we have lost sight of the true effect SD has on prosecuting actions.
I attended Mr. Thomson’s first court appearance in Welland, Ontario, along with several dozen other supporters.
The small lobby of the 150 year-old courthouse was taken over by twelve uniformed police officers, including one who inspected the contents of pockets and patted down every entrant, and one officer with a wand.
In addition, a police sniper was stationed on the roof of the building across the narrow street.
The police claimed that they were there to protect the defendant and his lawyer.
If the defendant had received recent death threats, why, then, did the authorities seize his firearms, leaving him disarmed with the police twenty minutes away from his rural property?
Even if all charges are dropped–which is likely, Mr. Thomson will have spent thousands on his defense, and will probably not get his guns back easily. Even with a judges order to return the property, the police have been know to lose them, damage them, or simply ignore the court order. However, since this case has garnered international attention, perhaps Mr. Thomson will not be hassled quite as much.
“Second the judge controls whether or not the defense can even be raised.”
This is one aspect of our courts I particularly despise. If government agents drag you into a court room, in an attempt to put you in jail, then you should be free to put up *any* defense, so long as it is related to the charges.
I remember someone from Alabama who was recently prosecuted for owning a machine gun–the judge specificly forbade a 2nd Amendment defense; he didn’t want his court to become a debating ground for the 2nd Amendment. Clearly, the Second Amendment has *nothing* to do with machine guns. And heaven forbid we debate the Constitution in the courtroom!
More recently, a punk who messed up national land resource auctions was found guilty for doing so. I was pleased with the ruling…until I learned that the judge explicitly forbade him from using the “I did it for the environment!” defense. Now, at a minimum, I think that this should be declared “mistrial”.
How can we have justice when judges have the power to limit how we defend ourselves in court?!?