Montana may be poised to adopt Alaska style carry with a bill that will:
- Allow people to carry a concealed weapon without a permit;
- Greatly strengthen self-defense protections in the state;
- Allow people to display their gun to deter an attack;
- Allow people to use a gun whenever at risk of physical harm;
- And, in shooting incidents in which the person who fired the gun claimed self defense, require the state to prove that it was not.
I don’t know the specifics of the bill, and some of the points here don’t make a lot of sense. Like number five. Isn’t that how proven guilty beyond a reasonable doubt already works? I would have concerns about 3 and 4. Define physical harm? What constitutes an attack? If a kid throws a snowball at me, am I justified in shooting him? If another driver shouts out his windows, “I’m goign to kick your ass,” is that a lethal force scenario? I’d have to see specifics to really understand, because I doubt the journalists really do. But I definitely whole heartedly support points 1 and 2. There are circumstances I would support 3 and 4 as well, but the law probaby already accounts for force disparity. Nontheless, I don’t think a person should have to risk concussion making their head a punching bag for some drunken lout before defending themselves.
I think the premise of number four is within reason. The spirit of law here seems to take onus off of citizens and put the burden on the state where it belongs. Indeed I think the position will be under the same presumption of “reasonable doubt.” (What in fact constitutes what is “reasonable?”) Overall, I would rather err on the side of freedom in this case and give citizens the benefit of the doubt in protecting themselves.
The strengthening of legal language to create a presumption in favor of lawful self-defense is a good thing. This is the sort of stuff that passed in Florida a couple years ago. Even if you are within your rights, a prosecutor can still bust your chops and force you to spend an awful lot of money proving your innocence.
Number 5 is definitely not the way it already works. The way it works today in most states is that self-defense is an affirmative defense — at trial. At which point you’ve already lost your job and are facing bankruptcy from legal costs and bail.
The only thing I see missing is a clause that gives civil immunity in the case of a good shoot.
Sebastian,
the deal with #5 is that when you claim self defense, you admit to the killing, and now you have to prove that you were legally allowed to do it. basically, if you claim self defense, you must prove your case or be convicted of second degree murder. it is the real reason for the Florida Castle Law.
Does spit fall under the physical harm?
http://www.floridacriminaldefenselawyerblog.com/2008/05/35_years_in_prison_for_spittin_1.html
#3, is waiving a knife around and only demanding your wallet a reason to show your gun? No attack has taken place, just threats. Cops display their guns.
Sean,
That’s generally how self-defense works, in that it’s an affirmative defense to the charge of murder/manslaughter/aggravated assault. But I don’t see how number 5 works, in the sense that if you claim self-defense, you kind of have to admit to the shooting. How can you claim to have defended yourself without admitting that you shot someone?
Maybe #5 is there to make it easier for a Grand Jury to no bill you. I’m not familiar with Montana law, perhaps they automatically go to trial without a Grand Jury hearing and this changes that?
In some states you have to prove that you acted in self defense if you claim it rather than being innocent until proven guilty. In such States, claiming self defense only removes the obligation of the State to prove that you committed a homicide, and leaves you with the obligation of proving that it was a justified homicide. #5 would make it so that the prosecuting attorney would have to prove that you didn’t act in self defense restoring innocence until proven guilty.
Typically, an element of the offense must be proved by the state, while an affirmative defense must be proved by the person asserting it. It’s probably not quite that harsh in MT now, but presumably the defendant still has to produce a certain amount of evidence to support his claim before he’s allowed to argue before the jury that he acted in self-defense, after which the state would then have to prove he didn’t. My guess is that the new law will make it easier to get the issue out there in the first place, which might actually be more helpful to those who don’t have a real case for self-defense, but do have other facts that may make the jury more sympathetic.
Sebastian, you’ve still missed it.
At a preliminary or Grand Jury hearing (depending on your locale), the prosecution has to present its case to prove that it’s winnable. The defense (including any affirmative defense) is NOT presented. If you find yourself in this situation, you can and will be indicted (or “informationed”, as the case may be) for murder 2, and will go to jail pending trial. Even if you can afford a bond, you will lose your job, and you will lose your house. If your wife is a real gem, she may stand by you.
Then, you go through the ENTIRE trial process, claim self-defense as an affirmative defense — which means the burden of proof is on you, because you just admitted to the prosecution’s entire case. Then you watch and pray while 12 Oprah-watchers decide your fate.
Then, if you are lucky and win, your life is still ruined.
Under this proposed law, the prosecution has to prove that it wasn’t self defense in order to get an indictment. No indictment, no jail, no bond, no bankruptcy. Keep your job, keep your house, keep your wife.
Seriously, don’t you know anyone that’s been indicted?
That makes sense. Pennsylvania does not use grand juries, so how the system works in relation to self-defense cases is not something that’s dealt with here. It’s entirely up to the prosecutor to bring charges against you if you kill someone in self-defense. Typically, if it’s a good shoot, they won’t. But otherwise you go to court, and make your self-defense case before the jury.
Ha, selective incorporation raises its ugly head again. Query whether the Second Amendment court cases may lead to a more comprehensive re-thinking of the incorporation doctrine, at which point the entire Fifth Amendment – grand jury clause included – will apply to the states.
Sebastian,
I would imagine that it’s really not that different in Pennsylvania. At a preliminary hearing the prosecutor goes through pretty much the same process as a Grand Jury, but the audience is a judge. In general, the only thing that keeps a prosecutor from pushing a case is a desire to preserve his own conviction rate, which is normally based on his experience with petit juries in your area.
So it really isn’t his choice, if he believes he can get a conviction, he will press for an indictment. The quality of juries is the main factor.
Sebastion,
#5 is basically Castle Doctrine. Usually the law is written to say something along the lines of “whoever kills someone is guilty of murder unless one of the following applies, blah, blah, blah” where one of the blahs being that you were acting in self defense.
Without #5 in place, the victim must prove that that his use of deadly force was justifiable. With #5, it is up to the state to show that you were not.
In Ohio before castle, if the police showed up to your house and there is a dead burglar and you are holding a smoking gun, then you had to meet three tests to prove you acted in self defense. With castle, it is up to the state to prove that you failed to meet those three tests and did not act in self defense.
I am a strong supporter of gun rights here in Montana and I have a number of issues with this bill – the primary one being that it would basically allow you to carry concealed without a permit. I think requiring a permit for Concealed Carry is a good thing. Unfortunately, I have known far too many people that are more likely to blow thier own foot off rather than use thier firearm effectively in a real situation. At least if they have gone through the process of getting a concealed carry permit (in Montana it is fairly easy), they are more likely to carry responcibly.
Do a simple test… think about 10 people you work with (assuming you are not law enforcement). Would you want all ten of them to be carrying concealed? Do you know that they would react responcibly in an emergency situation? Hell, even when I worked in law enforcement and later in armed security, there were people I worked with that had no business carrying a firearm regularly. They were a danger to themselves and others.
Owning a firearm is a right but with that right, there is some personnal responcibility that somehow escapes most people. I practice regularly with many of my firearms – especially my carry piece. Can you say the same for the ten people you imagined up above?
As the article says, there are two other bills that would do most of the same things as this one and they are far better written. I support both of those bills and hope they pass quickly (one seems almost guarenteed to pass already).
Moorcat
Montana Bullets and Blades
Sebastian,
Up until recently, Arizona required that the defendant claiming self-defense prove it. This led to a screwed-up case where a man was hiking in the woods and was attacked by another man and his dog. He killed both, but couldn’t prove it was in self-defense and therefore lost the case, I believe.
When the law was changed, there was an effort to make it retroactive. Our new head of Homeland Security vetoed that bill.
Sorry Moorcat, but there dosn’t seem to be a problem in Alaska or New Hampshire with unpermitted carry. Are the people in Montana not to be trusted or is this the result of being a LEO in one form or another. The “only ones” argument is the one used so sucessfully in the north east. They usually run it out after a LEO blows away another LEO who happens to be out of uniform.