The Song Remains the Same

Mark Thompson in reply to Mark Thompson says:

Stepped away from the intertubes for a few days; looks like I’ve got a lot to respond to here.

So…. @brandon-berg and @mad-rocket-scientist : the thing is, that while the “reasonable person” standard has a long history in the law and is indeed included in just about any SYG or self-defense statute of which I’m aware, it’s ultimately something that’s in the eyes of the jurors, who are inevitably going to insert themselves as the prototypical “reasonable person.” What’s more, anyone who knows the law (and – I’ve said this before – to their credit, few groups are more knowledgeable about the law than those others might call “gun nuts”), presumably including Dunn, is going to insert themselves into the definition of “reasonable” in evaluating a threat.

It just takes one juror to get a mistrial. And there are no shortage of white folks (and even some non-whites) who have trouble checking their lizard brain and begin with the assumption that young black teens hanging out in a group and acting loudly are a potential threat; I know plenty of such people who are open about that assumption, and even more who aren’t. If the question becomes “did Dunn reasonably believe that Davis pulled a shotgun” rather than “did Davis pull a shotgun,” which it does in self-defense cases including but not limited to SYG cases, then anyone who has trouble checking their lizard brain will decide that this is indeed a reasonable fear, even if they may couch it in terms of “groups of loud teens” in general to avoid sounding like a racist.

And while the statute that Brandon cites denies the right to claim self-defense to those who “initially provoke()” the violence, “provocation” is to my knowledge generally something that means “throws the first punch” rather than “was first to act like an asshole.”

Something else that’s getting ignored here- the SYG law eliminates the duty to retreat before using deadly force not only to save one’s own life, but also to prevent anything that one reasonably believes constitutes an “imminent forcible felony.” In other words, Dunn didn’t need to think that Davis was going to actually about to shoot him; he could have just believed that Davis was about to rob him or commit any “forcible felony,” which includes any felony that involves the threat of violence. Thus, as long as he had a “right to be” in the public place, he was allowed to use deadly force without any duty to retreat under SYG not only to protect his life or the lives of others but also if he had a “reasonable belief” that Davis was going to commit just about ANY act of violence. That’s an extraordinarily low bar.

But what’s more, so far as I can tell, Dunn’s claim is only that he saw Davis possessing a shotgun – not that Davis actually pointed the shotgun at him – and that Davis supposedly said (presumably in response to something Dunn himself suggested) “Yeah – I’m going to fucking kill you.” Dunn claims that at that point he went into his glove box, grabbed his pistol, and then opened fire. He also claims that after the teens turned the radio down, he heard one of the teens in the back say to Davis “you should kill him” or words to that effect.

Now, let’s say that Dunn’s claims are entirely true – that someone in the car actually said that, and that he actually believed that he saw a shotgun in the car but that the gun was never actually pointed at him. First, we have the fact that he somehow had time to get into his glove compartment, pull the gun out, and aim it – but not the time to just leave, as the duty to retreat would have compelled him to at least attempt. Second, to take that situation as an imminent threat, rather than a situation where teenagers were just joking around about someone who they viewed as kind of a jerk, requires, I think, a lot of lizard brain assumptions. What’s more, Dunn’s own letters from jail make extraordinarily clear that those were indeed his assumptions (which, again, are a lot more common than we’d care to acknowledge). And, last but not least, let’s be honest – it’s highly unlikely that the teens actually said what Dunn claims they said, even if he really believes they said it; but again, if you’ve got a certain mindset, it becomes really easy for him to just think that’s what he heard even if it’s not what was actually said. And it becomes very easy to create reasonable doubt in a single juror’s mind as to whether this was indeed said and was indeed a real threat – you just need to find a single one with the same mindset, and there’s no shortage of such folks.

I also have a very difficult time believing that the cause of the mistrial was that one or more jurors were unwilling to compromise on first degree and others unwilling to compromise on second degree or manslaughter – there’s a reason that second degree and manslaughter are “lesser included offenses”: it’s essentially impossible to prove first degree without also proving second degree or manslaughter. Maybe I’m wrong, but this just seems very unlikely to me.

It seems even less likely that SYG played no role in his decision to open fire – as I said, it’s difficult to conceive of him not being well-versed on the law, and his letters certainly indicate that he think simply perceiving the actions of black people as threatening is sufficient justification for shooting to kill. But regardless, SYG’s very intention in eliminating the duty to retreat was to permit people to use deadly force in more situations – it thus can reasonably said to have at minimum contributed to emboldening Dunn in this particular situation.

Last but not least, while I understand @mad-rocket-scientist’s concerns about the practicality of retreating in any given situation, the problem is that the duty to retreat serves an important function: by complying with the duty to retreat, or at least attempting to, a defendant is showing that their belief in the existence of the threat wasn’t just subjectively reasonable, but more than that, the threat was quite probably real. It’s an important safeguard – people may “reasonably” feel threatened in any number of situations that are not, in fact, threatening. Indeed, the subset of “actual” threats compared to the set of “reasonably perceived” threats is almost certainly quite small. The duty to retreat amounts to the most basic and fundamental possible obligation that a defendant make a minimal attempt to confirm that the threat is real before taking the irreversible step of killing someone. It’s a check against our lizard brains. When all that is needed to evade responsibility for killing someone is a reasonable doubt that the defendant may have had a “reasonable belief” that a threat existed, then we place an unbelievable amount of value on the subjective impressions of the only person who survived the encounter. While the “castle doctrine” is imperfect, there’s a similar logic at play as exists in the retreat requirement in other situations – in effect, if someone is intruding in your house and you’ve got a reasonable belief that they’re up to know good, the odds are fairly decent that your reasonable belief is correct. In other words, that you’re in your own home is equivalent to the first step of investigating whether the reasonably perceived threat is an actual threat.Report