In a recent article on Justica.com, Cornell Law Professor Sherry F. Colb presented an interesting and informative analysis of the perception of so-called “Stand Your Ground” (SYG) laws and their implications. While the thought experiments posed by Professor Colb are helpful in determining one’s own position with respect to such laws, they seem to ignore the requirement in most such statutes that the fear of imminent death or serious bodily injury be reasonable. Also, her analysis does not address the element of necessity. These requirements make the Michigan law, at least, far less Darwinian.
Michigan has had a Stand Your Ground law (the Self-Defense Act) since October 1, 2006. MCL 780.972. Under that law, “[a]n individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat” provided that “[t]he individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual” or “sexual assault of himself or herself or of another individual” or “he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.” Put simply, for a person in Michigan, deadly force is only an option to defend against death, serious bodily injury, sexual assault, or illegal force. He or she can use it to defend him or herself or another. However, for this to be a valid defense, the person using deadly force must actually fear that harm is about to come to him or her (or another person) and that belief must be reasonable under the circumstances. Further, the deadly force must be necessary to avoid the feared harm.
These last two requirements are where Professor Colb’s analysis falls short. (It should be noted that Professor Colb wrote on Stand Your Ground laws generally, and not on the Michigan Self-Defense Act specifically.) Professor Colb suggests that most people who support SYG laws picture them applying in cases like this:
Bob Bully approaches Vigo Victim in a public park and says, “Listen, Vigo, I’m holding a loaded Glock in my hand, but I’m going to close my eyes and count to five. That will give you more than enough time to leave the park. If I open my eyes and you are still in this park, I will shoot you dead. Count on it.”
Bob then closes his eyes, and Vigo has a choice: he can leave the park for safety (for purposes of our hypothetical example, assume that this will take almost no time and will truly guarantee Vigo’s safety); or he can remain where he is.
If he remains where he is, then Vigo knows that Bob will shoot him. Unbeknownst to Bob, though, Vigo has a gun of his own, and could—if he so chose—shoot and kill Vigo immediately, instead of leaving the park.
At the same time those who oppose SYG laws envision their application as something like this:
Victor is walking down a poorly lit street when he suddenly catches sight of Billy, a teenage male who appears to be loitering. Victor becomes frightened, because he does not know Billy and perceives Billy’s gait and posture as menacing. If Victor were asked to explain exactly what frightened him about Billy, Victor could not provide much more information than the fact that looking at Billy elicited an elevated heart rate, sweating, and other signs of anxiety in Victor. This reaction, Victor might explain, made Victor feel confident that Billy posed a threat to Victor’s life. Assume, in this case, that Victor knows that he can safely retreat from Billy (and thus, from whatever threat Billy poses) if he chooses to do so.
The Michigan Self-Defense Act eliminates the need for Vigo and Victor to retreat from their assailants. This means that Vigo, who honestly and reasonably believes Bob will kill him if he does not retreat, may be warranted in using deadly force. However, Vigo would have to show that he also honestly and reasonably believed that nothing short of deadly force would prevent Bob from killing him.
For Victor, however, the Michigan Self-Defense Act is unlikely to provide any meaningful defense. Remember that Victor cannot articulate what it was that made him fear Billy. Billy has made no overt threatening act or statement. He was not even carrying a weapon. While Victor may honestly be fearful for his life merely as a result of Billy’s presence, that fear is not reasonable. Nor can it be said that there is any imminent threat of death, great bodily harm, sexual assault, or unlawful force. While the law permits a person acting in self-defense to be mistaken about the presence of the threat, it must still be a reasonable mistake.
The Michigan Self-Defense Act of 2006 does permit individuals to “stand their ground” and defend against perceived threats to their lives, health, or integrity. However, Professor Colb’s analysis would imply a far broader application than is appropriate under the law.
Esther
/ May 15, 2012This is where things get ciolpmcated, Red. Although the diagram you refer to is helpful, it must be noted that it is based on some assertions that have not actually been tested. The thing of course is that the constitution was meant to be plain and clear, and that the whole business of interpreting it in the SCOTUS, is mainly a progressive invention to find workarounds by creating judicial authority to interpret the language of the document.With all these older rules you always have the problem of interpreting them, i.e. should that be done according to terms as they were understood at the time, and how much context can you allow in that interpretation. The progressives of course argue that a constitution is a living document, i.e. its interpretation and context must be in keeping with the times and social developments. This is a blueprint for disaster of course and grit on the mill of the socialist, post modernist, word smith, who is always capable of giving every term its opposite meaning, or attaching words with a certain flavor to things that emanate quite the opposite odor.In the case of eligibility, the problem is with the natural born clause, which is open to interpretation. It is clear that the framers sought to restrict this, and specifically sought to restrict it for the office of POTUS. This is also why there is this transition arrangement for the first presidents. However, the terms of the constitution could have been clearer and arguably even more restrictive (for instance the 14 yr residency clause or the 35 yr age limit, which to us now looks quite young). These things were clearly an aspect of those times, where many of the country’s leaders were relatively recent arrivals, and the average maximum age much lower as it is now.The exact meaning of natural born must at some point be determined exhaustively, including such curve balls as dual citizenship. If it were up to me, I would include that the candidate must not only be born in the US out of two citizens, but also that he/she ought to have actually lived in the US for a certain percentage of his/her life (say 80%), must have been educated in the US, and must provide an extensive CV and disclosure of all records and documents pertaining to birth, health, education, financial status, membership of any organization etc. The person in the white house must be able to withstand all possible scrutiny before being sworn in. In a transparent system that is purported to be a democracy, nothing less will suffice.
Schmidt Law Services
/ May 15, 2012Thank you for your insightful comment. While I respect your position, I would caution you that constitutional interpretation, and what is considered strict construction and judicial activism, have a tendency to swing across party lines depending on which party is in control at the time. Consider that, in their respective eras, both Roe v. Wade and Citizens United were seen as judicial activism, but in two very different directions. With respect to your concerns regarding the POTUS, I will have to respectfully disagree.
Madhelyn
/ June 19, 2012This is where things get ciomclpated, Red. Although the diagram you refer to is helpful, it must be noted that it is based on some assertions that have not actually been tested. The thing of course is that the constitution was meant to be plain and clear, and that the whole business of interpreting it in the SCOTUS, is mainly a progressive invention to find workarounds by creating judicial authority to interpret the language of the document.With all these older rules you always have the problem of interpreting them, i.e. should that be done according to terms as they were understood at the time, and how much context can you allow in that interpretation. The progressives of course argue that a constitution is a living document, i.e. its interpretation and context must be in keeping with the times and social developments. This is a blueprint for disaster of course and grit on the mill of the socialist, post modernist, word smith, who is always capable of giving every term its opposite meaning, or attaching words with a certain flavor to things that emanate quite the opposite odor.In the case of eligibility, the problem is with the natural born clause, which is open to interpretation. It is clear that the framers sought to restrict this, and specifically sought to restrict it for the office of POTUS. This is also why there is this transition arrangement for the first presidents. However, the terms of the constitution could have been clearer and arguably even more restrictive (for instance the 14 yr residency clause or the 35 yr age limit, which to us now looks quite young). These things were clearly an aspect of those times, where many of the country’s leaders were relatively recent arrivals, and the average maximum age much lower as it is now.The exact meaning of natural born must at some point be determined exhaustively, including such curve balls as dual citizenship. If it were up to me, I would include that the candidate must not only be born in the US out of two citizens, but also that he/she ought to have actually lived in the US for a certain percentage of his/her life (say 80%), must have been educated in the US, and must provide an extensive CV and disclosure of all records and documents pertaining to birth, health, education, financial status, membership of any organization etc. The person in the white house must be able to withstand all possible scrutiny before being sworn in. In a transparent system that is purported to be a democracy, nothing less will suffice.