The Minnesota legislature is working on a bill which will, among other things, eliminate the “duty to retreat” before using deadly force in self-defense. Naturally this has the usual suspects all riled up, calling it a “Shoot First” bill and so forth. What is disheartening, though, is when Police Chiefs make the same “blood in the streets,” “people getting away with murder” claims. Specifically Dave Kolb, Chief of Police in Champlin and, according to the newspaper, co-chair of the Minnesota Chiefs of Police Association Legislative Committee in his letter to the editor which appeared in Wednesday’s Star and Sickle Tribune . . .
I am a member of the NRA, and I support the right of citizens to defend themselves. I have also been a police officer for 23 years,
Establishing his credentials, good. Saying he supports self-defense, good. Then things go downhill from there.
and I have discussed the proposed Castle Doctrine law with dozens of working cops. I believe that it creates a loophole defense for murder.
Hey Chief, that “loophole” is called a presumption of innocence and it’s been around in one form or another since Roman times. Unfortunately the Chief, like so many officials in so many jurisdictions, has gotten used to requiring that the defendant prove he acted in self-defense. He evidently thinks that’s the way things are supposed to be. It isn’t. It is supposed to be up to the prosecution to prove the elements of the crime beyond a reasonable doubt.
With a codified duty to retreat before using deadly force, however, when it comes to self-defense shootings prosecutors just prove that the defendant pulled the trigger and state that retreat was possible. This leaves it up to the defense to show that the shooter could not retreat safely. No wonder cops and prosecutors hate these new laws. But back to the Chief who provides us with a charming anecdote of boyhood innocence:
When I was 10, I lived in south Minneapolis. Across the alley lived Mr. Cunningham, who had a wonderful apple tree in his back yard. More than once, I snuck in and stole an apple. Mr. Cunningham was a nice and peaceful man, but he certainly didn’t like having his apples stolen. I have little sympathy for thieves, even 10-year-old apple thieves, but if he had shot and killed me, it would have been cold-blooded murder.
Yes it would have, but the Chief seems to think all that will change with castle doctrine in place.
Here’s my problem with the Castle Doctrine bill. I entered Mr. Cunningham’s property by “stealth” to steal an apple. Article 3, subdivision 4 of the bill states that if a person enters property illegally by stealth, the property owner can “presuppose” that there exists an imminent threat of harm or death and employ deadly force.
I hesitate to say use the L word, but he’s either a liar or he is so ignorant and incompetent as to call into question his fitness as a street cop, let alone the job of Chief. A minor point, just for starters – nowhere in subdivision 4 of the bill does the word presuppose appear. The word it uses is presumption as in:
Subd. 4. Presumptions.
(a) An individual using deadly force is presumed to possess a reasonable belief that there exists an imminent threat of substantial bodily harm, great bodily harm, or death to the individual or another person, if the individual knows or has reason to know that:
(1) the person against whom the defensive action is being taken is unlawfully entering or attempting to enter by force or by stealth
But the ignorant, incompetent part is where the Chief left out that whole bit about being presumed to possess reasonable belief which is kind of an important part of the statute. Being presumed to have such a belief is like being presumed innocent. It doesn’t mean you have a get out of jail free card for whatever you do, it means that the police have to have more evidence than the simple fact of your shooting someone before they can arrest you.
The Chief also leaves out a bunch more when he continues:
Subdivision 5 states that such a person is “immune from any criminal prosecution for that act.”
So according to the Chief’s interpretation of the new law, all I have to do in order to murder my brother-in-law is to wait until he’s on my property and then shoot him. When the cops show up I just say he was attempting to enter by stealth and I will be immune from prosecution. But that’s a load of codswallop. What Subdivision 5 actually says is:
Subd. 5. Criminal investigation; immunity from prosecution.
(a) An individual who uses force, including deadly force, according to this section or as otherwise provided by law in defense of the individual, the individual’s dwelling, or another individual is justified in using such force and is immune from any criminal prosecution for that act. [emphasis added]
So if I shoot a 10-year-old apple thief for sneaking on my property I’ll only be immune from prosecution if I can convince the police that my reasonable belief of the imminent threat was, well, reasonable. Here’s part (b) of Section 5:
(b) A law enforcement agency may arrest an individual using force under circumstances described in this section only after considering any claims or circumstances supporting self-defense or lawful defense of another individual.
That means I can’t be arrested for shooting someone in self-defense just because I shot someone; the police have to take in the totality of the circumstances.
Now the Chief does say:
If the Castle Doctrine becomes law, I don’t expect apple thieves to be shot by thousands of responsible gun owners across our state,
for which I, as a responsible Minnesota gun owner thank him, but then he can’t leave well enough alone:
but I do expect that occasionally a crazy, violent criminal will use this loophole as a defense for murder.
I guess the Chief is unimpressed by Blackstone’s ratio, the classic ‘better ten guilty go free than one innocent suffer.’ But setting that aside let me ask the Chief one thing: would you do away with the self-defense justification altogether since crazy, violent criminals often try to use that “loophole” as a defense for murder, too?
The Chief finishes confirming everyone’s suspicions up by saying:
Every three months I receive my NRA magazine in the mail, and I dutifully read the section about ordinary citizens who defend themselves with firearms. I appreciate that my NRA publishes these examples. As a cop, I always read them with our current law in mind. I have never read such an example that would not be allowed under our current law.
Again, however, he is leaving important things out. Even if your DGU would be allowed under current law, with a “duty to retreat” before you can use deadly force outside your home, you are almost certain to get arrested for the shooting.
Next you get to experience the fun of the “ride downtown”, getting processed into jail, making the $3,000 phone call to your lawyer (although that was 10 years ago, rates have probably gone up in the meantime).
Then you can look forward to praying that your lawyer can get you out or at least released on your own recognizance so you don’t have to come up with bail. Oh, and don’t forget the part where you have to explain to your boss exactly why you were late for work.
There’s one more thing the Chief didn’t mention: if you are an OFWG and your “victim” is of a different ethnicity you had better be devoutly praying that the D.A. isn’t planning a “tough on crime” run for Senate or Governor in the near future.