Patterico's Pontifications

2/15/2011

A Reasonable Apprehension of Danger; Two Stories Involving When Self-Defense is Justified (Update: Proposed Fix?)

Filed under: General — Aaron Worthing @ 2:02 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.]

In the law of self-defense, it is not typically necessary to prove you (or another) were actually, currently in danger.  It is only necessary to prove that you had a reasonable belief that you were in danger.  So, for instance, if a man comes at you with an unloaded weapon, and you do not know it is unloaded, you may shoot and kill him in self-defense.  The key to this is that you can only excuse a mistake of fact—a mistaken belief that you are in danger.  By comparison, if you make a mistake of law, that is no defense to any crime (except a few federal crimes which are irrelevant, here).

One issue that has come up is whether you can legally justify homicide or other violence in defense of others, if that other person is in fact a fetus.  If you accept that a fetus is a person, it makes a certain degree of sense, but whether you like it or not, abortion is legal and the correct way to change that is through peaceful means, not by murdering every person who carries out an abortion.

So this morning Mother Jones created something of a stir when they alleged that some South Dakota lawmakers were attempting to do exactly that—to make it lawful to kill an abortionist in order to prevent a lawful abortion.  Then over at the Plum Line, Greg Sargent actually gets in touch with one of the bill’s sponsors, and asks him what the bill is supposed to do:

I just had a spirited conversation with the bill’s chief sponsor, State Representative Phil Jensen, and he defended the bill, arguing that it would not legalize the killing of abortion doctors.

“It would if abortion was illegal,” he told me. “This code only deals with illegal acts. Abortion is legal in this country. This has nothing to do with abortion.” In other words, since abortion is not “homicide,” the law could not apply.

So basically if it’s a legal abortion being performed, it doesn’t count.  But on the other hand, if it a doctor forcing a woman to have an abortion, a boyfriend beating on a woman’s stomach to kill their child, etc. then you can even kill a man in an attempt to prevent that fetus from dying—even if there is little danger to the mother.  Or so he says.

But whatever his intention is, the law does a poor job of expressing that intent.  Here’s one proposed revision:

Homicide is justifiable if committed by any person while resisting any attempt to murder such person, or to harm the unborn child of such person in a manner and to a degree likely to result in the death of the unborn child, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is.

And meanwhile they propose to amend another statute as follows:

Homicide is justifiable if committed by any person in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, or the unborn child of any such enumerated person, if there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.

So what is wrong with these proposed statutes?  There is nothing exempting conduct that constitutes abortion.  And I have searched the existing chapter, and I see nothing else that would suggest an exemption.  So for instance, the first statute could allow a husband to resist a doctor’s attempt to carry out a lawful abortion, given that it would “harm the unborn child” of his wife “to a degree likely to result in the death of the unborn child.”  There isn’t a word suggesting that the defense would not be available when an abortion is being performed with his wife’s consent.  As for the second proposed revision, it is ironically the provision of the statute that pre-existed this proposed language that allows for the defense of a fetus to allow for the killing of even persons performing a lawful abortion, for homicide is justified if committed when “there is reasonable ground to apprehend a design… to do some great personal injury” to an unborn child.

Further, in another context, the statutes do an excellent job exempting abortion.  In the statute addressing “fetal homicide,” it specifically says “[t]his section does not apply to acts which cause the death of an unborn child if those acts were committed during any abortion, lawful or unlawful, to which the pregnant woman consented.”  And that in some ways makes it worse in relation to the proposed statutes, because it shows that they knew how to exempt abortion when they wanted to.

But at the same time, instead of denouncing these people let’s notice the fact that to some extent the statute was already this way.  Even without the abortion related language, for instance, you could cite the second statute as allowing for you to murder a person for engaging in a boxing match.  After all, in boxing, there is a design to do great personal injury, right?  And a cop lawfully using deadly force on a suspect is simultaneously designing to do great personal injury; but you cannot lawfully shoot a cop in order to save a criminal from being shot by a cop.  So you have to think that regardless of the literal wording of the statute, that the South Dakota courts have read it to only allow you to stop unlawful conduct, not just any conduct and perhaps the people who wrote this legislation intended to rely on that kind of “judicial creativity.”  But we shouldn’t rest on that.

So let’s be positive and suggest a simple revision to fix it.  The simplest way to do it is to add a portion under each statute, or a new section, that states something close to this:

The defense of justifiable homicide is not available to protect the life or health of another, if the danger is to the life or health of an unborn child and those acts were committed during any abortion, lawful or unlawful, to which the pregnant woman consented.

Now feel free and pick apart my suggested language, but that seems to be close to providing a way to solve the problem.  And instead of various analysts and activists, screaming at the South Dakota legislature and darkly suggesting that they are trying to legalize the murder of doctors, maybe instead present a suggestion like this, that accomplishes the lawful goals that South Dakota was pursuing, and then see if they accept that revision.  And if they refuse to adopt it, or something like it, then raise your hissy fit as appropriate.

And for the love of God, Greg Sargent, spare us the fear that the mere passage of the law protecting a woman from having her unborn child taken from her by force, might inspire the murder of doctors who perform lawful abortions.  Sheesh.  And let’s not forget what the legal regime liberals had advocated have led to, quite directly.

Meanwhile, in a tenuously related story, we learn via the Guardian that one of the people who told the U.S. that Saddam had Weapons of Mass Destruction admitted to lying.  Here’s his mea culpa:

Rafid Ahmed Alwan al-Janabi, codenamed Curveball by German and American intelligence officials who dealt with his claims, has told the Guardian that he fabricated tales of mobile bioweapons trucks and clandestine factories in an attempt to bring down the Saddam Hussein regime, from which he had fled in 1995.

“Maybe I was right, maybe I was not right,” he said. “They gave me this chance. I had the chance to fabricate something to topple the regime. I and my sons are proud of that and we are proud that we were the reason to give Iraq the margin of democracy.”

For years, the left has chanted “Bush lied, soldiers died” (funny how they never considered that to be rhetoric that might encourage violence).  And I always asked the question, assuming someone lied, why do we assume it was Bush?  Couldn’t it be the case that Bush was himself fooled?  Here we get confirmation that at least one man did exactly that.

As I said in the beginning of this piece, the justification of the invocation of self-defense—or the defense of others—is determined by the facts as they were known at the time.  If this man really did lie, then why is it unreasonable that we believed him?

And given the reason for the lie—not, contrary to the paranoid theory, to steal the Iraqis’ oil—it puts this quote from Brian Leiter in another light:

[W]hether the collapse of the Soviet Union should be considered a good thing is a separate question. Certainly everyone (except the despots) welcomes the end of totalitarian regimes, though some of the former Soviet republics have remained thoroughly undemocratic, and Russia itself has moved strongly back in that direction. Then, of course, there was the enormous human cost to the collapse (increased mortality, a decline in longevity, and massive economic and thus human dislocation and suffering). Finally, certain other world-historic crimes, such as the U.S. war of aggression against Iraq, are unlikely to have occurred if the Soviet Union had remained intact.

So we learn that the motivation for this supposed “crime” might very well have been the hope for democracy for the Iraqi people.  But then the fact that Leiter thinks that keeping millions of people in bondage is ever a good thing tells us all we need to know about him.

Hat tip: Hot Air on the Guardian story.

Update: As you guys saw, I proposed my own fix to the justifiable homicide law. Well, at the Plum Line link, the bill’s sponsor offered one, too:

UPDATE, 12:43 p.m.: Jensen tells me he is considering the following change to the language of the proposal (the new part is in bold):

Homicide is justifiable if committed by any person while resisting any attempt to murder such person, or to harm the unborn child of such person in a manner and to a degree that is unlawful and likely to result in the death of the unborn child, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is.

That would make it clear that “justifiable homicide” can only apply in response to an unlawful act, which would obviously not include abortion, which is legal.

So it seems they are now recognizing an ambiguity. Good for them. Although you will notice there are still problems with the law that are not solved.

[Posted and authored by Aaron Worthing.]

22 Responses to “A Reasonable Apprehension of Danger; Two Stories Involving When Self-Defense is Justified (Update: Proposed Fix?)”

  1. There is no truth to the rumor that someone bet me that i couldn’t make a post simultaneously addressing 1) whether killing an abortion doctor can be mistake for justifiable homicide, 2) the iraqi wmd story, and 3) leiter’s soviet dreams. :-)

    Aaron Worthing (e7d72e)

  2. The logical counter to that is “I didn’t know he wasn’t forcing her.”

    JEA (0e40c5)

  3. You did an excellent job tying together stories 1 and 2, and the phrase “in a tenuously related story” in no way weakens this post. Clearly, you would have won the non-existent bet.

    Also, there are five lights.

    Robin Munn (347954)

  4. Well, Leiter never liked those filthy Kulaks anyway.

    SPQR (26be8b)

  5. Munn

    sadly, i get your joke about the lights. i am such a nerd.

    Aaron Worthing (e7d72e)

  6. As Ace noted, curveball claims he didn’t want his intel leaked outside Germany, but also said his lies were meant to cause the US to invade.

    He’s simply making it up as he goes along.

    Granted, we didn’t find the WMDs we expected, though that wasn’t the only reason to go, and anyone who thinks Saddam didn’t have a WMD program is a useful idiot.

    Dustin (b54cdc)

  7. Aaron suppose SD legislated that life begins at conception. Would killing the abortionist while attempting to perform an abortion be a justifiable homicide?

    As for Leiter as the used to say back in the old days, the only good communist is a dead communist.

    cubanbob (409ac2)

  8. You’re part Cardassian, I see, AW, and dimelo (tell me about it) cubanbob.

    narciso (c8ccf1)

  9. While I am not a full time news analyst, nor a soldier in Iraq, it was my impression (gleaned by reading REASON’s largely anti-war coverage BTW) that we had in fact found the following in Iraq;

    1) Very secret and heavily contaminated nuclear labs.

    2) Very secret bio-weapon labs, along with feedstock (whatever that my be in particular) for germ cultures.

    3) Nuclear material that Saddam wasn’t supposed to have.

    4) Weapons systems specially adapted for the delivery of chemical or biological weapons, which Saddam was not supposed to have.

    5) Small but worrysome quantities of chemical weapons, of types banned by international treaty.

    This leaves out the large (wasn’t it 20+ tons?) of WMD material Q’addaffi (or however it’s spelt) was supposed to be surrendering to us that he claimed was from joint projects with Saddam. For one thing, If the Big Q said the sun was going to set in the west, I’d want another opinion.

    In short, if I understand this properly (always a minority position), if Bush is supposed to have lied when he said Saddam was playing around with WMDs, I’m not sure I see how.

    Which isn’t to say that we shouldn’t have packed up and left when Saddam had been found and hanged. It doesn’t mater to our national interest if Iraq falls to another Warlord, so long as every time he thinks about crossing us he has nightmares about what happened to Saddam.

    C. S. P. Schofield (71781e)

  10. 1) taking the stories in reverse order:
    I heard the Curveball story several years ago–during Bush’s second term, IIRC. On 60 Minutes, I think, although I’m fairly unsure about that point.

    It’s my understanding that the labs, weapon material, etc. were eventually found to date from before the Gulf (First) War, and that before the Iraq (Second) War, Saddam actually did not have a viable weapons programs. I’ve heard differing scenarios in which Iraqi scientists may have been deceiving Saddam into believing he had a viable WMD program in the late 1990s, or in which Saddam was knew there was no viable program but was pretending he had one so he could intimidate surrounding countries–and then, in the runup to the Second War, couldn’t convince people he had no program because he (or the scientists) had been too successful in pretending he had one.

    There is a reason the adjective “levantine” is used to describe complicated situations.

    At any rate, the deceptions involved came from several layers before Bush or US intelligence got involved.

    2) South Dakota law may be different enough to need this statute, but from what I remember of general common law on this point, it’s a probably unnecessary statute. The boyfriend beating his girlfriend so she has a miscarriage, and other situations can already be charged with some form of homicide–and therefore the rules of self defense/defense of others from attempted felonies would cover the case adequately. Wasn’t Scott Peterson charged with two murders–that of his wife, and that of the unborn child who died with her?

    kishnevi (a6ffde)

  11. Re WMD, etc., in Iraq-
    When David Kay testified before Congress concerning the finding of the Iraq study group at that time (in an argument with Ted Kennedy) he said Hussein was more of a threat than they had thought because of the number of sanctions he had violated, including long range ballistic missiles. In some ways whether there were WMD’s or not was/is beside the point. Anyone who understands English who heard or read Bush’s speech knows that WMD’s were only one of multiple reasons to go into Iraq.
    There was a report, never contradicted to my knowledge, that “vials” (or something) containing Crimean-Congo Hemmorhagic Fever Virus (Similar to Ebola, but fatal “only” 25-50% of the time) were found buried in the backyard of Saddam’s top bioscientist.

    Either Saddam bluffed he had WMD’s to have influence with his neighbors but never did, or he had more WMD material that was hidden/shipped out of the country (to Syria) in the months prior to the invasion while clowning-around with the UN. Either way, he apparently didn’t believe the US would act, which seems especially insane if he lost his country and his life for something he knew was a lie.

    When the documents are discovered and declassified, I think we will find that Saddam had plenty of WMD related stuff, much of it had been shipped to Syria, and he had been stalling for more time to “clean up” so he would allow an adequate inspection to “get the US and others” off his back, and that the Russians had assured him that the US would never take action without the full backing of the UN, which they were never going to get.

    MD in Philly (3d3f72)

  12. One issue that has come up is whether you can legally justify homicide or other violence in defense of others, if that other person is in fact a fetus. If you accept that a fetus is a person, it makes a certain degree of sense, but whether you like it or not, abortion is legal and the correct way to change that is through peaceful means, not by murdering every person who carries out an abortion.

    Um, why? Do you really mean to tell me that if you see a person about to be murdered, and you can save him by killing the would-be murderer, you would refrain from doing so merely because the would-be murderer has a state license? What do you tell the victim? Sorry, bud, the law says you’re fair game so I’m going to stand by and watch you get slaughtered?

    Do you only say this about foetuses? What if a state were to reinstate Roman law, which allowed fathers to kill their children at any age; would you insist that it was now wrong to rescue someone from murder if the murderer happened to be his father?

    Milhouse (ea66e3)

  13. There was a report, never contradicted to my knowledge, that “vials” (or something) containing Crimean-Congo Hemmorhagic Fever Virus

    Sounds nasty, but might mean less than it sounds. CCHF is apparently endemic in Iraq and other parts of the Mideast, and close contact with an infected animal or blood from an infected animal is necessary to get infected, so weaponizing it would probably be a fairly difficult thing to do. But given the fact that it is endemic in Iraq, among other places, it might be a legitimate object of study for Iraqi scientists. Or else they were simply taking advantage of a locally available virus.

    http://en.wikipedia.org/wiki/Crimean%E2%80%93Congo_hemorrhagic_fever

    http://www.who.int/mediacentre/factsheets/fs208/en/

    BTW, a quick google did not bring up any links mentioning buried or otherwise hidden CCHF virus
    except for one of your own comments here on PP, in which you said almost exactly what you said above regarding CCHF. What I remember is a similar story regarding small amounts of nuclear materials found in the backyard of a leading scientist (the material was said to date back to before the Gulf War). Perhaps what you heard is a distortion of the story I heard, or vice versa.

    Or else Iraqi scientists felt that backyards were a good place to hide sensitive stuff…which might actually be the case in Iraq :)

    Meanwhile, in doing said Google, I found this link which takes “Bush lied” to a whole new level.

    kishnevi (a6ffde)

  14. MD in Philly – The only WMD materials that I recall hearing about discovered buried on scientists property was the report that nuclear equipment (parts from a centrifuge IIRC) were found under those circumstances.

    Have Blue (854a6e)

  15. Um, why? Do you really mean to tell me that if you see a person about to be murdered, and you can save him by killing the would-be murderer, you would refrain from doing so merely because the would-be murderer has a state license? What do you tell the victim? Sorry, bud, the law says you’re fair game so I’m going to stand by and watch you get slaughtered?

    Ask Cory Maye.

    Michael Ejercito (64388b)

  16. Proposed fix for SD justifiable homicide law.

    Kman (d30fc3)

  17. kman

    actually, thanks for contributing to the discussion, for once in your life. try to make a habit of it.

    Aaron Worthing (e7d72e)

  18. You can continue to file kmart under mendoucheous twatwaffle.

    JD (6e25b4)

  19. That’s about the size of it, the way the Journolist, and if Mother Jones, isn’t the thirds stop, I’ll eat my hat, goes about distorting the facts, without conscience is ‘incredible’ in the same way I intended about that fellow kimberlin

    narciso (e694f9)

  20. Kman

    Another lie. i told you why you were being moderated. Constant dishonesty. Or abject stupidity.

    Aaron Worthing (73a7ea)

  21. Ask Cory Maye.

    What has he got to do with it? Either he fired in self defense or he didn’t. If he did, he’s innocent. The question is about the facts, not the special privilege of the person he shot.

    Milhouse (ea66e3)

  22. #13 Comment by kishnevi

    I don’t know if you were asking in good faith or intended to disprove my point. If you look at the Wikipedia article on David Kay you see it mentioned. It is quoted in this report on Kay’s talk (though it does not mention the detail of buried in the back yard). I found lots of references to various web sites mentioning it, but this far out easier to find it mentioned on blog sites far removed from the original material.
    http://www.guardian.co.uk/world/2003/oct/03/iraq.usa1

    Hemmorhagic Fever Viruses like CCHF are usually spread to humans initially by a vector (which is yet to be discovered for Ebola virus), but secondary spread from person to person can then occur, often leading to hospital outbreaks before the initial case is recognized for what it is. Being a hemmorhagic fever means you can ooze blood out of eyes and other mucous membranes, including in vomitus and diarrhea. When a known case of Ebola is recognized everybody in contact with patients needs a “spacesuit” for protection. CCHF is not as infectious or as deadly which makes it somewhat safer to work with.

    It’s one thing to say working on an endemic virus makes sense, it’s another thing to say keeping it in your home is a reasonable thing to do.

    Unfortunately I spent way too much time documenting this in response to your “quick google” nay-saying.

    MD in Philly (3d3f72)


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