A single salient question; is there a human right to self defense?

I see, if faced with criminals wanting to harm you or yours, you'd wave them on to continue, eh?

 

I don't much like our adversarial system. I prefer the French system. The problem in common law type systems is that it is, as you've pointed out, about winning, not about finding out what actually happened.

 

To play devil's advocate, I would like a few tactical nukes to defend myself. Then nobody would mess with me. Well except the US government, who would sanction and villify me until I acknowledged that only the United States is allowed to threaten everybody they don't like with nuclear force.

 

Are tactical nukes "in common use for lawful purposes"? If not, then they'd likely fall outside 2A protections offered by DC v Heller. Also, by law, all fissile materials is owned by the Department of Energy, so you'd likely have trouble completing the builds, should you be able to afford it. Lastly, nuclear devices aren't on the import list, so you'd likely not get permission to buy one abroad.

 

I’m not going to defend everyone in my profession because I am no one’s spokesperson but my own, but this is what we are taught about how to conduct ourselves.

"The prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Justice Sutherland in Berger v. United States, 295 U.S. 78, 88 (1935):

So yes, it is an adversarial system, but we bear a unique responsibility to do it right, and we also have an ethical duty to reveal every single fact we learn about that has the potential to either help find the defendant not guilty or mitigate his punishment. Many prosecutors, myself included, have for years practiced what we call and “open file” policy where we allow the defense attorney to have access to every piece of information we have about a case.

If you know of local state prosecutors who are unable or unwilling to live up to this standard, then I would remind you that they are elected officials who must periodically answer for their actions.

 

In my state of Virginia, which is a common law jurisdiction, self-defense is viewed from the vantage point of the person claiming self-defense. That is, you view the circumstances as they could and should have been known to the person claiming self-defense. You ignore any fact which, even if true, could not have been known to the person claiming self-defense at the time. Then, when viewing the facts from that vantage point, you are asked to evaluate the claim of the necessity of self-defense and decide whether the action was reasonably necessary or not.

Take a murder case as an example. Self-defense is not a denial of a killing. Rather, it is a confession to an intentional killing with a claim that the death was justified. Self-defense, therefore, is an affirmative defense which must be proven by the defendant in a criminal case. However, this does not relieve the burden on the prosecution of proving the crime of murder beyond a reasonable doubt. Therefore, if doubt exists as to whether the defendant acted in reasonable self-defense or not, then the jury is required to resolve that doubt in favor of the defendant and find him not guilty. When self-defense is claimed a defendant can only be convicted where the judge or jury believes the crime was committed beyond a reasonable doubt and the self-defense claim is rejected as being a false claim or one that was not reasonably necessary.

 

There are two kinds of self-defense in Virginia. Justifiable (no fault) and excusable (where you are at some fault in provoking the confrontation). Here are the two jury instructions (justifiable first then excusable):

THE COURT INSTRUCTS THE JURY THAT if you believe that the defendant was without fault in provoking or bringing on the difficulty, and that the defendant reasonably feared, under the circumstances as they appeared to him, that he was in danger of harm, then the defendant had the right to use such force as was reasonably necessary to protect himself from the threatened harm. If you further believe that the defendant used no more force that was reasonably necessary to protect himself from the threatened harm, then you shall find the defendant not guilty.

THE COURT INSTRUCTS THE JURY THAT if the evidence showed the defendant was to some degree at fault in provoking or bringing on the difficulty, and if you further find that when attacked:

1. He retreated as far as he safely could under the circumstances;

2. In a good faith attempt to abandon the fight;

3. Made known his desire for peace by word or act;

4. He reasonably feared, under the circumstances as they appeared to him, that he was in danger of bodily harm; and

5. He used no more force that was reasonably necessary to protect himself from the threatened harm, then you shall find the defendant not guilty.

Bold emphasis added to show the two different circumstances where each one would apply.

 

Has the supreme court of the united states not extended qualified immunity to prosecutors, effectively shielding them from negative consequences for disposing of exonerating evidence simply to benefit themselves?

 

That's a double edged sword, though, and I think it's potential to pervert justice greatly outweighs its potential to serve it. Once you have a situation where the one of the parties to a dispute has jurisdiction, you have a lopsided contest where the other party, usually the accused, is at the mercy of, not just the benevolence of the accuser, but the ability of the human representatives of the accuser(this is the court, not just the prosecutor) to mitigate their own subjectivity. This entails obvious conflicts of interests. I think it would be better to forgo the need to foist such responsibility to subdue their own subjectivity on prosecutors, and just go with a systems where both parties are equal before the law.

 

and cops, and all other parties acting in their capacity as agents of that party euphemistically known as "The People".

 

Yes prosecutors do have qualified immunity, just like police officers and fire and rescue personnel.

Qualified immunity is not total immunity, however. It protects against frivolous lawsuits and it protects against suits for ordinary and isolated (as opposed to systemic) negligence. It does nothing to protect someone from civil or criminal liability for malicious and intentional acts.

The disposal of exculpatory evidence (and by this I mean evidence which could not only possibly cast doubt on a person’s guilt but which also might tend to mitigate the level of punishment they should receive) is a very serious matter. It is a Constitutional due process violation called a “Brady” violation (arising from the case of Brady v. Maryland). We have nationwide a “Brady” rule which requires the government to turn over all information it possesses that meets the exculpatory evidence definition I list above. As just one example you may not be aware of, if an officer is ever privately reprimanded for lying about anything to one off his superiors, then this forever becomes an item of exculpatory evidence since it tends to cast doubt on the officer’s credibility as a witness to any criminal act. Employment privacy law holds that this information is private and shielded from the ordinary public FOIA process, but police agencies are required to turn this information over to the prosecutor, who once he receives it is required to reveal it to every criminal defendant whose case this officer is involved in—in any way. Once this happens the careers of these officers tend to have short half-lives.

An intentional violation of this “Brady” rule can be a crime for which no immunity exists.

Even if no crime is pursued, a violation will generate an investigation and sanction by the state bar association, which can range from corrective and highly embarrassing discipline (including the potential temporary suspension of the bar license) to near certain total disbarment for an intentional violation of the rule—in which case 7 years of your life and countless tens of thousands of dollars spent in undergraduate and law school becomes irretrievably wasted, and you are out of a job, publicly humiliated, and forced to start your entire life over. Those who are willing to risk this outcome thinking they won’t get caught are not worthy of the profession. And those who do get caught and suffer this fate (see, for example, the idiot Nifong of the infamous Duke Lacrosse team case) deserve zero sympathy.

 

There is, frankly, an enormous amount of power and discretion vested in your local prosecutor and it can be abused. The prosecutor can, for example, abandon all objectivity and decide to target a man and then go looking for the crime to pin on him. This is a dangerous path down which the real crime is merely being an unpopular person generally, or even being the victim of a private grudge held by the prosecutor, or of merely being of the wrong race or political persuasion which in some way offends the subjective opinion of the person who has publicly sworn to uphold the Constitution he privately chooses to offend.

But until we create the HAL 9000 we are stuck with fallible humans making the decisions. To mitigate against these problems we have things like the presumption of innocence, the right to an indictment by a grand jury, the right to all exculpatory evidence, the right to an impartial judge, the right to confront and cross-examine your accusers, the right to be represented by counsel even if you lack the funds to hire one, the right to a trial by jury, etc.

But outside the court process the most important right is that of your vote. Somebody here once had a tag line that said something to the effect of the three boxes of liberty are the jury box, the cartridge box, and the ballot box. As in all things in life, we as a public silently condone the things which we in our public apathy are willing to tolerate. Detailed records are kept of how prosecutions unfold over time in which patterns can be seen. Your local prosecutor is an elected member of the executive branch of your government, and you are entitled to view his or her record and hold him or her to the same standard you would your local legislative representative, or your governor, or your president, or any other person who volunteers to be your public servant. You have the right, and I would suggest you have the obligation, to hold them accountable for their actions.

And now, I fear, we are in danger of hijacking the thread. I once again state the right of self-defense is, in my opinion, the first law of nature.

 

Only if we assume the state. But, yeah, self-defense seems to be the first la/... well, remedy of nature.

 

And again;
NYS prosecutes many Plaintiffs not for Self Defense or a charge of Murder / Homicide/ Manslaughter/ etc.....
They usually get convicted of various Firearms charges, Felonies mostly.

The State of N.Y. vs Bernard Goetz
Is a great example, Goetz was found Guilty of Violating the Administrative Policies of the New York City Police Department and the Gun Laws of New York State.

Possession of an Unregistered handgun purchased lawfully in another State, illegal carry of an already Illegal handgun.
No license to carry a concealed handgun issued by the City or State of New York.

 

Does not Imbler v Pachtman render the above null and void, by bestowing absolute immunity on all prosecuting attorneys?

 

No there are plenty of ways around that decision. For example, criminal discovery orders compel the production of exculpatory evidence. When that evidence is intentionally withheld or destroyed the prosecutor has now violated a court order and can be found in criminal contempt which carries fines and jail time—in addition to the legal practice death penalty of having your bar license revoked. And if a judge has to give evidence against you in a bar license revocation hearing you are likely doomed....

Reputation is everything. Reputation is what gets you re-elected or not. And everything—from your mortgage payment, your student loan repayment, your kid’s college fund—is at risk when you try to cheat too close to the ethical edge.

The point I want to make is, as a citizen, you should watch how jealously your prosecutor guards his reputation. Your reputation is only as good as your last official act, and thousands of honest decisions cannot overcome the one dishonest one when it is found out. If you see your prosecutor skating too close to that line and seeming to not care about his or her public reputation, then it may be time to go search for a new employee—for that’s what they are—your employees.

Each state requires yearly ethics training for all lawyers. In addition, each state has its own prosecutor’s association, which will have some form of a justice and professionalism committee that works to provide additional ethical guidelines specific to prosecutors. These guidelines frequently end up being adopted by the state bar associations, which become publically available for review. Look at them and compare what they say to how your prosecutor does his job.

 

Which begs the question....If the right of self-defense exists, then by what moral authority does a government presume to tell its citizens that they cannot possess a firearm for the purpose of self-defense? Sure, the RKBA is not a right to commit violent acts, but neither is the government's moral obligation to attempt to protect its citizens a power to render them incapable of defending themselves when necessary by forcibly disarming those who are otherwise peaceful.

 

That's an interesting case. They say it changed the standard for justification in some way, but I don't see that at all. What they ultimately settled on, and what Sol described as the statutory requirement, seems to entail the test for assault at Common Law which boils down to any action that puts another person in imminent fear of receiving a battery. I just wanted to point that out because we should expect them to match up since the criminal nature of assault is exactly what justifies using force in self-defense. Here's the test they settled on:

"deadly physical force is only permissible if a reasonable person would believe that he is in imminent fear of serious physical injury or death"

Here's what they rejected:

'whether Goetz's actions were those of a "reasonable man in [Goetz's] situation"'

This was rejected for good reason. It's a slippery slope that could be used to justify practically any killing a defendant finds reasonable. But it's never been a standard anywhere, at least not to my knowledge. It's just something a prosecutor said to a jury the second(I think) time that case was tried. The standard they went with was already in the code(according to the appellant court), and it looks like nothing more than a codification of what emerged from Common Law, which is typical for questions like this.

I know this is probably a distraction from your point; I just found it interesting. The case definitely illustrates that gun control laws impair one's ability to protect one's self, which is an infringement on natural rights, but we should expect that from legislation, the purpose of which is not to serve justice but special interests(that of the state or some other party).

 

No, I do not have to defend my answer. The core ethic of personal freedom is a person has a right to do or not do anything unless there is a justifiable reason to prohibit or require action.

Thus, I do not have to defend a right as I have it unless there is a justifiable reason to prohibit it. The SINGULAR burden of proof is upon those who answer no.

 

That was an excellent commentary !!
Thank you !

 

Yes that is the common law rule. Virginia follows it as well. Both of the common law self-defense instructions I cited earlier (for both no fault and at fault self- defense) use the phrase “used no more force than was reasonably necessary.” When deadly force is used, then there is this additional instruction which comes directly from the common law and is nearly identical to what you cited:

THE COURT INSTRUCTS THE JURY THAT the amount of force used in self-defense must be reasonable in relation to the harm threatened, and that the defendant is not allowed to use deadly force in self- defense unless he reasonably feared, under the circumstances as they appeared to him, that he was in danger of being killed or that he was in danger of great bodily harm.

This is best described as an objective test viewed from a subjective vantage point. You start by putting yourself, essentially, in the shoes of the man claiming self-defense. You apply the facts as he could have known them (ignoring facts that may be discovered afterwards but which the person did not or should not have known when he acted on his claim of self-defense). And then—assessing the situation form that vantage point—you make an objective judgment call of whether the person reasonably could have felt the need to first act in self-defense, and then, since deadly force is used, whether it was reasonable for the person to believe that “he was in danger of being killed or that he was in danger of great bodily harm.” (I also note that the threat of criminal sexual assault, even if death is not a logical outcome, is also viewed as great bodily harm in my state justifying the use of deadly force). Finally, the right of self-defense ends when the threat ends. For example, if you pull your gun in response to someone pulling a knife, and the man with the knife turns and runs away, you can't pursue him and shoot him, for now you have gone beyond the necessity of self-defense and entered the realm of retaliation.

In a killing, the claim of self-defense is a confession to the intentional slaying of another, by one who claims it was necessary to protect his own life. As a juror you are asked “do you believe him?” If the answer is no, then you find him guilty of the crime charged. If the answer is yes, then you must find him not guilty. If the answer is “maybe/maybe not or I don’t know,” then you must still find him not guilty because the most important instruction you will ever get as a juror tells you he is presumed innocent and any reasonable doubt about his guilt requires you to acquit him:

The defendant is presumed to be innocent. You should not assume the defendant is guilty because he has been indicted and is on trial. This presumption of innocence remains with the defendant throughout the trial and is enough to require you to find the defendant not guilty unless and until the Commonwealth proves each and every element of the offense beyond a reasonable doubt. This does not require proof beyond all possible doubt, nor is the Commonwealth required to disprove every conceivable circumstance of innocence. However, suspicion or probability of guilt is not enough for a conviction.
There is no burden on the defendant to produce any evidence.
A reasonable doubt is a doubt based on your sound judgment after a full and impartial consideration of all the evidence in the case.

 

The theory in the US is somewhat contradictory. We inherently enjoy the rights of nature. We inherently enjoy the right to bear arms. We enjoy the right to defend ourselves against tyranny, and imminent harm. The question, though, is from whom?

The founders certainly believed that the citizen enjoyed the right to protect both themselves, and property, but they also believed, and wrote into the constitution the limitations of government. So, citizens also enjoy protection and can self defend against government as well as other individuals and citizens.

The theory, unfortunately, has been bastardized by the progressive movement, who see no ability of the citizen to defend themselves from government. As in, the state becomes the arbitrator of rights and privileges. Which, based on our founder's theory is actually tyranny.

So, yes, the citizen inherently maintains the right to self defense, for their lives, their property, and their civil liberties and protections from tyranny of government.

 

Sid Meier's Civilization is great fun! It gives one the illusion that he is in charge of an entire culture and is capable of dominating the entire world. You even get to choose what will be invented next, what kind of government your population will be subjected to, which wonders they will build...

It's awesome, just like the fantasies in this thread.

 

But most who play Sid Meier's Civil War, Antietam or Civilization know it's a game. Not so many who that indulge in fantasy's here... ban 400 million guns from 120 million gun owners, right. I wonder how well a Sid Meier Game would sell based on that SIM?

 

Wow, I'm really off today. This is not the thread I intended to put that post in. I thought it had been deleted by a moderator, so I went so far as to post a replacement for it. I don't even want to begin to think about the relevance it might have to this thread.