Opinion | Self-defense in U.S.: A legal concept under stress

By Augustus K. Yeung

Introduction

Two controversial court cases turned the American judicial system upside down: Rittenhouse, a white defendant in the first case, and Arbery, a Black victim in the second, exposed how the law and the legal system in the U.S. are unjustly created--not "for the people, of the people, by the people" as President Abraham Lincoln had expected it.

The U.S. judicial system is in favor of the wealthy, the white, the legal experts, and the powerful, including the police--who are in possession of practically most of the existential human resources for living, some luxurious and thriving, thereby building a structural "fault line" for social, political and legal class conflicts.

Such is democracy in America!

Putting the Concept of Self-defense on Trial

"As two closely watched murder trials played out in two different states in the past week, juries heard strikingly similar stories: [White] Men took up guns in the name of protecting the public, and when they wound up killing unarmed [Black] people, they claimed self-defense," reports Shaila Dewan of the Times.

In one case, a white 18-year-old Karl Rittenhouse fatally shot two men and wounded a third in the unrest following a police shooting in Kenosha, Wis. In the other, Ahmaud Arbery, a Black man, was shot after a pursuit by three white men who said they suspected him of a series of break-ins in the neighborhood—when in fact he was just jogging in sports outfits. In both cases, the defendants claim they were entitled to start shooting because the victims were "trying to grab their guns".

What Did the Nation's Experts Say?

"In other words, their own decision to carry a gun became a justification to use it, lest it be wrested away from them," said Eric Ruben, an expert on the Second Amendment at Southern Methodist University in Dallas.

For legal experts like Mr. Ruben and others, these two cases expose deep fault lines in the legal and moral concept of self-defense, a doctrine that is particularly cherished in America but ill-equipped to handle an era of expanded gun rights, growing political extremism, violent threats and a strong vigilante strain, all in a country where the perception of threat is heavily influenced by race.

"The problem is that with a citizenry armed with guns, we have blurred every line," wrote Kimberly Kessler Ferzan, a professor of law and philosophy at the University of Pennsylvania, arguing in the Texas Law Review that a potent mix of "stand your ground" provisions and citizen's arrest statutes have given people license not just to defend themselves but to go after others. "What is defense? What is reasonable? When may one stand one's ground and when must one retreat? And, when is a citizen entitled to step in as an aggressor in the name of the state?"

Rifts Have Surfaced in Several Debates

The rifts have surfaced in several debates, beginning with whether openly displayed guns make the bearers feel safer at the expense of everyone else, whether brandishing a gun constitutes a criminal threat or an act of self-protection and whether people can benefit from self-defense claims if their own actions contributed to the volatility of a situation.

(Generally, the law provides a right to self-defense when people reasonably believe there is an imminent threat of harm, whether or not that belief is correct. For example, it may be reasonable to mistake a realistic prop gun for a real gun.)

Entertain the concept of "initial aggressor"

But most statues say someone cannot claim self-defense if that person was the "initial aggressor" – in other words, if the person provoked the encounter that led to the use of force or was doing something illegal at the time. Initial aggressors may regain their claim to self-defense if they try to withdraw or back away from an encounter. And initial aggressors must actually pose a threat of imminent harm.

"If you assault someone without any justification, that constitutes provocation," said Cynthia Ward, a law professor at the College of William & Mary in Virginia. "You do not provoke an encounter if you simply demand an explanation of offensive words or engage in an inconsiderate act or travel near someone."

In the Arbery case, the concept of "initial aggressor" is complicated by the claim by the defendants—Gregory McMichael, his son Travis McMichael and their neighbor William Bryan – that they were pursuing Mr. Arbery in an attempt to make citizen's arrest and that he was shot only after he tried to grab one of their guns.

Lost in the proceedings is the voice of Mr. Arbery

Lost in the legal proceedings is the voice of Mr. Arbery, who conceivably would have had his own claim to self-defense.

"Why is it that the perception is that if Ahmaud Arbery would have complied, rather than reached for the gun, that he would have lived, and therefore it was incumbent on him to comply?" asked Darrell Miller, a law professor at Duke University and the co-author of a recent paper on the inadequacy of self-defense laws. "Why isn't the framing that Ahmaud Arbery had three guys, who he didn't know what their intentions were rolling up on him with guns?"

Over time in the United States, the tendency has been to expand the right to claim self-defense, rather than protect those who may be harmed by misjudgments and mistakes. Castle doctrine laws—also known as "make my day" laws—give people in their own homes the presumption of self-defense they harm an intruder. The "duty to retreat," a mainstay of classic self-defense theory, has been eroded by "stand your ground" laws that do not require retreat for people who are in a place where they have a right to be, such as a public protest.

In Many States, the Burden of Proof Has Shifted

In many states, the burden of proof has shifted from requiring defendants to demonstrate that they acted in self-defense to requiring prosecutors to show that they did not. A new law in Utah gives defendants, except those charged with attacking police officers, the right to request a special hearing in which prosecutors must prove that the accused was not acting in self-defense.

But while the legal framework for self-defense has expanded, experts say it has left key concepts like "initial aggressors" poorly defined… But who is the "initial aggressor" when two armed strangers face off?

On the evening at issue in the Kenosha trial, Mr. Rittenhouse, now 18, was armed with a semiautomatic rifle that he was not old enough to buy. After he shot and killed a man who he thought was trying to grab his gun, as well as a man who hit him with a skateboard in an apparent attempt to stop him, a nearby paramedic named Gaige Grosskreutz put his hands in the air.

At that point, Mr. Grosskreutz testified last week, he thought Mr. Rittenhouse "wasn't accepting my surrender."

Mr. Grosskreutz then pointed his own handgun, which he had with him even though his concealed-carry permit had expired, toward Mr. Rittenhouse. Mr. Rittenhouse shot him in the arm.

Mr. Grosskreutz said he was "trying to save my own life." Mr. Rittenhouse said much the same.

Experts say self-defense, vigilantism and policing are deeply connected – all are deeply racialized American traditions in which Black people, particularly men, are more likely to be viewed as threats and white people are more likely to be given the benefit of the doubt.

Some scholars are thinking about ways to help self-defense laws adapt to a country awash in guns and counteract pervasion prejudice. ("Trials expose fault lines in U.S. concept of self-defense." The New York Times, Monday, November 15, 2021.)

Conclusion

In a stunning twist and turn of court trials, one case was triumphantly concluded, and justice tributed--at least in one of the two cases or 50% of the time. Such is democracy in America.

"All three defendants in the killing of Ahmaud Asbery were found guilty of murder." Wrote passionately Charles M. Blow, a columnist of the Times, though in the other case Rittenhouse got away with murder.

"Our justice system is so racially biased, so often allowing vigilantes and police officers to kill Black people with impunity, that simply having the system not perform in that way… "The police initially did not charge the men and they remained free men for more than two months until video was made public. The former prosecutor in the case has been indicted on charges that she sought to shield the men from prosecution."

"And when the jury was chosen, it was composed of 11 white people and only one people of color."

"But in the end, justice still prevailed. The system that has given so many killers of Black men a pass said that in this case, you can't hunt and corner a man like an animal and take his life." ("Guilty, guilty, guilty." The New York Times. November 15, 2021.)

The author is a freelance writer; formerly Adjunct Lecturer, taught MBA Philosophy of Management, and International Strategy, and online columnist of 3-D Corner (HKU SPACE), University of Hong Kong.

 

The views do not necessarily reflect those of DotDotNews.

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