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This feels to me like another example of how America does not really seem to have a coherent philosophy when it comes to gun posession and use of force. Like, you are allowed to have a weapon, you are allowed to use it to defend your home, you are allowed to shoot intruders... But the police are also allowed to issue no-knock warrents for a wide variety of crimes, allowed to explode into your home in the middle of the night, and if they see you with a gun/knife/bat/dog chew they are definitely allowed to put 27 rounds into you. If they get the house wrong it's NBD. But yeah bro, you're definitely allowed to use guns to defend yourself.
Similarly here. Foster was allowed to open carry a rifle. He was allowed to walk up to a car on the street. He was allowed to have a hand on his rifle. ... He's allowed to have two hands on his rifle? well maybe, but low ready is out, apparently. Though, the jury thought it was in, so ¯\_(ツ)_/¯. He's not allowed to point it at anyone, sure. but there's point at, and point at, isn't there. is he allowed to muzzle sweep you? what if it's just your legs? Foster was clearly in a position to 'quick draw' on Perry... is that enough to justify shooting first?
I don't know. Seems like a pretty thin knife edge to balance the lives of two men on.
Is this problem even solvable? It seems to me that it probably isn't. If you give your citizens free access to devices which can kill in a split second it's understandable that the police don't particularly feel like politely knocking at the door of the crack house and giving some PCP-addled junkie the opportunity to fill them full of buckshot. Perhaps, like school shootings, this is simply a price that Americans are willing to pay to ensure they have access to firearms.
He's allowed to do all of those things. He's not allowed to stop people going where they want, and he's not allowed to use his rifle to threaten and intimidate people who want to move past him. If, like Kyle Rittenhouse, he was simply there to render aid, instead of acting as an enforcer for the aggressive protests, then he'd still be alive, and we wouldn't be having this conversation.
I don't see how this is hard. Just because you have the right to own and bear a gun doesn't mean you can do anything you want, especially when it interferes with other people.
Unfortunately for the police, they don't set the laws and their concerns aren't what determines how we limit our government.
It's not just about firearms, it's about the government having limited powers that they constantly try to expand. However, firearms discourage the worst abuses, and serve as a backstop of violence if necessary.
How often does it happen in the US that someone gets acquitted for killing a cop because they thought a no-knock-raid was a robbery and shot first? How often are police convicted of using excessive force during no-knock raids?
I know these are rhetorical questions to make your point, but I think looking at examples underscores it.
Last time I looked there was someone who a grand jury wouldn't indict and someone else who a jury wouldn't convict, but for the most part the raidees' odds weren't good. And in the time since that comment, Marvin Guy's status changed from "several years without trial" to "acquitted of capital murder, convicted of murder, sentenced to life in prison".
One cop was indicted for spray-and-pray tactics in the Breonna Taylor incident (not for excessive force against them, mind you, but for the risk to their neighbors further down the line of fire), but was cleared by a jury last year. Three cops were convicted over the Kathryn Johnston case, so that outcome is not unheard of either. But a typical outcome seems to be the one in the Phonesavanh case, where even if behavior is egregious enough to put taxpayers on the hook for it ($3.6M in that case, about half medical bills and damages vs half punitive, from a warrant based on false information that led to a baby being burned and mutilated by a flashbang grenade to his crib), it's still not egregious enough to convict anyone at fault.
It's been decades since the explosion in no-knock raids and its de facto consequences started making national news, but the de jure consequences still seem to be more a matter of luck than any fixed principle. Defending yourself from home invaders claiming to be police isn't safe, and of course non-police home invaders know it too.
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This comment is an example of the same thing I mentioned earlier - a narrative which blurs much detail in order to claim two things are much more similar than they are, in this case in order to promote gun control.
No, there is not just a "thin knife" of difference between a man with a rifle at the ready approaching a car and demanding the driver lower the window, and the driver being in the car with a handgun. Perry was allowed to drive on the street. The group Foster was part of was not allowed to detain Perry in his car, nor to beat on said car.
There's no dilemma here which requires Americans lose access to firearms.
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Interestingly, once you go meta the guns are irrelevant to this case - both the car and the mob are deadly weapons, and IIRC car vs mob situations had ended in fatalities without guns being present in other BLM-related clashes. The issue is the American (mostly Red Tribe) culture of escalatory self-defence. (Of course, there is a feedback loop because self-defence culture makes permissive gun laws easier to pass and carrying a gun makes it easier to engage in escalatory self-defence).
The best take on the theory I have found is this post by Mark "Animal" MacYoung - his business appears to be training for violence professionals, but his website is mostly targetted at the general publ[ic with a message of "if you are not a violence professional, it is sufficiently easy to avoid situations where violence is likely that learning how to do this has a much better effort/reward ratio that learning combat skills". My summary of the idea is that
Because I am lawyer-brained, I tend to think of it as the difference between "duty to retreat" (DTR) culture and "stand your ground" (SYG) culture. (Note that the legal DTR isn't an invetion of modern hoplophobes - it is a codification of centuries-old English common law that was originally made by and for warrior-elites. But in the late 19th century most US States (some through the legislature, others through their Supreme Courts) decided that backing away from fights when you were in the right was unmanly and/or un-American, leading to the first wave of SYG laws. There is a second wave in response to the 1970's crime wave.
DTR culture says that the right to self-defense does not generally extend to fighting situations, even if you are right on the merits. This doesn't have to apply absolutely everywhere - the "castle doctrine" is the idea that the rules in your own home are SYG even if they are DTR in the streets. This means that the appropriate police (or other authority figure) response to a fight is to punish both parties unless one was so badly hurt that their crime was self-punishing. And if there is a fight ending with a corpse, then the winner is going down for some lower-degree homicide regardless of what was being fought over or who threw the first blow. A corollary is that to make DTR culture work at urban population densities, you need something like broken windows policing to stop obnoxious blowhards ruling the streets by behaving badly and treating a request to stop as a challenge to a fight. Someone who spits on the floor in a biker bar is going to receive a challenge to a fight which will end with them backing down or getting beaten. Someone who spits on the floor in your local golf club clubhouse is going to be warned by the Secretary and kicked out (ultimately backed by a threat to involve cops) if they continue. Someone who spits on the street needs to face the same kind of consequence.
SYG culture says that a man should only back down from a fight if you are wrong on the merits or have no reasonable chance of a good outcome(and that a RealManTM has developed combat skills to the point where the latter should only happen if massively outnumbered), and that challenging someone to a fight is praiseworthy if they are engaging in sufficiently anti-social behaviour. The corollary is the response of the authorities to a fight needs to include investigating the merits of the dispute - although common police practice is to arrest both parties and let the lawyers sort out blame. But if SYG laws are enforced as written, most fighting situations involve both parties having a sufficiently plausible claim to self defense that they could raise reasonable doubt and secure a criminal acquittal if they hired a fancy lawyer. The other problem is that most fights happen in sufficiently confused situations and investigations are sufficiently difficult that "investigating the merits" usually means "blame the guy who looks more like a stereotypical wrong'un". It probably isn't a coincidence that American SYG culture developed at a time when the wrong'uns were conveniently colour-coded, although there isn't anything inherently racist about it.
It should go without saying that DTR culture produces better outcomes if you have cops doing their jobs - you have a lot less fighting, and a lot less community-breaking post-fight litigation. But if the cops can't or won't do their jobs then the alternative to SYG is anarcho-tyranny. This is a particularly serious problem in the places which need most policing and often get least - schools and prisons.
The Perry case looks like a fighting situation - you have evidence that both sides were spoiling for a fight beforehand, a series of decisions by Perry to end up in that situation that would be a display of truly shocking poor judgement if he was trying to avoid the fight, and mutual escalation by threat display (car driven towards a crowd, crowd swarming car, gun kind-of-sort-of brandished). So from a DTR perspective, Perry is morally guilty and it is easy to make a close legal call (was Foster holding the gun in a way which made him a threat in the legally relevant way) against him. From a SYG perspective, the key question is whether Perry was right on the merits, which comes down to how sympathetic you are to street protest in general and BLM in particular.
This post is too long already so I won't do the list, but I think most scissor shootings that do not involve cops (Zimmerman and Rittenhouse) are fighting situations and the scissor is that DRT and SYG are working from completely different moral frameworks.
As @KMC notes, Rittenhouse was not a DTR/SYG case, and as I describe below, neither was Zimmerman (with the exception of one annoying detail, which I explore).
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What about the Blue Tribe culture of aggressively taking over and blocking explicitly public transit spaces? That action happens to be illegal (at least as the laws are written) in most US jurisdictions.
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Isn't the fact that he was driving the car on a public street trying to get to his destination enough to make him right on the merits?
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Rittenhouse was not a fight by your own standards, which calls into question the entirety of your post.
Kyle was attacked by Rosenbaum, after some third party fired the first shots. Kyle ran, Rosenbaum chased him. Then Huber chased him. Then Grosskruetz tried to trick him into dropping his guard, so Gaige could shoot him. This was not a fight, and Kyle Rittenhouse literally, truthfully, did nothing wrong.
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A division between Stand Your Ground and Duty to Retreat philosophies exists, but in addition to the lines being a lot blurrier than this summary (eg, even a lot of SYG advocates promote deescalation and avoidance, most famously Masaad Ayoob), I think you're badly strawmanning SYG perspectives as RealManTM.
The problem with DTG isn't that retreat is Unmanly, or the various pragmatic problems where a jury second-guesses split-second decisions about ease of retreat. It's that it demands a surrender of the public sphere:
(Or cfe here)
Even in a perfect world, where police hammer every criminal action, a ton of 'fight' happens well below the level of criminality or what should be seen as criminality. Whoever is willing to defect can commandeer large portions of the public sphere, readily. And we do not, bluntly, live in that perfect world: no small portion of coastal cities have transparently given permission for extralegal actors to crush political positions they don't like, while ignoring (sometimes 'mandatory!') restrictions on bad actors they do like.
IMO neither "Stand Your Ground" nor "Duty to Retreat" neatly solve all cases. I don't think there's a general solution to what I'd call the Thunderdome Problem ("two men enter, one man leaves") regarding how the justice system should, absent other evidence, a dead body and the survivor's claim of having been attacked. I, at least, don't think the criminal justice system either categorically believing, or disbelieving the survivor's claim counts is sufficiently fair.
It may be the case that Thunderdome cases are sufficiently infrequent to not matter generally, but some of our more scissor-y examples of claimed self-defense violence (Zimmerman, perhaps most notably) do seem to fit with that pattern. It seems plausible to me that people are applying their personal biases toward the general case to sufficiently fuzzy specific cases.
It is almost true that SYG has nothing to do with the Zimmerman case, and I find the thin bit of exception annoying, because it doesn't engage the philosophical point at all.
In Zimmerman's case, his actions were fully covered by either a generic SYG regime or a DTR regime. The philosophical difference does not apply to that case in the slightest--when he shot Martin, he had no ability to retreat, and it was Martin that forced the encounter, not Zimmerman. All of that is very clear-cut in the evidence presented at trial; if Florida had been a full-bore generic DTR state, Zimmerman would have been equally justified under the facts of the case.
The problem is that the word "generic" in the last paragraph is doing a bit of lifting. Florida's specific SYG law did apply to the case, but on a completely secondary point--the text of the law prohibited the arrest of someone claiming self-defense unless the officers had probable cause to believe that the self-defense argument was a lie. Zimmerman's arrest violated the SYG law because the police never had probable cause to believe he was lying; the evidence collected immediately at the scene and the following day (with Zimmerman's active cooperation) uniformly supported his description of events, as did every bit of subsequently developed direct or eye/earwitness testimony.
"Categorically believing, or disbelieving" is a false choice that does not describe the law accurately--the law set up a presumption in favor of the self-defense claimant in protecting him from arrest, but that presumption could be defeated by sufficient evidence to establish probable cause.
My understanding of the Zimmerman/Martin case is that there are no witnesses to how the altercation started between Martin and Zimmerman that ended up with Zimmerman on his back and forced to shoot Martin, but there is plenty of circumstantial evidence that it was a "fighting" situation. Clearly if you start the tape with Zimmerman on the ground then it looks like Zimmerman defending himself against a criminal attack by Martin, but there is no reason to think that Martin (who was going about his lawful business peacefully at the time, regardless of his rapsheet) would respond to Zimmerman following him in a car by hiding in the bushes on the offchance that Zimmerman came back to confront him on foot allowing Martin to jump him.
The most likely scenario and, roughly, the prosecution theory of the case, is that Zimmerman (legally but stupidly) confronted Martin to ask what he was doing, Martin took offence, two hotheads verbally escalated when they should have de-escalated, and blows were thrown. The tape starts when Martin has already won the fistfight and is trying to finish the job, and we see Zimmerman pull out a gun and finish it his way. Classical "fighting" scenario, except someone bought a gun to a fist fight. With reasonable doubt as to who threw the first punch, a clear acquittal under SYG.
Even if Zimmerman had verbally provoked Martin, he can still use force to defend himself if
"Such force or threat of force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use or threatened use of force which is likely to cause death or great bodily harm to the assailant"
Zimmerman pinned down by Martin (thus unable to escape) and having his head bashed fits that condition. Note this is NOT a Stand Your Ground rule -- a person who has provoked another DOES have a duty to retreat; this rule is intended to cover inability to safely escape, not unwillingness.
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In Zimmerman's case we have abundant evidence that his story was accurate. We have testimony from Trayvon's friend who was on the phone with him shortly before the encounter that Trayvon made it all the way home and decided to double back to attack Zimmerman. We have an eyewitness who saw the fight from a distance who saw (based on the colors of the clothing he saw etc.) Trayvon on top of Zimmerman, beating him. We have the reports of paramedics and medical examiners showing injuries to Zimmerman consistent with him being grounded and pounded, while the only injuries on Trayvon's body (apart from the obvious bullet to the chest) were to his knuckles.
It was pretty much an open and shut case, and were it not for public pressure (and protests by advocacy groups funded by and working directly with Eric Holder and other members of the Obama DoJ) it would have never gone to trial, and rightly so.
Edit: source on the DoJ's involvement https://theweek.com/articles/462236/did-justice-department-incite-2012-trayvon-martin-protests
That's fair. I was thinking more when the case originally blew up in the media and the facts that came out at trial (the injury details) weren't as clear.
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I'd consider a mob of people surrounding a car as such a set of obnoxious blowhards.
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Of note - "America" isn't a person and can't have a coherent philosophy. Many individuals are equally incoherent to what you posit here, but others really aren't. There are plenty of police-state enthusiasts that think people shouldn't own firearms. There are plenty of firearm enthusiasts that want to eliminate no-knock raids (outside of rare, extreme circumstances).
Again, many individuals may have an incoherent stance, but mine is fairly clear - blocking streets is a crime, using a firearm to do so is an escalator, and the government should have cracked down on BLM intimidation tactics. They didn't in Austin because Austin is a left-wing city and the city leadership offered tacit or explicit endorsement of BLM and its tactics.
Its true that it is difficult for a nation to have a fully coherent philosophy, but I do think the US is more..inconsistent than other Western nations. Probably because Federalism is essentially the idea that you can have different philosophies of government co-existing within the same nation. Its deliberate that Texas and New York can make different decisions on what they teach or tax. Even if the Federal government has steadily expanded its reach over time.
That and sheer size and population compared to most other single nations means you're not really propagandizing one single philosophy.
This happens other places as well of course but i think it is more evident in the US. Whether this is a positive or negative is dependent on your POV I suppose.
Because we are a union of separate nations, governing themselves separately, while allowing for free movement and free trade within the member states.
Right, exactly my point. So essentially this is kind of baked in to your model. That you are going to have even more incoherence because it's like comparing Germany to France. But due to the 2 party nature of your politics it's not 50 separate nations, it's become kind of twoish with a bit of wriggle room.
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Foster (and his crew) was committing a crime (trespass, false imprisonment). So I disagree with your description.
I would like to see felony murder charges brought against the other “protesters” who surrounded Perry’s car.
I think it’s too far to actually convict and sentence on felony murder. But a credible threat for future similar actions seems appropriate.
Legally this does feel like textbook felony murder. That being said it would still be the first time felony murder was used on this sort of case.
I am assuming the State can’t being the charges and the local DA’s would not.
Your assumption would be correct. The state can’t generally bring charges.
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Yes, but if you commit a crime, and someone dies during the commission of that crime, then you have committed felony murder.
I think that's bullshit, but it's the law as it stands today.
I can see the case for a felony murder (or manslaughter) as a desirable law when the victims are innocent bystanders.
If you break into a home and give an old person a fatal hard attack, that should be manslaughter. If you break into a home and your accomplice is packing and starts shooting, it is reasonable to assume that you either new they were armed or accepted the possibility and thus have some part in the murder.
It gets murkier if the causal link between the death and the crime is more complex. If you steal a car, drive it safely and someone runs a red light, crashes into the stolen car and dies, I don't think it is reasonable to blame you for it.
If an accomplice of you dies, for example by falling of a roof and breaking their neck, then your relationship to the accomplice matters. If you are a hardened criminal who convinced a kid to climb to that window and open the door from the inside, I feel manslaughter charges are appropriate. If you were on equal level with your accomplice, then it should not be held against you if they kill their stupid selves during a criminal act, unless you had a more direct hand in their death.
I don't think it is reasonable to presume that the fellow BLM protesters coerced a veteran to stand there with a rifle. The more likely story is that they tolerated him being armed, which would have them on the hook if the rifleman shot anyone (provided they also get convicted of a felony), but not if he just got himself killed.
Of course, this is just my gut feeling what would be just, the law is probably different.
Makes sense. They went after literally everyone at the Charlottesville protest based on that theory, but there was zero attempt to go after even the ringleaders when actual, organized BLM groups killed kids.
We're long past the point of legal principles mattering, but yours is one I could definitely live with.
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Yes, but the law as it stands today is also that if you commit a crime, the local DA may at their discretion simply ignore it if they don't think it's moral or feasible to convict you.
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Alot of this is what I was trying to get at and I agree. Guns are both a right to carry around and a cause to be shot. Should someone open carrying a rifle raise your alert level or not?
If it should then an open carry right is going to trigger some number of escalations. If it shouldn't then cops overeact to people who are legally armed all the time. See Castille et al.
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I agree with everything you've said. But there's another American tradition that comes into play. Surely you've heard of "reasonable doubt." In a case like this, there seems to be an awful lot of it. Case closed? Well, the idea that reasonable doubt ever gets the appeal that our foundations say it should is pretty laughable, but everything you've listed seems like clear cut reasonable doubt. It's not like this guy went out and sought someone to murder in something that looked like it could have been self-defense, and the risk vs reward of imprisoning someone wrongly as opposed to accidentally letting a nearly-self-defense-but-actually-murder-committer off the hook doesn't really favor a conviction.
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