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Minnesota’s proposed Castle Doctrine expansion worse than Florida’s ‘Shoot First’

Community Voices
Trayvon Martin protest
REUTERS/Mike Segar
Rallies have been held around the nation calling for justice for Trayvon Martin, the Florida youth whose killing may be legally protected by Florida's so-called "Shoot First" law.

With the national uproar over the Trayvon Martin shooting in Florida, it’s a good time to take another look at the expanded Castle Doctrine bill that almost became law in Minnesota. Ours would have been even worse than Florida’s “Shoot First” law.

Thankfully, the Minnesota proposal — H.F. 1467 — was vetoed earlier this month by Gov. Mark Dayton.

But first, my qualifications before I explain why. I was an assistant city attorney for St. Paul for 34 years. In about 1996, I became interested in the lack of knowledge of gun laws by police, prosecutors, defense attorneys and judges. I did a study of the results of 676 cases my office had prosecuted and then wrote a manual on how to do it correctly.

I have taught police, prosecutors and defense attorneys at a number of classes. I also was involved in the prosecution of hundreds of gun crimes during the last 10 years of my work with the city. Since retiring, I have been a consultant to a group that deals with gun laws at the Legislature. I have spent dozens, if not hundreds, of hours researching proposals and various statutes from Minnesota and numerous other states.

So what’s wrong with Minnesota’s proposed Castle Doctrine bill?

Most important is the fact that there is no duty to retreat in a person's home if someone enters illegally. That has been the major factor expressed by many in support of the proposal — “Come into my house and you're toast.”

There are a number of other parts of the proposal that I find troublesome.

The proposal — sponsored by Rep. Tony Cornish, R-Good Thunder, and Sen. Gretchen Hoffman, R-Vergas — would have allowed for the use of deadly force without a duty to retreat in a great many places other than a person's home. 

It also allowed a person to use deadly force if they reasonably feared harm. The proposal contained a provision that creates a presumption that the fear is reasonable. Current law requires the use of the reasonable-man standard and leaves the question up to the jury. Whether someone’s fear is reasonable is something a jury can understand. Proving beyond a reasonable doubt that it was not reasonable, as the proposed law would have required, would seem to be nearly impossible. 

The Cornish/Hoffman proposal allowed the use of deadly force if someone is threatened with substantial bodily harm (SBH). The law defines that as including a temporary disfigurement. That means a punch to the face and a black eye would allow the use of deadly force. Current law limits the right to use deadly force only when threatened with great bodily harm (GBH) or death.  The definition of GBH includes a permanent disfigurement or broken bone.

There are a couple of other especially troubling provisions:

• The expanded Castle Doctrine proposal would have granted total immunity from criminal prosecution.    

• The proposal did not allow the arrest of the suspect until police have fully considered any claim of self-defense.

So, if the police can't arrest a suspect and bring him or her in for questioning, they have very little to no ability to determine if the person was acting in self-defense or not. If the police can't develop evidence that the claim of self-defense is false, there can be no prosecution. If there is a prosecution, the proposal would presume the belief that the fear of harm was reasonable. The Minnesota proposal is full of phrases that are either improperly or poorly defined. 

It would take many years of appeals court decisions before anyone would know what those phrases actually meant.

Despite all my criticisms, I am not among those who think such a law would create an increased danger to police. Nor do I believe that it would result in shootings all over the place.

What I do know, though, is that this proposal virtually would have negated the ability to prosecute anyone who applies deadly force under virtually any circumstance. It also would very likely negate the ability to prosecute any level of assault because all the aggressor has to do is claim self-defense.

Florida vs. Minnesota

As I mentioned above, Minnesota’s proposed Castle Doctrine is even worse than the controversial Florida law. Here’s my point-by-point comparison of Florida Statute Chapter 776 (Justifiable Use of Force) and the latest version Minnesota HF 1467:

Level of injury/harm required before deadly force can be applied

Florida: Deadly force allowed if reasonable belief of imminent death or great bodily harm or a forcible felony. (F.S.§776.12)

Minnesota: Deadly force allowed to resist a felony in a dwelling and to prevent what the person reasonably believes is an offense that exposes him or another to substantial bodily harm, great bodily harm or death. (H.F. 1467, lines 5.2-5.4)

Duty to retreat

Florida: Maintains duty to retreat until the threat is harm of death or great bodily harm, unless in the home. (F.S.§776.012) No duty to retreat if in residence, dwelling or conveyance. (F. S. §776.013)

Minnesota: No duty to retreat. (5.14-5.15)

Presumption of reasonable fear

Florida: Fear of death or great bodily harm is presumed if you are being attacked in your dwelling, residence or vehicle and the suspect was unlawfully and forcefully entering the location or forcibly removing a person from the location. The Florida law does not include a right to use deadly force if all a person does is enter your property by stealth.

Minnesota: Fear of substantial bodily harm, great bodily harm or death is presumed if the suspect is unlawfully entering or attempting to enter by force or stealth, or if someone is trying to force another person from a home or vehicle.  (5.17-5.26)

Dwelling, resident and vehicle definitions

Florida: Building or conveyance, temporary or permanent, mobile or immobile, has a roof and designed to be occupied as lodging at night. (Does not include grounds/curtilage – that is, the area and buildings immediately surrounding a home used in the daily activities of domestic life.) (F.S. §776.013-5)  Allowed to use deadly force and has no duty to retreat if attacked anyplace if the threat is death or great bodily harm or a forcible felony is being committed against the person.

Minnesota: Same, except specifically includes the curtilage. (4.15- 4.22)

Defense of others

Florida: Deadly force allowed if reasonable fear of death or great bodily harm to others, or to resist a forcible felony. Non-lethal force allowed to prevent a trespass or tortuous or criminal interference with real property other than your dwelling. (F.S. §776.031)

Minnesota: No distinction between threat to the person or another. (5.2-5.4)

Use of force by aggressor

Florida: Justification is not available to aggressor if that person is engaging in a forcible felony or starts the fight, unless the force being used by the other person is so overwhelming that the initial aggressor has exhausted every reasonable means to escape, or when the initial aggressor  withdraws from the fight or surrenders and the other person continues to fight, then deadly force can be applied. (F.S. §776.041)

Minnesota: No equivalent.

Immunity from criminal prosecution and civil action

Florida: Full immunity from criminal prosecution and civil action unless the suspect was a law enforcement officer acting in official capacity. Person can recover attorney’s fees, court costs and compensation for loss of income in defending a civil action if the court determines the person was immune from prosecution. (F.S. § 776.032-3)

Minnesota: Same as to immunity from criminal prosecution. (6.9-6.12)

What is not deadly force, and the level of force allowed

Florida: Discharge of a firearm is not deadly force if done by law enforcement while working. (F.S. §776.06-2a)

Minnesota: Person may use all means, including deadly force, that the person believes in good faith is required. Superior force is allowed and defensive action may be continued until the danger has ended.  (5.11- 5.16)  Production of a weapon is reasonable force and not deadly force if the objective is to stop the aggression of another. (4.11- 4.14)

Authority to arrest

Florida: No arrest possible unless law enforcement determines there is probable cause that the force used was unlawful. (F.S. §776.032-2)

Minnesota: Limits the police ability to arrest a person using deadly force only after considering claims or circumstances supporting self-defense or defense of others. (6.13-6.15)

Burden of proof

Florida: Not specifically stated.

Minnesota: State must prove beyond a reasonable doubt that the defendant’s actions were not justified. (6.16-6.19)

Civil action provisions

Florida: If the aggressor is convicted of a crime arising from the encounter or proven by a preponderance of the evidence that the aggressor was committing a crime, then the person sued can be compensated for attorneys’ fees and costs. The person who is convicted and loses a civil action loses canteen privileges, telephone access, outdoor exercise, library use and visitation privileges. (F. S. §776.085)

Minnesota: No equivalent.

Please review the bill here and let me know if you disagree with my analysis.

Tom Weyandt, formerly an assistant city attorney for St. Paul for 34 years, lives in White Bear Lake.

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Comments (32)

Tom:How many cases do you

Tom:

How many cases do you know where an intruder was shot or otherwise injured in a home and the homeowner was prosecuted for their defense of their home because they did not retreat?

This is the justification for all of these type of statutes, and I would like to know if this is an "answer" in search of a "problem". Anyone can construct a "nightmare" situation of a homeowner being prosecuted, but when has it happened?

Safer for Criminals

No wonder our inner cities have more crime. It's city attorneys like Tom that have the attitude that someone committing a crime has more rights than a victim. When you give more credence to purpotrators, they will continue with the same behavior. There is no deterrent. Any reasonable person knows you don't force your way into someone else's home, except in extreme emergencies as a good samaratan, with good intentions. That in itself causes great fear.

Same question for you....how

Same question for you....how many documented instances do you know of when a homeowner was prosecuted for shooting a home invader?

Safer Cities

What's true in New York City is true of cities here: crime is down. There is less crime and the cities are safer.

I tell people all the time, "It's not like when I was a kid. It's a lot safer today."

Hey

You Righties have let Fox and the NRA get you into such a state of hate and fear that you don't know that crime has been falling for 20 years.

Try a valium.

The law is a great teacher

The society that is more concerned with the rights of the perpetrator or the convenience of the criminal justice system than the rights of the victim teaches the citizenry where they sit on the totem pole of society and that they should opt for a larger caliber when shopping for a weapon.

Same question for you,

Same question for you, Dennis--how many documented instances do you know of where a homeowner was prosecuted for shooting a home invader?

This isn't about home invasion

A Texas woman recently was walking from her garage to the house coming home from work late at night when a man approached her from behind, grabbed her around the neck and tried to pull her to the ground. She pulled her pistol, aimed over her shoulder and shot him dead.

She was outside her house and and would have been vulnerable to current MN law.

Can you name a case where a

Can you name a case where a woman in a similar situation was ever prosecuted for injuring or killing an attacker?

reasonable

"Current law requires the use of the reasonable-man standard and leaves the question up to the jury. Whether someone’s fear is reasonable is something a jury can understand."

In the case that you (sort of) cite, there's not much question that it would pass the 'reasonable fear' test.

Then why would you support this?

It seems this law is about protecting the rights of the aggressor against the victim. Kill who you want and claim you felt threatened, and you're in the clear. Insane.

Florida case

Zimmerman's defenders and the police report bouncing around the internet said he had a broken nose and head wounds from Travon's "attack". I just saw a police video of Zimmerman getting
out of the police car handcuffed with no blood, normal scalp and nose. Thank God for video. He didn't look threatened either.

Interesting comparison

Dennis Tester’s point is well-taken, but so is Neal Rovick’s, and I’m inclined to share the latter’s curiosity. How many residents have been prosecuted for their actions when their home was invaded? As Neal suggests, it’s not difficult to imagine a scenario when such-and-such “might” have happened or “might” be necessary, but do we have any documented cases of these sorts of events actually taking place?

Mostly, these kinds of laws strike me as pandering to elements in the society that are afraid, yet aggressive. More women have “carry permits” nowadays than used to be the case, but I’m not reading about situations where women are gunning down drunk guys in parking lots who keep insisting that the woman go home with him. Are women more sensible about this sort of thing than males who like to think they’re the “Alpha” type?

What would passage of Cornish’s proposal have done to “carry law,” either in terms of getting the permit, or enforcing the statute? Having been cornered a time or two in my neighborhood by a snarling pit bull while out walking on a public parkway, could I have used Mr. Cornish’s proposal – had it been enacted into law – as justification to simply kill the dog and be on my way?

personally

I'd rather deal with a snarling pit bull than Tony Cornish.
He can be a living refutation of the 'reasonable person' concept.

Interesting

Based on this information, it makes me doubly wonder why Zimmerman was not arrested after the shooting. It's clear that Treyvon was not inside a dwelling or vehicle at all, let alone Zimmerman's.

In any case, it is good that Cornish's bill was vetoed. It clearly showed that Cornish was more interested in allowing people to shoot people than allowing people to use deadly force where appropriate.

As a gun owner, I don't take lightly the power of the weapon to end another's life. That is why it is imperative for gun owners to be cognizant of the state of their weapon (loaded/unloaded, direction of the barrel, cleanliness of the weapon), because it IS a deadly weapon. A mistake can be, and often is, fatal.

Quite frankly, if you're committing a crime with a loaded gun, you are doing so with the intent to kill the victim of the crime. On the other side of the coin, pointing a gun at someone as self defense must be justified--there's no taking back dead. Even a good Samaritan can find himself laid out on the ground, dying of a gunshot wound and no one could be prosecuted, based on Cornish's proposed law. I can easily think of several scenarios that are not imaginative at all where this could happen.

Cowards United

Thanks, Tom, for your informative article. As an experienced prosecutor, your insights have real value. If nothing else, the Martin case demonstrates the real-world difficulties in determining who is the aggressor and who is the victim in a shooting. It is beyond belief that a person who has shot and killed another human being should be absolved of any responsibility to demonstrate that they acted reasonably. It is also amazing that this law would have justified use of deadly force as a "defense" against perceived threats that do not even rise to the level of GBH.

As to favoring the "perpetrator" over the "victim," where is justice when the shooter gets to act as judge, jury and executioner, and the supposed "perpetrator" is left as a silent, defenseless corpse?

Fearful people who fearfully carry guns so they can shoot people they fear apparently also fear explaining themselves to juries made up of their fellow citizens. It's a law custom-made for cowards.

judge, jury and executioner

When a woman is lying on her back with a rapist holding a knife to her cheek, if she can reach her .44 I'd suggest she use it. Wouldn't you?

Yup

And so would anyone else. That's why the current law is fine as is.

the end of highway distractions

I often feel threatened on the freeway by distracted drivers talking on their cell phones. They could change lanes and bump me off the road causing me great bodily harm. As a person wishing to not become a victim of a crime I should be able to gun down cell phone drivers on the highway. No wonder there are so many highway fatalities due to distracted driving, this society coddles all the leftist cell phone gabbers.

My only question is does the castle doctrine only apply to guns or can I also use my car as a weapon of self defense. And please don't tell me I'm being silly or my fears are unreasonable. In a just sociey, the individual is always, only and completely the judge of his own fears and there is no obligation to the greater social organization. Just like taxes are immoral, telling me I can't kill someone who is bothering me is also immoral. Any fool "knows" that.

And of course...

Any reasonable person knows you don't stalk an innocent child, threaten him, then blow him away when he tries to defend himself, except in extreme emergencies such as the kid walking thru your neighborhood, with good intentions. Uhhh, well, OK, maybe not. Another swing and a miss.

Any shooting that results in

Any shooting that results in an injury or death should be investigated thoroughly. That applies to police and civilians equally. The automatic assumption that the survivor was in the right can lead to serious miscarriages of justice.

Oddly enough, these sorts of miscarriages (everyone can think of an incident) are more common when the incident is located out and away from the home. For that reason alone, extending the blanket presumption of innocence to everywhere an armed person may wander is unwise.

Why stop here?

Cornish should take his bill just one step further, and make murder legal. Maybe title it "survivor wins"?

“Shoot First” law.

The “Shoot First” law is a great law.
Protection from criminals for honest, stable citizens:
1. The right to carry a fire arm.
2. The right to use the firearm if intimadated, threatened, threatened with assult, or being assualted.
Criminals present rights:
1. The right to sue and be paid compensation from homeowner or citizen, if shot during burglery of homeowners property, or attempted robbery, or assualt of citizen at any location. (Chances are great the homeowner has no gun, and is afraid to use it if he had one, for fear of prosecution.)
Burglery is a safe crime for criminals.
2. The right to rape, beat, rob, assult honest citizens because they're unlikely to have any personal protection on them, 99% probability they don't know how to fight or have muscles from lifting weights in prison for 2+ years.
3. The right to carry stolen, black market firearms at all times, to know how to fight and kill (learned in prison or from other criminals out of prison, or from other gang members).
Criminals have more rights than legal, honest citizens......
They're safe from honest, law abiding citizens who have no personal protection, or ability to kill.

As a supporter of the

As a supporter of the Minnesota Stand your ground legislation, I appreciate Mr. Weyandt's detailed analysis. It is the first article I have seen by someone opposed to the law that presents facts instead of hysteria.

As Mr. Weyandt points out, the stated reason for Governor Dayton's veto was nonsense; there is no increased risk to law enforcement. However, it does appear there are details in need of revision. It's a shame this kind of objective argument was so absent from the early debate.

Mr Weyandt writes: "this

Mr Weyandt writes: "this proposal virtually would have negated the ability to prosecute anyone who applies deadly force under virtually any circumstance. It also would very likely negate the ability to prosecute any level of assault because all the aggressor has to do is claim self-defense."

He then also writes that he doesn't think that police would be at any greater risk.

To me, the inability to prosecute any level of assault by definition puts officers (and all of us) at greater risk, since those doing the assaulting are still free.

And to Mr Tester-- please let us know when last an armed woman shot a rapist and was convicted. Heck, how about an example of been being charged?

Perps

The notion that opposing or vetoing a law like this favors perpetrators is begging the question. The law short circuits society's long established means—prosecution and trial—of coming to identify who the perpetrator is, and therefore who to punish. This law is nothing more than authorization, and I would argue incentive, to escalate confrontations and to be darned sure you kill whoever might otherwise contradict your version of who the perpetrator was. Whoever's dead must have been the perp!

It's little wonder the gun lobby supports these bills, because we're all going to have to dispense our own justice if the police cannot properly investigate and prosecutors cannot charge a person hiding behind this law. Effectively or actually immunizing a shooter ensures society has no way of determining who the agressor was, or whether escalation of aggression was appropriate and justified. The decision devolves to the one with the quickest, deadliest draw. Great for people who imagine themselves to be living a life out of a hollywood Western, but for most of us moored in reality, pretty scary.

An example under the current law

Recently in Minneapolis, a man (carrying with a valid permit) shot a suspect who was attempting to rob a woman at knife point in a public place. The Hennepin County attorney's office declined to prosecute him.

What we've got seems to work just fine.

Use a weapon to stop an

Use a weapon to stop an assault, fine, reasonable. Use a weapon because you "feel threatened"? Mr Tester feels inimidated by me because of my disagreements with his positions, so he hunts me down and kills me? Someone butts in line at the concert, turns around and dares me to say something. I feel intimidated because he is bigger than me. So I'm justified in killing him for that? I think all those right wingers who are such great literalists when it comes to bible interpretation would start taking threat to its extreme literal interpretation and start killing everyone who disagrees with them.

Someone steals my bike so I take their life? There's nothing in these laws that weigh the level of response to the offense. Like someone above asked, show me an instance where a woman defending herself against rape was charged with anything. But the guy who catches some kid in his garage stealing a bike and guns him down, that is a guy who probably beats his kids for breaking curfew. The law doesn't kill you for theft, at least the current law doesn't.

Wouldn't the gang bangers be totally free to kill each other. They could sure argue that they killed a rival because they felt threatened.

Listen to the experts.

Law enforcement officials do not oppose this law because of increased risk to themselves. As the only people who regularly deal with these dicey situations on a regular basis they are all too knowledgeable about how a "shoot first" scenario is likely to play out. They know it is extremely dangerous for all involved. Let's take the word of the experts. Gov. Dayton was right to listen to them.

"If I didn't I would have been killed."

That sentence is the only one that I learned in my concealed carry is a proper one to a judge or defense attorney's question: "Why did you shoot him?"

Anything else ("He disrespected me," "They wanted my wallet," etc.) and you face the same penalties someone without a concealed carry license faces: murder charges.

The "reasonable man" approach means the judge/jury will evaluate whether or not your assertion that you would have been killed is true. A 65-year old facing 3 street toughs with tire irons is going to be more persuasive than a 28-year old who reacts to someone across the street yelling epithets.

But if the situation is one where I could be killed, it doesn't matter whether it's in my home or in a Starbucks.

Nothing to do but stand by with my 357 and watch

Deadly force has been deployed several times in self defense here MN, and people are rarely prosecuted. This idea that a guy will have to stand by and watch a rape or something is little more than typical NRA hysteria, yet another imaginary Republican scenario supporting yet another solution in search of a problem.

A couple years ago three or four teenagers gave chase to a biker on the Greenway. Fearing he couldn't out-run them he turned and confronted them killing one with a pocket knife. It was ruled self defense, he wasn't even arrested. Your ability to defend yourself without going to prison is clearly not being hampered by the current castle doctrine, this modification will just make our world more dangerous, not less.

The issue as to whether a person with a gun could fight off an attacker is a completely different issue that has to do with gun permitting and conceal and carry, not self defense.

Local Right Wing Radio Talk show host

has commented on this post on his blog, ironically named Shot in the Dark.

Readers interested in a local right winger's approach to this problem may find the post by Mitch Berg instructive if not informative:

"Chanting Points Memo: With “Experts” Like This, Who Needs Enemas?"

link: http://bit.ly/H8ScoO

I have repeatedly asked Mr. Berg to engage in dialogue or discussion on MinnPost on this matter to no avail.