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Lethal Presumption (The Cornel Young case)     by Karen MacNutt

It was 1: 40 AM on a cold, January morning when the two uniformed police officers pulled into the parking lot of a popular hangout. They ere responding to a disturbance call their attention was quickly drawn t) a man standing in the parking lot waiving a gun around.

"Drop the gun," shouted the ofcers to Aldrin Diaz as they approached with their own guns drawn. Diaz complied. Then a second man, dressed in a raincoat, bolted through rhe shop door. He too had a drawn gun.

"Drop the gun, drop the gun," the officers ordered, but the second man ignored them. "Drop the gun ... " The officers fired even though the second an did not point his gun at them. The second suspect had failed to obey their order to "drop the gun." The gunman fell to the ground hit by three of the uniformed officers' shots. The police supervisor arrived. Other officers arrived. Finally someone checked on the man who had been shot. He was Cornel Young, Jr. a veteran police officer in Providence, Rhode Island. An ambulance took Young to a hospital where he died. Diaz, the man who had obeyed the police order to drop his gun, was charged with the murder of Young.

The mayor of Providence immediately appeared on television to proclaim the need for more gun control. Civil rights organizations demanded there be an investigation because Young was black and the two officers who had shot him were white. Civil rights activists, with some justification, claimed that "Profiling" and the systematic harassment of minorities was a police tactic used in Rhode Island.

Young was killed by prejudice, but it was not racial. He was killed by a climate of hate and fear of gun-owning, average citizens. He was killed by the fostering of an elitist attitude that is prevalent in some police departments.

What happened to Officer Young should be kept in mind by every security officer, every police officer, and every citizen who carries a gun lawfully. Had Young not been an officer, his death probably would have been covered up. Had the two uniformed officers been civilians, there is no question that they would have been immediately charged with first degree murder.

It is highly unlikely that Young pointed his gun at the uniformed officers or threatened them in any way. Thus, we can assume Young was shot, not because of what he did with his gun, but because he failed to obey the orders of the uniformed officers to drop his gun. The first suspect, Diaz, dropped his gun when ordered. He was not shot.

Was the shooting of Young by the officers justified? Police officers have a difficult job filled with unexpected dangers. Like firemen, they know a certain amount of risk comes with the job. Like firemen, they should be aware that the safety of the public comes before their own personal safety.

When in performance of their duty, police officers have no duty to retreat from danger before using deadly force. Like civilians, officers have the right to protect their own lives and the lives of others from serious bodily injury. Deadly force should not be used when making routine arrests. Further, warning shots should not be used. In urban areas such as where the Young shooting took place, warning shots are dangerous to bystanders and can cause a misunderstanding of events by other officers responding to the call.

The question of whether the Young shooting was justified or wrongful under the law has nothing to do with the morality of the situation. It has to do with whether or not the officers who shot Young are subject to criminal penalties under our system of law. In determining this, the actual facts are not as important as what the officers might reasonably have believed. That is, the state of mind of the officers is critical. Would a reasonable man in the position of the uniformed officers have had a reasonable belief that they or other persons were in danger of being killed or of being seriously injured by Young? Although Young's carrying of a gun was cause for caution by the other officers, it was not, and should not have been, considered probable cause to believe Young was violating the law. It is still lawful in Rhode Island for people who ate not wearing police uniforms to have handguns. On the other hand, the circumstances were such that the officers might have believed that Young and Diaz were engaged in mutual combat with guns. In those circumstances, the facts may have suggested to the officers that Diaz, being outside of the building was retreating and Young emerging from the building was the aggressor. A totality of facts not available at this writing is needed co determine if Young's conduct could have been so interpreted.

Under the laws governing assaults, even if you are the person originally attacked, if your attacker breaks off the fight and starts to leave, his assault is considered over. If you then pursue your former attacker, you become the aggressor. Shop owners who chase robbers into the street risk being mistaken for the "bad guy." Laws governing use of deadly force to prevent the escape of someone who has committed a crime are different in various states. Civilians who attempt to pursue a criminal run large risks not only from the criminal but also from the police.

In the Young incident, the uniformed officers had the obligation to use the minimum amount of force needed to accomplish their mission. Deadly force should only be used if necessary to protect the lives of the officers or civilians. It should only be used to accomplish an arrest in very limited circumstances such as when the crime is of a particularly serious and dangerous nature. The nature of the disturbance that night would not seem to have justified the police in shooting the suspect Young if they had not been in fear of their own safety or the safety of Diaz. The circumstances in which the use of deadly force is justified should be part of every officer's training. Unfortunately, too many police departments train their officers on pop up targets which contain "good guy" and "bad guy" targets. The officer is graded on how quick he can identify and shoot his target based upon the target's image, not on the target's conduct. Unfortunately for Young, a man in a raincoat holding a gun is a "bad guy" image. Police work is dangerous by its nature. It is difficult to second-guess police in a situation like this. It is hard to cast blame-yet this shooting was preventable had the officers been trained or supervised differently.

Young probably made the most serious mistake. He left the shop with his gun in hand. Being a police officer himself, he should have realized that the two uniformed officers would be on an adrenaline rush. He should have identified himself better upon emerging from the shop. His gun should have been carried in a non-threatening direction until such time as his brother officers realized who he was. He should have obeyed their command to drop his gun instantly) His training was faulty. Although there is no way of knowing what was going through his mind at the time we can make an educated guess.

He undoubtedly thought that be cause he was a police officer, he had the right and duty to pursue the troublemaker from the shop to the parking lot. Because he knew he was a "good guy" he thought the polio would support him. Because he was a police officer, he probably though he was entitled to have a gun. Be cause he was a police officer, he probably thought that commands directed at civilians did not apply to him. He probably developed a tunnel vision towards the man he was pursing and may never have realized the uniformed officers were talking to him He did not return their fire, so we know he either did not see them a all or knew they were "good guys.

Why didnot he drop his gun after the first shot was fired? Were the shots too close together for him to react? An inquest will have to determine that. Civilians and police officers who carry guns for defense should learn a umber of things from this.

1. Most of the time police officers responding to your request of help o not know who you are.

2. They will identify as the "bad guy" the person who appears to them be the most dangerous.

3. YOU MUST identify yourself immediately to the police.

4. You must follow their orders immediately without question in these circumstances.

S. You must force yourself to see he whole picture and not develop tunnel vision as to what is going on about you.

The responding officers also made mistakes which were a result of imroper training and attitude. Although not all the facts have come out at the time of this writing, some an be safely presumed.

The city either did not have a protocol for the prompt identification off-duty or plain clothes officers or the officers did not follow it. There was, however, a clear demonstration of a bias against civilians having guns. It vas clear from the mayor's comments hat the city administration did not like civilians having guns. It is also clear that the officers assumed the person with the gun was the bad guy. They also assumed it was alright to shoot to kill the person with the gun even though that person had not demonstrated hostile intent. It is fairly safe to assume that Officer Young did not point his gun at his fellow officers. It is fairly safe to assume that he did not ay anything threatening to his fellow officers. What did he do to cause the officers to shoot at him? He had a gun in his hand and he did not drop when told.

Did the officers give Young enough time to comply with their order? At some point shortly before the shooting the uniformed officers had to have taken their attention away from the first suspect to point their guns at Young. Indeed, the uniformed officers probably made the same mistake as Young. Their attention was probably totally focused on Diaz until Young emerged from the shop and their attention swung to Young. Young probably startled them because both officers shot at Young hitting him three times. While they were shooting at Young, Diaz remained uncovered and, had he and Young been "bad guys" working together, Diaz could have had a second gun with whim he could have shot the officers. The officers' tactics were bad. Their sense of time was undoubtedly distorted. Once again, it will be for the finders of fact to determine if the uniformed officers gave Young enough time to respond to their orders.

Were the uniformed officers looking at Young when they were yelling, "Drop your gun!"? Where were their guns pointed? Did their body language give Young even a clue that the uniformed officers were talking to him before they swung their guns around and fired?

The ultimate irony is that Diaz has been charged with murder in the first degree of Officer Young under the felony murder rule. Although Diaz complied with the orders of the uniformed officers and did not fire his gun, he will be prosecuted because the officers did not have the same level of self-control. Diaz undoubtedly knew that if he shot someone, he would face serious charges. He restrained his impulses. The officers, on the other hand, who should have had better training and control, did all the shooting. Under the felony murder rule if anyone, including your accomplice, dies as a result of your commission of a felony, you can be charged with first-degree murder. It makes no difference if the person died of a heart attack, or, as in this case, was killed by the police. The theory is that by your wrongful conduct you created the situation which led to the death and you should therefore be held accountable. There was no need for the uniformed officers to have shot Young three times. Indeed, as there is no reason to believe Young exhibited hostile intent towards the officers, there was no reason to shoot him at all.

The shooting was a direct result of the mind set being promoted that having a gun is probable cause for a police officer to stop you without any other act or wrongdoing on your part. It is the direct result of a mindset being promoted that the only purpose of a gun in the hands of a civilian is to kill and that all guns are bad. If you accept these positions, it is not difficult to accept the position that officers have the right to shoot anyone they think might have a gun. It should come as no surprise that of the six "friendly fire" killings of police officers in the last eight years, two took place in New York City and three took place in Washington, DC, where civilian ownership of guns is severely limited. If the attitude that anyone with a gun must be bad continues to be promoted by those with their own political agenda, we will see more cases such as that of Amadou Diallo, the unarmed West African immigrant whose only crime was that he was trying to get into his own apartment. Diallo was killed in his own doorway by a hail of 41 bullets fired by four New York City police officers who said they thought Diallo was armed. Although the officers were cleared of charges, one must be impressed by the magnitude of the officers' response to a mistaken belief

Civil rights leaders have complained that in Providence, the police did not treat the civilian community with the proper respect. Although some say the police attitude is anti-black, that is only part of the problem. Where police identify the entire civilian community as the enemy, there is distrust and public safety is not met. Those who promote civilian disarmament, foster the bunker mentality that has led to these tragic and needless deaths. It is only in those communities where the police and citizens respect and work with each other that public safety is improved. We must all work for such communities.


This article was reprinted from Women&Guns May-Jun, 2000, Copyright © 2000, Karen MacNutt

 

Posted: No Firearms Allowed     By Karen MacNutt

Jane had jumped through all the hoops, both required and suggested, to obtain her license to carry a concealed handgun. She had joined a club. She had taken courses. She had studied the law. She had become proficient in the use of the gun. She had researched the best gun to carry and the best carry holster. Now she had put it all together and was out for the first time "packing heat."

Her first task of the day was to go to the Post Office. She did not get beyond the Post Office door. "NO FIREARMS ALLOWED." She looked at the sign in frustration. "They can't do that," she muttered to herself, "I have a license."

Just because a city or state issues you a license to carry a gun that does not mean you can carry a gun anywhere you please. These rights often must be counter balanced against other rights and public safety. They are subject to certain limitations.

Our Federal Constitution was not intended to be an exhaustive list of rights belonging to the people. Other rights that are not part of the written Bill of Rights, are equally part of the tapestry of rights belonging to all mankind. The authors of the Bill of Rights listed what they considered to be some of the more important rights, but those rights came from natural law that is, they were rights given to all mankind by God.

The right to "bear arms" is the outgrowth of two more basic rights. The first is the right to life. Without the right to life, no other right has meaning. For the right to life to have substance, a person must have the right to defend his or her life from violence. Basic to the right to life is the right of self-defense. The right to self-defense is meaningless unless you are able to defend yourself in an effective manner. Thus, the right to have arms (the term "arms" is not confined to firearms) is an instrumentality of, and an expression of, the right to life.

The second right is the right to own property. A firearm is a piece of personal property. As such, you should have a right to own a gun absent some compelling governmental interest. As the owner of property, you have the right to control that property so long as you are not endangering others.

If you carry a gun there are other rights that must be considered. One of these is the right to travel. The right to travel is an essential part of the right to liberty. Out of the right to travel, the courts carved the right to have access to public accommodations. It was on this theory that the federal courts struck down laws that discriminated against blacks in terms of access to restaurants, public transportation, hotels and other places that hold themselves open to the public. If the right to travel (part of the right to liberty) did not trump the right to property in certain circumstances, the right to property would allow a restaurant owner to refuse to admit people he did not like based on race, sex, religion and national origin.

Your right to travel does not give you the right to trespass over someone else's property. There is, however, an exception to this rule. In an emergency, if your life is endangered, or in some cases if your property is endangered, you may enter onto another person's property. This is called the defense of "necessity." The law has balanced your rights with the property owner's rights and determined that the higher good is obtained by allowing you to enter the other person's property. Your entry is not as a matter of right, rather, the property owner's ability to defend his property against your enemy is limited by law.

Under certain circumstances, your rights can be terminated by the government. If you are guilty of a serious breach of the social order, your liberty or life could be terminated by the government. Each of our rights are limited by the concept of reasonable use. Our right to do something does not extend to the right to injure or endanger others by our actions. Thus, the right to own an automobile does not give us the right drive irresponsibly.

Within the law there is a constant balancing of rights, duties, and defenses. Having a "right" to do something is not the definition of whether or not you can or should do something. All rights are subject to the reasonable police powers of government. For example, you have the right to put a political sign up on your house, but the government can tell you, within reason, how big the sign can be and how long it might be displayed.

There are clearly places where gun owners may not take their guns. If you are visiting a friend at Folsom Prison, do not take your gun. Most federal property is posted to prohibit the carrying of firearms. Statutes make it illegal to have guns in certain parts of airports and on all interstate common carriers unless very specific rules are followed. By federal law, guns may not be taken into schools without the permission of the person in charge of the school. Many courts have rules prohibiting guns in the courtroom. Many psychiatric hospitals have rules against guns inside the hospital. In some cases these rules are imposed by law and in others they are imposed by the person controlling the facility. Each of these places have reasonable grounds based on public safety concerns co restrict firearms possession. I might disagree with some of these rules, but I cannot say that they are unreasonable in theory.

You have a right to say who may come into your home. If you invite someone into your house, you can restrict them to your living room. You can prohibit them from consuming alcohol or smoking in your home. You can prevent them from bringing their dog or their gun into your home. You can do this because you have the right to exclude them from your home. Because you can exclude them, you can admit them on conditions. This is your inherent right as the person in control of the property. If you own unimproved land, you may post it for "No Trespassing" and "No Hunting." If you rent your property to someone else, however, you surrender much of the control of your property to the tenant and there are cases that say that landlords can not prevent tenants from owning guns. If someone comes onto your property against your wishes, you can have them arrested for trespassing. Likewise if your employer says, "No gun on the job," and you violate his rule, you will be fired. The employer, as the person in control of the property, has the right to set this rule.

Some states that passed "concealed carry" handgun laws also enacted laws that allow businesses to exclude people who carry guns from coming onto their property. To the extent such laws are lawful, they are an extension of the common law of trespass which exists even if the special laws had not been enacted.

As a gun owner I am annoyed when I am barred from bringing a concealed handgun into a public building or business. If I were carrying openly, I can understand how my having a gun might upset other people. If no one knows I have a gun and the police have licensed me as being a suitable person to have a gun, I am unable to see the harm. If! were a bad person and were not licensed, I would nOt worry about signs that said, "No guns."

Some public buildings have what I consider a reasonable compromise. They provide a place for the gun to be checked. It is, after all, their property and they have met my needs by providing a place for Storage. Many stores require you to check bags when you enter. Requiring you to check your gun would not seem to be much different.

There are a number of policy questions businesses should consider before implementing a "no gun" policy. By announcing that the Store is "gun free," they are announcing that no one inside the store is armed. The bad person sees this as an invitation. In a world where no one else is armed, the person with a gun is king and unstoppable. It is no coincidence that most of the places where there have been multiple killings are places that are "gun free." I have never heard of anyone trying to rob a gun show.

Merchants have no general duty to safeguard their customers other than to maintain their premises in a reasonably safe condition and to warn customers of dangers that might not be apparent. They are not insurers of their customers' safety. They are not generally responsible for the illegal acts of third parties. That is, there is no liability against the merchant if some third party intentionally hurts one of the merchant's customers. On the other hand, if a merchant forbids people who are licensed to carry guns from bringing their legal guns onto his premises under the guise that he is protecting their safety, he has then assumed an obligation that he did nOt previously have. He has undertaken the specific task of protecting his customers. That undertaking creates a special relationship between the customer and merchant which did not previously exist. If the merchant, having created the special relationship, then fails to take other steps necessary to protect his customers from the criminal acts of others, he can be held liable for injury to his customers by the illegal acts of third parties.

Another problem arises if such businesses attempt to search their customers in an effort to enforce their regulations. The ability of a private person to detain you or involuntarily search you, is very limited. It would not cover a general search for weapons. A non-consensual touching in such cases would be a criminal battery. On the other hand, they can bar you from entering their premises if you do not consent to the search. Although passing through a metal detector might be acceptable to some customers, passing all customers through an airport type search would not be acceptable to most customers. If the store does not provide the licensed gun owner with a place to check his or her gun but forbids entry, then the store is not only creating a special relationship, but it is making a political statement that translates to, "I don't want to do business with people who have guns."

Gun owners should not support businesses who allow their anti-gun bias to move from philosophy to open discrimination. Not only should you not do business with such companies, but you should write them a very polite letter explaining how hurt you feel at their discriminating against you. An angry letter will simply be ignored as the ranting of a crackpot.

State laws that specifically encourage businesses to exclude guns owners are troublesome. For many people the ownership and carrying of a firearm is an expression of philosophy. It is a belief in the integrity and worth of the individual, common citizen. It is a statement that the one who carries a gun is not willing to be a victim and will not give up his or her life or property without extreme objection. In a large number of assaults, the mere display of a firearm expresses the intent and feelings of the licensed holder in such unambiguous terms that the assailant abandons his attack.

It is highly unlikely that a court would accept the concept that carrying a licensed gun for protection is an expression of speech entitled to First Amendment protection. However, laws imposed by some states are thinly veiled attempts by government officials to force individuals to embrace their anti-gun, anti-self defense ideology through compelled statements, or actions equaling statements. Such compulsion is a violation of the First Amendment. Although all citizens have the right to express and, within limits of public safety, act on their private beliefs, it is inappropriate for government to attempt to join the ideological battle.


This article was reprinted from Women&Guns Nov-Dec, 2003 , Copyright © 2003, Karen MacNutt

 

A Locked Case     By Karen MacNutt

Joe had reached his "golden years." He had never married, he was worried about living alone in his big old farm house. Between Roy, his hunting dog, and his shotgun, Joe was not afraid of people. He was afraid of getting sick or falling and not being able to call for help. Still, he wanted to live out his life in his home.

Joe had known the Smiths for a long while. They were nice people but they were struggling. Joe thought he had the perfect answer to everyone's problems. The Smiths should come live with him. It was a big house. They could each have their own private areas and share the kitchen and living room. Things worked well until the day Billy, Jr. came home looking to stay with his parents for a while.

Joe didn't trust Billy, Jr., the kid never seemed to hold a job very long, but the Smiths were such good people, Joe could not say no. Joe's shotgun and some other rifles were in a locked glass case in the living room. It might be better, Joe thought, if those guns were not so visible to Billy. Joe put the guns in his bedroom closet along with his coin collection and other valuables. For good measure, he put a lot of other things on top of the guns so that someone looking in the closet would not see them. Then he locked the door with the doorknob lock.

Joe's fears were not off the mark. Shortly after Billy, Jr. arrived, Joe found two of his best shotguns were missing. Joe didn't know how he could tell Mrs. Smith about his suspicions. Mrs. Smith, however, knew exactly what to do. She called the police and had her son, Billy, Jr. arrested. He confessed and then "ratted" on the friend who had the stolen property.

Everything was recovered. The police did not charge Billy, Jr. or his friend. They charged Joe for improper storage of guns. The officer told Joe, "Those guns should have had trigger locks or been in a 1ocked like a gun-securing cabinet or a secure room." The officer pointed out that the simple doorknob lock on Joe's door could be opened with a screwdriver.

The state law said that it was unlawful to store or keep a gun unless "such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user."

Although the law did not specifically mention minors, it was passed at a time when those people who always want more gun laws were focusing on accidents involving children. A number of states passed similar laws. Some specifically mentioned children. A regulation, promulgated by the state's attorney general, called for a "safety device" sufficient to deter the average five-year-old. Most people interpreted "tamper-resistant mechanical device" to mean a trigger lock or cable lock.

During the public hearings leading up to the passage of the law, the proponents talked about "smart guns." Everyone should be required to have a "smart gun." A "smart gun" would have some kind of electronic contraption so that the gun could only be fired by the owner. They claimed that "smart guns" were about [Q enter the market and make all other guns obsolete. That, of course, did not happen. Such guns are not desirable. They are inherently unreliable. Anything electronic can be jammed or defeated. A good example of this was when the City of Boston replaced all of its mechanical parking meters with electronic meters. The manufacturer claimed they were tamper proof. It took the MIT students less than 60 days to figure a way of placing time on the meters without paying.

The next gun proposal was that all guns should have trigger locks. Lever action guns or spur triggered guns cannot be fitted with a trigger lock. Thus, the language about mechanical devices or locked containers came about. At the public hearing, it was shown how easy it was to defeat trigger locks and, in one case, a gentleman presented a wooden cigar box with a small lock to show how vague the standard was. Those opposed to the storage law took the position that safety training was more effective and that the "safe storage" laws were vague, created a false sense of security, and made it difficult to keep a gun fat self-defense. It was feared such laws would deflect attention from thieves to gun owners. The law passed.

Almost everyone who looked at the law came to the same conclusion. Any trigger or cable lock or locked container met the standard. Any container, wood, glass, soft or hard sided, and any lock, regardless of quality, met the standard.

Padlock, drawer lock, display case lock, or luggage lock, it made no difference. Other courts have considered the term "case" or "container." One Massachusetts court held that a "case," as referred to in a law requiring rifles carried on a public "ay be "cased," did not require the "case" be designed for a gun. It held hat a cardboard box could be a "case" sufficient for that law. (Com. Lee). An Iowa law required the gun be transported in a "closed, fastened container." The court found hat the container simply had to be 00 large to be concealed on the lerson and a zipper could "fasten" he containet. (State v .jones). Genrally, courts that considered the ;sue have not required "cases" or containers" be specifically coneructed for guns. TSA (the federal ir security people) require that uns be locked in a "hard sided" )ntainer for travel by air. They ac~Pt a hard sided suitcase with suit- 15e type locks. The concern is pilTing. Crates with locks are also commonly accepted. After 9-11, TSA requited all bags be unlocked. That, of course, conflicted with the law requiring all gun boxes be locked. TSA now requires the gun boxes be locked but that keys or combinations be provided to the screener who will check the box and return the key. Crates, locked or unlocked, can be opened with pinch bars. Anyone who has traveled extensively knows what a fork lift or baggage truck can do to a suitcase. These containers can be broken by careless baggage handling. Cases containing guns are seldom treated differently than other luggage. They are thrown on the baggage carousel for anyone to pick up.

Joe was found guilty of improper gun storage, and stripped of his right to own a gun. That is, the crime was considered a felony. The court agreed, for argument sake, that the closet was a "container" but said the "container must not merely be locked but securely locked" and concluded that guns had to "be maintained in locked containers in a way that will deter all but the most persistent from gaining access. ... Because the lock was easily defeated ... it did not prevent ready access by anyone other than the owner.

The case is a Massachusetts case which is still pending. "Joe" is a fictitious name and some of the facts have been altered, but not the essence of the case. The State Supreme Court has been asked to take further review, but it only takes a very few cases that the judges think involve issues of public interest. The principle error of the lower court was its belief that safe storage laws were intended to prevent theft as opposed to unauthorized handling. Trigger and cable locks, will not deter theft. A thief would simply pick up the gun and run. Bolt cutters or saws-all would take care of the lock at a later time. For gun owners, Joe's case is chilling. How do you define "persistent"? or "most persistent"? By focusing on the lock, the court opens the obvious question, "Of what use is the most secure lock in the world if it is attached to a glass case?" It is a short step.

Researching locks turned up some interesting information. Early in 200 1 The Washington Post reported that the Consumer Product Safety Commission had tested 32 trigger locks in an unpublished report (this was when there was a big push for mandatory trigger locks). The CPSC found that some trigger locks could be opened by just striking them hard. All but one of the 32 locks could be opened without the key. This was followed by a flurry of trigger lock recalls by some very reputable manufactures. One company recalled 752,000 locks of six different models sold by outlets such as Wal-Mart, Kmart, Gander Mountain and Sports Authority because the two halves of the lock could be separated without a key. Smith & Wesson recalled locks they had distributed. Ruger recalled 1.2 million padlocks because they could be opened with keys other than those supplied. It also recalled 800,000 cable locks that could be opened by striking the lock. A number of police departments or public service groups found themselves recalling locks for the same reason. The problem is-there is no way of knowing if the ultimate purchaser of the lock ever received the notices. As the recalls were voluntary, there is no way of knowing if there are less reputable companies that did not initiate recalls.

Locks work by requiring a number of pins to be lined up in a certain order to release the catch. There are not an infinite number of combinations. The better locks have more pins. Still, in a market where millions of locks are being sold, the key provided with your lock is not unique. Chances are there are other locks made by the same manufacturer that your key will open. One trigger lock give away project was embarrassed to find that, after they had distributed thousands of locks, the same key would open all the locks.

If you had the best lock in the world, and you attached it to a plastic gun box, or glass paneled case, it would only deter the really stupid thief. Why pick a lock when you can smash and grab? Any portable case can be carried off by a thief as well as an owner. Well-locked businesses have metal grates to cover their display windows after hours.

"OK" the gun owner says "I'll take that closer and place three of the best dead bolt locks I can find on it." Good move. But we are now back to smart v. stupid thieves. Attracted by the dead bolts, the first thing the thief does is to look at the hinges. Are they inside or outside? If they are outside, then the pins can be knocked out and the lock defeated. The next questions is what is the lock attached to? The best lock in the world attached to one inch wooden molding is not of much use. The standard hollow core doors which are found in most houses today can be kicked in fairly easily.

Surfing through the web I found the perfect "high security door kit." It was a "GSA Class 5" approved vault door for use in government facilities for high security. It met all specs. It weighted 1,050 lbs. With a little shoring up, your house might be able to manage that. It will withstand 20 man hours against radiological attack, 40 man hours against manipulation of the lock, and 10 minutes against forced entry. From there I slid over to the really big vault doors, like the ones to the safety deposit room at the First National Bank. You know the type. The shiny steel doors with the large bolts that lock into the doorframe. "Of course," the company wrote in its disclaimer, "we only guarantee the door itself, nor the security of the vault ... The main purpose of the door is to discourage theft by its impressive size." Several pages over was an ad for a "Bolt Saw" which could adapt your Dewlap Chop Saw in to a device that can cut through the security bolts in less than 30 minutes.

So, you buy the 1,000+ pound door and secure it to your closet. What are your walls made of? Sheet rock? Any city landlord, or parent, knows sheet rock spontaneously develops holes. Okay. So you have built your house of good sturdy wood, made from trees cut down by chain saws. Hmmm! If the chain saw can cut down the entire tree, it will go through your wall. Like the three little pigs we are down to, not hollow cement block that can be punched out by any moderately sized truck, but poured concrete with rebar and a 1,000 pound door that can withstand a forced entry attack for 10 to 30 minutes. Now the questions is, would the most persistent thief invest more that 10 minutes to steal something?

The truth is that locks are designed to prevent basically honest people from being tempted to do dishonest things. No lock or fortification exists that cannot be breached or destroyed.

The court's definition of "locked container" in Joe's case in incapable of being measured. That is bad. What is worse, however, is society's propensity to blame the victim rather than address the criminal.


This article was reprinted from Women&Guns Mar-Apr, 2006, Copyright © 2006, Karen MacNutt

 

Misplaced Modifier     By Karen MacNutt

Young people tend to look at things as being black or white. They think all life's questions can be answered in certain terms. As we gain understanding, we learn a number of things. We realize language is imprecise. Most of life's events should be painted in shades of gray and everyone makes mistakes.

My January Women & Guns article, titled "FOB Syndrome," was focused on how aging impacts the marksman. It was not focused on self-defense. In one place, however, I stated ... "your goal is to place all your shots on a man-sized target at no more than 25 feet. The average defensive shooting, I believe, is 10 feet or less. Beyond that distance you probably do not have legal justification to use deadly force." An astute reader challenged the assertion that using deadly force beyond ten feet creates legal problems. I agree with the reader. Ten feet is very close. An assailant can cover that distance in a blink. In mitigation of my mistake, I would point out that what was published as three sentences began life as one sentence. During the creative process. the run on sentence was chopped up. The phrase "beyond that distance," which originally referred to the 25-foot distance, now incorrectly appeared to apply to the 1 a-foot distance.

Errors are not all bad if we can learn from them. The above mistake reaches me that I must be more careful about words used as modifiers. My error is an example of why most lawyers do not want their clients to give statements to the police. What one person intends to say, may not be what another hears. Language is very imprecise.

Lawyers often use qualifying words to avoid making direct statements which could be misinterpreted. Phrases such as, "based upon what I knew at the time," "to the best of my memory," or "to the best of my belief," are all qualifying phrases. It is hard for someone to accuse you of lying if you use qualifying words. It is also easier to alter a statement if the statement was incomplete. I used the qualifying word "probably" in my article. I stated that the use of force would "probably" not be justified. The reader who caught my error failed to see the qualifying word "probably." It is just as well. The impression left was incorrect. I am glad it was brought to my attention.

That, of course, begs the question. When is the use of force justified? As with most legal questions, the answer is, "That depends .... " How the law sees an event involves many different factors.

The first step to establish the defense of self-defense is to make sure that you are not the aggressor. Whether you are the aggressor or the victim depends upon the totality of circumstances. The facts used to prove self-defense vary place to place depending upon how much emphasis local law places on avoiding combat.

In some states you are required to retreat if you can do so safely. In other states, you are not required to retreat. Generally [note the qualifying word] you are not required to retreat in your own home when dealing with an intruder. You are not required to retreat if you have an official duty to do otherwise. If your job is to apprehend law breakers, you do not become the aggressor because you chase after them. In some states you may become the aggressor if you use excessive force. What is excessive force? Well, you would not shoot indiscriminately into a bus full of people just to apprehend one bad guy. In most cases, that would be excessive force. [Notice the qualifying words, "most cases."] On the other hand, fighter pilots now have orders to shoot down (killing all on board) hijacked airliners. This is because the harm one bad guy can accomplish with an airliner exceeds the harm caused by destroying a plane filled with innocent people. Before the September 11, 200 I attacks, anyone who suggested that the cure for hijacking was to shoot down the aircraft, would have been thought a crackpot. That perception has changed. People who object to arming air crews fail to understand the lost 9-11 reality. If a pilot kills a hijacker and twelve innocent passengers, he will have saved the rest of he passengers from being shot out )f the air by a missile. The net result is that lives are saved.

Under common law, if the aggressor breaks off the fight and tries to eave the area, his aggression is deemed to be at an end. If the person assaulted chases after the initial aggressor, the roles change and he person first assaulted becomes he aggressor. The law presumes hat the first aggression has ended. If the first aggressor is simply regrouping and intends another attack, chasing after the first aggressor may be justified. Proving intent, however, is often difficult. Most citizens should not chase after retreating bad guys because of the danger involved. Unless the circumstances are very compelling, it is just not a smart thing to do.

To trigger the right of self-defense, our life or that of another must be in danger of death or serious bodily injury. The distance between the parties is one of many factors looked at to determine if a life is really in danger. If someone is charging at you with a weapon, having stated his hostile intent to o you serious bodily injury, you may [note the word "may"] be able to take immediate steps in self defense before the attacker comes within 10 or even 30 feet of you. You do not have the right to use deadly force against anyone, even they are within 2 feet of you, simply because you find their conduct obnoxious. Their actions must place you in reasonable fear of serious bodily injury or death before you en use deadly force.

If someone three hundred yards away threatens you with a pitchfork, it is hard to justify shooting them with a rifle. The same person 10 feet away may still not be a theat if there is a wall between you.

On the other hand, if someone within arms reach of your child is threatening the child with a pitchfork, a three hundred yard shot by you in defense of the child might be justified. Even a six hundred yard shot might be justified to stop a suicide bomber or someone who has the clear intention to, and immediate means of, wrongfully taking someone's life. The immediacy of the threat and the lack of alternatives to deadly force, not distance, are the governing factors. Distance may lessen the i immediacy of the danger. Distance often increases the ability to use alternatives to deadly force.

The right to self-defense begins long before deadly weapons can be employed. Actions less than deadly force may be used in circumstances where deadly force is not available or justifiable. The best plans for self-defense start by avoiding, if possible, situations that might put you in harm's way.

Like some of you, I have been haunted by the video showing e1even-year-old Carlie Brucia of Florida being led away by a man who is now accused of killing her. The moment I saw the video, I knew the story would not have a happy ending. Several things struck me about the video that relate to a discussion on self-defense.

First, Carlie looked a lot older than she really was. I would have guessed she was sixteen. It is common for girls of that age to want to look older. The problem is that although children might look like young adults, they are still children. The law considers them children until they are at least 18 and in some cases until they are 21. Even older children lack sufficient experience to appreciate danger. The possibility of death by force or violence seldom enters into a child's or young adult's thoughts. Adults are sometimes hesitant to be graphic about who the big bad wolf is and what he really wants. This does not "protect" the child. Young people must be informed about sexual predators. They must understand that the rules of danger avoidance for small children apply to them as young adults and to you as a mature adult. These rules are for life.

Young people must understand that looks can be deceiving. Sometimes the people we need to fear are not strangers, but are people we thought we could trust. Second, although Carlie resisted slightly, she did not resist effectively. Even though children may not have the right to carry a gun due to their immaturity, they do have the right to self-defense. There are things they can do protect themselves. The NRA, AWARE and similar groups publish materials telling women how not to be a victim. Lyn Bates' column in Women & Guns frequently deals with techniques of self-defense. With some slight alteration, much of this material is suitable for older children. There is no reason a responsible child should not attend a course on the kuboton or unarmed self-defense. The fact these materials are designed for adults will appeal to the adolescent. Self-defense is not a game to be played lightly. Although we should be suspicious of conduct that is questionable and avoid situations that could lead to danger, we should not accuse people of misconduct unless it has really occurred. This is very serious business.

Children should know that there ate times that they should not obey adults. This is especially so when adults they know appear to be inappropriately intimate. If the child feels there is something wrong about a request, it is alright to tell even a teacher or member of the clergy, that they are not allowed to do some activity or they have to go directly home. The request may be innocent, but the child should know is all right to avoid complying with the request if the child feels uncomfortable. If a polite request is ignored, or there is an inappropriate touching, there are times when being loud, rude and obnoxious both with people we know and those we do not know is proper. If the situation calls for it, saying in a loud voice, "Take your hand off my bum [or whatever other graphic word fits]" is appropriate. The child should not feel ashamed to make that kind of statement. The shame is on the person doing the inappropriate touching.

Third, Carlie allowed a stranger to get close enough to grab her. That should never have occurred. We all have an instinctive set of boundaries, or defensive zone. We feel uncomfortable when people, particularly strangers, enter that zone. Most Americans like to keep people just beyond handshake distance. In some cultures or ethnic groups, the distance is smaller. We subconsciously feel uncomfortable in social groups with smaller defensive zones than we are use to. The zone is reduced at social gatherings and in very congested areas such as in busses. Even when you are packed so tightly in public transportation that you cannot turn around, convention say no one's hand should touch any part of your body.

Older children and young adults must understand that not getting close to strangers applies to everyone, not just small children. They should stand off from a car if someone stops (0 ask for directions. They should never be close enough to be grabbed. They should keep their distance from people who ask them for the time, a "light," change, directions or other things. Such questions may be innocent but they may also be a way for the bad guy to get close enough to grab the person who has been targeted as a victim. Young adults should not stop to talk to such people but should keep moving without showing fear. A shrug with the words, "I'm sorry," is an appropriate response as is making no response at all. So called "fighting words" that are inherently offensive should be reserved for only selected problems. Children should not be swayed by statements intended to make them feel childish because they are being careful. People who try to make children feel guilty about being careful are the very people children should fear.

Four, people who are in fear of being assaulted should never run or allow themselves to be taken from a public area into an alley or backyard. Carlie went from an area where security cameras were filming her to someplace out of sight. Once you are out of public sight, things can only get worse. If you have to fight someone, you want to be where someone else might see you and send for help. Security cameras are everywhere today. Being within the view of one of these cameras can be used to discourage an attack. Many people behave if they think they are being filmed.

Just as you should go through fire drills at home with your family, you should discuss with your children what to do if they are bothered by strangers or imposed upon by an acquaintance. Young people, especially girls, are sometimes afraid to stand up to aggressive adults. Some do not effectively resist our of fear of looking silly or because they have been taught not to resist. Parents must talk to their children, especially their older children. Young adults are often under the mistaken belief that adults do not have to avoid danger. If children are unable to avoid trouble, they should be told to abandoned backpacks, jackets or other property if doing so will help them get away. If they have cell phones, they should know how to call for help. They should be aware that dialing 911 may not connect them to the correct police department. The police will want to know who they are and where they are. Being able to say, "Near the corner of High Street and Main Street," is more effective than saying, "Near a mail box." Knowing how to identify where you are is important.

Most importantly, young people need to trust that sneaky feeling that something is not right. Things are not always what they seem to be and people do not always mean what they say. Evil hides in the gray areas and pretends to be what it is not. Young people need to be able to recognize evil. They need the courage to take appropriate steps to avoid or resist danger.


This article was reprinted from Women&Guns Jul-Aug 2004, Copyright © 2004, Karen MacNutt

 

A Little Knowledge ...     By Karen MacNutt

The caller said he had been referred to me by the local sportsmen's association. He was having a problem getting his gun license and he wanted to ask me a question. I should have told him to make an appointment rather than talking to him on the telephone. Thinking the question might be simple, I asked him the nature of the problem. That was a mistake. He launched into a longwinded story that seemed to recount most of his life's history. Finally I said, "Stop. Get to the point."

It seems that when he went to apply for his pistol permit, which is required in my state, he was denied a permit because the police discovered that the caller had an old felony conviction. The caller could not see why he could not get a permit. He kept saying he had a "Constitutional" right to have a gun. I explained to him that because of the felony conviction he was prohibited from having a license and from possessing a gun.

"What about my Second Amendment right?" he protested. "They do not have the right to go against the Constitution ... and the Constitution says I have the right to have a gun. "

I tried to explain but the caller simply lectured me on the Constitution and his "rights."

People who have not gone to law school seldom understand the law. Law schools teach their students a method of approaching legal issues which is different from the way non-lawyers look at problems. Law students learn, among other things, how imprecise language is.

The term "law," for example, has many meanings. There are the "laws" of physics which we must all obey. There are the "laws" of God as set forth in the Holy Book. There is the "law" of the jungle. There is the "law" of nations, which sets rules for governments to follow. There is the "common law" which is the community's historic standards of conduct. There is statutory "law" which is imposed by governments. There are the "laws" your mother set out for you as a child.

If you attempt to violate the laws of physics you will probably get hurt. If you violate the laws of God, you might burn in Hell. In the "jungle," a place where collective protection through government does not exist, the strong eat the weak. If you violate the laws of nations, you could be imprisoned or executed for "war crimes." If you violate statutory law, you could go to jail. If you disobey your mother, well!

Law is really about force. That is, it is about using force to compel behavior. There is always a "punishment" for violating the "law." As the philosopher Pascal said, "Law without force is impotent."

The only exception to the premises that law is about the collective use of force is the "law" of the jungle. The law of the jungle is, in reality, anarchy, or no law. Philosophers call this a state of "nature." It has been described as a state in which there is a constant "war of all against all."

Kings and dictators are an outgrowth of the "law of the jungle." Originally a person became king by being the strongest person in the community. The king ruled by force. People will willingly obey any dictator who can establish a modicum of peace because some order, even that of a tyrant, is better than anarchy. With peace, people can accumulate property, go about their business, and live with moderate personal safety. When one of the kings of France said, "I am the law," he was correct. What he said was law. If you disobeyed his order, the consequences were severe.

In the seventeenth century, philosophers developed a theory of "natural law." Natural law is philosophical. It constitutes the God-given rights which transcend governments and sit above laws created by governments. The right not to be enslaved, the right not to be imprisoned without due process, the right of life and self defense, the right to own property, the right to privacy, the right to freedom of belief are all natural rights given by God to all mankind. Although these "rights" can be taken from you by force, such use of force is "wrong."

Natural law was used to justify revolution from absolute authority. When Charles I of England was beheaded by his subjects in 1649, the act was justified on the basis that Charles had violated "the law." At that time the concept that kings and governments were limited in what they could do was novel. Without the concept of natural law, those who opposed a tyrannical ruler were simply traitors to society. The acceptance of Natural Law was key to the American Revolution. Our Declaration of Independence is one of the finest statements of Natural Law ever set on paper. It set forth the right of revolution based upon the philosophical "rights" of mankind.

In many societies today, the concept of NaturaI Law is not accepted. Obedience to authority is the rule. Sometimes Americans look at dictators in other parts of the world and ask themselves, "Why don't the people rise up and throw out the dictator?" In some instances the answer is, the people in those countries believe obedience to authority is just and is required by the community values. They have no basis to believe that it would be right to overthrow even the most corrupt government.

Many people in the world are denied rights that Americans would consider God-given rights. Most often, but not always, these rights are denied by governments. Even the United States government has violated these rights from time to time.

The Bill of Rights in the United States' Constitution was set up to protect certain of your "natural rights." These rights included freedom of conscience, freedom of assembly, freedom from arbitrary government action, freedom of expression and the right to have arms. It is important to understand that the Constitution did not give you these rights. Under our theory of government these are God-given rights that the government was charged with protecting. Words, however, are meaningless unless someone enforces them. Under natural law, the alleged terrotist prisoners we are holding without trial in Cuba have the same natural fights as American citizens. It is morally and "legally" wrong to hold them without trial under a concept of natural law. We continue to hold those prisoners because there is no force willing or able to prevent us from doing so. Law without force is impotent.

All of this, however, is philosophy. Law is about the application of force. The courts are about determining when and how the force of the law should be applied. On a basic level, law is what a judge (or jury) says it is. If a bureaucrat does something he or she should not do, you have two options. You may complain to the supervisor of the bureaucrat. Or, you may take the bureaucrat to court. If a court does something you do not like you may appeal to a higher court or you may go to a legislative body and try to change the law. In the United States, the ultimate supervisor is the electorate. All government is responsible to legislative bodies .who control their funding and have the power to abolish their positions. Legislators (be it a Congressman or selectman) are elected by the people. Good government begins and resides with an informed and involved voter.

Judges are not the representatives of the people even in those areas where they are elected. Judges are the last remnants of kings. In olden days the king would hold court to settle disputes among his subjects. Eventually, the king delegated his authority to judges. In much of the United States, judges are still appointed.

Judges are people just like the rest of us. Some are good and some are bad. They come to the bench with all the prejudices and shortcomings that mankind is subject to. Some are incredibly intelligent, some are not. There is nothing more frustrating than to argue a case before a judge who falls asleep during your presentation.

Judges do not work with legal theory; they work with the direct and practical application of law. Their view of the law is linked to the results they wish to see in a particular case. Theirs is a world filled with people who have been robbed, murdered, or cheated. They create the law as it is applied. The law as it is applied, is the law that governs our day to day behavior. If we disobey that law, we suffer negative consequences. It may not be fair, but it is true.

There are two ways of changing the law as it is set out by a court. One is to appeal to a higher court, the other is by legislation. When people try to change statutory law through the courts, they are admitting that they lack enough public support to get the change they want through legislation.

Attempting to change the common or statutory law through the courts is risky. In addition to a quagmire of legal rules that have to be navigated, in addition to the high legal fees, which are generated by such appeals, there is also the personality of the judge.

Some people with little knowledge of the law think that they can take their own case to court. Because they have read the Constitution, they believe they can argue its great philosophical questions to the Court. They believe that the enlightened judges will support the Constitution as the purist believes it should be interpreted.

Nothing could be further from the truth. Often people who try to represent themselves (called "pro se") take extreme legal positions. Such positions are usually rejected by judges. Not only do pro se litigants frequently lose their lawsuits, they often create bad law because they do not frame issues correctly or because they do not have the finances to rake a bad ruling to the next level of appeal.

Challenging existing laws in court must be carefully planned. The case appealed should have narrow and clearly defined legal issues. The person taking the appeal should be someone the court wants to help. That is, the underlying facts which drive [he case should create sympathy with the judges. The litigant who challenges a law because he does not like it is less likely to succeed than the litigant who is being unfairly hurt by a law.

The issues presented to the court should be framed in terms of values the judges ate known to uphold. The judges should want to achieve an end result that will require them to uphold the principals you are trying to establish. A clear, practical, public interest should exist if you want the court to rule in your favor. A ruling against you should create a result, which would offend a reasonable person's sense of fair play and justice.

Much of the battle on gun control has shifted to the courts. Many of the suits against gun manufacturers were defeated because courts could see that allowing lawyers to sue a manufacturers because a third parry misused the product is a threat to our national economy. The judges involved may not have liked guns, however they realized that the principals argued against gun manufactures could be applied against other industries with disastrous results for the American public.

Judges are now beginning to see that defining the word "People" in the Constitution as being the "States" has the same potential for harm to our society. If the question is properly framed, there is a good chance the Supreme Court will rule that the word "People" in the Second Amendment means the individual people of the United States. That ruling, however, is not the end of the argument on gun control. Poorly presented court challenges to gun laws could make any finding that the Second Amendment protects an individual right meaningless.

Yelling "FIRE" in a crowded theater when there is no fire is not protected by the First Amendment. Under the same principal, legislating restrictions on guns would not be per se prohibited by a favorable ruling on the Second Amendment. The questions will become, "What regulations are 'reasonable' given police powers necessary to protect the public?"

The anti-gun forces are already waging war at this level. If you had not noticed, every hair-brained proposal they make, no matter how draconian, is described as a "reasonable" regulation. The more times we challenge what a fair-minded person would consider a reasonable restriction on gun owners in court and lose, the less the Second Amendment will mean. That is, the Amendment will be "reasonably" regulated until there is nothing left. The concept of "reasonable restriction" is contained even in those cases on gun rights that we have won.

If we want to investigate the Second Amendment through the courts, we must be careful of the cases we pick to bring before the courts. The parties who bring the actions should be good people whom the courts will want to help. The issues we raise in court should impact on real problems that will result in a tangible, unjust result that will hurt the person bringing the suit if the court rules against them. People should not try to bring such suits without lawyers and they should not bring them unless they are willing to hang in until the bitter, and expensive, end.


This article was reprinted from Women&Guns Sep-Oct, 2003, Copyright © 2003, Karen MacNutt