Seeing my own post up, it occurs to me "consider longer periods of time than the moment of action" might help in all those cases I cited.
Yeah, I feel like 1 is the best answer. At least until we get around to somehow making the culture in general less racist.
I have useful thoughts about half of this -- the half that's about making self-defense less available as a license for mayhem. There, I think two things would help. First, I want to put the burden of proof back on the defense for self-defense, and make it something that had to be proved by a preponderance of the evidence rather than disproved beyond a reasonable doubt. Once anything chaotic is happening, proving beyond a reasonable doubt that a killer didn't have a reasonable fear that someone would hurt him is going to be impossible, as we saw in Rittenhouse's case.
The second thing I don't have as much clarity on, but I'd want to tweak the rules around what it means to instigate violence so as to deprive you of a self-defense claim. Now, as I understand it, that doesn't kick in unless you actually make a violent attack on someone else. But the Rittenhouse situation, where he put the people around him in reasonable fear that he was going to shoot someone by opencarrying a rifle in a chaotic situation, they responded by trying to chase him away, and he took their reaction to his initially threatening behavior as a justification for killing them -- I'd like to see that kind of initially threatening behavior as a bar to pleading self-defense as well.
How to use self-defense to better protect abuse victims, though, I'm not sure. It almost seems to me like the problem there isn't the law, it's the individual discretionary decisions made by prosecutors, and I don't know how to change that except one at a time.
The KR case is maddening because it seems obvious that an untrained kid playing cop with a big gun at a riot is likely to end badly and that's in fact, that's what happened. But a) I don't know how one fixes it legally or b) that it would matter much anyway given racism. Is a law that says "don't be a dumbass" going to be applied fairly to non white kids who shoot people?
How to use self-defense to better protect abuse victims, though, I'm not sure. It almost seems to me like the problem there isn't the law, it's the individual discretionary decisions made by prosecutors, and I don't know how to change that except one at a time.
I am not a lawyer, but it seems like the two challenges are (1) the legal system does not want to endorse a general principle of, "if somebody does something bad to you, you can legally retaliate." (2) the legal system requires some element of actors using their own moral intuitions -- it can't function as a purely rule-based system but, at the same time, legal principles should be more precise than, "as long as it generally fits within our moral intuitions" because people will have wildly different moral intuitions. (3) The legal system will not reliably produce moral or just outcomes in any individual case (in the Rittenhouse thread I mentioned my own experience on a jury and, in that case, I regret the verdict we decided on, but I'm not sure that any verdict would have served the people involved well) but (4) we still need to attempt to work towards a system that produces passably moral and just outcomes in the aggregate.
My point is that, in many or most cases people will correctly feel, "I could do a better job than the legal system in this instance." and yet I would still like to defend the legitimacy of the legal system (and figure out how to improve it).
I'd concur with 1, but better to overthrow the aristocracy of the gun, whereby the actions of the gun enjoy deference and propitiation.
I am sympathetic to 3.2 but I'm not sure it works:
I'd like to see that kind of initially threatening behavior as a bar to pleading self-defense as well.
How much work is the word "initially" doing there? In non-legalistic terms it feels sensible to try to figure out who started it, I guess, but I'm not sure it's going to be possible to litigate, even to a preponderance standard. You'd have to decide exactly when a particular incident crossed the threshold into "self-defense is reasonable now" territory, and then figure out who was responsible for pushing it over the line. I expect things usually escalate on a continuum and pinning down details will be impossible.
There's no room for arguing Rittenhouse is guilty of intimidation? Or brandishing? (Displaying a weapon with intent of placing another person in fear)
Probably. The judge was taking fanboy photos with Rittenhouse before the verdict was in.
Would it be possible to specifically disallow the argument that "I was afraid [the victim] would take my gun from me and shoot me with it"?
That might at least get rid of some of the most ridiculous self-defense claims by people who escalated a situation in the first place by bringing a gun to it.
Perhaps another workable rule would be "If you brandish a gun at someone who is not actually committing a felony, then you can't claim self-defense for anything that happens after that." This would put the risk of making a mistake on the gun-brandisher instead of on the other person. It would mean you'd better be damn sure of what's going on before you menace somebody with a gun.
"Brandishing" is a thing, but a much harder thing when states have decided to permit open carry.
If you brandish a gun at someone who is not actually committing a felony,
How does anybody know the other person was actually committing a felony, either in the moment or at the subsequent trial where the self-defense claim is advanced? Does the victim have to get convicted? Or is it just a reasonable belief in the mind of the shooter? If it's the former, your exception is so tiny as to be meaningless. If it's the latter, we're back where we started.
I think you mean something in between but closer to the former, but to administer that would require that the court find facts (beyond a reasonable doubt? to a preponderance of the evidence?) about the behavior of people who aren't there to defend themselves against this almost-charge of an actual felony. That's why the standards tend to fall back on the reasonable beliefs of the defendant, who's actually on trial.
Some places require a self-defense defendant's fear to be "objectively reasonable" instead of merely subjectively true, which is a step in the direction you're talking about, I think, but it's also hard to administer.
14: Put the burden on the party claiming self-defense to prove by a preponderance of the evidence that the victim was actually committing a felony - not merely that the shooter had a reasonable belief. And the felony can't be "he was trying to take my gun and shoot me with it."
14: Put the burden on the party claiming self-defense to prove by a preponderance of the evidence that the victim was actually committing a felony - not merely that the shooter had a reasonable belief. And the felony can't be "he was trying to take my gun and shoot me with it."
Well, it didn't work for the killers of Ahmaud Arbery at least. They had worse representation than Rittenhouse, it seems.
16: I think that goes too far. What is an armed police officer supposed to do if someone is really trying to take her gun and shoot her with it?
18 Well, Arbery's conduct was pretty different from Rosenbaum's. Neither deserved to die of course.
16 -- By this standard, vigilantes would be permitted to take guns from any armed protesters and shoot them with them.
I tend to think the right answer is to expand the time scope for negligent homicide and/or reckless endangerment -- the problem though, esp with the latter, is that this change would basically criminalize anyone bringing a gun to a protest. Which leads to (a) more arrests and (b) more shootings by police.
Really completely baffled why "you can't bring your gun to a protest any more" is a problem. That sounds like a fantastic outcome.
I never have, tbc. And would not. But lots of people want to and are going to. Police are going to be armed, and vigilantes probably too, but they wouldn't get charged unless they shoot someone.
I don't have one in my house either -- it has always seemed to me that a gun is actually more likely to be a net loss in terms of safety. But I'm in a distinct minority in this country in thinking so.
19: I'd have a different rule for armed police because they have to be armed as part of their jobs. What I'm trying to do is have a rule that discourages civilians from escalating dangerous situations by choosing to bringing guns into them.
My theory is that if you choose to bring in a gun, you shouldn't then be able to take advantage of that by manufacturing a justification for shooting people with it. If some unarmed person is really seriously trying to take your gun (which seems like an uncommon thing unless you're already scaring the crap out of people with your gun), then you should get out of there, not be given a free pass to start shooting.
I'm thinking about this in terms of who should have to bear the risk of armed civilians shooting unarmed civilians. I want to put as much of the risk as reasonably possible on the person who chooses to bring the gun into the situation, because I want people to think twice before bringing in guns, and to be maximally cautious and disciplined with their guns when they do decide to bring them.
The general public can't do a lot to control the level of risk they're subjected to by a guy like a Rittenhouse or Zimmerman. The guys who want to carry guns can at least be given incentives not to be reckless with them.
27.2 The thing about KR is that all three people he shot had some genuine control over their level of risk, and made choices that led to their being shot. The first guy's choices seem kind of reckless, and in the wake of that, the second two took calculated risks to protect others. None of them deserved to die, of course.
I don't think there's a legal fix in the current culture.
28: True. The first victim seems to have perhaps been reckless in trying to disarm Rittenhouse. But Rittenhouse was himself reckless by bringing the gun there in the first place. I think the law should be stricter on armed reckless guys than on unarmed ones.