Posted on 09/22/2016 1:04:37 PM PDT by servo1969
The details on the Charlotte riots and attacks on motorists trapped on the highway and others are in our earlier post.
Instapundit (law professor Glenn Reynolds) was suspended from Twitter (then later reinstated) after posting the following tweet as those riots and highway blockades were ongoing:
Professor Jacobson has asked me to address whether such an act would be lawful as a justified act of self-defense. I’m on a flight now using airplane WiFi, so I’ll make this quick. (Before I go on, however, I should point out that Professor Reynolds has added some important context to his pithy tweet, and these later comments can be found at the link above.)
In short, one would apply the usual five elements of a self-defense justification to evaluate such a use of force against others, just as in any other instance of self-defense. Those elements are, of course: innocence, imminence, proportionality, avoidance, and reasonableness.
When all required elements are present, the use of force was legally justified. If any required element is missing, whatever that use of force might have been it was not lawful self-defense.
One of the challenges to legally justifying the use of force against highway blockades is the element of imminence. Do people who are merely blocking a roadway represent an imminent threat against which some defensive force might be justified? .
A second challenge is the element of proportionality. That is, if the force contemplated to be used against them is one’s vehicle, this will almost always constitute deadly force–that is, force capable of causing death or grave bodily injury. Deadly force can be used in self-defense only the force with which you are threatened also constitutes deadly force.
Unfortunately, persons merely blockading a highway do not inherently represent an imminent deadly force threat–simply blocking a roadway cannot normally cause death or grave bodily harm to those injured. As a result, using one’s vehicle to “run them down,” or even to physically push them aside, is unlikely to be legally justified unless there is some additional threatening conduct.
It is also worth noting that if you respond to even a legitimate threat that is non-deadly in nature with a deadly force response, it’s quite possible that you will be deemed the deadly force aggressor, even if the other party was the non-deadly force aggressor. In that case the other party could well be legally justified in using deadly defensive force against your deadly force aggression.
Chilling, right?
Note, however, that so far we’ve limited the discussion to using force against people who are merely blocking a roadway. Things change dramatically if they exceed that limited conduct and being to actually direct threats or actual force against those they have blockaded.
Once a person being blockaded has been placed in reasonable fear of an imminent deadly force attack, then that person would be legally entitled to use deadly force in self-defense, including the use of their vehicle to “run them down” and neutralize the unlawful deadly force threat.
The question then is what would be required to generate a fear of imminent deadly force that would be deemed reasonable by police, prosecutors, judges, and juries.
Certainly if the protestors attempt, or reasonably appear to attempt, to forcibly enter the blockaded vehicles, this would constitute reasonable grounds to fear an imminent deadly force attack. Such conduct would include the smashing of windows or attempts to force open doors. The same applies to attempts to set vehicles on fire, or to flip vehicles over.
Note that a defender need not necessarily wait until the protestors have turned violent against his particular vehicle. If they have begun threatening or using deadly force against other blockaded vehicles it is reasonable to infer that your own vehicle is likely to be next — you are, after all, legally entitled to defend yourself not just against the danger already occurring to you but also against the danger that is about to occur, that is imminent.
I caution, however, that you can’t just speculate that some danger about to occur, you must be making a reasonable inference from actual evidence (e.g., observations) around you. “For all I knew they were about to start setting cars on fire,” is not enough, that’s mere speculation. “I saw someone approach with a Molotov cocktail,” or “I saw other vehicles ablaze” is, in contrast, evidence from which one can reasonably infer an imminent threat.
As a parting thought, there is nothing to prevent a legislature from defining the disorderly blockading of a public way as an act against which deadly defensive force can be used, such as by creating a legal presumption under such circumstances of a reasonable fear of death or grave bodily harm. The large majority of states have already created such legal presumptions justifying the use of deadly defensive force in other contexts — particularly in the context of an intruder in the home.
I’ll leave moral concerns about such an approach to the moralists, but legally there is no barrier to such a law, and a solid argument could be made that it constitutes good public policy. After all, protestors would still be free to lawfully exercise their First Amendment rights, and it would foster public order and safety.
Perhaps it is time to write your legislators, or start a ballot initiative or referendum?
--Andrew, @LawSelfDefense
Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
Self-defense is ALWAYS a valid excuse
If my vehicle is surrounded, I am driving over them
I have a nice big Dodge Ram 2500 with a lift kit. I won’t even need to scrape any nasty bits out of my undercarriage
“Your honor, I remembered Reginald Denney and I was in fear of my life”....
I would run them over, and the drop it into reverse!
They defense is that you were in fear of your life. Works in every state I know of.
LOL, I always thought you might drive a big rig like that, Mr.K.
If surrounded by a pack of looting thugs, I’ll put the pedal to the metal and let the chips fall where they may.
I would do the same.
I can’t for the life of me understand why anyone would actually stop.
I like the Flamethrower under each door idea
Thank you, very interesting and hopefully never useful information.
Better to be tried by 12 peers instead of carried to your grave by 6 pall bearers.
Goes without saying. Always better to be judged by nine instead of carried by six.
Proceeding intently along the roadway is not "running them down." Changing direction to target someone is running someone down.
-PJ
Reginald Denny is an object lesson and historical precedent here
Personally?
Driving around a group blocking the road seems reasonable and no one gets hurt.
Driving away around people quickly seems reasonable if someone throws stuff at my vehicle that could damage my vehicle and/or hurt me.
If people want to throw themselves in front of a person driving away to try to keep that person from driving away, they will win Play Stupid Games, Win Stupid Prizes.
Preventing someone from having freedom of movement is kidnapping. Use of deadly force is always justified against attempted kidnapping, because that is a “forcible felony”, just like rape and murder.
Why is the stupid question being asked?
criminal gangs have no right to surround your vehicle, it involves threat, meanace, and raises probable hostage-taking and kidnapping charges, etc
i cant give any legal advice of course, but if they try it on me, I will ask them to let me leave and then if they keep me imprisoned i will tell them i intend to leave by shifting into gear and pressing my gas pedal. if they don’t clear a path they will get hit, period.
to hell with the thugs!!!!!!!!!!!!!!!!!
if they want to call the police, fine and dandy i will deal with that when and if the time comes. meanwhile, they WILL I PROMISE YOU not imprison me on the public way
to HELL with the thugs!!!!!!!!!!!!!!!!!!!
(and if people drive thru them ,, they’re still DAMned lucky folks don’t just blow their brains out)
“If my vehicle is surrounded, I am driving over them”
If I felt the only way to preserve my life would be to drive over them, I would too.
The outcome would be just totally nasty. Anyone defending themselves in such a manner would be tried in the MSM much the same way the various cops that have killed these dirt bags have been. More riots would occur at the defendants home, the home would be destroyed and violent acts likely carried out on anyone inside. The cops would try to help, butt our dear democrat/commie friends would just keep race baiting, lying and doing their best to fan whatever flame that may exist.
obama and Hitlery would take to the cameras statements supporting the riots and condemning the innocent.
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