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.
when I say to Hell with the thugs, i do not mean to imply i wish to harm anybody. very much the contrary.
that’s what my requests they let me pass were for
but as brave as i’d act, i would definitely be in terrified fear of my life to be surrounded by a gang of apparently very dangerous and certainly very meanacing law breaking thugs or gangsters, and so while I would drive away at the slowest safe speed consistent with achieving an effective escape from the danger of being killed outright by the thugs, .... and while i hope they would walk out of the path of my vehicle or, failing that, that they would just bounce off unharmed, I would definitely have to continue driving to achieve my escape from a threatening, dangerous surrounded status to a safe haven
then call the police and report what happened, fine and dandy
but GET TO SAFETY !!! that’s priority, otherwise they very well just might carry out their threats and you will be Pushing Up Dasies faster than you can say “ALLAH SUCKS”
“If surrounded by a pack of looting thugs, I’ll put the pedal to the metal and let the chips fall where they may.”
Hell yeah. Rioting thugs are already up to no good by being there in the first place, and it is all a matter of personal protection. Perfectly legal to drive straight down the road.
The lawful occupant gets the presumption of innocence, even if the perp hasn't gottten inside.:
"The lawful occupant of a home, motor vehicle, or workplace is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or serious bodily harm to another if both of the following apply:
"(1) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a home, motor vehicle, or workplace, or if that person had removed or was attempting to remove another against that person's will from the home, motor vehicle, or workplace.
"(2) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred."
“They were attempting to break into my vehicle and pull me out. I was in fear for my life.”
According to Vice President Joe Biden, you should have your wife fire a shotgun out the back window.
Pennsylvania has Castle Doctrine,also. RUN THEIR AZZES OVER.
Wow, this question presents a huge, moral dilemma.
1) Do I first lay down a supression fire of automatic bullets, then run them down?
2) Do I run them down first and dirty the undercarriage of my vehicle, then shoot?
Note: Get out in reverse. If you hit someone hard enough to set off the air bag you are toast, as air bag deployment will disable the vehicle.
So there you are, having just run down a few folks, dazed from an air bag that just went off in your face, in a car that will not run, surrounded by a mob that is even angrier than before.
I say again, get out in reverse.
I think it’s even better than that. You get the *automatic* presumption that you were in fear for your life, if (1) the perp was illegally and forcibly entering, and (2) you had reason to believe he was.
I was just providing the correct statement to make as far as the statute is concerned, for any driver who might have the misfortune of being caught up in a raucous mob blocking a highway in NC.
Legal in South Africa!!
It is better to be judged by 12 than carried by 6.
I know that patriots are angry about this issue. But common sense says no, do not run down rioters if all they are doing is blocking your vehicle.
Drive a mazda 6. Got hit in the back with the truck doing about 40. No damage!!! PRobably the alignment of truck with bumper.
Either way, mazda 6 isn’t gonna cut it. Gonna have to grab louisville and head out the door!!
Either that or do like me and drive around in a 25 year old truck that does not have airbags. I have the luxury of being able to shift into low gear and plow on through.
No good solution in that scenario, with your vehicle anyway.....have a plan, and have a back-up plan.
I know what you mean.
But I find it interesting (and great!) that from a legal point of view, you could not say anything, and the burden would be on the state to prove that you didn’t fear for your life, rather than on you to prove that you did.
No need to speculate. The guy in the Range Rover wasn’t charged with anything.
I ain’t stopping unless there’s no alternative. If my forcibly stopped vehicle is approached by rioters it will look like Imperial Japanese soldiers piled up in front of a 1st Marine Div. machine gun nest at Guadalcanal.
"...Get out in reverse due to airbag deployment..."
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.