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.
In Kentucky it is. All you have to say is, “That video of Reginald Denny kept going through my mind.”
In Kentucky, if you fear for loss of life or great bodily harm, it is legal to use lethal force.
We just had a case where a guy was the aggressor in a road rage case, but he was only verbal. The other guy then came at him with a baseball bat, at which point he shot the guy with the bat dead. He was found not guilty. He feared for his life of great bodily harm (one whack with a bat can kill you), justifying his use of deadly force. Who started it is not germane. It’s who escalated it that matters.
They surrounded my car and were screaming at me and beating on my car. I was afraid for my life. I would like to speak to my lawyer, please.
The problem is that once they come at you, it may be too late. They could be milling around, no threat at all...then 3 seconds later your window is crashed and your skull next.
Reginald Denny would have been better off had he kept on truck’n.
A reasonably slow steady drive forward is good. They cannot resist it, and will quickly fall away. It would also demonstrate that you did not have the goal of causing harm to them...only to escape.
Coming to a dead stop in the middle of an ambush is a really bad idea. It’s the worst possible thing you can do in fact. US military doctrine is pretty consistent on this.
The problem I see is it only takes one libtard at the front of the line to lock up the whole street. Then you really are a sitting duck, and likely don't even have a route to escape by car if you want to.
I am afraid we will have a test case before too long the way things are going......just remember, they started it.
It’s crucial information posts like this that makes FR So essential!
Grateful FR (lurker devotee since 1998)
“If surrounded by a pack of looting thugs, I’ll put the pedal to the metal and let the chips fall where they may.”
You read my mind. And if that isn’t enough, I’d call on Mr. SigSauer to help out.
Watch its inventor demo it:
Remember reading about that car side flame thrower enterprising S. Africaner marketed during SA’s turbulent late 90’s
Had a pal who wholly messed up a dude at Fair Park. I mean bad. Ran off but called DP. SAID you find him. He was not gonna stick around. I would have done the same. Krav maga.
Is having a tail gunner a problem?
This is a pretty good analysis by Legal Insurrection of the legalities involved, thanks for posting it.
The things you should say to the police: I want a lawyer. I feared for my life.
would of been nice to see Counselor Branca include specifics regarding NC Castle doctrine in the article.
“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”
until the 18 wheeler plows into your back end.
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