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.
Raise it up high enough and you can place ball turrets, (belly and dorsal), on it.
No real weapons of course, but some loud electrical noises as the turrets raise or lower themselves from the vehicle, accompanied by a mechanical voice, a la Robocop, saying “You are ordered to disperse, you have three seconds to comply”, would probably induce the crowd to disperse. LOL!
O.K. ... just letting my inner six year old play for a bit.
Also disparity of force comes into play. You might be able to use greater force than othersise if you have disparity of force issues on your side.
Surprise attack/ambush, being just one of many examples.
Exactly. Which is why you go as soon as they start doing anything to other folks vehicles. You dont have to wait to be a victim first.
Well said. You captured my thoughts in a very pithy manner.
I thought a hit in reverse could deploy airbags too.
Crap I hadnt thought about this.
My understanding is that air bag sensors are in the front bumper and in the doors for cars with side air bags.
From www.safercar.gov
Frontal air bags are generally designed to deploy in “moderate to severe” frontal or near-frontal crashes, which are defined as crashes that are equivalent to hitting a solid, fixed barrier at 8 to 14 mph or higher. (This would be equivalent to striking a parked car of similar size at about 16 to 28 mph or higher.)
Thanks, interesting, good to know.
The Range Rover guy had a totally different scenario, which was bikers, most likely not at all affiliated with the dem party, Sorros, the BLM or any other racist bunch.
The cops in Baltimore should never have been charged with anything, George Zimmerman (you know, the “white” hispanic), never should have been charged. Much the same as the folks I just mentioned, if anyone kills in self defense a race rioter, they will be charged.
Apply the brake sparingly, to create drag on the freely turning wheel, forcing some transfer of torque to the one on solid ground. Coordinate simultaneously applying brake pedal and gas pedal to maximize traction.
Twitter can do without me, as I can certainly do without Twitter.Reynolds was later reinstated.ANOTHER UPDATE: Erik Wemple of the Washington Post emails that “Keep driving” would have been a better formulation of what I was trying to say. It would have been, and in only two words instead of three. But I’ve had over 580,000 tweets, and they can’t all be perfect.
Here's Reynolds being interviewed by Hugh Hewitt on this subject:
http://www.hughhewitt.com/glenn-reynolds-instapundit-reacts-suspension-twitter/
From that interview:
HH: If you had it to do over again, would you post the same tweet?GR: Oh, I don’t know, maybe, maybe not. Probably not. It’s got me on the radio with you this morning talking about it instead of having my normal morning.
HH: Yeah.
GR: But I have to say I don’t apologize for the sentiment. I think that this tactic of blocking people on the interstate and surrounding cars is itself violent. It is threatening. It is not peaceful protest, and it should not be permitted.
After seeing that tweet, I was imagining what it would be like to actually be in that situation. I would avoid protest areas like the plague, but one never knows if something like that could occur by some terrible chance.
Praying that never happens!
Same here.
And I see a lot of comments around here about shooting or running over people. But even when such actions are done in justifiable self-defense it must be very hard on the shooter afterwards.
Now, now Reggy forgave those thugs, we should too.
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