By David French
Wednesday, August 21, 2019
Yesterday the Michigan Court of Appeals handed down a
decision in a highly public and very controversial case that gun owners across
the United States should applaud. In short, it demonstrates and validates the
value of armed self-defense even when you do not pull the trigger and —
crucially — have no cause to pull the trigger. It justifies the brandishing of
a gun as pre-emptive measure to block the use of unlawful force.
What do I mean? Hang with me for a moment, because this
case is a bit complicated. At its heart is a dispute between Siwatu-Salama Ra,
an African-American concealed-carry permit holder from Detroit, and a woman
named Channel Harvey. Ra was put on trial for assault with a dangerous weapon
and possessing a firearm while committing a felony after she brandished her
unloaded pistol at Harvey during a heated confrontation outside Ra’s mother’s
house.
The facts are hotly disputed, but Ra claimed that during
the course of an argument, Harvey backed her car into a vehicle into Ra’s car —
while Ra’s two-year-old daughter was inside, playing. Ra claims she grabbed her
daughter out of the car, then grabbed her unloaded gun, “pointed the gun at
Harvey’s car” and then again demanded that Harvey leave. Harvey testified that
Ra was the aggressor, and that she hit Ra’s car on accident only after
Ra pointed the gun at her. The jury apparently believed Harvey’s version of
events, and Ra received a two-year prison sentence.
The case was immediately controversial, with critics of
the verdict claiming that the case represented “yet another instance of a black
gun owner, with the permits to legally carry, defending themselves against
violence — and getting punished for it.” The NRA tweeted in support of Ra.
Yesterday the Michigan Court of Appeals threw out her
conviction. It didn’t hold that the jury got the outcome wrong but rather that
it didn’t have a true opportunity to get it right. It was improperly instructed
on the law, and the trial court placed too high a burden on Ra to justify her
decision to brandish her weapon.
The jury was instructed only on the affirmative defense
of self-defense through the use of “deadly force.” To prove that deadly force
was appropriate, a defendant has to prove that she “reasonably believes that
the use of deadly force is necessary to prevent the imminent death of or
imminent great bodily harm to himself or herself or to another individual.”
(Emphasis added.)
Under this reasoning, a person could brandish a weapon
only when she has the legal right to fire the weapon.
The court of appeals, however, said that’s not the law.
When one brandishes a weapon without firing it, they don’t, in fact, use
“deadly force.” They use nondeadly force, and the legal standard for the use of
nondeadly force only requires the defendant to prove that she “reasonably
believes that the use of that force is necessary to defend himself or herself
or another individual from the imminent unlawful use of force by another
individual.” (Emphasis added.)
Under this reasoning, a person can brandish a weapon to
prevent the imminent use of force from escalating to a threat of imminent
death.
As the court noted, “merely to threaten death or serious
bodily harm, without any intention to carry out the threat, is not to use
deadly force, so that one may be justified in pointing a gun at his attacker
when he would not be justified pulling the trigger.” There’s a commonsense
element to this conclusion. Police officers, for example, sometimes point a
weapon at an individual as a means of preventing unlawful force even when they
don’t have the legal right to fire a shot.
Crucially, this legal doctrine does not create a license
to kill. Nondeadly force becomes deadly force the very instant a person pulls
the trigger, and when a person pulls the trigger they have to prove the threat
of imminent death or great bodily harm. The doctrine does — as a practical
matter — allow citizens to use the threat of decisive force to deter unlawful
violence.
A contrary rule places civilians in an untenable
position. They could not even pull their weapon until the threat of death is
actively upon them. They would be forced to maintain maximum vulnerability
right up until the point of maximum danger — a legal position that would be
most threatening to people of slight physical stature who lack alternative
effective means of self-defense.
Now, some important caveats. This is a Michigan case.
It is not setting rules for other jurisdictions. Don’t rely on Michigan law to
determine your actions in, say, Ohio. Moreover, even under legal standards
similar to Michigan’s it’s still a grave decision to pull a weapon from a
holster or from the glove compartment of your car. It’s legally consequential
and extremely dangerous. But the Michigan case outlines what should be the
proper legal standard. The sight of a gun has the power to deter violence, and
banning its use outside of the threat of imminent death would — perversely
enough — allow too many confrontations to escalate.
Prosecutors have a right to appeal the decision to their
state supreme court. They should not. Ra has suffered immensely. She gave birth
while imprisoned, and her child was taken from her two days later. She spent
months separated from her newborn – after a conviction under the wrong legal
standard. The court of appeals reached the just result. Ra’s legal ordeal needs
to end.
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