Is Self-Defense “Broken”?

As day follows night, pundits masquerading as news reporters hook up with hitherto unknown law profs whose passionate theories mattered to no one whenever a high-profile case doesn’t go the way they believe it should. This time, there are two happening simultaneously, and if two outliers don’t prove a pervasive problem in need of fixing, what does?

The Kyle Rittenhouse and Ahmaud Arbery cases raise intriguing legal questions about people who take the law into their own hands and then claim self-defense when someone dies.

The two cases have some similarities, but far more differences that make any comparison insufferably shallow and flawed. But why let that get in the way of making the point?

In one case, Kyle Rittenhouse fatally shot two men and wounded a third in the unrest following a police shooting in Kenosha, Wis. In the other, Ahmaud Arbery, a Black man, was shot after a pursuit by three white men who said they suspected him of a series of break-ins in the neighborhood. In both cases, the defendants claim they were entitled to start shooting because the victims were trying to take their guns.

“In other words, their own decision to carry a gun became a justification to use it, lest it be wrested away from them,” said Eric Ruben, an expert on the Second Amendment at the S.M.U. Dedman School of Law in Dallas.

That a defendant argues self-defense does not mean it’s either a winning argument or even a valid claim. There remain facts to be proven or disproven that provide legitimacy to the claim and put it in issue. If the facts aren’t there, can’t be proven or are disproven, then the claim fails, as the law requires.

For legal experts like Mr. Ruben and others, these two cases expose deep fault lines in the legal and moral concept of self-defense, a doctrine that is particularly cherished in America but ill-equipped to handle an era of expanded gun rights, growing political extremismviolent threats and a strong vigilante strain, all in a country where the perception of threat is heavily influenced by race.

The problem reveals itself in this framing, that what’s legal may not be sufficiently “moral” to the New York Times, and the “era of expanded gun rights” is about white supremacist vigilantism and right-wing gun nuts. There would no self-defense problem if it wasn’t for all these racists carrying guns who create a situation that threatens good people, forcing them to react in their own reasonable fear of a deadly threat, giving the white supremacists cause to claim their own fear of death from the good guy, and since the bad guys are the ones with the guns, cause to kill.

“The problem is that with a citizenry armed with guns, we have blurred every line,” wrote Kimberly Kessler Ferzan, a professor of law and philosophy at the University of Pennsylvania, arguing in the Texas Law Review that a potent mix of “stand your ground” provisions and citizen’s arrest statutes have given people license not just to defend themselves but to go after others. “What is defense? What is reasonable? When may one stand one’s ground and when must one retreat? And, when is a citizen entitled to step in as an aggressor in the name of the state?”

The rifts have surfaced in several debates, beginning with whether openly displayed guns make the bearers feel safer at the expense of everyone else, whether brandishing a gun constitutes a criminal threat or an act of self-protection, and whether people can benefit from self-defense claims if their own actions contributed to the volatility of a situation.

How “stand your ground” found its way into this proposition is unclear, other than the fact that it’s been a hot issue since George Zimmerman was acquitted for killing Trayvon Martin, even though it wasn’t invoked in that case.

To be fair, the article provides a fair recitation of the law of self-defense, that the initial aggressor cannot claim it in reaction to the person trying to defend himself from harm. But as rational as that may be, the article contends that it’s not sufficient to address the quandary.

Experts say self-defense, vigilantism and policing are deeply connected — all are deeply racialized American traditions in which Black people, particularly men, are more likely to be viewed as threats and white people are more likely to be given the benefit of the doubt.

It’s unclear who these experts are or to whom this refers. Is the problem that cops, or prosecutors, are too racist in their perception of the claims, or is it that the jury is too racist in its finding of facts at trial?

In an analysis of homicides done after Trayvon Martin’s death, the Urban Institute found that cases with a white perpetrator and a Black victim were 281 percent more likely to be ruled justified than cases with a white perpetrator and white victim.

The statistic seems damning, but without the specific facts of each individual homicide, it’s meaningless. Maybe every ruling was correct and the race of the “perpetrator” or “victim,” an ironic choice of words that beg the question, had nothing to do with it. But that doesn’t stop the syllogism* from pushing forward.

Cynthia Lee, a law professor at George Washington University who is known for her model statute on police use of force, has begun work on a universal definition of what constitutes an initial aggressor. It would add another option to laws like Wisconsin’s, which says the aggressor must have intended to provoke violence with a plan to retaliate, a difficult thing for prosecutors to prove. And it would provide for special scrutiny when guns are involved, whether or not they were legally present.

“If you display a firearm or you point it at another person, that’s a threatening act that ordinarily would give, I think, a reasonable apprehension of death or serious bodily harm,” she said.

This basically flips the law, making the person who displays or points a gun the presumptive initial aggressor and thus unable to invoke self-defense rather than rely on the particular facts at issue in the particular case. After all, we have two high-profile cases on our radar at the moment to drive this change, and, as the NYT informs us, “experts” tell us the race of the people with the guns.

*The syllogism:

Something must be done.
This is something.
This must be done.

20 thoughts on “Is Self-Defense “Broken”?

  1. Elpey P.

    The 281% disparity in self-defense claims is another example of “experts” putting their narrative above rigorous analysis. The disparity between interracial crime rates is so pronounced that disparities in self-defense claims shouldn’t surprise anyone. (And of course the disparities continue upstream from there, with fools and racists stepping off the analysis when they arrive at a disparity they find useful.)

    By stupidly making this discourse hinge on identity and gun possession, instead of violent criminal behavior, they are arguing for a revival of a paradigm that was explicitly racist (as the hypothetical “what if” scenarios easily demonstate) and that sets up their favored demographic to once again bear the brunt of its application.

  2. B. McLeod

    No mention of Breonna Taylor’s boyfriend being cut loose because of his self-defense claim? Presumably these pundits believe he should have been tried and convicted anyway, rather than tolerate this evil defense.

      1. Anonymous Coward

        Jaleel Stallings was a member of a favored group being attacked by a disfavored group. As with so many hot issues such as defensive gun use and serial misconduct the affiliation of the accused is far more important than innocence or guilt. In the Rittenhouse house, he was opposing! BLM riot so the men who tried to kill him are heroes and martyrs, even though Huber and Grosskreutz were actually white vigilantes. Arbery was a black and thus a privileged and favored victim regardless of his actual criminal record and behavior. The Trayvon Martin case is a similar pattern.
        This latest emanation in a long campaign against self defense and for gun confiscation is about race, and political affiliation and not morality

        1. SHG Post author

          They can’t write laws that expressly distinguish between what’s allowed by black people v. white people, much as some people would like to.


      So the way Cynthia Lee has it, if you’re in the process of getting mugged and you show or pull your pistol to stop said mugging, you give up any pretence of self defense because you provoked the other party?

      Maybe I read it wrong?

      1. SHG Post author

        It would be a rebuttable presumption, which means it wouldn’t be conclusive. That said, it shifts the burden to the defense to rebut the presumption.

  3. Vincent Morrone

    Part of the problem is people don’t want to let facts get in the way of the accepted narrative. They see Rittenhouse as guilty, therefore any fact that gets in their way is dismissed. I’ve seen it argued that if the gun was illegal, he loses his ability to claim self-defense. That seems to be like if I’m in possession of illegal drugs, you can attack me and my defending myself is murder. If I’m underage and drinking, you can try and kill me and my defending myself is null and void.

    From a layman’s POV, it seems different if I provoke you to attack so I can kill you and try and excuse it as self-defense. But many seem to have decided that Rittenhouse being there with a gun was justification for others to attack. (Never mind that one admitted to having a gun.)

    I’ve seen people quote laws about citizens’ arrest saying that the people who attacked Rittenhouse were justified. That might be an argument to make if we were prosecuting them, but not for prosecuting Rittenhouse himself.

    And the ability to believe Rittenhouse was irresponsible to go there with an assault rifle but not believe that equates to being a racist murderer is also gone. One doesn’t have to think Rittenhouse is a hero to give him the benefit of the doubt.

    1. SHG Post author

      This is about a very specific legal issue, changing the law of self-defense, not factual issues or random legal claims floating around twitter.

  4. Rengit

    Cynthia Lee’s argument that displaying a firearm should create a “reasonable apprehension of fear”, limiting the ability to claim self-defense, is bonkers. Open-carry is legal in more states than concealed carry is, and concealed carry frequently requires a permit even in states with looser gun laws. Some states even have a constitutional right to open carry, which would seem to be at odds with Lee’s model law. If anything, guns become more dangerous when people have them in their waistband. The point of open carry is that you’re not acting suspiciously, like a mob assassin, and that you’ve laid all your cards on the table; it may be intimidating to talk to someone who is openly displaying a gun, but unless you’re thinking about punching them in the face, pulling a knife, or, I don’t know, threatening to burn down a business they’re standing in front of, why would you be intimidated?

    1. SHG Post author

      There are some constitutional rights that are preferred over others these days. And there is one that a lot of prawfs don’t particularly like at all.

  5. Paleo

    “Their decision to carry a gun became a justification to use it”. No, this isn’t true at all. Another person’s decision to attack them became the justification. If Rittenhouse had just started shouting people willy nilly absent any action from someone else there would be no self defense to argue.

    Oh, and they still have no idea if either defense will work.

    These people are intelligent people who’s brains have been broken by politics, looking for some reason to punish someone from another tribe. And of course they have no solution – they just want the shooters to go down regardless of the two cases.

    1. Rengit

      According to the people who make these arguments, anyone who carries a gun is Charles Bronson in Death Wish, walking around at night in a dangerous neighborhood with a grocery bag and a gun concealed at the bottom of the bag, finger on the trigger just waiting for muggers and robbers to appear. Except the gun isn’t even concealed; would-be attackers can plainly see it.

      1. SHG Post author

        The arg is someone possessing an open weapon under the circumstances was doing so for the purpose of evoking a reaction, and once the reaction was evoked, it provided the self-defense justification. The problem with the arg is twofold: First, people have openly carried guns before and since without evoking a reaction or shooting anyone. Second, carrying an open gun does not compel anyone to react aggressively. If they felt threatened by the sight of the gun, run the other way rather than at him, whether to disarm him or to take his gun and use it against him.

  6. Paleo

    It’s obvious that he was itching to use that gun by the way he tried to run away and only shot his pursuers once they were at the point of doing him physical harm. If he just wanted to shoot people it was a target rich environment.

    I kinda hate defending the kid because he went and stuck his nose where it didn’t need be (which can also be said of the people he shot). But from what I can tell it was clearly self defense. If the first guy didn’t have anger issues (based on video of his behavior before the shooting) odds are we’d have never heard of this kid.

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