Would Texas Bill H.B. 868 Make it More Likely that Teachers Will Shoot Students?

Commentators at Daily Kos and ThinkProgress believe it will. From the ThinkProgress article:

People who are concerned about the use of excessive force by law enforcement may have to deal with another fatal can of worms. If Texas state Rep. Dan Flynn (R) gets his way, teachers will have the right to use deadly force against students in Texas classrooms, in the near future. 

The Lone Star State already permits teachers to have firearms in the classroom, but H.B. 868, also known as the Teacher’s Protection Act, would authorize instructors to use “force or deadly force on school property, on a school bus, or at a school-sponsored event in defense of the educator’s person or in defense of students of the school that employs the educator.” Instructors would also have the right to use deadly force “in defense of property of the school that employs the educator.” Moreover, civil immunity would be granted to those who use deadly force, meaning they would not be liable for the injury or death of student.

Such a bill could have disastrous consequences for students of color. A coalition of civil rights organizations found that black and Latino students face much higher rates of disciplinary action in schools, which exacerbates the so-called school-to-prison pipeline. By extension, if students of color are already disproportionately targeted by school authorities for their behavior, they could also become the targets of deadly force used by educators.

Additional coverage from the Houston Chronicle is available here. Most discussion of the law that I have been able to find is highly critical, arguing that teachers will be much more likely to shoot students if this bill is passed.

But what does the proposed law really permit? The full text of the H.B. 868 can be found here. The bill states:

Stand-Your-Ground, Castle Doctrine, and Domestic Violence

From the ABA Journal, I learned about an interesting self-defense case in South Carolina that is causing some controversy. From the ABA Journal:

Prosecutors in Charleston, South Carolina, contend the state’s stand-your-ground law doesn’t apply to domestic disputes in the home. 

Prosecutors say they will make that argument when they appeal a judge’s finding in an immunity hearing that Whitlee Jones of North Charleston was justified in fatally stabbing her boyfriend, Eric Lee, the Charleston Post and Courier reports. 

. . .

Jones stabbed Lee in November 2012 in an incident that began in an argument over a cellphone. Lee had given Jones the phone, but he wanted it back, the Post and Courier says, citing court documents. Jones says she refused, leading Lee to punch her and, when she got out through the back door, to pull her by the hair down the street. A neighbor called 911 and Jones tried to do so too, but the phone went dead. She gave up the cellphone, ending the initial confrontation, and ran down the street. 

When police arrived, Lee said Jones had smashed his phone and there had been no assault. Jones later returned home to gather her belongings and leave for good. She says Lee became agitated and when she saw a knife, she tucked it into her bra. Jones claims Lee tried to block her as he was leaving, shook her, and was getting ready to hit her when she retrieved the knife and stabbed Lee in the heart. 

Kidd points to the wording of the state’s stand-your-ground law, which creates a presumption that a person has a reasonable fear of death when an intruder is trying to forcefully enter a home, but not when a person against whom deadly force is used has the right to be in the dwelling.

The Charleston Post and Courier has the full story on the case here.

The story has caused quite a bit of backlash, with news outlets and commentators reporting everywhere that this case stands for the proposition that domestic violence victims cannot take advantage of "stand-your-ground" self-defense laws. Examples of these critical stories can be found here, here, here, here, and here.

This criticism (along with the ABA Journal's reporting) is mistaken, however, because it incorrectly claims that this case turns on questions of "stand-your-ground." More importantly, while the prosecution's argument in this case leads to what many may see as an unpleasant result, it is completely in line with the language of South Carolina's self-defense law. And most importantly, while this particular case may seem to have an unfortunate result, the defendant can still raise and successfully argue self-defense, and reading the law more broadly could have extremely negative consequences.

The Constitutional Limits of Missouri's Statute Permitting Police Officers' Use of Deadly Force

A lot of important things have been said about the shooting of Michael Brown by a police officer, Darren Wilson in Ferguson, Missouri and the following protests and law enforcement reactions. Here, I want to make a few points about the shooting itself and the various legal proceedings that may follow.

Missouri's has a law that permits the use of deadly force by police officers, and this law isvery broad on its face. But this law would have limited application to an excessive force lawsuit against Wilson. Missouri's statute on officers' use of deadly force purports to justify deadly force in any situation where an officer reasonably believes a suspect has committed a felony and where deadly force is immediately necessary to effect the arrest. But the Fourth Amendment limits officer use of deadly force to situations where the defendant poses a danger to the officer or others, or where there is probable cause to believe the suspect has caused serious physical harm to somebody.

While Wilson would therefore not be able to take advantage of the statute's broad language in defending against an excessive force lawsuit, Wilson would probably still be able to raise the statutory defense in a criminal proceeding against him. While the constitutional limits on officers' use of force are relevant in civil claims that the officer has violated a suspect's rights, these constitutional limits would probably not apply in a case where the officer is the subject of a criminal proceeding.

Did Florida Really Just Expand Its "Stand Your Ground" Law?

Nicole Flatow of ThinkProgress thinks so, writing:

The bill to expand Florida’s notorious Stand Your Ground law became law Friday, after Gov. Rick Scott (R) signed a measure that immunizes individuals who fire or point a gun in self-defense or as a “warning” from criminal penalty. 

The National Rifle Association-backed bill extends Stand Your Ground-like protections to those who point a gun at an attacker or fire a gun as a self-defense threat or warning, expanding the scope of the discretion judges and juries retain to exempt shooters from criminal charges for gun violence. The bill gained traction after Republicans exploited the outrage over the 20-year prison sentence for Marissa Alexander, who fired a warning shot during an altercation with her abusive husband. The bill was then dubbed the “warning shot” bill, because a judge rejected Alexander’s move to invoke the law. But opponents were quick to point out that injustice in Alexander’s case hinged in large part on a draconian mandatory minimum sentence that required the 20-year prison term, insensitivity to domestic violence, and racial disparities that are already baked into the existing Stand Your Ground law.

The law is likely to expand immunity for violent conduct in as vague and sweeping a manner as Florida’s existing Stand Your Ground law, and could represent the newest mechanism for encouraging even more vigilantism.

I don't think that the law has the effect that Flatow claims it does. First, Florida law already held that pointing or firing guns as a warning was covered by existing self-defense law. And second, even if the law expanded the scope of what people can do when acting in self-defense, this expansion should probably be welcomed by those who want to see fewer injuries or deaths resulting from self-defense.

Campus Gun Control and the Second Amendment

From Nancy Leong's blog, I learned about an article in the Boston Review by Evan DeFilippis entitled Campus Gun Control Works. In his article, DeFilippis notes that while the United States has suffered more school shootings than other countries, people in schools or on college campuses are much less likely to be victims of gun crime than people in other locations.

DeFilippis focuses much of his article on college campuses, and notes that permitting firearm possession on campuses is a bad idea. From the article:

In a recent editorial in the Chronicle of Higher Education, former Idaho State University Provost Gary Olson spoke to the realities of firearms on campus, their limited potential to improve safety, and the near certainty that they would have the opposite effect. “There is no recorded incident in which a victim—or spectator—of a violent crime on a campus has prevented that crime by brandishing a weapon,” Olson wrote. “In fact, campus police officers report that increasing the number of guns on a campus would increase police problems exponentially, especially in ‘active shooter’ situations.” Ninety-five percent of university presidents share his opposition to concealed carrying on campus. 

If we take a sober assessment—one that will be sorely lacking at college keggers—it is not difficult to imagine the ramifications of widespread gun ownership at colleges. Alcohol abuse, bullying and hazing, high population density, and academic stressors are all predictive of violence—and all are ubiquitous on college campuses.

DeFilippis raises a number of arguments in favor of campus gun control. I think that most of DeFilippis's arguments are on solid constitutional ground, and in this post I explore why that is the case. But I also want to point out that there may be limits to the restrictions colleges and universities can place on firearm possession, and if policies extend too far, they may end up violating the Second Amendment.

Bernard Goetz Arrested for Attempting to Sell Marijuana

The New York Times reports:

Nearly three decades after becoming notorious as the subway rider who shot four teenagers on a Manhattan train, Bernard H. Goetz found himself back in the news on Saturday, after being charged with trying to sell marijuana to an undercover police officer.

Mr. Goetz, 65, was arrested Friday evening after attempting to sell $30 worth of marijuana to the female officer, the police said. The officer approached him in Union Square and asked if he was selling, according to the police. Mr. Goetz said that he was, and went back to his apartment. When he returned, about 7:30 p.m., he was arrested.

The Goetz case -- where Goetz opened fire on several black youths in a New York subway car -- is a widely-taught case in criminal law courses.  The case's rich (and disturbing) facts and racial dynamics effectively illustrate the debate over whether courts should adopt objective theories of self-defense (whether a reasonable person would have felt endangered) or subjective theories (whether the defendant actually felt endangered).  Goetz argued for a subjective interpretation of the law and failed, but was ultimately found not guilty of the attempted murder charges at trial.

While Goetz's most recent arrest is for a minor offense, I felt that the case was worth noting, given his notoriety in the world of criminal law scholarship.

Correcting Confusions about Self-Defense Law

Over at the Volokh Conspiracy, Eugene Volokh posts about some of the confusion over self-defense law that is surfacing in news coverage of the Zimmerman verdict.  Volokh notes that various branches of the New York Times seem to be writing that stand your ground laws are an extremely recent phenomenon, something that Volokh notes is not the case since this seemed to be the majority rule for jurisdictions in 1968.

Volokh also criticizes the New York Times Editorial Board for writing that the main reason why Zimmerman was so likely to succeed in his defense was that the stand your ground law required that Zimmerman only needed to prove that he reasonably believed that deadly force was necessary.  Volokh correctly notes that this is a misstatement of the stand your ground law, which addresses duty to retreat.

Where I think Volokh makes a mistake, however, is where he says that the requirement that a defendant reasonably believe that deadly force is necessary to avoid death or grievous bodily harm is the law in all 50 states.  This rule is certainly the law in a majority of jurisdictions, but it is not universal.  

Three states employ a subjective approach, which simply requires that the defendant believe (reasonably or not) that deadly force is necessary to avoid death or grievous bodily harm. These states are: Delaware (Moor v. Licciardello, 463 A.2d 268, 272 (Del. 1983)), Ohio (State v. Sallie, 693 N.E.2d 267, 270 (Ohio 1998)), and Virginia (Yarborough v. Com., 234 S.E.2d 286, 290 (Va. 1977)).

A cluster of other states employ a Model Penal Code approach, where defendants may receive lesser sentences even if they less-than-reasonably believed that they were in danger of death or grievous bodily harm (for instance, a defendant who negligently believes he is in danger when he, in fact, is not, will be convicted of negligent homicide, or whatever crime corresponds to homicide committed when the defendant is negligent). These states do allow for self-defense in the event that a defendant prove he or she had a reasonable belief that deadly force was necessary to prevent death or grievous bodily injury, but the overall schematic seems more complicated than jurisdictions that only allow the reasonable belief option. These states are California, Kentucky, Maryland, Nebraska, North Dakota, and Pennsylvania (If I include citations for all of these, I'll run out of room. I am getting all of this from my paper on this subject).

Volokh’s mistake here is minor, since the vast majority of jurisdictions follow the reasonable belief approach.  The major mistake rests with the New York Times Editorial Board for portraying this approach as 1) uncommon and; 2) lenient, since compared to Model Penal Code and subjective jurisdictions, the reasonable belief formulation of self-defense is the hardest for defendants to prove.

While the general tenor of the Editorial Board’s argument is that conceal and carry laws are to blame for the tragedy, the Board’s focus on this policy argument at the expense of legal accuracy causes them to jettison their credibility.  There are important issues to discuss here, but muddling things together will take the debate nowhere.

Reaction to the Zimmerman Verdict

I have seen dozens of reactions to the Zimmerman verdict this weekend that express reactions across the joy-rage spectrum.  Some folks get the law right, many of them don't, and there are many ships passing each other in the night as far as arguments are concerned.  Starting tomorrow, I expect to see the first salvo of critiques of this weekend's criticism.

In the volumes of coverage, I have found a few reactions that I think are worth reading.  PrawfsBlawg's Dan Markel posts about some of the tangled legal analysis of other reactions so far and directs reform-oriented critics to focus more attention on whether the state or defendant bears the burden of proof.  Eugene Volokh confirms that Florida is not an outlier in this area of law, with 49 out of 50 states requiring the government to prove beyond a reasonable doubt that the defendant did not act in self-defense as long as the defendant puts forth some evidence of self-defense.

As far as Florida's "stand your ground" law goes, Markel notes in his earlier post that the Zimmerman case and the facts that ultimately were most important do not make this case a good example of that law in operation.  Despite this, the case has at least gotten people talking about the law.  Here is of the more interesting posts I've seen on the subject that explains the controversy in far more detail and depth than I could hope to contribute at this point.  While I agree with Markel in that I don't think that the Zimmerman case is a particularly accurate instance of this law in action, that law is still an important issue and the fact that it does not apply 100 percent to the Zimmerman case should not distract from the very real arguments that can be made for and against stand your ground laws.

As far as my own reaction to the case, I've spent most of this past year studying self-defense and I can say with confidence that it is very difficult to have an accurate, knee-jerk reaction to this area of law.  Self-defense law involves competing considerations on the social, political, and philosophical levels, with different debates to be had in each area.  These different levels of debate lead to different conclusions.  One might find that, depending on the premises one proceeds from, one's philosophical considerations support one type of self-defense law, but social/political considerations support an entirely different one.  When it comes to arguing about whether self-defense law should fit into, say, what free will considerations demand versus what critical race considerations demand, the debate can get dangerously muddled.

I will admit that was a pretty vague paragraph.  If you're interested in the details of what I think about self-defense law and you have a lot of time on your hands, feel free to read this draft of a paper I am writing, where I lay out some arguments of my own on the subject.

With the complexities of the law and legal issues in mind, and the varied accounts that I have heard about the evidence involved in the Zimmerman case, I am going to remain agnostic on the verdict.  I do think that the case can serve as an illustration of some important issues of self-defense law as well as the role of race in the criminal justice system in general.

I am not going to say that "we need to have a discussion."  That sort of conclusion signals nothing more than punting on the issues. Moreover, if you read my paper, you'll see that the discussion has already been underway for some time.  I mainly look forward to seeing who gets involved now, and how much of an impact this discussion ends up having now that so many people are paying attention.