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In the Rittenhouse Case, Justice Is (to Some Extent) in the Details

photograph of Lady Justice figurine

The reactions to the Rittenhouse verdict from the right and left have been depressingly predictable. The right — at least, the MAGA right — has chosen to elevate Rittenhouse to the status of folk hero, an everyman vigilante in the grand tradition of real-life subway shooter Bernard Goetz or the fictional Dr. Paul Kersey of the Death Wish film series. (These references to the ‘70s and ‘80s should remind us that we’ve been here before). On this telling, Kyle Rittenhouse did nothing wrong by toting an assault rifle to a riot in order to protect other people’s property — in fact, his behavior was commendable because it helped bring law and order to a chaotic situation. Among other things, this story overlooks the fact that Wisconsin law categorically forbids the use of lethal force for the sole purpose of defending property. So, if Rittenhouse had used his weapon for that purpose, he would have broken the law. How threatening to break the law helps impose law and order is, frankly, beyond my powers to explain.

Meanwhile, the left has portrayed the Rittenhouse case as another example of how our justice system is broken. From this perspective, whether or not the jury’s application of Wisconsin self-defense law was reasonable is really irrelevant; what matters is that it was legal for Rittenhouse and others to traipse around Kenosha playing soldier, and that two men ended up dead without anyone being held legally accountable. On top of this, there is the fact that the verdict may very well have been different if Rittenhouse had been a person of color.

These perspectives on the case have something in common: they both minimize the importance of the narrow question, did Rittenhouse act reasonably in self-defense? For the right, the morally important thing is that Rittenhouse killed some scumbags for a good cause; whether he did it in self-defense is almost beside the point. For the left, the morally important thing is that various structures — legal (open carry laws, defendant-friendly self-defense laws), political (Republican domination of state legislatures through gerrymandering allowing passage of those laws), and social (white privilege causing police to treat white shooters differently from Black) — determined the verdict. Again, the granular details of the case, the kinds of details that would help us determine whether or not Rittenhouse acted reasonably in self-defense, fade into the background.

Without question, the left’s view has more truth in it than the right’s. It should go without saying that it is morally reprehensible to shoot a person for destroying property, or that it is morally irrelevant that Joseph Rosenbaum, Rittenhouse’s first victim, was (perhaps) a registered sex offender. Vigilantism might slake a primal thirst for vengeance, but it is among the slipperiest of moral slopes.

Still, I think the left misses something important by omitting examination of the case details. To see this, consider the following (slightly involved) counterfactual. Suppose that Trump is assassinated by a Chinese-American, touching off protests and then riots in parts of cities where many businesses are owned by Asians. Some left-wing folk from the surrounding area bring weapons to protect Asian-owned property. Among them is Brian, a 17-year-old gun enthusiast and lifeguard.

At some point during the night, Brian wanders from the store he came to guard and approaches some rioters. At the subsequent trial, Brian’s counsel presents eyewitness evidence that one rioter shouted at Brian that he was going to kill him; others testify that this rioter was hyper aggressive and belligerent that night, although a prosecution witness, another armed left-wing guardian of property, testifies that he was a “clown.” In turn, the prosecution presents blurry video footage and stills that it claims shows that Brian pointed his weapon at one of the rioters, but the footage is difficult to interpret. There is no dispute about what happens next: the rioter takes off after Brian, and Brian runs away. He flees into a parking lot where — and this is disputed at trial — he may be boxed in by some parked cars. He wheels around. The rioter screams “fuck you!” and charges toward Brian, while a nearby rioter fires a pistol into the air. Prosecution witnesses testify that a moment later, the rioter tried to grab Brian’s gun. In any case, autopsy evidence later shows that the rioter’s hands were at least very close to the barrel of the gun. Brian fires four times in less than three-quarters of a second — the first shot shatters the rioter’s pelvis, but it is the third shot into his back that kills him.

Brian flees the scene, pursued by a group of rioters, many of whom quite possibly believe that Brian is an active shooter. Some throw rocks at Brian. One rioter wielding a skateboard catches up to Brian, and whether because the rioter strikes him with the skateboard or because he just trips — this is a disputed point — Brian falls down. Fortunately, this scene is captured by cell phone cameras at very close range, so there is much less dispute about what happens next. Another rioter attempts to kick Brian in the face; Brian fires two shots at him as he rolls on the ground, but both miss. The rioter with the skateboard hits him with it, then tries to grab Brian’s gun. Brian shoots, hitting the rioter in the chest. A third individual, who is holding a pistol in his right hand, is at that moment raising his arms. Then the armed man lowers his arms and walks around Brian. At that moment, it is unclear whether the armed man points his pistol at Brian. Under examination by defense counsel, the man himself testifies that he did, but he later recants that statement. In any case, Brian then shoots the armed man, blowing off his right bicep. Brian gets to his feet and flees.

Suppose that a jury acquits Brian, accepting that the prosecution had failed to prove beyond a reasonable doubt that Brian had not acted in self-defense. Frankly, I find it hard to imagine that the left-leaning commentariat would celebrate Brian as an everyman vigilante (although perhaps some would lionize him as a warrior for racial justice). Perhaps it would concede that the 17-year-old shouldn’t have been there, and that open carry laws encourage such vigilantism. Still, I think the left would focus on the details of the case and of the relevant law. In other words, the left would take Brian’s self-defense claim seriously.

Sometimes, considering these kinds of counterfactuals can help us see things with greater moral clarity. On the other hand, sometimes they just reveal a bias. I do not, however, think that’s the case here. The left would be right to focus on the details of Brian’s self-defense case. By the same token, despite the many structural factors that shaped the outcome of the Rittenhouse trial, whether or not Rittenhouse reasonably feared for his life in the moments leading up to the shootings is morally relevant, because it determines the fairness of punishing him. As long as we continue to believe that people are fairly punished only when their action reveals some fault, their state of mind when acting will be of paramount importance.

This brings me to the question whether the Rittenhouse verdict shows that the justice system is broken. I think it’s a mixed picture. On the one hand, Wisconsin’s permissive open carry regime is a travesty. One could also argue that the Wisconsin self-defense law should require the defendant to retreat before using lethal force, even if he has not provoked the attack. I’m not sure that would have made a difference in the Rittenhouse case, but it’s a reasonable proposal. One could also argue that the burden of proof should be on the defense to prove that the defendant acted in self-defense, not on the prosecution to prove that he didn’t. But changing the law in this way is the job of the legislature, not the courts. Moreover, the jury members in the Rittenhouse case clearly took their job very seriously, deliberating for almost four days, reviewing many hours of video, and taking copious notes throughout the trial. This was not an easy case for a jury: it required making highly fact-intensive judgments about the reasonability of a person’s fear in a very chaotic situation. Given the law and the facts, the verdict was at least reasonable. Finally, the possibility that had Rittenhouse been Black, the verdict would have been different does point up the failures of the justice system, but it does not make the Rittenhouse verdict itself unjust.

Undeniably, the Rittenhouse case should prompt a reexamination of state firearms and self-defense laws. But certainly in a procedural sense, and at least partially in a substantive sense, the verdict itself was not a miscarriage of justice. The trial elicited a wealth of relevant factual detail through adversarial presentation, and the jury applied the law to that body of facts in a careful, reasonable way, focusing on the undeniably morally relevant issue of the reasonability of Rittenhouse’s fear. The Rittenhouse verdict is not all bad news.

Kyle Rittenhouse and the Legal/Moral Limits of Self-Defense

photograph of protesters carrying automatic rifles

On August 25th, Kyle Rittenhouse carried a firearm into the protests in Kenosha, WI. He killed Joseph Rosenbaum, 36, and Anthony Huber, 26, and seriously injured Gaige Grosskreutz, 26.

Rittenhouse is being charged with one count of first-degree intentional homicide; one count of first-degree reckless homicide; one count of attempted first-degree intentional homicide; and two counts of first-degree reckless endangerment. The Kenosha police chief called the shootings a senseless act of violence on protesters: “We’ve had two people lose their lives senselessly while peacefully protesting,” Chief Miskinis said.

His lawyers, on the other hand, claim that he was “protecting his community,” acting in self-defense: “before Rittenhouse fired his gun, he was ‘accosted,’ ‘verbally threatened and taunted’ by ‘rioters’ while he guarded a mechanic’s shop alongside a group of armed men.” By claiming that Rittenhouse was acting in self-defense the legal team invokes one of the most intuitive exceptions to the prohibition on inflicting harm on another person. But, there are limits, both morally and legally.

Morally speaking, the views on the appropriate use of self-defense are more varied than the range permitted by law. This is of necessity – to allow broad ranges of interpretation in matters that include inflicting harm on one another isn’t conducive to a well-functioning legal system. In ethical theories, the question of self-defense involves slightly different questions than in the realm of law. Legally, you have some right to defend your person — though the conditions differ by jurisdiction — and this presumption already diverges from one moral position: pacifists. Pacifists defend the position that harming another person is never justified. There are pacifists that emphasize that this lack of justification arises because of the alternatives to harm that are ever-present, and this concern does show up in many self-defense statutes. If someone can avoid using force in order to defend themselves, then this can undermine the justification for the use of force (though in WI, there isn’t a “duty to retreat” as there is in other states).

Other pacifists emphasize that the same principle that makes it inappropriate for your assailant to harm you also holds in the case of your harming them. And it gets more complicated because most theorists agree that not all cases of harming someone in order to avoid them harming you are justified. There are limits to when defensive force is permissible even for non-pacifists. Self-defense doesn’t always work as a defense, so to speak.

Imagine if I put myself in the position where I needed to defend myself in the first place. In such circumstances, the role of the “attacker” becomes more murky, and the sense in which I need to defend myself becomes harder to explain. This complicates matters for a number of ethicists. In such a case, if some action of mine could de-escalate the situation or prevent the threat to my safety, then I am not justified in using force to defend myself. Underlying these cases is the idea that we can avoid circumstances where inflicting harm, or at the very least inflicting lethal harm, on assailants. If generalizable, this would undermine the force of the self-defense arguments.

For example: Imagine that I am robbing a house with a firearm, and the homeowner pulls a gun on me, shouting “Make another move and I’ll shoot!” I believe the homeowner to be a little trigger-happy and fear for my life. I shoot the homeowner out of this fear, and thus in self-defense. Was I acting permissibly in shooting the homeowner? According to moral theorists, self-defense doesn’t clearly apply here because the home’s defenders were responding to my use of force. The important feature, arguably, is that I could avoid defending myself by ceasing my aggressive, law-breaking conduct that initiated the exchange. When I threatened the homeowner with lethal force, she was using appropriate force in response. Morally speaking, if I stepped down and ceased posing a threat, the homeowner loses her moral justification for threatening harm to me.

Here the law and these moral theories arrive at similar conclusions (with the Castle Doctrine complicating matters), but with important differences. Legally speaking, breaking a law at the time of defending your safety undermines a claim to self-defense, but not entirely. However, it isn’t purely the lawbreaking that changes the morality of the situation for all ethicists. In this idealized scenario, the threat to my life exists because of my threat to the homeowner. If I stop my threat, I do not need to harm anyone in self-defense.

According to Wisconsin’s self-defense law, people are permitted to “use force which is intended or likely to cause death or great bodily harm (if they) reasonably believe that such force is necessary to prevent imminent death or great bodily harm to (themselves).” The key here is what the defendant reasonably believes. If the defendant’s lawyers can establish that he had a reasonable belief that he needed to use the force he did to prevent imminent death, his self-defense claim may stand. In Wisconsin, there isn’t a duty to retreat before using force. As such, a great deal rests on whether the jury judges that Rittenhouse had a reasonable belief that his use of lethal force was necessary to preserve his life. The jury’s judgment will depend on a variety of interpretative aspects, as none of the defendant’s victims seem to, in fact, be directing lethal force at him according to witnesses and video, and only one was armed at all. But there is often a distance between what is true and what someone reasonably believes is true.

Eric Zorn, news and politics correspondent for the Chicago Tribune, highlights elements of the scenario from both the legal and moral discussion above: “Did the teen willingly put himself in that fraught milieu and illegally, allegedly, risk a horrific escalation of that danger by carrying a gun on the scene? Yes.” Rittenhouse chose to put himself into a potentially lethal situation. In fact, that the situation was dangerous is his reason for being there. For some theorists, this makes a difference in how morally justified he is in using force against his assailants. He could have avoided the risk to his safety and avoided inflicting harm, similar to the armed burglar example.

Zorn also notes: “What about the context, though? The confrontational, high-adrenaline interactions that led up to the tragic deaths. The night air punctuated by gunshots. Danger all around.” From a legal perspective, and also according to some moral theorists, the relevant context is more narrow in scope. It is the setting in which Rittenhouse killed two people and injured another. Did he reasonably feel his life was threatened then? And was lethal force his reasonable route of defense?

Rittenhouse’s lawyers say yes: “In fear for his life and concerned the crowd would either continue to shoot at him or even use his own weapon against him,” the lawyer’s statement says, “Kyle had no choice but to fire multiple rounds towards his immediate attackers.”

But there are further moral and legal issues that the Rittenhouse case represents.

Aside from the question of whether there was a reasonable belief in a lethal threat to his life, Rittenhouse faces further legal scrutiny in his carrying of a firearm illegally. Further, his behavior exists in a context of a culture that is praising violent responses to protests of police violence, and in this case, inciting violence in response to them.

Rittenhouse allegedly did a lot of illegal things. The 17-year-old reports being motivated by a call to protect people and businesses in Kenosha, and arrived with a gun at an auto mechanic’s on August 25th. His lawyers claim that the 17-year-old’s “intent was not to incite violence, but simply to deter property damage and use his training to provide first aid to injured community members.” The lawyers also report: “Rittenhouse and others stood guard at a mechanic’s shop near the car depot, even after the curfew was in effect.” Unfortunately, Rittenhouse’s chosen method of “deterring property damage” was standing guard with an assault-style rifle he was not legally permitted to possess in Wisconsin, or conceal carry in his home state of Illinois.

Rittenhouse is facing misdemeanor charges for his illegal engagement with the assault-style rifle. Meanwhile, the calls for armed response against the protests in Kenosha have come under scrutiny. Facebook chief executive Mark Zuckerberg said the “Armed Citizens to Protect our Lives and Property” event, hosted by the Kenosha Guard on Tuesday night encouraging armed people to go to Kenosha, was in violation of policies and should have been removed. The direct calls for armed citizens to go to Kenosha were seen as inciting violence, and thus inappropriate on social media. We see their impact in Rittenhouse’s behavior, and the deaths that the calls result in.

In response to these protests, besides directing violence to the protestors themselves, there has been an outpouring of praise towards the people committing the acts of violence. For example, Rep. Thomas Massie (R-Ky.) praised Rittenhouse’s “incredible restraint” at not emptying his magazine into the crowd. And though he also admitted to not being as aware of the circumstance of the murder of Jacob Blake as the case against Rittenhouse, despite claiming: “As a 17-year-old, he was legally entitled to have that firearm in his possession. This is 100% self-defense.” Likewise, DeAnna Lorraine, a Republican congressional candidate, tweeted: “We need more young people like Kyle Rittenhouse and less like Greta Thunberg.” And even President Trump praised Rittenhouse in a tweet: “The only way you will stop the violence in the high crime Democrat run cities is through strength!”

While praise and comparisons to heroes might not rise to the level of incitement — it does not directly encourage another person to commit a crime — it is still dangerous. So, on the other side of the incitement that drove Rittenhouse, there is the encouragement and positive reinforcement that leads to think pieces about an oncoming Civil War.

When the praise heaped onto a vigilante who acted in response to incitement comes from so many sources, the positive reinforcement becomes dangerous in itself. It doesn’t constitute incitement, but continues to divide cultural battle lines where institutional systems that promote violence are paired individual citizens suppressing voices protesting those systems. This encouragement, the incitement, and the people who act on it are a unified voice against change and institutional reform.

This praise is not for someone acting in self-defense. It is for acts of aggression against people rising up against violence and murder. The mixed messaging regarding the case of Kyle Rittenhouse may complicate the case for self-defense. Is he a brave patriot, fighting on the side of law, justice, and the American way, or a scared innocent simply trying to protect himself?

The Vigilante “True Man” is Not a Good Man

A protester displays a sign at the "Justice for Trayvon Martin Rally" at Krutch Park in Knoxville, Tennessee, United States. The sign reads, "NRA laws protect racist vigilantes."

To be a vigilante is to take upon yourself at least the role of a police officer, assuming that your goal is simply to enforce existing laws. Vigilantism can, and often does, go further, effectively assuming both legislative and judicial power as well. If a vigilante or “vigilance committee” detains people for violating laws that don’t exist, but which they believe should exist, or enacts any form of pseudo-punishment on people for either existing or imaginary laws, then they further effectively usurp legislative and judicial power respectively. Vigilantism is undesirable in the extreme, and statutes or rules that encourage it a likewise undesirable. Generally, police power should be kept out of citizens’ hands.

The dangers of laws that facilitate and encourage vigilantism can be seen clearly in the cases of both Ahmaud Arbery and Trayvon Martin. Both were killed while doing nothing wrong because they were suspected of wrongdoing by overzealous citizens who took matters into their own hands. On top of the laws themselves, racially-based inequality in the execution and adjudication of the laws further emboldens vigilantes to pursue their own “justice” against Black Americans and other vulnerable populations. 

George Zimmerman was tried for killing Trayvon Martin, but was acquitted of the charges of second-degree murder and manslaughter. The DoJ stated that Zimmerman’s actions did not rise to the level of a hate crime as defined by federal statute. Gregory McMichael, Travis McMichael, and William Bryan were all arrested on charges of felony, murder, and false imprisonment pursuant to the killing of Ahmaud Arbery. However, these arrests did not occur until more than two months after the incident. Arbery was killed on February 23, 2020 and the McMichaels weren’t arrested until May 7, 2020. William Bryan was arrested on May 21, 2020. The men charged for Arbery’s death will likely use the same affirmative defense that Zimmerman did. That is they will admit that they committed the action of killing, but assert that the action was legally excused or justified because they were defending themselves from bodily injury and death. 

Laws and rules allowing people to claim self-defense against charges of homicide are desirable. A person may not have the time or opportunity to depend on police or fellow citizens to help them. Reasonable self-defense laws allow a person to prevent death or serious bodily harm to themselves or others due to the wrongful actions of another person by use of necessary and proportional force. For example, if a person forcibly enters a home and corners you and an acquaintance in a room, both of you should be immune to both civil and criminal liability for any harm inflicted upon the assailant necessary to prevent them from harming you, necessary to cause them to flee, or necessary to subdue them until police arrive. 

The right for a person to defend their life and property, sometimes with deadly force, is deeply engrained in US society. However, the free rein given to use of legal force differs from one state to another. For altercations in public spaces, as in the killings of Trayvon Martin and Ahmaud Arbery, the operative question is whether there exists a duty to retreat. If a state, either by statute or case law, imposes a duty to retreat on people, that means that they cannot claim self-defense against charges of homicide unless they were not plausibly able to flee from their assailant. Every state recognizes some form of exception to the duty to retreat when a person is in their own home or property—the so-called “Castle doctrine.” If a state does not impose a duty to retreat from altercations in public spaces, then it has some form of “Stand Your Ground” law or rule. 

Both the Castle doctrine and Stand Your Ground laws emanate from another doctrine, the so-called “true man” doctrine. This is meant to serve as a principled reason in favor of rule concerning self-defense. The idea is that a person who is doing nothing wrong, who is acting wholly within their rights, should not be obliged to give any ground to someone engaged in wrongdoing. Florida has a Stand Your Ground statute under which George Zimmerman was able to assert that he was defending himself from the aggression of Martin, even if that aggression was caused by Zimmerman’s nighttime pursuit of Martin. It is also likely that the killers of Ahmaud Arbery will also claim self-defense as Georgia also has a Stand Your Ground statute

The idea that a morally faultless person shouldn’t, or at least shouldn’t be required to flee is not obvious. This smacks of a sort of recklessness that is expressly disavowed by at least one central moral theory, namely Aristotelean virtue ethics. One of the central tenets of this ethical system is the doctrine of the mean, which states that every virtue—that is, every morally positive character trait—lies at a midpoint between two extremes, which are vices. On one side there is an extreme of deficiency—of doing too little. On the other side there is an extreme of excess—of doing too much. Courage is one of the central virtues that Aristotle discusses, and it is, like any other virtue, in between two extremes. Cowardice is the vice of deficiency and recklessness is the vice of excess between which lies the virtue of courage. However, the true man doctrine appears to endorse recklessness. Whereas Aristotle’s ethical sage will fear and flee from some dangers, the true man of common law will not.  

Both the Ahmaud Arbery and Trayvon Martin killings also involved citizens engaged in attempts to detain people they suspected of criminal activity. Comments from Georgia District Attorney George Barnhill suggested that Gregory and Travis McMichael were acting within their rights under Georgia’s laws concerning citizen’s arrest. However, the need for citizen’s arrest originally stemmed from the lack of professional police forces—a need that has long since disappeared. Moreover, as the standards of evidence for criminal conviction have become more complex and the protections for people being placed under arrest have become more extensive, the plausibility of a citizen making a legitimate arrest has become more ludicrous. As a matter of bare law, most state statutes require that an arresting citizen have direct or immediate knowledge that the person they are arresting has committed a crime. Whether a given arrest meets such a standard is a legal question most citizens are not equipped to determine. 

Just Stand Your Ground laws abet and endorse a kind of physical recklessness, as do citizen’s arrest laws that abet and endorse a kind of epistemic recklessness. Even the sporadic acts of vigilantism they spawn swamp any civic value they might create. People’s right to defend themselves, their property, and others can be upheld by better means. 

Jus ad Bellum: US, Iran, and Soleimani

photograph of General Qasem Soleimani in military uniform

On Thursday, January 2nd, the United States successfully executed high ranking political Iranian military targets that were in Iraq at the time. The United States was not engaged in military conflict with Iran (i.e., the states were not at war), and so the justification for the US’s deliberate killing of Iranian officials has been called into question and widely criticized.

Because the assassination took place on Iraqi soil, Iraq is requesting that US forces evacuate their territory. Iraq is interpreting US actions against Iran to be a violation of their territory, and now remaining in Iraq without their permission could constitute a further act of aggression.

Though Soleimani was undisputedly no “friend” of the United States, targeting him with military force is incredibly controversial, if not seen by a growing consensus as the wrong thing to do. This is because the stakes involved here are not the morality of Soleimani and his participation in a regime, but rather the appropriate reasons for bringing military force against another state. It can be widely accepted that Soleimani did not act in the United States best interests, or in the best interest of the United States’ allies, and can even be granted that Soleimani’s death may in fact BE in the best interest of the United States and its allies. However, in the realm of ethics and political theory, these considerations do not warrant killing someone.

We can see that there is a high bar of justification for these actions in two frameworks: a pragmatic framework, or a “just war,” or deontic, framework. From a practical standpoint, we weigh the harms and benefits of different plans of actions and assess the potential fallout. Consider, for instance, that Soleimani actions and attitudes had not changed over the course of decades and yet previous administrations in the US had not targeted him for assassination. This has been attributed to the rationale that such an assassination “is not worth it” – the anticipated destabilization of the relations in the region risked by targeting such a high-ranking official in Iran was too big a gamble.

Rather than an assessment of potential outcomes and consequences, the standards in “just war” theory center on the conventions governing the proper and responsible use of military-level harm (just cause, proportionality, etc.). One of the least controversial moral dictates is that harming one another is bad and that we ought not to do it without the strongest of justifications. Wars and military actions are systematic harms at a grand scale, so their justification should at least parallel the stakes involved in harming one another on the personal level.

Because Soleimani represents Iran in his role as leader of Iranian military forces, taking military action against him amounts to taking military action against Iran. [Unless the international community has decided that his regime is illegitimate or that Soleimani can be considered to be an independent agent, force against him amounts to aggression against a legitimate state – Iran.] On a Just War framework, initiating acts of aggression like these against legitimate states represent justifiable cause for war on the grounds of self-defense.

To commit an act of violence that constitutes a cause for war is judged by high standards indeed because of the stakes involved in war; wars include untold violence and suffering not only to those who willingly participate but to bystanders and those caught up in the conflict. As such, the justifiability of states’ use of military force is limited, according to Just War Theory, to a handful of reasons, the strongest of which is in response to aggression.

In casual terms outside discussions of war theory, aggression includes any hostile or violent behavior, but for political actors, it means something very specific. In international relations, “aggression” is the term used for the crime of war itself. It articulates that a state has violated the territorial integrity or political sovereignty of another legitimate state.

Just as each person has a right to the safety of their body from molestation, states have a right to territorial integrity: a right to control land within one’s border. The most straightforward way of violating this on the personal level is to assault someone and on the political level, to invade. “Political Sovereignty” notes the right a legitimate state has to self-determination, paralleling the right to autonomy that an individual has. States can set up their political organizations in terms of democracies, monarchies, etc., and have the right to run their governments without interference from other states. State A violates the political sovereignty of B when A tries to change B’s political structure. Such acts, along with territorial invasion, are the most straightforward instances of acts of aggression by one state on another and thus count as acts of war.

When someone has attacked you, common moral principles hold that you would be justified in defending yourself. Therefore, in the political sphere, if a state commits an act of aggression towards your state, you may be justified in responding with force.

Soleimani’s assassination, however, fits uncomfortably in this framework. The justification currently provided by the administration is that there was an anticipation of aggression by Iran. Soleimani and the Iranian government had not yet committed acts of aggression and therefore we were not in a war scenario. Therefore, by engaging militarily in acts of aggression, the US initiated aggression by interfering with the Iranian state.

Because there was anticipated aggression against the US, the self-defense justification can be attempted for the assassination. However, when claiming to defend yourself against an attack you only think will happen, that attack must be imminent and great. This is a difficult set of circumstances to establish and in the present case a great deal of doubt already exists.

One route to justifying the attack is to attempt to categorize it as a targeted terrorist killing rather than an assassination of a high-ranked head of state. This is an important distinction, because employees of the United States, as well as anyone acting on behalf of the United States, are forbidden from conspiring or engaging in assassinations, political or otherwise, according to Executive orders by Presidents Ford and Reagan. President George W. Bush allowed for the “targeted killings” of terrorist funders and leaders, but in a manner consistent with these executive orders, and, since 2001, that has been where executive dictation has remained.

The US has targeted many individuals under the guise of the “War on Terror” by categorizing individuals as terrorist leaders and thus not representing states. But attempts to characterize Soleimani’s execution in such terms will not protect the US’s behaviors from international scrutiny or an Iranian response. (Iran has promised retribution and declared that it will no longer abide by the terms of the nuclear prohibition deal that Trump’s administration had quit Spring 2018.) This situation is markedly different. The killing of political representatives of a foreign state outside of wartime will seem to many a straightforward act of aggression, complicating the US’s claim to self-defense.

The Castle Doctrine and the Murder of Botham Jean

photograph of entrance to a castle

On October 1st, former police officer Amber Guyger was convicted of second-degree murder in the shooting of her neighbor, Dallas-area accountant Botham Jean. According to Guyger’s defense, she was returning home from work when she entered the wrong apartment; finding Jean inside and, believing him to be an intruder, shooting Jean in (claimed) self-defense. Nevertheless, the prosecution argued that Guyger’s actions were intentional, her contentious history with her victim was suspicious, that it was unlikely she could have been mistaken about her location, and that her training as a police officer should have better prepared her to think rationally under pressure. After only an hour of deliberation, jurors sentenced Guyger to ten years in prison.

A key component of Guyger’s defense was her stated belief that she was in her own home when she attacked Jean. Under Texas law, a defendant can be justified in using deadly force against an assailant if, among other conditions, the person “knew or had reason to believe that the person against whom the deadly force was used…unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment.” Often dubbed the “Castle Doctrine” (after the adage that someone’s “home is their castle”), this concept is similar to so-called “Stand Your Ground” laws elsewhere in the country.

Passed in 2007, the Texas statute is designed to shield a defendant from legal penalties for killing a threat to their person. However, unlike many criminal proceedings, defendants making a self-defense claim must provide evidence that they were reasonably threatened and reacted rationally in the moment. Over the last decade, applications of the Castle Doctrine have ranged from homeowners fighting off armed robbers to the operator of a taco truck shooting and killing a man who had stolen and fled with a jar of about twenty dollars in tip money.

Asserting the Castle Doctrine is no guarantee that one’s defense will succeed – Raul Rodriguez, for example, was found guilty of murder after shooting his neighbor in 2010 during an argument over loud music – but several unusual cases, including Ezekiel Gilbert’s acquittal after killing a sex worker in 2009 and Joe Horn’s infamous 2007 murder of two men in his front yard just months after the rule’s passage (Horn was neither arrested nor indicted by a grand jury) exemplify the potentially problematic nature of the law. Since its creation, homicide rates have increased statewide with many of them evidencing racial bias against non-white defendants.

Philosophically, considerations of how one is allowed to protect themselves tend to emphasize two key factors for justifying an act of self-defense: proportionality and necessity. Proportionality captures the sense that self-defensive actions are only allowed to meet, but not exceed, the degree of threat posed to an agent: so, if someone is about to flick your nose with their fingers, it would violate proportionality if you shot them with a gun. Necessity, however, is simply whether any other option is available to the person considering lethal action; if you’re attacking me and I could either fight you or easily escape, necessity would require me to flee.

The interplay of these (and other) concepts results in several intuitively familiar principles: for example, if a person is able to run away from a threat, then they have a Duty to Retreat (because of necessity); or the Imminence restriction, which allows lethal force (because of proportionality, constrained by necessity) only in cases where threats are clearly about to result in harm.

The Castle Doctrine amounts to a denial of the necessity principle if certain other facts are true. Even if a defendant could feasibly escape from their attacker, defenders of the Castle Doctrine argue that, because of their property rights (for one example), they should not have to flee. Details beyond this vary from case to case; some argue that castle-defenders are also allowed to do whatever they want to a trespasser (on the notion that intruders forfeit all rights by breaking into a home), while others maintain that home-based self-defensive actions are still constrained by proportionality considerations.

Which returns us to the case of Amber Guyger, who (reportedly) thought she was in her own home, but was actually not. Many were surprised to learn that the presiding judge explicitly allowed jurors to consider the Castle Doctrine when deliberating over the case’s verdict; Guyger’s claim that she mistakenly entered the wrong apartment may have seemed unlikely enough to disqualify this as a potential legal shield. Nevertheless, a key element of the ethics of self-defense is often the perceived facts about the case, not necessarily the actual facts – given that self-defense often (though not necessarily always) happens in a momentary reaction without the opportunity for much reflection upon the available evidence. If Guyger somehow genuinely believed that she was in her own home, then there may indeed have been a legal case for applying the Castle Doctrine here.

However, the fact that there was considerable evidence to doubt the authenticity of Guyger’s belief regarding her location was clearly sufficient for the jury to rule against her claim of self-defense.

 

1 My thanks to Blake Hereth, Adam Blehm, and Stephen Irby for discussions regarding the ideas underlying this article.

Cyntoia Brown and the Limitations of “Self-Defense”

Photograph of an empty courtroom

Cyntoia Brown’s name has frequently been in the news.  Her cause was taken up by celebrities including Rihanna, Kim Kardashian, Lebron James, and Ashley Judd. Cyntoia Brown is also the subject of a 2011 PBS documentary. Brown, 30, is currently serving a fifty-one year prison sentence for killing a man when she was sixteen years old.  

In 2004, sixteen-year old Cyntoia was involved with twenty-four year old Garion “Cut-Throat” McGlothen. The teenaged Brown was assaulted by McGlothen and trafficked into sex work.  One day, a man named Johnny Allen, 43, picked up Brown and brought her to his house to sexually assault her (at sixteen, she was below the minimum age of consent, which is eighteen years of age in Tennessee). Brown testified that Allen engaged in intimidating behavior, showing her his gun collection, and pacing and watching her as she tried to sleep. He reached out to grope her. Brown rebuffed his move, and he rolled over, reaching for something. Fearing he was reaching for a gun, Brown grabbed her own gun from her purse and shot him.  

Prosecutors argued that the case did not look like self-defense, emphasizing Allen’s bodily position (which did not necessarily contradict Brown’s version of events) and the fact that Brown took Allen’s wallet and a couple rifles after the shooting. They contended that the subsequent taking of his wallet and guns was Cyntoia’s premeditated motive for the killing, rather than an afterthought. When Cyntoia displayed erratic behaviors, they were paraded as evidence of a wilful, premeditated behavior instead of the actions of a traumatized teen (in addition to her trauma, Cyntoia may have been a sufferer of Fetal Alcohol Syndrome and was theorized by her counsellors to have borderline personality disorder). Cyntoia was tried as an adult and sentenced to fifty-one years of prison.

Today, fourteen years later, Cyntoia would not be tried as an adult. Her state of Tennessee now recognizes that underage sex workers are not a category: children are de facto sex-trafficking victims rather than sex workers in virtue of being unable to consent. This is one way in which Cyntoia’s case was shamefully handled: using an archaic framework that did not take her childhood and her victimhood into account. These point to systemic issues. Other systemic issues concern her gender and race, and logical problems with the ways in which criminal law articulates our notion of justifiable self-defense.

Self-defense as a legal argument has several requirements, among them imminent threat and reasonable fear of harm. The prosecutors argued that Allen did not pose an imminent threat to Cyntoia.  

The notion of “imminent threat” and “reasonable fear of harm” has already been nuanced by advocates for women pointing out that some victims of intimate partner violence and sexual assault exhibit “battered women syndrome” (BWS), a state of fear and helplessness brought on by the cyclical tactics of an abuser. BWS is a legal concept more than a clinical one, but psychologists have associated its symptoms with those of post-traumatic stress disorder (PTSD). Individuals who suffer repeated sexual and physical trauma at the hands of intimate partners develop a fear of the partner, attributing extensive power to the partner due to a history of violence and threats on the abuser’s part. This is not an irrational fear, as nearly three women are killed every day by a male partner.  

One of the features of victims of sexual and physical violence is that what looks like an “imminent threat” to a woman or child so habituated to being the object of violence may look very different to a person not regularly subject to abusive behaviors. In fact, what appears to be an “imminent threat” and “reasonable fear of harm” to two parties of roughly equal power in a roughly equal situation without a history of abuse will look different from that of a woman or child in the power of a much stronger male or grown individual. Our notions of “self-defense” do not adequately capture this power imbalance. The same goes for the idea of “proportionate response,” also central to the legal notion of legitimate self defense. A man facing an assault from an equally or less strong man could theoretically ward off the attack with a lesser show of force than a child or less physically imposing person. A person with much weaker strength who responds with minimal force could merely risk being harmed more vehemently by angering their opponent with an ineffective show of resistance inadequate to the other’s strength.    

Arguably, the law has in place a softer interpretation of self-defense that can allow for these power differentials, called “imperfect self-defense.” Imperfect self-defense describes those individuals who honestly anticipate imminent harm and act accordingly.  Such honest belief might be unreasonable (in reference to a presumably objective observer) but the genuine motive of the actor would be an extenuating circumstance, as malice would be lacking to their action.  This notion extenuates individuals who do not match up to an “objective” observer (i.e. an observer who is presumably at the height of intellectual, physical, and social access, i.e. an observer who is an adult male).

Cyntoia’s prosecution and the jury did not appear to find it overwhelmingly plausible that a child in a vulnerable position to being sexually and physically assaulted by a grown man would subjectively or objectively be in fear for her safety. They could arrive at the judgment they did in part by erasing Cyntoia’s victimhood as a child trafficked into sex, and by interpreting behaviors understandable in a traumatized teen as the willful malice of a fully-formed adult able to negotiate her situation. It is also extremely likely that the final verdict depended upon a limited default understanding of self-defense as between parties of equal strength and power. Martha Nussbaum’s Frontiers of Justice notes that much of our political theory is built upon this inaccurate notion. It appears that some of the foundational concepts of widespread legal theory are still bound by similar limitations, to the immense detriment of those who do not match the “default” adult male paradigm. Cyntoia bears a heavy cost for her difference – both in terms of her initial exploitation and in receiving an inhumanly harsh penalty for her action.

Does the Right to Self-Defense Give Us a Right to Guns?

Image of a person putting a handgun into a gun safe.

The survivors of the Marjorie Stoneman Douglas High School shooting have made themselves heard since February 14, most recently at the March For Our Lives rally in Washington DC. Almost all of these teenagers fervently support gun control, but a few of them see things differently. In an interview on The Daily Show a few days before the rally, Stoneman student Josh Belenke spoke up for gun owners. His view is that there’s a “God-given right to self-defense” that shouldn’t be taken away.

Nobody’s really talking about taking guns away entirely, but what about it? Must we make guns available because people have a right to self-defense? How strong is the self-defense defense of gun rights?

Continue reading “Does the Right to Self-Defense Give Us a Right to Guns?”