#14: Culpable Aggression

Table of Contents:

Culpable Aggression—The Basis for Moral Liability to Defensive Killing
Aggressor-Centered or Defender Centered?
Vigilantes and Heroes
Vigilante Justice
The Kyle Rittenhouse Case —August 2020
Vigilante Metaphors—Teenage Shooters
Vigilante? Militia? Confused? Politics? Labeling?
Connecting the Dots—Gun Violence—Self-Defense
An Uneasy Peace
Gun Violence and Guilt
Berger v. U.S.
A History of America’s Love Affair With Lethal Self Defense

Culpable Aggression—The Basis for Moral Liability to Defensive Killing

Self-defense takes at least two people, squared off against one another—an aggressor and a defender. It exists only as a countermeasure. If there is nothing to counter, it is an abstract notion for philosophers and conspiracy theorists to debate. It is not for the faint of heart. In every culture on the planet, it is a human right, but with limited availability. When used as a legal justification, it varies widely in its use, cultural acceptance, and common sense. It has its own Wikipedia page.[1]

It is recognized in most religions. “The Catechism of the Catholic Church states. ‘ Love toward oneself remains a fundamental principle of morality.’ Therefore it is legitimate to insist on respect for one’s own right to life. Someone who defends his life is not guilty of murder even if he is forced to deal his aggressor a lethal blow.”[2]

It ceases to be an abstract proposition when violence is committed, is about to be committed, or one fears it will be committed. Some believe it has been this way forever, at least as far back when Cain murdered Abel. Perhaps even longer ago, as cited in Genesis 2:15. “The right of self-defense predates the fall of Adam and as such it is one of the universal rights of man. . . . Then the Lord God took the man and put him in the Garden of Eden to tend and keep it. To deduce the right of self-defense, they understand ‘to tend’ in the sense of ‘guard,’ and conclude that this authorizes guarding oneself from any and every possible threat.”[3] Pacifists generally follow principles of nonviolence, believing that nonviolent action is morally superior and most effective. However, some support physical violence for emergency defense of self or others.[4]

When used by lawyers or courts, self-defense is nearly as foundational as crime itself.

“It covers a wide array of defensive behaviors, and different actions that repel attacks may be permissible for different reasons. One important justificatory feature of some defensive behaviors is that the aggressor has rendered himself liable to defensive force by his own conduct. That is, when a culpable aggressor points a gun at a defender, and says, ‘I am going to kill you,’ the aggressor’s behavior forfeits the aggressor’s right against the defender’s infliction of harm that is intended to repel the aggressor’s attack. Because the right is forfeited, numbers do not count (the defender may kill as many culpable aggressors as he needs to), third parties may only aid the defender, and the defender does not owe the aggressor compensation for harms inflicted.”[5]

Aggressor-Centered or Defender Centered?

Some courts distinguish between permissibility and liability when a defender claims self-defense against an aggressor. This can be thought of in terms of whether to take an “aggressor-centered” approach or a “defender-centered” perspective. Some scholars reject this because “[o]ne may believe that both perspectives are morally relevant. A liability approach focuses on what an aggressor must do to be liable to defensive force. A permission-based view focuses on when a defender may harm a person who is, or is perceived to be, an attacker. It is coherent to say that an individual is liable to be killed but the defender lacks the permission to do so, and it is also coherent to claim that an agent may permissibly kill someone who is not liable to be killed.”[6]

Vigilantes and Heroes

America’s gun culture is populated by theorists, activists, vigilantes and heroes. If you’re knowledgeable about gun issues but don’t own or use one you might be a theorist. If you’re active in the legal and social debate about guns, you might be an activist. In today’s gun culture the word vigilante has taken on a new meaning. Madame Merriam-Webster says it refers to a member of a volunteer committee organized to suppress and punish crime summarily. She offers a broader usage—a self-appointed doer of justice.[7] Cops aren’t vigilantes. Most campus shooters are.

Conversely, heroes are what we expect cops and some civilians to be. A hero is someone we admire for great or brave acts or fine qualities. Some are war heroes; some are firefighters, police officers, sheriff’s deputies, lifeguards, good dads, moms, sports heroes, characters in books and movies and all first responders. We never mistake them for vigilantes.

However, 21st Century America is getting used to vigilantes. They show up with guns, flags, and attitudes, dressed up in surplus army store clothes claiming vigilante status as they stand their ground. We see them often in media events as the Stand Your Ground movement catches fire, both literally and figuratively.

America, in the Stand Your Ground era, faces two menacing realities. In one, armed citizens believe the law is on their side when they pretend to enforce common laws and conduct citizen arrests. In the other, a few police officers hide behind their serve and protect missions, believing their unions will ignore their misconduct. Fortunately, neither reality produces death in large numbers. Unfortunately, every death they produce is one death too many.

Most citizens, even the armed ones, are good citizens. Most police officers, especially the armed ones, are good cops. But even a few violent, unnecessary deaths darkens the sky and dampens the soul. We can take solace in the fact that vigilantes are few and bad cops even fewer, but reasonably modest numbers still lead to funerals and systemic harm.

Vigilante Justice

Jody Armour [8] said, “Assessments of reasonableness essentially turn on a balancing of values, making the term reasonable itself a value-laden expression.” Vigilante justice is a term used to proclaim violence by armed citizens and disclaim its validity in most scenarios. In its benign form, it describes a single person or a group who claim to enforce the law, but lack the legal authority to do so. It also applies to the general chaos and state of disarray or lawlessness, in which competing groups of people all claim to enforce the law in a given area.”

In fiction, vigilantes have always entertained and beguiled us. Robin Hood in England. Zorro in Mexico. But modern real-world vigilantism is dangerous in every neighborhood. One of America’s fictional heroes was Dirty Harry, a fictional character made famous by Clint Eastwood. He killed fictional criminals, mostly in gunfights, taunting them, “Go ahead, make my day” and Do I feel lucky?’ Well, do ya, punk?”[9]

From his debut, Callahan became the template for a new kind of film cop: an antihero who does not hesitate to cross professional boundaries in pursuit of his own vision of justice, especially when the law is poorly served by an inept, incompetent bureaucracy.

Arguably, the best-known twentieth century vigilante is the infamous Bernard Goetz. Thirty-seven years ago he sought and gained fame for his vigilante shooting of four Black teens in a New York City subway car.[10] He was charged with attempted murder, assault, reckless endangerment, and several firearms possession offenses, and pleaded self-defense. His jury acquitted him of all charges except carrying an unlicensed gun. He served an eight-month jail sentence.[11] “His claims of self-defense were seen by his jury as reasonable based on an unacknowledged but shared belief in Black criminality. At the time, it seemed that the judge, jury, and mainstream press were aligned in their belief that Black men were inherently threatening.”[12]

Goetz was America’s first gun packing, by God, vigilante hero. Today, most would say he was a racist with a gun. Today’s vigilantes are chips off the racist block. Those who remember the Goetz case understandably experience Déjà vu as they watch on TV monitors as 21st Century vigilantes show up, geared up, armed and ready to save white America.

Déjà vu is the feeling people get when confronted with a situation so startling they feel as though this has happened before. The phrase translates literally as “already seen.” Although some interpret déjà vu in a paranormal context, the criminal justice system never uses the phrase. However, it has a comparable legal doctrine. Courts frequently decide cases in the same way previous cases were decided. Lawyers and judges call it “binding precedent.”

A binding precedent is a decided case, which a court must follow if the previous case in the same jurisdiction resolved the same legal principle based on similar facts. The public’s déjà vu is the criminal justice system’s binding precedent. At the risk of overstating the judicial importance, self-defense is both a human right and a defendant’s right. What is too often overlooked is the right of the victim to his life. If defendants have the right to self-defense, don’t their victims have a right to life? The difference often is explained by the victim being not on trial—in a murder case, the victim’s family has rights, but they are not on trial. That’s how justification works in some murder cases—blame it on the victim who put the defendant in a position of fear for his life, thus justifying the killing as self-defense.

This blaming, explaining, and justifying becomes the central issue in some homicide cases. It is common when a new shooting case mirrors older shooting cases on gun rights. The shooter admits intentionally killing his victim but claims he had no choice. He feared the victim would harm him, thus justifying the killing.

The Kyle Rittenhouse Case —August 2020

The Kyle Rittenhouse case started on August 23, 2020 in Kenosha Wisconsin. Jacob Blake, an African-American man, was shot four times in the back by a Kenosha police officer after he was tasered.[13] It was not a campus shooting. It was the product of city protests as part of the Black Lives Matter movement. Two days later, while Kenosha streets were filled with protesters and wide unrest, 17-year old Kyle Rittenhouse shot and killed two men, wounding a third. The victims had been chasing Mr. Rittenhouse, who was armed with an AR-15 style rifle. One of the three victims allegedly had a handgun. Some men had confronted Mr. Rittenhouse before he shot them.[14] Mr. Rittenhouse was described as having participated in local police cadet programs and expressing support on social media for the Blue Lives Matter movement and law enforcement.[15]

Mr. Rittenhouse fled the scene. He later turned himself in on charges of first-degree intentional homicide in his home state of Illinois. He was charged with six offenses, including first-degree reckless homicide, first-degree recklessly endangering safety, and possession of a dangerous weapon by a person under eighteen. When asked why he was at the car dealership where a protest was taking place, he said, “So, people are getting injured, and our job is to protect this business. Part of my job is also to help people. If there is somebody hurt, I’m running into harm’s way. That’s why I have my rifle, because I have to protect myself, obviously. I also have my med kit.”[16] Mr. Rittenhouse claimed he acted in self-defense. He acted when he heard a “firearm discharge and in response to the numerous physical confrontations by protesters.”[17]

Vigilante Metaphors—Teenage Shooters

The essential difference between Steven E. Jones in Arizona and Kyle Rittenhouse in Wisconsin is political angst in Wisconsin as opposed to campus angst in Arizona. The similarities are obvious. Both teen-aged male shooters were well versed in the gun culture. They shot and killed for the first time before they were old enough to vote or drink. In both cases, the presence of a gun in their hands explains the horrific consequences to multiple unarmed victims. And in both cases the Stand Your Ground movement rose up to their defense. Mr. Jones is in prison. Mr. Rittenhouse is awaiting trial.

His legal team and others solicited donations for his self-defense through social media. Money poured in from around the country. Lawyers spent a good deal of it on the failed extradition battle, but still posted $2 million to secure Rittenhouse’s release from jail Nov. 20, 2020.[18] “Rittenhouse’s supporters point to video as evidence that he acted clearly in self-defense and that he shouldn’t have been charged. One former attorney called the case the most important about self- defense and the Second Amendment in Anglo-American legal history. But prosecutors viewed the same video as clear evidence of reckless homicide, even attempted and successful intentional homicide.”[19]

The trio of movements in the Rittenhouse case—Black Lives Matter—Blue Lives Matter—Stand Your Ground—have become political metaphors and have produced death and dismemberment all over America. While unlikely given the politics and the optics embedded in all three movements, the right question for America should be, “Is ‘Epidemic’ the Right Metaphor for Gun Violence?”[20]

U.S. News and World Report headlined a story defining gun violence as a “Public-health epidemic.” Rolling Stone published a multi-part feature urging its readers to consider “America’s Gun-Violence Epidemic.” Alice Chen, the executive director of Doctors for America, argued that, “Gun violence is a public-health problem.”[21] The Atlantic’s thesis was clear. “No matter your opinion on gun legislation, the loss of innocent life occasioned by the senseless actions of violent individuals is overwhelming. It is increasingly difficult not to be somewhat anxious about going to a large public event, sending your child to school, going to the movies, or even attending church.”[22]

Vigilante? Militia? Confused? Politics? Labeling?

Vigilante shootings are inherently confusing because how a case is labeled is inherently political. National Public Radio is an American privately and publicly funded non-profit media organization based in Washington, D.C. Widely respected it is a national syndicator to 797 public radio stations in the country. It’s favored by democrats, independents, centrists, moderates and liberals. About 17% of its regular audience are Republicans, and 21% tend conservative.[23] Its August 20, 2020 program highlighted the ways vigilante shootings are labeled or mislabeled based on the defenses claimed by shooters.

Reporting on the Kyle Rittenhouse shooting, NPR said, “On the left, the suspect is portrayed as the embodiment of today’s domestic terrorism threat: A cop-idolizing wannabe militiaman who allegedly traveled across state lines to confront protesters with a gun he was not legally allowed to possess. On the right, the teen’s actions instantly were justified as self-defense, the natural end to “Democrat cities” letting radical leftists maraud through the streets. Extremism researchers say they’ve watched with alarm as misinformation, sloppy labeling and political divisions shape the public narrative about Rittenhouse. Part of the problem, they say, is that he appears to fall into a hard-to-define category of gunman that’s increasingly showing up at protests: the self-styled vigilante.”[24] The Anti-Defamation League’s Center on Extremism is illustrative. They called out volunteer gunmen as “armed vigilante groups.” It differentiated between lone wolf shooters and groups because they are “often pop-up, local factions without the organization of established militias.”[25]

Connecting the Dots—Gun Violence—Self-Defense

Sometimes the forest is shielded by trees. That’s also true of gun violence. Racism inflames shooters. Shooters plead self-defense. The cycle repeats itself, from generation to generation, from muskets to AK-47s; white supremacy is well armed. Gabby Giffords[26] and her Giffords Law Center are conscientious reporters of vigilantes and gun violence. Their July 2020 mission is clear.

“As the leaders of a gun violence prevention organization, we work to save lives from gun violence every day. The unjust police shootings of civilians is gun violence, and we cannot fulfill our mission without full acknowledgment of that. We stand with the Black Lives Matter movement and are committed to fighting police violence and other manifestations of systemic racism that lead to the deaths of so many Black and Brown people. Ahmaud Arbery, Breonna Taylor, David McAtee, George Floyd, Sean Monterrosa, and Tony McDade are just the most recent names in a long history of unjust killings that are the inexcusable consequence of structural racism.”[27]

An Uneasy Peace

In January 2019, Sociologist Patrick Sharkey released a new book assessing gun violence in US cities—An Uneasy Peace.

“Over the past two decades, American cities have experienced an astonishing drop in violent crime, dramatically changing urban life. In many cases, places once characterized by decay and abandonment are now thriving, the fear of death by gunshot wound replaced by concern about skyrocketing rents. In 2014, most U.S. cities were safer than they had ever been in the history of recorded statistics on crime. Patrick Sharkey reveals the striking consequences: improved school test scores, since children are better able to learn when not traumatized by nearby violence; better chances that poor children will rise into the middle class; and a striking increase in the life expectancy of African American men. Sharkey also delineates the combination of forces, some positive and some negative, that brought about safer streets, from aggressive policing and mass incarceration to the intensive efforts made by local organizations to confront violence in their own communities.”[28]

Gun Violence and Guilt

Guilt is too often assumed and innocence too often ignored. Police officers are trained to arrest those suspected of crime, even if their guilt has yet to be established. Police officers give lawful commands to cease and desist—in the form of handcuffs. They put themselves and fellow officers at risk of gun violence if suspects are armed. That is why they look for guns first and ask questions later—at the station house. These are well-intentioned protocols for arrest and investigation. However, the larger question is, do they have the right to shoot in doubtful circumstances? What if the suspect does not cooperate? What if he runs? Can a police officer fire at will at the runner, at say, forty feet away? Some do—some don’t. Those that fire at fleeing suspects not knowing their guilt, only suspecting it, put themselves and the rest of us at risk. They have no duty to retreat, nor does the suspect. Our criminal justice system is simple. “The twofold aim of criminal justice is that guilt shall not escape nor innocence suffer.”[29]

Berger v. U.S.

In an important 1935 US Supreme Court case (Berger v. U.S), the court dealt with “assumptions” about guilt and innocence vis-à-vis the legal obligations of prosecutors in gun violence cases. The full quotation equally applies to police officers in the field. If a prosecutor cannot assume guilt, neither can a police officer. If a prosecutor must act impartially in court, so must a police officer arresting a suspect. Both can strike hard blows but not foul ones. Shooting an unarmed suspect running away from arrest is at the very least, a foul blow.

“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”[30]

A History of America’s Love Affair With Lethal Self Defense

Gun violence is having a moment in 2020 America. The moment is vaguely familiar. Caroline Light’s book, subtitled, A History of America’s Love Affair With Lethal Self-Defense[31] , takes us back to 1806. “When Thomas Selfridge stood trial for manslaughter in December 1806, the young nation’s laws were vague on the topic of lethal self-defense. The thirty-two-year-old lawyer had killed a man on the streets of Boston, claiming he did so to protect himself from grave danger. . . In the United States the idea of backing away from a threat or of allowing the state to protect one from harm clashed with ideals of independence and individual rights on which the nation was founded. . . popular opinion in the young republic saw a white man’s retreat from assault, particularly an assault on his honor, as cowardly and incompatible with the values of a liberal democracy.”[32]

A black man could not retreat.

[1] https://en.wikipedia.org/wiki/Self-defense.

[2] https://ashbrook.org/wp-content/uploads/2016/08/Sivik-Printable.pdf.

[3] https://www.clarkssummitu.edu/self-defense-and-the-christian/.

[4] https://en.wikipedia.org/wiki/Pacifism.

[5] “Culpable Aggression: The Basis for Moral Liability to Defensive Killing,” 9 Ohio St. J. Crim. L. 66, Spring 2012, at 669.

[6] Ibid. at 671.

[7] https://www.merriam-webster.com/dictionary/vigilante

[8] “Jody David Armour is the Roy P. Crocker Professor of Law at the University of Southern California. He has been a member of the faculty since 1995. Armour’s expertise ranges from personal injury claims to claims about the relationship between racial justice, criminal justice, and the rule of law. Armour studies the intersection of race and legal decision making as well as torts and tort reform movements.” https://gould.usc.edu/faculty/?id=129.

[9] https://en.wikipedia.org/wiki/Harry_Callahan_(character).

[10] https://www.britannica.com/biography/Bernhard-Goetz

[11] Nadine Klansky, Bernard Goetz, a Reasonable Man—A Look at New York’s Justification Defense. 53 Brooklyn L. Rev. 1153, Winter 1988.

[12] Caroline E. Light, Stand Your Ground—A History of America’s Love Affair with Lethal Self-Defense, Beacon Press, Boston, 2017. At 147. Citing Patricia Williams, Alchemy of Race and Rights, Cambridge MA, Harvard University Press, 1992, at page 77.

[13] “The U.S. Department of Justice identifies officer who shot Jacob Blake as Rusten Sheskey; says Blake had knife.” FOX 6 Now Milwaukee. August 26, 2020. Archived from the original on August 27, 2020. Retrieved August 27, 2020.

[14] “Shelbourne, Annysa Johnson, Mark Johnson and Talis. “ Victim of Kenosha protest shooting may have been ‘trying to save somebody’: What we know.” USA Today. Archived from the original on September 23, 2020. Retrieved October 27, 2020.

[15] Maxouris, Christina (August 27, 2020). “Kenosha shooting suspect faces more homicide charges”. CNN. Archived from the original on August 30, 2020. Retrieved August 30, 2020.
Householder, Mike; Bauer, Scott. “17-year-old arrested after 2 killed during unrest in Kenosha”. Associated Press. Archived from the original on August 26, 2020. Retrieved August 27, 2020.
Brandom, Russell (August 28, 2020). “Mark Zuckerberg says Kenosha Guard rulings were ‘an operational mistake'”. The Verge. Archived from the original on August 30, 2020. Retrieved August 30, 2020.

[16] Willis, Haley; Xiao, Muyi; Triebert, Christiaan; Koettl, Christoph; Cooper, Stella; Botti, David; Ismay, John; Tiefenthäler, Ainara (August 28, 2020). “Tracking the Suspect in the Fatal Kenosha Shootings”. The New York Times. ISSN 0362-4331. Archived from the original on August 27, 2020. Retrieved August 28, 2020. About 15 minutes before the first shooting, police officers drive past Mr. Rittenhouse, and the other armed civilians who claim to be protecting the dealership, and offer water out of appreciation. Mr. Rittenhouse walks up to a police vehicle carrying his rifle and talks with the officers.”

[17] “Attorneys say accused Kenosha shooter acted in self-defense”. WKOW. August 29, 2020. Archived from the original on October 22, 2020. Retrieved October 8, 2020.

[18] https://www.usatoday.com/story/news/nation/2021/08/22/kyle-rittenhouse-case-trial-date-approaches-kenosha-shootings/8197989002/

[19] Ibid.

[20] https://www.theatlantic.com/health/archive/2016/01/gun-violence-disease-epidemic/422478/

[21] Ibid.

[22] Ibid.

[23] https://en.wikipedia.org/wiki/NPR_controversies

[24] https://www.npr.org/2020/08/28/907130558/vigilante-militia-confusion-and-politics-shape-how-shooting-suspect-is-labeled

[25] Ibid.

[26] “Gabrielle Dee Giffords is an American politician and gun control advocate who served as a member of the United States House of Representatives representing Arizona’s 8th congressional district from January 2007 until January 2012, when she resigned due to a severe brain injury suffered during an assassination attempt.” https://en.wikipedia.org/wiki/Gabbey_Giffords.

[27] https://giffords.org/we-demand-an-end-to-police-violence-and-systemic-racism/.

[28] Patrick Sharkey. “An Uneasy Peace—Great Crime Decline, the Renewal of City Life, and the Next War on Violence.” 2018. W.W. Norton & Company, New York & London. https://www.amazon.com/Uneasy-Peace-Decline-Renewal-Violence/dp/039360960X.

[29] Berger v. United States, 295 U.S. 78 (1935).

[30] Ibid. at page 88.

[31] Caroline E. Light. “Stand Your Ground—A History of America’s Love Affair With Lethal Self-Defense.” Beacon Press. Boston, Massachusetts, 2017, at 18.

[32] Ibid. at 18-19.

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