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August 31, 2011

Milwaukee Journal-Sentinel Frets Crazy, Unreasonable, Fringe Self-Defense Rules (Which Seem Popular Among Their Readers)

If an intruder is unlawfully in your house, at night*, can you shoot him, without being arrested?

Under current law, maybe-- if you can satisfy the law's complicated test for the lawful use of deadly force in self-defense. Would an objective person in your place have a reasonable belief that a life was in danger? Did you afford the intruder the opportunity to retreat?

How about a simpler rule -- if you've entered someone's house unlawfully, at night, the law should assume the reasonableness of shooting him?

As Althouse writes:

I favor the bill myself, because people who are considering breaking into a house shouldn't have a complicated set of risk/benefit factors to weigh. It should be really clear.

But the statists don't want it really clear. They don't want a simple bright line rule. Bright line rules take them out of the equation.

What they want are muddled rules with complicated balancing-factors tests which always reserve a place for agents of the government to evaluate the actions of a citizen, and either bless it or condemn it.

The more complicated the rule, the more official state-appointed arbiters are required to step in and interpret it.

Which, to them, is a feature, not a bug.

Sandra Day O'Connor, the judicial decision-maker who couldn't make a decision, made a true hash of the law by always trying to punt on decisions, refusing to establish bright-line rules, instead favoring complex, lengthy laundry-lists of "balancing factors" to be considered in future disputes. This is simply litigation bait -- because no one knows what the rule is (Sandra Day refused to announce one), people have to litigate endlessly to see how they'll come down in the fifteen-questions tests she favored. Every following decision was, essentially, a brand new decision, arrived at ad hoc and based on the particular factors that a judge decided this week should be controlling. (Yes, she also failed to prioritize her numerous factors.)

So if you're in a lawsuit whose controlling law was decided by Sandra Day O'Connor, buckle up, because you (and your opponent in the lawsuit) are going to be in court for a long time. And don't blame your opponent-- he is similarly trapped by an unpredictable law, too. Like you, he also has no idea what the controlling principle for this case will be finally discovered to be.

Where possible -- and it usually is possible -- laws should be simple enough to satisfy the first requirement of written laws -- that the citizens subject to them should be able to understand them and predict the legality of an action. Maybe you need to consult a lawyer to understand it -- but you shouldn't have to "consult" a judge, at trial, because your lawyer can only tell you "It's really up to the judge."

That's not a law. That's the opposite of law-- an ad hoc right of a prosecutor or judge to surprise citizens with their own idiosyncratic, personal "law" for the day.

But those who like to keep things muddled like keeping citizens in a state of baffled ignorance. Because keeping it muddled always allows agents of the state to come in and render a judgment.


* Why at night? Criminal law has historically made "at night" an element of a crime. The classic burglary charge was unlawful entrance into a dwelling, with intent to commit a felony therein, at night. If it wasn't at night, it was a lesser charge.

There's a general understanding that night-time is different. Bad things happen at night.



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posted by Ace at 12:18 PM

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