SYG statutes violate the Fourteenth Amendment

July 30, 2013

Tuesday, July 30, 2013

Good afternoon to all of our friends.

In this article, I argue that the SYG statutes violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment because they are being used to justify and, in effect, license and encourage race-based murders of young black males.

The law of Self-defense

A person can use force, which would otherwise be unlawful, in order to prevent an aggressor from injuring them or someone else. However, they cannot use excessive force, which is defined as the use of force that exceeds the amount of force necessary to prevent being injured.

If a person uses excessive force against an aggressor, the aggressor can use force in self-defense, including deadly force, if necessary, but only if they first offer to quit the attack and withdraw or attempt to withdraw from the fight.

When can a person use deadly force in self-defense?

A person can use deadly force in self-defense or defense of another person, if they believe they are in danger of suffering imminent death or grievous bodily injury.

However, unless a person is inside their castle (i.e., their home), they have a duty to retreat or attempt to retreat before using deadly force. There is no duty to retreat before using deadly force, if a person is inside their castle.

Stand-your-ground (SYG) statutes eliminate the duty to retreat or attempt to retreat before using deadly force outside the castle. In effect, a person takes their castle with them when they leave the home.

As I have said before, this is not a new concept. The western states eliminated the duty to retreat from their laws when they became states and joined the union.

Subjective belief versus Objective reality

Notice that the word “reasonable” is missing from the set of rules that I have provided. I intentionally omitted that word to illustrate as dramatically as I can that (1) a person’s perception of a threat and (2) their decision to use force in self-defense, including deadly force must be objectively reasonable.

In other words, would a reasonable person (i.e., the objective prong of the test) in their situation, knowing what they know about the aggressor (i.e., the subjective prong of the test) believe the use of deadly force was necessary to prevent imminent death or grievous bodily harm?

If the answer to that question is “yes,” the use of deadly force is lawful.

If the answer to that question is “no,” the use of deadly force is unlawful.

The effect of Racism

Racism is not reasonable. A belief that all young black males are thugs or thug wannabees looking for an opportunity to become a thug is a racist belief, no matter who believes it.

It should be acknowledged for what it is; namely, an insane delusion.

When a defendant charged with murder or manslaughter and one or more jurors in that defendant’s case believe that the victim, for example a Trayvon Martin or a Jordan Davis, is a thug or thug wannabee looking for an opportunity to become a thug, no one should be surprised when that juror or those jurors vote “not guilty.”

After all, racists are unreasonable people who regard their prejudiced beliefs as reasonable. They are going to vote “not guilty” because they regard their beliefs as reasonable and they will not understand why other people disagree with them. Instead, they are likely to brand as racist everyone who disagrees with them.

Therefore, the problem with the SYG laws is not that they abolish the duty to retreat before using deadly force in self-defense, which has been the law out west since the western states joined the union, the problem is that racists are commandeering juries and imposing their racist beliefs to acquit racist defendants who unreasonably decided that it was necessary to use deadly force to prevent suffering imminent death or grievous bodily harm.

I have referred to Trayvon Martin and Jordan Davis for illustrative purposes in this analysis. In both cases, however, I believe the defendants intentionally killed their victims and knowingly asserted false claims of self-defense hoping to get away with murder.

Summary

1. SYG statutes require more than a subjective belief by the killer that death or grievous bodily harm is imminent and the use of deadly force is necessary to prevent it from happening .

2. The additional requirement that people are ignoring is that the belief must be reasonable. In other words, would a reasonable person in the same situation perceive the same danger and respond the same way.

3. The reasonableness requirement is supposed to prevent a paranoid or otherwise delusional person, such as a racist, from getting away with murder.

4. The problem in Florida and many other parts of the country, particularly in the South, is that too many white people think it’s reasonable to believe that all young black males are dangerous thugs or thug wannabees looking for an opportunity to become thugs.

Conclusion

Statutes abolishing the duty to retreat before resorting to the use of deadly force in self-defense or defense of another person, are being used by racists to legitimize the murders of young black males.

Since these statutes are being used to justify and, in effect, license and encourage race-based murders of young black males, they violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Therefore, the SYG statutes are unconstitutional as applied and must be stricken.

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Your Right To Due Process Of Law Is Endangered

February 2, 2012

Drone State?

by Truthout on Creative Commons at Flickr

Judges use a legal expression when they decide to prevent the potential evisceration of a fundamental rule of law by exception. In denying an argument to recognize such a proposed exception, they point out that, if they were to accept it, the exception would “swallow the rule.”

Our fundamental constitutional right to due process of law is in danger of being swallowed up by the Obama Administration’s policies of assassinating and indefinitely detaining United States citizens, no matter where they may be located, without due process of law, if the president decides that the citizen is a terrorist, supports terrorism, or is a member of al-Qaeda, an affiliate of al-Qaeda, or an associated force.

For example, in a recent federal case in which Anwar al-Awlaki’s father sued President Obama, Secretary of Defense Gates, and CIA Director Leon Panetta seeking to prevent them from assassinating his son without due process of law, the Department of Justice persuaded the judge to dismiss the case because, nothwithstanding the Due Process Clause of the Fifth and Fourteenth Amendments that explicitly prohibit the government from depriving a person of “life, liberty, or property without due process of law,” the judicial branch of government has no constitutional authority to question or review decisions by the president as Commander in Chief of the Armed Forces to assassinate U.S. citizens on his say so anywhere in the world at any time pursuant to the Authorization to Use Military Force (AUMF), passed by Congress in response to 9/11, and the president’s authority under Article 2 of the United States Constitution.

Go here to read the government’s arguments in its motion to dismiss the father’s complaint.

Anwar al-Awlaki and Samir Khan, both U.S. citizens, were subsequently assassinated in Yemen last September by Hellfire missiles fired from a U.S. drone. Mr. al-Awlaki’s 16-year-old son, Abdulrahman, was assassinated by drone two weeks later.

As Glenn Greenwald points out today, the Obama Administration hypocritically uses the CIA drone assassination program to publicly congratulate itself on removing targeted individuals like al-Awlaki “from the field” without due process of law while at the same it refuses to admit or deny that it has a list of targeted individuals and a drone assassination program. With the exception of Mr. al-Awlaki, whose name was confidentially disclosed to journalist Dana Priest as a person targeted for assassination, we do not know whether the president has targeted anyone else and, assuming that he has, we do not know if such person or persons have been assassinated. We also do not know what criteria the president uses to decide whether to put someone on the list. For all we know, any one of us already could be on the list or at risk to be added to it. Since we do not know whether we are on the list and we cannot find out if we are, we cannot challenge the president’s decision to add us to the list, assuming for the sake of argument that he did. We, by which I include every U.S. citizen no matter where situated in the world, are left with no choice except to trust the president to never make a mistake and never succumb to the temptation to use the assassination program for political purposes.

In the mistake department, one need only consider the relatively frequent stories that pop up about innocent people, including young children, whose names inexplicably are added to the No-Fly List maintained by the Department of Homeland Security. I will not go into the category of assassinations for political purposes as it remains a raw and bleeding wound of grief and endless suspicion and speculation by many people. Think, for example of John F. Kennedy, Robert Kennedy, the Reverend Martin Luther King, Jr., Dr. Bruce Ivins and others too numerous to mention. The point is that many unscrupulous people of wealth and privilege covet the power of the presidency. We already know that this president is for sale and we cannot trust him. The question is whether, assuming you openly oppose him, you are willing to trust him not to target you for assassination. And if you trust him not to do so, would you also trust a Newt Gingrich, a Sarah Palin, or someone like them not to do so, if they should be elected president?

The answer to that question should be self-evident.

Consider these words written by Justice Black of the United States Supreme Court in Reid v. Covert, 354 U. S. 1, 10 (1956):

Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency or convenience.

This is not the first president and certainly will not be the last to seek to detain people indefinitely and/or target them for assassination without due process of law in the name of keeping us safe. Whether in good faith or in bad faith for political purposes in the pursuit of power, I feel much safer if his decisions and actions are constrained by the Due Process Clause and the right to habeas corpus.


The Obamanable President: UPDATED

December 15, 2011

Even though he said he would veto it, President Obama has announced that he will sign the National Defense Authorization Bill that gives him and the military the authority to indefinitely detain U.S. citizens suspected of supporting terrorist activity. I am not surprised because Obama lies all the time about everything and he already claims to have the power to order any person in the world assassinated, no matter where situated and whether or not a U.S. citizen, if he decides that person is a terrorist or has provided material support for terrorism.

The Fifth Amendment to the United States Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Emphasis supplied.

Nothing explicit or implicit in the Fifth Amendment creates or justifies an exception to the Due Process Clause that I italicized, and if you carefully listen with your heart, you can almost hear our Founding Fathers shouting, “NO.”

Using post-conviction DNA testing, the Innocence Project, which was formed by Barry Scheck and Peter Neufeld at the Benjamin Cardozo School of Law in New York City approximately 20 years ago, has exonerated 282 innocent people who were wrongfully convicted of crimes. 17 people were on death row awaiting execution when they were exonerated.

“The Disturbing Case of Eddie Lowery” will be shown tomorrow night (Friday, December 16th) on MSNBC at 10 PM. He is one of those 282 innocent people. Mr. Lowery falsely confessed to a rape he did not commit and spent 10 years in prison before he was exonerated. You can visit the website for the Innocence Project and watch a preview of tomorrow night’s show here.

The Death Penalty Information Center issued a report today entitled, “The Death Penalty in 2011: Year End Report, which you can read here.

The Center reports that, while 1277 people sentenced to death since 1976 in the U.S. have been executed, 139 people sentenced to death have been exonerated (this number includes the 17 people exonerated by post-conviction DNA testing). That is more than 10% of the number of people executed.

The high number of post-conviction exonerations does not inspire confidence in the ability of the criminal-justice system to only convict the guilty and always acquit the innocent, despite due process of law.

Researchers have identified seven causes of wrongful convictions. They are:

1. Mistaken eyewitness testimony;

2. Police misconduct;

3. Prosecutorial misconduct;

4. Forensic fraud;

5. Ineffective assistance of counsel;

6. False confessions; and

7. Jailhouse informants.

To the extent we have information about the people detained at Guantanamo, approximately 80 to 90% are innocent. Most of the people detained by the U.S. military there and other places were identified by paid informants as terrorists and many of them confessed while being tortured.

There is no evidence-based reason to believe that the military is any better at only convicting the guilty and always acquitting the innocent than the civilian criminal-justice system. In fact, given the kangaroo-court-style military tribunal process, there is good reason to believe that there is a much higher probability of wrongful convictions by military tribunals.

Despite all of the well-documented examples of the wrongful conviction of innocent people accorded due process of law in civilian courts and the identification of the causes of those wrongful convictions, President Obama apparently would have us believe that he and his review panel would never make a mistake and order the assassination of an innocent person.

And now the U.S. Congress has granted him the authority to order U.S. citizens, whom he suspects of providing material support to terrorists, detained indefinitely by the U.S. military without access to lawyers and the civilian courts.

This is an egregious and unpardonable sin against the U.S. Constitution, Bill of Rights, Rule of Law, and we the people of the United States.

Given the secretive manner in which senators Carl Levin (D) and John McCain (R) cooked-up this law behind closed doors without conducting any hearings or calling any witnesses, I cannot help but believe that this law was enacted with the OWS protests in mind.

Everyone who participated in drafting, supporting, and enacting this horrific law is unfit to serve in government. They should be immediately removed from office and forever barred from serving in public office in the future in any capacity.

Let December 15, 2011 forever be known as America’s National Day of Shame.

Cross posted from my law blog.


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