by Marty Hayes, J.D.
Occasionally I get challenged by our members on things I write in the eJournal. After last month’s President’s Message where I discussed the actions of Kyle Rittenhouse and the situation in Kenosha, I received one such email. Typically, I respond to them personally, but this one raised several points which I felt needed addressing. Besides, I recognize that if one person is thinking something, others are likely too. So, here is the email as written to me, from a member named “Wayne.”
While you certainly have the right to your opinion, your comments in your “Last Word” made me, a member, seriously question your judgment, both as a citizen and as a custodian for the Network’s funds. Your expressing the opinion in the Network’s newsletter, because of your position, regardless of disclaimers, implied endorsement by the network with possible financial support for vigilante action.
Aside from the above, I guess I have a legal question. I have read (and can’t remember exactly where) that only two states of the 50 allow for the use of deadly force in defense of property. In the other 48 deadly force is only allowed in the event of a deadly threat or the threat of serious injury to oneself or to others. A call for vigilantes, which is what you made, is (I think) a call to felonious action by people who, like Rittenhouse, have no idea what they’re doing. And the more vigilantes, the more bodies that are likely to stack up, and the stronger the attacks on the 2nd Amendment, just like with school, church, mall, and concert shootings.
And the LAST thing this country needs are more militias. Your area may be different, which I doubt, but in my area “militia” is simply another word for white trash - a replacement home for people who would otherwise join the KKK. They are precisely the people who wail the loudest about how oppressed they are because they have to fill out a form to buy a 50 cal. sniper rifle and play Russian roulette with the lives and health of themselves, their families, their friends, coworkers, and casual contacts, etc. in the midst of an epidemic, but are the first to trample on the rights of their neighbors. Militias bill themselves as defenders of freedom, but are in fact a growing threat to our democracy. Living in uncomfortable proximity to militia members and businesses that cater to them, and knowing the lack of quality leadership, is why I now carry a gun.
If people want to be “warriors” and police officers, then encourage them to enlist or to volunteer as reserve officers in their local police force and get training. But please don’t encourage ignorant, untrained people to get in the middle of chaotic events for which they are unprepared and where they are likely to cause more harm than good.
Wayne has conveniently structured his e-mail into four distinct paragraphs, so I will respond to each.
Paragraph one alluded to the actions in Kenosha as “vigilante” actions. It strikes me that he did not watch the trial or somehow missed the fact that a jury of 12 Kenosha residents decided that Rittenhouse’s actions were in fact not vigilante actions, but instead the actions of a reasonable and prudent 17-year-old. As in the prosecution of George Zimmerman, I am sure the jurors looked for every conceivable way to convict Mr. Rittenhouse, if for no other reason than fear of ramping up another round of rioting, but the prosecution was so feeble and the defense so strong, that could not happen.
The other thing mentioned in paragraph one was the question of whether I was a good custodian of the Network’s three million plus Legal Defense Fund. In a case such as Rittenhouse’s, the facts as we knew them at the time certainly would have been collected and taken before the Advisory Board, who, together would have made the decision to either fund or pass on funding. While my correspondent may not trust my mental faculties, let’s keep in mind that, as I wrote in December, the Advisory Board would be weighing in on the decision, too.
Paragraph two discusses the defense of property, and whether it is illegal in most states, suggesting that what I wrote called for ignorant and untrained people to commit felonies. Okay, let’s parse that one out. First off, “defense of property” is legal in all 50 states. One may use force, up to but NOT including deadly force, to prevent property crimes, as long as the amount of force used is reasonable. The vast majority of defensive displays of firearms (using force), is to prevent theft or other damage to property. The confusion occurs when a person uses deadly force (like firing into a fleeing motor vehicle after a burglary) to stop a property theft. That is NOT likely to be viewed favorably by the courts. But having a gun visible to prevent property theft or vandalism is not illegal, at least in most jurisdictions.
One summer, when I was in my early 20’s, I had been hired by a security company in downtown Seattle to guard the front of a retail establishment. My 8-hour shift saw me showing up at 7:00 p.m. and standing outside the big picture glass windows (which had previously been broken in a rash of smash and grab burglaries). I was in uniform, of course, with the biggest revolver I had (a Smith and Wesson N-frame Model 25) strapped to my hip. Have you ever seen armed security in shopping malls or seen the armed guards guarding armored cars? The guns are not there to prevent theft or robbery (although that is a side benefit); the guns are there to protect the guards against violent assault if a robbery turns into a deadly force event. Just like the Kyle Rittenhouse case. To summarize this point: Do not use deadly force to stop the property crime, but to defend yourself against illegal deadly force against you.
The third paragraph discusses militias and their place in our society. First off, the word militia refers to the same group of people of whom the founding fathers wrote in the Second Amendment and the USSC alluded to in its 2008 Heller Decision (see https://supreme.justia.com/cases/federal/us/554/570/). Wayne's home state requires a training course to obtain a concealed carry license, and I presume that most people who are “militia members” are licensed to conceal a weapon so are not untrained, but of course, training can always be better. There’s not much I can say that will help his situation with the locals.
Lastly, we publish the eJournal for our members, who are the responsible armed citizens of our society, and who receive education in the use of force in self defense. While the online journal can be viewed by non-members, I sincerely doubt if many “ignorant” or “untrained” people follow our writings, but if they do, they will likely elevate themselves from the ranks of the ignorant and untrained quickly.
Thank you, Wayne, for writing in and giving me a forum to discuss these issues on this snowy winter day. We hope you will stay with the Network, but when your membership expires, if you want to join another of the more-expensive, less-educationally minded programs which are out there, we will understand. The Network is not for everyone, and we lose people occasionally due to differences in our opinions.
Another Trial; Another Email
Gila asked me to answer Eric’s email from a couple of days ago, in which he asked about the Kim Potter trial in Minneapolis, MN. Here is his note:
I am profoundly disappointed by the conviction of officer Kim Potter, and I’d love to hear from some of our legal experts. My own take was that without having thoroughly rehearsed a situation in our mind, any of us could have made such a tragic mistake: and her immediate inconsolable grief adds to her credibility. How many times have we seen a shortstop get his glove on a line drive with a back hand dive? Yet we see pitchers risk their career by grabbing a hit back to the mound with their bare hand. The prosecutor was allowed to ridicule her confusion, but I’m not aware of the defense bringing in any high profile witness to support the plausibility of her claim.
Besides that, Daunte Wright was a convicted felon being arrested on a weapons charge, who bolted for his car when he learned that the police knew of that charge and were about to arrest him for it. The officer who reached into the car to stop Mr. Wright from leaving placed himself in a very dangerous situation in hopes of avoiding a pursuit in a metropolitan area, which could have endangered innocent civilians. Had the situation not been clouded by officer Potter’s confusion, would she not have been justified in shooting in order to protect a fellow officer from being maimed or killed? I don’t know whether that point was raised; but I never heard it mentioned on the news, and I certainly never heard of a high-profile expert witness addressing that point in her favor.
Was this a legitimate trial, with competent defense, or are police the new candidates for “lynching?”
I offer Eric the following discussion:
I, too, am disappointed in the jury verdict in that trial. I must confess, though, I did not watch most of the trial; I guess I figured it was a no-brainer for the criminal trial. Anytime a mistake like this is made, an in-depth look into the training of the officer is in order. Did she ignore her training and why? Or was the department lax in training her? I suspect the latter. She and the department will now be raked over the coals in civil court, but I do not expect it to go to court. The case will be settled by the insurance of the city.
In any prosecution of a member for a crime, the member MUST get the training he or she has in front of the jury for them to consider. IF that training shows the member followed the training, then it is that training that will carry the weight with the jury. I would recommend everyone keep up on studying the material we send with membership and take training every year at least from a local trainer, who can come to court and, as a member of the local population, tell the jury why he/she trained you, and how you followed that training. I know it went a long way towards Larry Hickey’s eventual acquittal (see https://armedcitizensnetwork.org/images/stories/Hickey_Booklet.pdf) to have a local police sergeant come to court and testify on Larry’s behalf.
As far as the “modern day lynching” (to quote Clarence Thomas), I fear you may be right.
News on the Insurance Commission Fight
I will close this month with a report that we still are not much closer to a resolution. The courts work extremely slowly, especially in the middle of a pandemic. I recently reviewed all the discovery the state supplied in the case (about 2500 pages), and I was reminded of how many of you wrote in to express your displeasure. I felt bad it didn’t immediately bring about a good result. Upon review though, I found a few more tidbits that we can use in court proceedings, so the two days I spent reviewing the file was not wasted. As soon as we have something concrete that we can share, we will.
To read more of this month's journal, please click here.