This month's Patriot news column argues against expansion of the Castle Doctrine which allows the use of deadly force without retreat in self-defense. According to the PennLive.com posters, this opinion identifies your humble Doubter as a "liberal coward" who wants murderers to survive their crimes so that he can get rich defending them. What do you think?
Two bills pending before the state’s General Assembly are designed to increase the legal opportunity of Pennsylvanians to kill one another. HB 40 and SB 273 would broaden the poorly named “Castle Doctrine” by legitimizing the use of deadly violence in self-defense, even when the person threatened can avoid all personal risk by simply going someplace else.
These bills celebrate our right to “stand our ground” when faced with danger, and they resonate with the macho imperative that we should not have to run away from bad guys.
They will almost certainly become law; similar bills sailed through the Legislature last year before being vetoed by Gov. Ed Rendell, and Gov. Tom Corbett has reportedly said that he will sign them if they are passed this time. When that happens, it will be an awful day for law enforcement and a perilous time for public safety.
Technically, the bills would change an important part of the law of self-defense — the duty to retreat. Currently, when a person is attacked or threatened with attack he can fight back to protect himself or others: up to the point of killing the attacker. Before meeting deadly force with deadly force, he must try to escape the dangerous situation if he safely can do so.
The law makes a reasonable decision that if one person must flee or another will die, then running away is best. There are exceptions to protect a person who is threatened at home or at work, but aside from that safe retreat is preferred to homicide.
The key word here, of course, is “safe.” If you place yourself at risk by retreating you can stand and fight. There is generally no duty to turn your back on a shooter or to try to outrun gunfire. Superman might be faster than a speeding bullet, but the law recognizes that he is the only one. In the rare and true case of kill or be killed, self-preservation trumps nonviolence. The law of self-defense does not intend to promote suicide.
HB 40 and SB 273 would change these rules by allowing people to oppose deadly force with deadly force whenever they are in any place they have the legal right to be. Streets, stores, shopping malls, houses of worship, hospitals and playgrounds would all become lawful shooting ranges: dueling grounds where mortal combat is favored over the embarrassment of turning tail.
When Gov. Rendell vetoed this legislation last November he said, “I do not believe that in a civilized society we should encourage violent and deadly confrontation when the victim can safely protect themselves.” That seems self-evidently true.
Rendell and others, including prominent police and law enforcement interests, oppose the “shoot first mentality” that this law would foster. Dauphin County District Attorney Ed Marsico has been quoted as saying that “someone can claim self-defense if they shoot someone who looks at them the wrong way.”
These bills and their authors seem little troubled by these public safety concerns. Instead, the language of the bills blithely proclaims that “it is proper for law-abiding people to protect themselves” and that no person “should be required to needlessly retreat in the face of intrusion or attack” outside their home or vehicle.
The battle lines for this debate are drawn close to pro-gun, anti-gun divisions with one sponsor of the Senate Bill quoted as saying “I bust my butt for” the NRA. But this is really not just a gun rights issue, it is an issue complicated by pride and vanity and a misguided notion of what it means to be brave. Running away is weak, and standing your ground is manly. This is a law that would exalt saving face over saving lives.
Pennsylvania and its legislators should be looking for tools to reduce lethal violence rather than finding new ways to glorify its increase. The criminal courts already overflow with the consequence of senseless mayhem, and those of us who work there would prefer not to see it get any worse.
For recent journal publications and "About The Reasonable Doubter" scroll down past the postings.
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The Enlightened Justice Blog
Wednesday, February 16, 2011
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The state of the law as a state of mind.
RECENT PUBLICATIONS BY THE REASONABLE DOUBTER
"The Embarrassment of Innocence"
Innocence should be the only serious question for the criminal courts. We operate, after all, in a system which enforces a presumption in its favor and which allows any reasonable belief in its existence to preserve it. Innocence is the default state of blamelessness.
Because fine and often exquisite distinctions between innocence and guilt carry with them disproportionate consequences — imprisonment, ruin, and death — the stakes are high for drawing these distinctions with accuracy. Public respect for criminal justice as a whole rests largely on the community’s belief that its guilt finding system has two characteristics: first, that it usually correctly divides guilt from innocence; and second, that when that usual result does not prevail, it fixes its own mistakes. The system is not only reliable but it is self-correcting. If it were not, the conventional wisdom holds, its claim to moral legitimacy would be far more tenuous.
[click here to read the complete article]
"This Should Have Been a Simple Case: Dretke v. Haley and the Illusion of Actual Innocence"
Criminal defense is an always difficult and often thankless job. Pursuing justice by vindicating our clients’ rights appears to many citizens — lawyers and non-lawyers alike — as mere hairsplitting to help criminals avoid the just desserts of their crimes. When we are asked how we can do it, we can talk about the lopsided power of the state, the Founding Fathers’ fear of tyranny or the need to champion individual liberty. But sometimes it is easier just to say that some defendants are actually innocent and therefore it is wrong for them to be punished. This, I have learned over the decades, is the one thing everyone agrees with. If you didn’t do “it,” whatever “it” is you should not be punished. Innocence may not be a presumption that many juries accept, but when some rare case presents an “unusually pristine” example of a defendant being unfairly punished no one should object to his exoneration. Courts and lawyers may contend over guilt and reasonable doubt, but innocence should be the one unbeatable trump to punishment.
[click here to read the complete article]
Spero T. Lappas, J.D., Ph.D.
Spero T. Lappas, J.D., Ph.D., is an author, scholar, and lawyer headquartered Harrisburg, Pennsylvania. He has earned a PhD in American Studies from The Pennsylvania State University where he researched the relationship between the American law and culture and where he has taught courses in American Studies and Public Policy. He graduated with honors from Allegheny College (BA ‘74), where he was twice named an Alden Scholar, received Departmental Honors at graduation and the Muhlfinger Prize for his independent research and from the Dickinson School of Law (JD ‘77), where he was on the Editorial Board of the Dickinson Law Review, a member and faculty adviser of the National Trial Moot Court Team, and winner of two American Jurisprudence Awards. He was later named to Dickinson's Woolsack Society.
He is licensed to practice law before the Supreme Court of the United States, all Pennsylvania state courts, and several federal courts. He has served as lead counsel in hundreds of major civil, criminal, and civil rights cases, including some of Central Pennsylvania's most important criminal and civil trials. In the criminal courts he has defended several death penalty murder cases, federal drug felonies and conspiracies, federal sports bribery, state and federal crimes of violence, major fraud allegations, and most other varieties of cases in which citizens have been charged with serious state and federal crimes. In the civil rights arena he has represented plaintiffs in cases involving police misconduct, excessive force, wrongful arrest and prosecution, sex discrimination, disparate impact, disparate treatment, prisoners rights, students rights, age and race discrimination, wrongful death, freedom of speech and association, search and seizure, and whistle blowers rights.
He served as an inaugural member of the Pennsylvania Senate Advisory Committee to Study the Causes of Wrongful Convictions and the Pennsylvania Legislative Advisory Committee to study the Death Penalty.
His career achievements have been recognized in many leading volumes and publications about legal professionals. He was among the nation's youngest attorneys to be named in the first edition of The Best Lawyers in America. He has been listed in Who's Who in American Law, Who’s Who in the World, Who's Who in Finance and Industry, Who's Who in America, Who’s Who Among Emerging Leaders in America, America's Leading Lawyers and The Bar Register of Pre-Eminent Lawyers. He has an A rating -- the highest possible recognition -- from the Lexis/Nexus Peer Reviewed rating system.
He has been an adjunct professor at Widener University School of Law and Harrisburg Area Community College, a University Graduate Fellow at Penn State, and a member of the ACLU (where is on the board of directors for the local chapter), American Mensa, and the U.S.Fencing Association. His publications have appeared in the Dickinson Law Review, The Champion (the journal of the National Association of criminal Defense Lawyers), the Harrisburg Patriot-News, The Burg newspaper and the Pennsylvania Magazine of History and Biography.
He is a prize-winning photographer whose work has appeared in several galleries, one-artist shows, and personal and corporate collections, a tournament Scrabble champion, and a competitive three weapon fencer.
He frequently speaks to civic and community organizations about matters of public importance. To arrange an appearance, please contact Dr. Lappas at sperolappas.jd.phd@gmail.com.
He is licensed to practice law before the Supreme Court of the United States, all Pennsylvania state courts, and several federal courts. He has served as lead counsel in hundreds of major civil, criminal, and civil rights cases, including some of Central Pennsylvania's most important criminal and civil trials. In the criminal courts he has defended several death penalty murder cases, federal drug felonies and conspiracies, federal sports bribery, state and federal crimes of violence, major fraud allegations, and most other varieties of cases in which citizens have been charged with serious state and federal crimes. In the civil rights arena he has represented plaintiffs in cases involving police misconduct, excessive force, wrongful arrest and prosecution, sex discrimination, disparate impact, disparate treatment, prisoners rights, students rights, age and race discrimination, wrongful death, freedom of speech and association, search and seizure, and whistle blowers rights.
He served as an inaugural member of the Pennsylvania Senate Advisory Committee to Study the Causes of Wrongful Convictions and the Pennsylvania Legislative Advisory Committee to study the Death Penalty.
His career achievements have been recognized in many leading volumes and publications about legal professionals. He was among the nation's youngest attorneys to be named in the first edition of The Best Lawyers in America. He has been listed in Who's Who in American Law, Who’s Who in the World, Who's Who in Finance and Industry, Who's Who in America, Who’s Who Among Emerging Leaders in America, America's Leading Lawyers and The Bar Register of Pre-Eminent Lawyers. He has an A rating -- the highest possible recognition -- from the Lexis/Nexus Peer Reviewed rating system.
He has been an adjunct professor at Widener University School of Law and Harrisburg Area Community College, a University Graduate Fellow at Penn State, and a member of the ACLU (where is on the board of directors for the local chapter), American Mensa, and the U.S.Fencing Association. His publications have appeared in the Dickinson Law Review, The Champion (the journal of the National Association of criminal Defense Lawyers), the Harrisburg Patriot-News, The Burg newspaper and the Pennsylvania Magazine of History and Biography.
He is a prize-winning photographer whose work has appeared in several galleries, one-artist shows, and personal and corporate collections, a tournament Scrabble champion, and a competitive three weapon fencer.
He frequently speaks to civic and community organizations about matters of public importance. To arrange an appearance, please contact Dr. Lappas at sperolappas.jd.phd@gmail.com.
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