castle doctrine – USA Gov Policy

This in-depth report was provided exclusively to the New York Analysis of Policy and Government by the distinguished jurist, Judge John H. Wilson (ret.)

Then there is Mark and Patricia McCloskey of St Louis, MO. When a group of protestors entered the grounds of their gated community, the McCloskey’s defended their home with firearms. As the incident is described by Fox News host Tucker Carlson, “the McCloskeys sat in their backyard together having dinner. Suddenly, as they ate, a mob of hundreds of screaming people destroyed a wrought iron gate with a no trespassing sign on it and came pouring in, moving toward them quickly…(t)his mob was clearly intense on violence. They said so…the mob threatened to murder him and his wife. Then they threatened to kill the family’s dog. Panicked, the McCloskeys called the police. Then they called the neighborhood security patrol, but no one came. They had no choice to protect themselves.”

In language almost identical to the New York and Georgia law cited above, Missouri law states that “(a) person may…use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person.”

Yet, despite the fact that the protestors were trespassing, and threatening “unlawful force” against the McCloskeys, St Louis Circuit Attorney Kim Gardner charged the McCloskeys with unlawful use of a weapon as a felony.

Finally, there is the case of Kyle Rittenhouse. According to the Chicago Tribune, the 17 year old Rittenhouse was in the process of guarding businesses in Kenosha, Wisconsin with a rifle during the riots which followed the shooting of Jacob Blake, when “Joseph Rosenbaum, 36, of Kenosha…(chased) Rittenhouse…into the parking lot of a used-car dealer. When Rosenbaum, who was unarmed, finally cornered Rittenhouse, he grabbed for the teenager’s gun. Multiple shots rang out, and Rosenbaum fell, mortally wounded… Rittenhouse hustled away. Soon a group of people began chasing him…shouting ‘Beat him up!’ ‘Get him! Get that dude!’ …(o)ne of the pursuers took a swing at Rittenhouse and knocked his ball cap off… Rittenhouse stumbled and fell as he ran. One of his pursuers took a flying kick at his head and missed as Rittenhouse fired two errant shots from the ground. A second pursuer, Anthony Huber, 26, of Silver Lake, Wisconsin, swung a skateboard at Rittenhouse, hitting him on the shoulder, and grabbed and tried to hang onto Rittenhouse’s rifle. Rittenhouse shot Huber in the chest during that struggle..killing him…(a) third victim, Gaige Grosskreutz, 26, of West Allis, Wisconsin, who survived, first held up his hands in a gesture of surrender at a distance of a few feet. In one of his hands, he held a gun. But when he ‘moved toward’ Rittenhouse…Rittenhouse fired, striking (Grosskreutz) in the arm.”

Once more, what is Wisconsin law on self defense? “A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person…(t)he actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.”

Yet, despite the law stated above, Rittenhouse was arrested and charged with murder, and related charges.

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In all three cases, a police officer, a pair of homeowners, and an individual acting in defense of property, were charged with crimes while the facts point to these persons acting lawfully, in their own self defense. Nonetheless, all have been charged with serious felony crimes, with the potential for incarceration (In Officer Rolfe’s case, the charge is subject to the Death Penalty, but the Atlanta DA has indicated he would not seek execution in this case).

Obviously, the political undertones of all three cases is a common denominator. Atlanta DA Paul Howard is a Democrat, as is St. Louis Circuit Attorney Kim Gardner and the Kenosha County Prosecutor, Michael Graveley. All three arrests are related in one way or another to the rioting, looting and general unrest that has occurred in Democrat-controlled cities across America; The shooting of Brooks led to more riots in a city already suffering from the effects of riots after the death of George Floyd in Minneapolis; The violent protestors who invaded the McCloskey’s residence in St Louis were supporters of the “Black Lives Matter” movement; and the riots in Kenosha were a response to the shooting of Jacob Blake, who according to CBS News, “has previously been accused of assaulting his ex-girlfriend, with whom he has three children. A criminal complaint was filed against Blake on July 6, charging him with felony third-degree sexual assault…according to Wisconsin Circuit Court records.”

There is an argument to be made that all three cases were brought in an effort to quell further protests and riots. If so, this effort has been an absolute failure – civil unrest continues unabated across Democrat-controlled jurisdictions. Further, to violate the rights of a police officer and several private citizens to appease a mob is no better than the justice Officer Rolfe, the McCloskeys and Kyle Rittenhouse could expect from the mob itself.

Luckily, cooler heads have begun to prevail. Officer Rolfe is currently at liberty on bond, and Paul Howard lost his bid for reelection. The Attorney General for Missouri, Republican Eric Schmitt, has moved to intervene in the prosecution of the McCloskeys, and is seeking dismissal of the charges brought against them. Further, regarding the charges brought against Kyle Rittenhouse, even self-described leftist Eric Zorn admits in the Chicago Tribune that “Rittenhouse is probably going to walk. He’s going to plead self-defense — his lawyers have already signaled as much — and from what I’ve seen, read and heard, I predict he’s going to be acquitted on the most serious charges.”

Once more, the strength of America’s legal system is displayed to full effect. Though the arrests and prosecutions of Officer Rolfe, the McCloskeys and Kyle Rittenhouse were rushed to satisfy the appetite of an angry and violent mob, the deliberate process of the rule of law has come to the aid of each. If the cases are not dismissed outright, each can expect to have their day in Court, and each is entitled to have the prosecutor establish they were not acting in self defense.

Contrast this justice with that demanded by the rioters.

Illustration: Pixabay

This in-depth report was provided exclusively to the New York Analysis of Policy and Government by the distinguished jurist, Judge John H. Wilson (ret.)

In recent days, we have witnessed a series of incidents where private individuals and uniformed police officers have been arrested and incarcerated for what would appear to be acts of self defense. But were these persons actions legal, or are they guilty of the crimes with which they are charged?

To begin our examination of this topic, the legal definition of self defense is “the use of reasonable force to protect oneself or members of the family from bodily harm from the attack of an aggressor, if the defender has reason to believe he/she/they is/are in danger…The force used in self-defense may be sufficient for protection from apparent harm (not just an empty verbal threat) or to halt any danger from attack, but cannot be an excuse to continue the attack or use excessive force…(r)easonable force can also be used to protect property from theft or destruction. Self-defense cannot include killing or great bodily harm to defend property, unless personal danger is also involved.”

This general definition limits self defense to oneself, or a member of one’s own family, however, many statutes are broader. New York’s Penal Code describes the defense of justification as “conduct…necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor” and authorizes “(a) person (to) use physical force upon another person in self-defense or defense of a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property.”

When a defendant asserts self-defense, the prosecution has the burden to disprove the defense. This is different from an “affirmative defense,” such as acting under duress, or entrapment. In those cases, the defendant has the burden of proving his defense.

As described by the “New York Criminal Attorney Blog,” “self-defense claims may not be available if the defendant is the initial aggressor or provokes the other person into attacking them with the intent of inflicting harm in retaliation. Even if a defendant is found to have met both of these elements, there is also the requirement that the force used be reasonable. Essentially, this is a proportionality requirement.”

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With these basic rules in mind, let us turn to several recent cases.

Under these facts, the actions of Officer Rolfe should fit squarely within the definition of a justified homicide. The language of Georgia’s law is similar to New York’s – “(a) person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force.” Georgia law even authorizes “Sheriffs and peace officers…may use deadly force to apprehend a suspected felon only when the officer reasonably believes that the suspect possesses a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; when the officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others…”

Yet, Officer Rolfe has been arrested and charged with murder by Atlanta District Attorney Paul Howard.

The Report concludes tomorrow

Illustration: Pixabay

Quick Analysis

Ukraine’s Frozen Conflict

As we approach winter in the northern hemisphere, the war in Ukraine is beginning to resemble a “frozen conflict” from many perspectives. Ukrainian President Volodymyr Zelensky recently told the media he hopes the war will end faster once President-elect Trump takes over in January. Opinions in Moscow, however, differ from that of the Ukrainian leader. Russian President Vladimir Putin argues that the North Atlantic Treaty Organization (NATO) needs to exclude Ukraine from joining in “exchange” for peace. If it does not, he says, then no end to the war is in sight. So far there is no Christmas solution. Several NATO countries, according to Vladimir Socor of the Jamestown Foundation, are tentatively considering “coalitions-of-the-willing” to provide security for Ukraine outside of the formal NATO framework. There is, however, no collective mechanism today under which such an arrangement is viable. According to the NATO Charter, while Ukraine is a NATO partner country, it may not join as a full member since it has not fulfilled the requirements for membership. That has not stopped NATO and allies from continuing “to provide Ukraine with unprecedented levels of support, helping to uphold its fundamental right to self-defence,” according to the organization. Socor says that keeping Ukraine out of NATO will not advance peace with Russia. Waiting for a peace settlement, he suggests, would only serve to encourage Moscow to continue the war indefinitely. Although the Biden Administration officially withdrew its support for Ukrainian membership in 2021, NATO maintains an “open door” policy toward membership-seeking countries. The current White House position led the way for European states to oppose Ukraine’s membership saying that a decision should be delayed until “conditions are met.” Biden pushed for changing “open door” to a “bridge” metaphor. It is not intended as an across-the-board NATO policy and has been implemented in the past on a case-by-case basis, says Socor. “The alliance’s open-door policy was not fully insulated from Russia’s non-statutory blocking power, and NATO-aspirant countries’ path toward membership was not always irreversible.” Russia has successfully blocked states like Georgia from joining, first in 2008 and again after the war in Ukraine began in 2014. Russia recognizes the value add of Ukraine to NATO is enormous and that Kyiv has a better case than some other nations. Putin’s invasion was, in part, intended to foreclose that option. By 2021, Moscow was pushing hard to maximize its war objectives, which included further annexations of Ukrainian territory. A main goal for Putin was, and is, to ensure there is no Ukraine left to join NATO. As President-elect Trump prepares to assume office in January, he is faced with the historical challenges presented by the war. Post-conflict security guarantees were the center of several proposals made during the 2023 military stalemate. The incoming Trump Administration has yet to outline how it intends to handle the Russia-Ukraine war. Analysts in Washington believe that the new Administration will expect its European allies to guarantee the majority of Ukraine’s security needs. As we approach 2025, several European nations have acknowledged that they do not view Ukraine as eligible for NATO membership as it would draw the organization into the middle of the conflict. Others want to wait until the war is over or pending a “peace” settlement before considering Ukrainian membership. Socor reports that some “influential voices” are suggesting that “Kyiv should join NATO after “freezing” the war along a stable armistice line, de facto accepting Ukraine’s partition, with NATO security guarantees applying de jure to the government-controlled territory only.” This would mean starting accession talks soon with the actual talks to commence only after a ceasefire is in place. Trump arrives in Washington at a time when Putin’s hybrid strategies of war in Ukraine have eviscerated commonly-held differences between war and peace. “Absent a political consensus in NATO over Ukrainian membership, certain European allies, including France’s President Emmanuel Macron, are holding informal consultations about post-conflict security guarantees to Kyiv by NATO members outside of NATO’s framework,” according to the Jamestown Foundation. The Biden Administration downplayed the discussions on possible forms of military assistance and defense industry cooperation by sending only an Assistant Secretary of State. For a European peace to hold the Trump Administration would need to formally extend the United States’ nuclear deterrence to Ukraine. Options under discussion in Europe include a “coalition of the resolute” to deploy forces to Ukraine as part of a possible armistice package, deterring further Russian attacks, says Secor. European officials are also debating, without any agreement, whether its military forces could perform non-combat logistical roles to free Ukrainian forces to fight. None of the possible courses of action has moved forward as all eyes are waiting on the incoming Trump Administration for clues about its intended level of support for a NATO framework and other non-NATO proposals. Daria Novak served in the U.S. State Dept.