Tuesday, August 4, 2015

Lt. Cmdr. White, A Shooting in Chattanooga, Part III: Justification Defenses for Defensive Action by Naval Officer

[This third post on the possibility that a Navy officer may be charged for the use of his personal weapon to protect himself and others from an unlawful attack by Muhammad Abdulazeez principally addresses certain defenses that the Navy Officer would be entitled to assert if he is charged and put on trial. Part I addresses the initial rumor that the Officer would be charged and parses the Navy's declamation of that rumor. Part II addresses the power of the Executive Branch to decline to prosecute the Officer even if, technically speaking, his actions constituted a violation of law, by comparing a decision to prosecute or not against the Officer with the decisions of the Obama administration to "Defer Action" against certain illegal immigrants in the United States.]

The Federal Government is Charging Who? Tragedies and the Bad Jokes that Follow Them

Was Muhammad Abdulazeez just a loner with depression and drug abuse issues, an activated Islamic extremist, or just a cold-blooded murderer, took the lives of five American servicemen, and forever changed the lives of many others. Mother and fathers, brothers and sisters, sons and daughters, family, friends and colleagues will now live their lives with an enduring pain, the result of having loved and having lost. In the aftermath of the shooting, we have learned some about those who died, and he who murdered, including some of the chronology leading to the shooting, and the longer chronology of Abdulazeez's life.

One thing that we have learned has electrified a Nation in almost a shocking a manner as the shootings themselves. Two separate public persons, Senator Jim Webb and Colonel Allen West, have come forward and stated that "insiders" have confirmed to them that there will be a prosecution. Given that Abdulazeez is dead, one would suppose that any prosecution would be of an extremist that activated Abdulazeez, or perhaps a gun dealer that failed to follow the law governing the sale of weapons.

To our horror and shock, though, the prosecution that has been rumored targets Lt. Commander Timothy White. Lt. Cmdr White, the rumors say, will be charged criminally for firing his personal sidearm at Abdulazeez. White has admitted that, during Abdulazeez's attack on the Naval Operational Support Center commanded by White, that he used his sidearm in an effort to repel the attack.

Of course, we all know exactly who should be put on trial, and it is not Lt. Cmdr. White. It is Muhammad Abdulazeez. If the federal government wishes to conduct a trial, exhume Abdulazeez and put him on trial for multiple counts of discharging a firearm on or at a federal facility.

But Jim, he's dead!

Yes, in fact, the murderer is dead. Still, precedent exists to bring a dead person to trial.

The Horrendous Synod had the body of Pope Formosus exhumed and brought to stand, er, sit, trial for alleged violations of Catholic law. Neither photography nor videotaping of the trial were permitted (or even requested, as the technology had yet to be invented), but there is, as you can see, a famous painting of the trial.

I concede the rather macabre nature of such doings. Still, the value of keeping in the eye of the public exactly who was at fault and exactly what wrongs Abdulazeez committed would be served well. I suspect such a trial would do well in the world of "On Demand" programming too. [As an aside, Pope Formosus was found guilty. The three fingers of his right hand, by which he bestowed papal blessings in life were amputed, and his body, weighted down, was thrown into the Tiber River. Although the religious court lacked a formal appellate process, a later pope annulled the verdict, had Formosus' body retrieved from the Tiber, and reinterred at the Vatican, in St. Peter's Basilica.]

The United States government, in a somewhat more recent precedent, participated in the trial of a man after his death. As one of the Convening Authorities of the post-WWII Nuremberg Trials, the USA prosecuted Martin Bormann, Hitler's personal secretary, prominent Nazi official, and persecutor of Christians under the Third Reich. That trial reached a judgment of guilt against Bormann even though he was not present. In fact, Bormann had already committed suicide, and that fact was likely known to the Convening Authority.

Justification: The Right to Self Defense and Defense of Another 

Given that a trial of the cadaver of Abdulazeez is unlikely, but that serious rumors suggest that the federal government will bring a charge or charges against Lt. Commander White, I thought it would be well to talk about certain defenses that the Lt. Commander would be entitled to assert at trial. First, though, let's talk just briefly about the law of crimes. And I do mean briefly. With the exception of certain kinds of regulatory offenses, the law of crimes defines criminal acts that are punishable by reference to two essential components: the necessary mental state and the action taken.

The exceptional category of regulatory offenses -- think of such offenses as speeding, passing a school bus while it is discharging passengers, and littering -- are acts about which society at large has reached a conclusion that it does not really matter what a person's motivation for acting in the manner prohibited. In these matters, the consequences attending proof of guilt are comparatively small, typically limited to fines, court costs, and defensive driving course requirements.

For most actions that society defines as "crimes," though, there are two basic components that are part of every offense, and that the government has the burden to prove at trial. Those two components are "the guilty mind" and "the thing done." In legal jargon, those are the "mens rea" and the "actus reus," respectively. These components can be found as part and parcel of statutes defining crimes both in State law and in federal law, and both here in the United States, and in other English common law countries. In addition to the guilty mind and the thing done, most crimes defined by statute also require that there is a causal link between the actions and that there be a social harm that is being prevented by the statute.

You can see that the description above is the basic framework for the law of crimes by looking at state or federal criminal laws.

Here, for example, is Missouri's forgery statute:
A person commits the offense of forgery if, with the purpose to defraud, the person: 
(1) Makes, completes, alters or authenticates any writing so that it purports to have been made by another or at another time or place or in a numbered sequence other than was in fact the case or with different terms or by authority of one who did not give such authority; or 
(2) Erases, obliterates or destroys any writing; or 
(3) Makes or alters anything other than a writing, including receipts and universal product codes, so that it purports to have a genuineness, antiquity, rarity, ownership or authorship which it does not possess; or 
(4) Uses as genuine, or possesses for the purpose of using as genuine, or transfers with the knowledge or belief that it will be used as genuine, any writing or other thing including receipts and universal product codes, which the person knows has been made or altered in the manner described in this section.
Looking at the terms of the statute, you see that "forgery" occurs in each of four different circumstances (the numbered sub-paragraphs) if the acts described in those paragraphs are taken "with the purpose to defraud[.]" So, for example, if Billy takes his father's will from his dad's bedside table, as he father lays dying, and destroys it, because he knows he has been disinherited in the will, with the goal of obtaining a share in his father's estate under the law governing the transfer of estates for persons who have no will, then he has (a) acted with a purpose to defraud (the mens reas, or guilty mind) and (b) taken the prohibited action (the actus reus, or thing done).

Before Billy could be required to offer any evidence of not being guilty of forgery, however, the State of Missouri would be required to charge him with forgery, including charging each element of the wrong-doing, and the State of Missouri would have to put before the jury sufficient evidence, including by testimony and physical evidence, to show, to prove beyond reasonable doubt, that Billy committed the offense of forgery.

Suppose, though, that the State of Missouri did just that. Suppose that it correctly charged him, naming all the necessary elements of the forgery offense in an indictment. Suppose, further, that it conducted a trial and in that trial offered enough evidence of Billy to convince a jury of Billy's guilty mind and his prohibited act. That does not end Billy's case. Rather, that begins Billy's case, the case in which, if he has defenses to the charges, he can offer evidence of them in an effort to dissuade the jury that, just prior to his case, might well have been convinced of his guilt.

Many kinds of defenses can be offered. Some such defenses excuse conduct, others justify that conduct. If you were in a small boat and a storm rose up suddenly and you docked your boat on a private dock marked "No Trespassing," you would be excused of your wrong-doing because of a defense called "necessity." On the other hand, if an armed man entered your home in the middle of the night and menaced you and your family with a firearm, shooting him, even fatally, would be justified. This post is not the place, however, to discuss each and all of the defenses available to criminal defendants.

In Billy's case, for example, suppose he offers sufficient evidence that the jury finds convincing that at the time he destroyed the will, he did so because his wife and infant daughter were being held at gunpoint (or he was) by a person who would benefit from Billy being restored to the status of an heir to his father's estate. When a reasonable person is deprived of the ability to make a choice not to commit an otherwise wrongful act, they become nothing more than a tool in the hands of the real criminal. Billy's instrumentality defense could convince a jury that he lacked the necessary guilty mind to sustain a finding of guilt.

So, in the case of Lt. Commander Timothy White, in the insanely improbable, but apparently likely, circumstance that the Obama administration charges White with a crime, what defenses might he offer to avoid criminal responsibility.

Justification: Defense of Self, of Another, and of Property

Suppose the fact are as we believe them to be. That is, suppose that, on July 16, 2015, as Lt. Commander White carried out his duties, the Naval Operational Support Center over which he had command came under fire by the assailant Abdulazeez. On realizing that his command and those under his command were taking fire, White retrieved his sidearm. He took aim at the apparent assailant outside the facility and fired on him. We do not know whether his use of the sidearm resulted in injury to Abdulazeez or contributed to, or caused, the end of his attack.

So, suppose that the federal government, the one that blames guns every time a person uses a gun to commit mass mayhem, including this time, has concluded that Lt. Commander White's actions teach America an important lesson in preparedness and self-defense. White's actions do teach an important lesson inconsistent with the generalized disarmament sought by the progressives, socialists and other elements of the Obama administration. His acts warn us: "Arm Yourselves!" "Don't Be Victimized, Not By Lunatics, Not By Radicalized Islamists, and Not By Cold-Blooded Killers!"

That heady lesson wants to be quashed, and quashed hard, by an administration that loathes the notion of a well-armed populace. So suppose they charge Lt. Commander White with an offense, whether it is possessing a firearm in a federal facility, or discharging one in a federal facility (although none of the discharge statutes I know of apply in this case). Suppose that Lt. Commander White, who must know that he has done no wrong, and has done much right, refuses to accept any sort of plea arrangement, and that he insists that the government take him to trial. Suppose that the government does so and it makes its case.

At that point, Lt. Commander White and his attorneys have the opportunity to present their case. While that case may consist of witnesses and evidence that diminish the proof offered by the government, it should certainly include certain well-recognized, completely uncontroversial defenses. So, then, what defenses would make sense, based on the known facts?

Self Defense

Lt. Commander White may prevail on a claim of self-defense in using his personal sidearm against Abdulazeez if a jury concludes 
  1. he was faced with an unlawful, present threat that reasonably induced a fear of death or serious bodily injury; 
  2. he had not wrongly put himself in a situation in which it was likely that he would be forced to choose the criminal conduct; 
  3. he had no reasonable, legal alternative to violating the law; and 
  4. he could reasonably predict that his actions would prevent the threatened harm. 
Given our accepted facts, that Abdulazeez actively fired on the Naval Operational Support Center, and had shot, or was about to shoot, enlisted personnel under White's command, he would have been perfectly reasonable to fear death or serious bodily injury. In addition, a reasonable man in Lt. Cmdr. White position would certainly experience a reasonable fear of that sort: White is a military officer. At some level, he must be familiar with force and arms, and the deadly capacity of firearms.

We also know that July 16, 2015, was just a day on which White was on duty at his assigned duty station. He was were he should have been doing what he should have been doing. He did not seek out an active shooter circumstance. The shooting came to him.

We also know that, other than risking being killed himself, he had not reasonable, legal alternative but to use his sidearm in an effort to repel Abdulazeez.

Finally, based on his training in the military, he could rationally draw a connection between shooting at Abdulazeez and causing an end to the attack.

While the notion of a prosecution is, frankly, obscene, the one obscenity greater than that on these facts would be a jury finding other than forecast in the foregoing application.

Plainly, if charged and tried, White can and should present his defense of self in answer to the charge, and a jury could not do otherwise, reasonably, than to acquit him.

Defense of Another

In addition, Lt. Commander White may prevail on a claim of defense of another in using his personal sidearm to repel Abdulazeez's armed assault on the Naval Operational Support Center if a jury concludes  
  1. a reasonable person in his position would have believed that acting was necessary to protect a third person, and 
  2. the third person would have been justified in using similar force to protect himself.
We understand know that Lt. Commander White, the commander of the naval facility was seeking to repel an unlawful, violent, unprovoked and murderous attack on a government facility. It seems likely, based on common experience and an understanding of command responsibility, that Lt. Commander White's thoughts were not ones only of self-preservation.

He likely drew his weapon and fired it to protect those under his command, and those in the vicinity who were endangered by the wrongful conduct of Abdulazeez. A jury could reasonably conclude that White's use of his personal sidearm was necessary in order to protect others. Given the unprovoked nature of the violent, criminal assault on the recruiting center, a jury undoubtedly would find that those White sought to protect would have been justified in using the same force used by the Navy Officer.

Defense of Property

One fact not yet divulged Finally, if Lt. Commander White may prevail on a defense of property if a jury conclude

  1. he reasonably believes property under his control was in immediate danger of unlawful entry;
  2. his use of force was necessary to avoid that danger; and
  3. he had no time to resort to the law for the protection of the property.
[The threat of loss of an individual’s property can justify a reasonable use of force, but it can never justify deadly force.]
Finally, White would certainly be entitled to assert a defense of property if charged. Of these three defenses, this one would be the most wobbly ... if Lt. Commander White's defensive use of his personal sidearms killed, or contributed to the death of, Abdulazeez.

Clearly, as we reasoned above, Abdulazeez's assault with firepower on the Naval Operational Support Center provided the basis for a reasonable belief on the part of White that property under his control was in immediate danger of unlawful entry. In fact, at least one report indicates that Abdulazeez actually gained access to this facility and also indicates repetition of a "double tap" pattern of shooting reminiscent of execution-style slayings after he did so.

In that circumstance, even though his use of force may have failed to secure the facility, he could have reasonably believed that such force was necessary to prevent Abdulazeez from gaining access to the facility. Moreover, given the active shooter nature of the exigency, Lt. Commander White likely quite reasonably believed he could not await resort to law enforcement. His judgment in that regard -- no disrespect to Chattanooga police, who also suffered the hurt of having one of their own wounded -- was confirmed by the facts.

Intolerable Stupidity and Improbable Judgments

The decision to charge Lt. Commander White would reflect such a profound miscalculation of the temper of the People of the United States as to constitute a "high crime or misdemeanor." Indeed, a Speaker mindful of the role of the Congress in maintaining a military force would, himself, files the necessary articles of impeachment by the House of Representatives. Nor should such impeachment await trial and vindication of White, but should be the immediate response of the House.

It cannot be permitted by this administration to act with such profoundly poor judgment. Particularly, as previously discussed, this Administration has a fondness for asserting its right to exercise "prosecutorial discretion" not to charge literally nearly a million self-identified violators of US immigration laws, a discretion the Administration embodied in two controversial Deferred Action programs, DACA and DAPA.