Use of force

There has been some interesting debate in the media today, on foot of a proposed change to Irish legislation in the area of self defence law.

Early today, I listened to a radio show where some idiot suggested that this proposed change would create a situation where people would feel empowered to use lethal force on intruders to their home. The logic seemed to be that sometimes criminals are young and stupid and don't deserve to die for errors of judgement, such as breaking and entering private property.

Now, nominally I consider myself a liberal, and most of the time I fall in broad agreement with the liberal agenda. In this case, I'm not suggesting that trespass should automatically carry a death sentence administered by gung ho householders. However, I feel that this change in the law is crucially important and really, the people arguing against it fundamentally don't understand what they are talking about.

In short, this position is proposed by people who have clearly no idea how difficult it is to use exact amounts of force - they are instead talking about an abstract ideal.

The following article is taken from Irish Examiner

Quote:

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Homeowners gain rights to defend their property

HOUSEHOLDERS who kill intruders while defending their homes look set to be given greater protection under the law. The influential Law Reform Commission moved to shift the balance of justice in favour of the victim last night with a set of sweeping recommendations. The State body said someone defending their home should no longer be expected to retreat from attack.

However, the level of violence they use against an intruder must be justified and subject to five stringent tests to receive legal protection.

These include the proportion of the force used and the need for it, and the type, immediacy and unlawfulness of the threat posed by the intruder. In another key recommendation, the LRC stated the “castle doctrine” should be included in Irish law, making the immediate area around the home legally defendable with lethal force in appropriate circumstances.

A person who kills while protecting their home as a result of “an honest but unreasonable mistake” in respect of the five tests for legitimate defence should be guilty of manslaughter, not murder, it recommends.

Tánaiste and Justice Minister Michael McDowell welcomed the “timely” report and signalled he would include many of its recommendations in legislation planned for the new year.

The three-year study examined the controversy surrounding the case of Mayo farmer Padraig Nally, who was jailed for manslaughter after shooting an intruder, as part of its deliberations.

Fine Gael’s justice spokesman Jim O’Keeffe said: “This is not a licence to kill burglars, this is a measured response to a serious and pressing issue.

“We have long argued for greater legal protection for homeowners faced with burglars in their homes and threatening their families.

“This report substantially reinforces the case made by Fine Gael that homeowners should not be obliged to retreat if they come across an intruder in their home.”

Labour justice spokesman Brendan Howlin said the proposals avoided giving people “carte blanche” to use lethal violence against intruders, but set the groundwork for a more balanced system. The report also recommended that it should never be permissible to use lethal force to defend personal property. In a case where the intruder killed a householder, the LRC report states the burglar could only use lethal force if faced by disproportionate violence or was unable to retreat.

At present the law lacks clarity, stating householders must react in a ‘reasonable’ manner. The LRC also emphasised the need for clarity over the type of force that may be used by the gardaí in circumstances like the Abbeylara case.

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Because of my interest in martial arts, in my time I have trained alongside soldiers, special forces types, police officers, professional executive protection experts and prison guards. The reason I introduce this is that these people use force in their day to day jobs and are legally entitled to do so in a way that I am not. All of these people understand that there are no guarentees. You can never be 100 per cent sure of your ability to "win" a fight, let alone to be able to perform the near mystical act of restraining a violent attacker without harming them or being hurt yourself. Simply put, that only happens in movies.

Police officers and others expected to apprehend criminals rely on the suspect surrendering to the threat of force. If the suspect doesn't surrender, then they are empowered to take custody of the suspect against their will and at risk of injuring them. In short, this is extremely extremely difficult.

It's almost impossible for trained seasoned professionals to capture a criminal who is fighting back without taking significant risk on themselves. The usual solution is to use firearms, pepper spray or even just lots of people to make the risk to the law enforcement officers more acceptable.

My experience as a "martial arts expert" (an inherently silly term) has taught me that it is extremely difficult to restrain someone without hurting them. In fact, I wouldn't be foolish enough to try when I could be seriously injured or even killed in a violent situation. Under current law, I can only justifiably defend myself using force directly propertional to that used against me or threatened against me.

However, by definition, unless you are psychic it's not possible to know someone's intent in the heat of a confrontation. How far will an attacker go? How desperate are they? Is this the first time they've broken into a private house or are they a seasoned criminal with multiple murders under their belt? How much of a risk are you willing to take to stay on the right side of the law?

Guess what we as citizens are expected to do when confronted by an intruder in our home? Yep, the near impossible. We are meant to coolly and calmly ignore any fear or panic we might feel and judge accurately how much force is appropriate to expel the intruder. If they refuse to leave when ordered, we may order them again, but we can't lay a hand on them. If they attack us then we can defend ourselves but if we do so, we must make sure we don't hurt them more than they hurt us or we leave ourselves open to assault charges.

Does this make sense to anyone with even a residual brain?

If someone is in your house at 3am and they have a weapon, and they attack you or threaten you, then I think it should be defensible to use lethal force in the defence of your person and home. I do think you should be obliged to show that you didn't use force lightly - you should be obliged to order an intruder to leave, for example, so that if they don't you can reasonably presume that they represent a danger to you.

However, the current situation is fundamentally unjust. The position being argued from some quarters is that the law as it stands is sufficient - it states that you may use force to defend yourself in direct proportion to that used against you. This position states that it's better to force the home owner to justify any use of force than it is to empower them to decide for themselves in the moment. It stakes the odds in favour of the attacker and it's a fundamentally patronising position, implying that the public can't be trusted to defend themselves.

It also ignores the fact that what is reasonable in the heat of the moment when you may fear your life is in danger and what is reasonable when analysed after the fact may be very different. The justification required for lethal self defence is quite different if you wake up at 3am to find someone standing over your bed than it is at 2pm on a sunny day at the Four Courts in Dublin at your trial.

What seems reasonable when your home is invaded probably won't seem so reasonable if you accidentally kill someone while repelling them from your home and have to stand trial for it. Does that mean that it isn't actually reasonable? I don't think so.