Monday, August 26, 2019

Michigan Appeals Court Ruling Shows Acceptance of Non-Deadly use of Firearm

This is the case of Siwatu-Salama Ra, who was sentenced to two years in prison after using the display of a gun to protect herself, her mother and her daughter. Ra was pregnant at the time of the event on 16 July, 2017. 

The other party involved, Channell Harvey, contacted the police first, three hours before Ra did. The Detroit police assumed that Channell Harvey, the first person reporting the incident, was the victim. This is a common occurrence in law enforcement, which is why there may be a race to the phones to be the first to report an incident to the police.

Channel Harvey had recorded Ra with her phone, showing her displaying her defensive firearm. Ra had a valid Michigan concealed carry permit. Channel was reportedly on probation for felony assault in another case.

Both parties claimed the other had threatened the other. Several organizations, including the Second Amendment Foundation and the NRA, as well as several on the Left, defended Ra's use of non-deadly force.

At the trial, the judge mistakenly ruled that merely displaying a gun was the use of deadly force.  That goes against common sense and several precedents.

This varies from state to state; in Arizona, it is clear merely displaying a firearm is not the same as using deadly force. In Arizona, the threat of deadly force is not the same as using deadly force.

The Michigan Court of Appeals found the legal distinction is important and has meaning. The standard to justify the threat of deadly force is considerably lower than the standard to justify the use of deadly force. From the Michigan Court of Appeals:
The trial court’s conclusion that the brandishing of a gun is the equivalent of deadly force is contrary to this Court’s holding in Pace that brandishing a weapon is not the equivalent of the use of deadly force for purposes of self-defense. Here, evidence was presented to support the defense of non deadly force self-defense. At trial, defendant testified that she brandished the weapon but did not make any attempt to use it, that the gun was not loaded,and that the safety was on. She also testified that she believed brandishing the gun was necessary because she and her mother were both in danger when Harvey drove her car onto the grass at her mother’s home, attempting to hit both defendant and her mother, and in fact did hit defendant’s car. Anderson also testified that Harvey used her car as a weapon and that Harvey nearly hit her. Defendant’s niece also testified that Harvey used her car as a weapon,hit defendant’s car where the two-year old was playing, and attempted to hit defendant and her mother. When a defendant requests a jury instruction on a defense supported by the evidence, the trial court is required to give the instruction. Riddle, 467 Mich at 124. In light of the evidence supporting non deadly force self-defense, the trial court’s failure to give the jury instruction regarding the use of non deadly force in self-defense was erroneous.
To the jury, the difference is considerable. The use of non deadly force only requires the jury find the defendant reasonably believed the non deadly force was required to protect herself or others from the imminent unlawful use of force.

The use of deadly force requires the jury to find the defendant reasonably believed she or others were in imminent danger of being killed or seriously injured.

The display or threat of deadly force often defuses a situation through deterrence. Many people are deterred from using force when they face the prospect of deadly force being used against them in response or as a preventive measure.

This truth is as old as life itself. The Appeals Court cited Black's Law Dictionary and the Handbook on Criminal Law by Lafave and Scott.

The mere display of a gun, or the pointing of a gun, is a threat of deadly force, but is not the use of deadly force.

Not all states or all prosecutors can be relied on to interpret the law in this way. Considerable effort has been expended to equate the display of a firearm as the same as the use of a firearm for people who are not police. Police, on the other hand, routinely draw and threaten deadly force with little or no consequences, because the difference is clearly understood.

The Second Amendment protects the individual right to use arms for self defense and the defense of others. Merely displaying arms is not the same as firing them. Displaying them is a use of arms, but not a use of deadly force. The display of arms may be used for deterrence, as in this case, as a First Amendment political statement,  or even as a fashion statement. All should be protected uses under the Constitution.

 ©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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