And it’s probably one of the most fair assessments I’ve seen from anyone in North Dakota’s traditional media.  Be sure to read the whole thing.

I must, however, take issue with a few of the items in Tom’s post.

First, Tom quotes McLean County State’s Attorney Ladd Erickson, writing in a FishingBuddy.com forum (you gotta love North Dakota), saying that current law does not require you to retreat from your home if it is invaded by an attacker:

We are currently years ahead of the NRA and other states in enacting the so called “castle doctrine” where a person has a right to use deadly force to protect life, limb, and property. Under current law, the state must prove beyond a reasonable doubt that a person was not acting in self-defense and that conduct was not “excused” or ”justified” under the circumstances. The shooter has no burden to prove anything, and can remain silent. In addition, deadly force is statutorily authorized under current law to protect your dwelling, work place, family, or yourself from arson, burglary, robbery, or felony crimes of violence.

Mr. Ladd is correct in saying this.  Current law does not require North Dakotans to try and flee from attackers in their home, which is as it should be.  But the question this law is an answer to is whether or not we should have to flee attackers anywhere else?  If someone begins firing a weapon at me and/or my family why should it matter if we’re in my home or out in a park?  It shouldn’t, to my mind, because I don’t see why criteria for whether or not I can defend myself with deadly force should vary depending on the setting of the attack.  Either I am allowed to defend myself with deadly for or I am not.

Mr. Ladd continues giving this rather absurd example of a person’s “duty to retreat:”

It is an effort to expand the current “no duty to retreat from your home or business” doctrine to have that apply everywhere. Under current law, if you can avoid shooting someone in a bar, street, or other open field location, you should. Where this applies is in cases like the tragedy a few years ago in Wisconsin where the shooter was on a tree stand of another during deer season and a confrontation ensued where the shooter killed a number of hunters who were approaching the tree stand. That shooter may or may not have been in a place he had a right to be, I don’t know the posting law in that state, but he claimed self-defense. Under our current deadly force law that shooter would have had a duty to avoid shooting those hunters. Under this bill he would have “no duty to retreat” from a place he has a right to be.

You’re reading that correctly.  Mr. Ladd actually believes that if you are up in a tree and attacked by people on the ground you still have a “duty to retreat.” I’m not sure if Mr. Ladd feels that “duty” extends to growing wings and flying, but whatever.  And yes, I understand that the shooting he refers to was not justified, but I think juries in this state are more than capable of determining that a man who opened fire on a bunch of fellow hunters even though they did nothing to him to provoke it was not acting in self defense.  But what Mr. Ladd is saying also would also apply if that hunter in the tree were being fired upon from the people on the ground, something he’d apparently have a “duty” to avoid by taking to the air or something.

Like most prosecutors, Mr. Ladd seems incapable of trusting the people to make this determination.  Also like prosecutors, he prefers keeping our current self defense law vague so that whether or not any given citizen who used deadly self defense was justified in doing so is solely up to the prosecutor’s discretion.  Which is exactly why we should tune out people like Mr. Ladd on issues like this.  Prosecutors stopped a long time ago simply being advocates for the law and started being people who try to find ways to put other people in jail.  Which isn’t to say that most prosecutors aren’t fine people who serve justice, but rather simply to point out that all agents of the government love increasing their power.  And vague legislation gives prosecutors like Mr. Ladd broad discretion in applying the law.

I think anyone who is familiar with the Duke lacrosse rape case can attest to the dangers of prosecutors given too much discretion over the law.

Anyway, back to Tom’s post, where he says this in response to Ladd:

the issue here seems to be extending the “Castle doctrine” to the “Kingdom”, as Ladd puts it—that is, to places outside the home.  Right now, if you feel threatened on a sidewalk or in a park but can, say, run away and save yourself without shooting someone, you’re supposed to run away.

Under the proposed bill, you would have no “duty to retreat” from a place that you had a right to be. So you could respond to the threat with deadly force, and be confident that you’d face neither civil nor criminal penalties.

The problem is, who gets to decide whether or not you could have run away to save yourself?  That puts attacked citizens in a rather poor spot.  If they turn and run they could get shot while fleeing.  If they return fire they could face a second-guessing prosecutor who feels like they could have fled.

Why not, instead of putting the citizen who was attacked in this position, just admit that an attacker deserves what he gets from the attackees?  Because it seems like we’re going to some awfully long lengths to protect criminals from the consequences of their own actions.  If a man opens fire in a park and subsequently gets shot by a citizen who felt no duty to flee, are we really to feel bad about that death?  That sounds like justice to me.

And let’s not forget that there’s a part of North Dakota’s self defense law that is getting ignored in all of this.  This is how the first part of the current self defense law reads, and the “stand your ground” bill won’t change it:

An individual is not justified in using more force than is necessary and appropriate under the circumstances.

Critics of this bill have said that enacting it will allow you to shoot someone merely for looking suspicious, or claim self defense if you shoot someone who merely punched you out at the golf course or something.  Clearly, given the above statement, that isn’t the case.  You are not allowed to use more force than is “necessary and appropriate” in a given situation.  “Necessary and appropriate” to be determined by a jury, naturally.  What this means is that you can’t shoot someone for simply looking suspicious, and you can’t knife or shoot someone just because they socked you in the face.

Back, again, to Tom’s post.  He concludes by linking to a story from Florida about two “gang bangers” who opened fire on one another and wounded some innocent bystanders, and then points to a bill in Florida seeking to alter their already-passed version of this legislation so that it doesn’t not give immunity to folks who injure innocent bystanders while defending themselves.  Which means that if you fire at an attacker and the bullet hits someone who isn’t attacking you, you’re liable for the damage it does.  That, to me, does sound like a reasonable compromise on this bill.  Self defense is one thing, but firing off your gun indiscriminately and putting others in danger is quite another.  All citizens, attackers and people who are simply defending themselves alike, should be held responsible for the damage they do with their weapons.

Sadly, though, I suspect this compromise won’t be enough for most of the critics of this legislation who would be quite happy to see all of our guns simply taken away from us.