White supremacist domestic terrorism or self defense? A reprise

June 16th, 2016: Here is a story I wrote in the days following the shootings at the Black Lives Matter encampment near the Fourth Precinct police station last fall. As I figured, the shooter would claim self defense.

A few days ago, there was an article in the Strib about the defendant raising that defense. Here’s what the article says about the events immediately before the shooting:

According to witnesses, about a dozen protesters attempted to move Scarsella and three others — Daniel Macey, Joseph Backman and Nathan Gustavvson — from the encampment outside the Police Department’s Fourth Precinct station in November when Scarsella fired, hitting five people. The victims — all black men ages 19 to 43 — were taken to hospitals with noncritical injuries. Macey, Backman and Gustavsson were charged with second-degree riot while armed and have been released on bail.

A previous motion filed on behalf of one of the co-defendants contended that people in the crowd punched several of them before shots were fired. According to police interviews with several protesters, they were upset that the group was filming the protest and that “they were up to something,” the motion said.

Other interviews with protesters said they “wanted to beat” the men because they were white and it was rumored they were either KKK or police, the motion said.

-oOo-

The events of Monday night, the 23^rd of November, at the Minneapolis Fourth Precinct headquarters were shocking and horrific. Five protesters are shot, blared social media almost instantly, followed by claims and statements of leaders of the protests that it was an act of domestic terrorism. Even the next morning, criticism was leveled at the Star Tribune newspaper for not publishing a headline about white supremacists firing into the crowd.

As with most things like this, the early minutes and hours after the shootings were chaotic; more has been revealed about these events since then. The basic outline remains the same: three white men, wearing cold weather masks, and also wearing disgustingly racist attitudes about African Americans, came to the protests, apparently more than once, and “taunted” (to use the Strib’s word) the protesters. At some point, the trio was “asked” to leave – more on that later. As they were leaving, one or more of them shot five of the protesters, none fatally, but at least a couple of them seriously.

Open and shut case of race-based domestic terrorism, right? A hate crime.

Well, unfortunately, there might be another set of inferences that could be drawn from these facts: the men, after being unable to retreat from pursuers, fired in self defense. I don’t know which set of inferences is true, but self defense cannot be blithely dismissed.

Let’s start with these two items. First, here’s a quote from an Abby Simons story in the Strib on Wednesday, the 25^th:

Witnesses to the shootings said they confronted the men before they fired and forced them from the protest area. According to a video interview with two men immediately afterward, the group demanded that the assailants remove their masks. When they refused, a scuffle ensued. As the crowd began to push the men out, shots were fired.

Second is a tweet from Libor Janey, a Strib reporter:

Did the three men have a right to be at the protest rally? Almost certainly. Other than verbal taunting, did they assault anybody? There are no media reports of it. It doesn’t seem that they disturbed the peace. Simply annoying people is not disturbing the peace.

Wearing a covering on your face isn’t a crime either. You could interview Somali women on the subject, or even Minnesotans generally in the winter.

Were they jerks? So stipulated.

But being a jerk in America is not – at least at the present – a crime, a condition for which I am often grateful. In fact, the First Amendment often protects our jerkiness.

For whatever reason, a group of protesters decided to “chase” the three white men away. It appears that they did retreat from whatever threat the protesters posed, but they were unsuccessful. The protesters caught them, assulted them, and endeavored to remove their masks.

After this assault, one or more of the white men fired shots. They didn’t fire into the crowd in an indiscriminate way; they shot at their pursuers.

If you legitimately fear for your life or suffering seriously bodily harm, you are permitted to use even deadly force in self defense.

Being a jerk, or exercising your rights under the First Amendment, does not deprive you of your right of self defense. You may think it should, and I might, too – well, really, I don’t – but it doesn’t.

There was a giant rally and march on city hall the day after the shootings. It is going to be difficult to climb down from all of the inflated rhetoric if, as I suspect they may, the facts support a claim of self defense. The case may prove entirely unchargeable, or impossible to win.

And then, because emotions have been jacked up so high, just like the Rodney King case, we’ll have rioting in the streets.

A further note to the original story: There are no reports, that I read, anyway, that the three men brandished weapons or displayed them prior to the actual shooting. I have been and remain an implacable foe of conceal and carry, but it’s the law. We hired the legislators who made it the law.

Update: And here’s proof that the county attorney doesn’t know what the heck to do with this either.

Further update: I figured this story would provoke comment. Here’s one from reader Mike:

A video has been posted online. It is purported to have been taken by the white supremacists as they drove down to the BLM protest in Minneapolis. One brandishes a gun, and they talk about causing trouble.

Premeditation should nullify any self defense claim.

http://www.youtube.com/watch?v=Ev5bjDuPeyI

I have seen this video; I saw it before I wrote the story, actually. We have already stipulated, Mike, that the three white guys were not people with whom you or I would want to share a refreshing malted beverage. But, we have to focus on what they did, or did not do, at the protests. “Premeditation,” as you describe it, may affect how we characterize the behavior: the motive or intent, but it doesn’t “nullify” per se claims of defensive action.

As I said in the story, just because you are a jerk, it doesn’t mean you can’t defend yourself. Perhaps the county attorney will conclude they weren’t defending themselves and will charge the case. But the comments of participants quoted above provide a pretty good defense.

We also have to be careful about criminalizing thought.

And another update (12/17): I have been off the bridge of the starship Enterprise for a few days; there have been at least a couple of comments to the effect that the counter-protesters were up to no good and planned to create a ruckus, and that’s the end of it. But it’s not.

As the recent Wisconsin self defense case shows, and reinforces the point of the original story, if the counter-protesters were trying to retreat from violence, and feared for their safety (the Strib says there was a “scuffle”), they may have been justified in using force, even if they were acting provocatively earlier.

Mayor Hodges and Congressman Ellison were right, in my view, in saying that the protests should end because they were unsafe. They were; the cops could not walk among the protesters even to keep them safe; it would have been called further acts of repression.

And for his trouble, Congressman Ellison was called up to, and including by some, I believe, a house negro. Which is unforgivable to me.