Wednesday, June 14, 2017

Second Amendment right to meet people at the door with a machete by your side?



The following article appeared in the Washington Post on June 9th

By Eugene Volokh June 9 at 2:28 PM

Yes, says the New Jersey (!) Supreme Court in yesterday’s unanimous State v. Montalvo opinion; here are the facts, from the court’s syllabus:

This appeal concerns whether an individual may lawfully possess and hold a weapon for self-defense in his home while answering the front door.

Defendant Crisoforo Montalvo and his wife lived directly above Arturs Daleckis and his wife. On the night of March 24, 2012, Daleckis grew agitated by noise emanating from Montalvo’s unit; he stood on his bed and knocked on the ceiling three or four times. Montalvo then proceeded downstairs and knocked on Daleckis’s door. Montalvo picked up a small table belonging to Daleckis and threw it off the front porch, breaking it.

The lady forgot her machete
After Montalvo returned to his unit, Daleckis knocked on the door. Montalvo and his wife testified that they heard knocking, kicking, and slamming on the door. Montalvo testified that he became scared for himself, his wife, and their unborn child. As a precautionary measure, Montalvo retrieved a machete from a closet as he moved to answer the door. Daleckis testified that Montalvo pointed the machete at him. Montalvo testified that he kept the machete in his hand, behind his leg, and below his waist while speaking with Daleckis.   Montalvo was acquitted of “possession of a weapon for an unlawful purpose” (Count One, in the discussion below) but convicted of “unlawful possession of a weapon” (Count Two). At trial, the judge included a self-defense instruction as to the unlawful-purpose charge but didn’t give it as to the unlawful-possession charge.

“During deliberations, the jury sent the trial judge a note asking, ‘Second charge, unlawful possession of a weapon, is self[-]defense considered a lawful use?.'” The judge responded thus:

I remind you that it is necessary for the State to prove that it, meaning the object[,] was possessed under such circumstances that a reasonable person would recognize that it was likely to be used as a weapon. In other words, under circumstances where it posed a likely threat of harm to others and/or a likely threat of damage to property, you may consider factors such as the surrounding circumstances as well as the size, shape, and condition of the object; the nature of its concealment; the time, place and actions of the defendant; when it was found in his possession to determine whether or not the object was manifestly appropriate for its lawful uses.

This statute is 2C:39-5(d). Section 5(d) prohibits the possession of implements as weapons even if possessed for precautionary purposes, except in situations of immediate and imminent danger.

Although self[-]defense involves a lawful use of a weapon, it does not justify the unlawful possession of the weapon under Section 5(d) except when a person uses a weapon after arming himself or herself spontaneously to repel an immediate danger.

Obviously, there may be circumstances in which a weapon is seized in response to an immediate danger, but ensuing circumstances render its use unnecessary. Under such conditions, the individual may take immediate possession of the weapon out of necessity rather than self[-]defense. However, it would appear that the availability of necessity as a justification for the immediate possession of a weapon, as with self[-]defense, is limited only to cases of spontaneous and compelling danger. Please resume your deliberations.

But the New Jersey Supreme Court held that the judge should have instructed the jury as to self-defense:

[The unlawful-possession statute] prohibits the possession of any weapon, other than certain firearms, when an actor “has not yet formed an intent to use [the] object as a weapon [but] possesses it under circumstances in which it is likely to be so used.” … [This] class of possessory weapons offenses is codified by N.J.S.A. 2C:39-5(d), which states that “[a]ny person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree.” The purpose of Section 5(d) is to “protect[] citizens from the threat of harm while permitting the use of objects such as knives in a manner consistent with a free and civilized society.” The statute applies to circumstances resulting in a threat of harm to persons or property.

A machete constitutes a “weapon” within this statutory scheme. See N.J.S.A. 2C:39-1(r) (defining weapon as “anything readily capable of lethal use or inflicting serious bodily injury”); State v. Irizarry (N.J. App. Div. 1994) (observing N.J.S.A. 2C:39-5(d) concerns weapons “such as knives and machetes[] that have both lawful and unlawful uses”)….Self-defense is a potential defense to a possessory weapons offense…. The Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation,” D.C. v. Heller (2008) …. It extends to “all instruments that constitute bearable arms.”

In Heller
Self-Defense from Down Under
, the Supreme Court recognized that “the inherent right of self-defense has been central to the Second Amendment right.” New Jersey’s statutes protect the right of self-defense. Generally, the use of force against another person “is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by” another.  The use of deadly force for self-defense is justifiable only when the actor reasonably believes that such force is necessary to protect himself against death or serious bodily injury, unless the actor provoked the use of force or knows he can safely retreat. Thus, the defensive conduct must be based on a reasonable belief of potential harm, and the defensive force must be proportional to the offensive force….

Montalvo legally possessed a machete in his home. It is of no matter whether his possession was for roofing or for self-defense because either would qualify as a lawful purpose…. [T]he Second Amendment protects the right of individuals to possess weapons, including machetes, in the home for self-defense purposes. Thus, Montalvo had a constitutional right to possess the machete in his home for his own defense and that of his pregnant wife. Because the court’s instructions did not convey this principle, the instructions were erroneous….

The State asserts that answering an angry knock at the door with a weapon in hand constitutes possession “under circumstances not manifestly appropriate for such lawful uses as it may have.” That position is untenable.

The right to possess a weapon in one’s own home for self-defense would be of little effect if one were required to keep the weapon out-of-hand, picking it up only “spontaneously.” Such a rule would negate the purpose of possessing a weapon for defense of the home….

The court sent the case back for a possible retrial, so the jury could decide whether Montalvo indeed just used the machete for defensive purposes. (The state argued, for instance, that he also took it outside and chopped at the porch that he shared with Daleckis; if those were the facts, the court said, that would be an unlawful purpose, but if the facts were as Montalvo claimed they were, his conduct would be lawful self-defense.)

Finally, the court tried to avoid this problem in the future, by directing its “Committee on Model Criminal Jury Charges to review and revise” the model jury instruction for the unlawful possession offense:

We suggest the following language for the Committee’s consideration in refashioning the charge: Determining whether the State has proven beyond a reasonable doubt that defendant possessed a weapon in his home under circumstances not manifestly appropriate for a lawful use requires special considerations. Persons may lawfully possess weapons in their homes, even though possession of those same weapons may not be manifestly appropriate outside the home. Using a twelve-inch steak knife in a kitchen to prepare dinner is lawful and possessing it as means of defense in case of a home invasion is lawful as well; carrying the same knife on the street on the way to pick up groceries may not be manifestly appropriate.

Individuals may possess in their homes objects that serve multiple lawful purposes, including the purpose of anticipatory self-defense. In this case, Montalvo possessed at home a machete he used in his roofing job. He was lawfully entitled to possess that machete as a weapon in his home as a means of defending himself and his family from attack as well. The right to possess that weapon, however, does not mean that it can be used without justification.  

An individual who responds to the door of his home with a concealed weapon that threatens no one acts within the bounds of the law. He need give no justification for what he is lawfully allowed to do.
On the other hand, an individual may not threaten another with a weapon, even within the confines of his home, without lawful justification. Thus, Montalvo could not answer the door threatening the use of a machete merely for the purpose of inciting fear in another. He could threaten the use of the machete, however, if he had a sincere or reasonable belief that the show of such force was necessary to protect himself or his wife from an imminent attack.

The burden always remains on the State to prove that defendant did not lawfully possess the weapon in his home or, if the weapon was threatened against another, that possession of the weapon was not manifestly appropriate for the purpose of self-defense.

Sounds right to me, at least as to home possession. (What is the proper scope of the Second Amendment outside the home is a hotly contested matter, on which courts have split, and which the Supreme Court is currently being asked to consider, in the Peruta petition.)


About author Eugene Volokh:
Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

For those interested in understanding something of the legal decisions being handed down in courts across the nation--including, of course, by the Supreme Court--please make yourself familiar with the work of Eugene Volokh. His articles are insightful, truthful, easy for the legally uneducated to comprehend and always accurate. Click on the link to the Volokh Conspiracy, carried in the Washington Post. The reading will be WELL worth your while.  Ed.

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