Marsy’s Law is Anti-Self-Defense. By Evan F. Nappen, Attorney at Law
“The road to hell is paved with good intentions.” --- Proverb
Marsy’s Law is well-intended: any sensible person cares about victims of crime. However, the unintended consequences of this proposed Constitutional Amendment are bad news for those who might lawfully use force to defend themselves.
It is not uncommon for law-abiding defenders who use force to defend themselves, often with a firearm, to end up criminally charged even though they were justified in their use of force. This is because “Self-Defense” (known as “Justification” in the legal world) is an “affirmative defense” that first must be demonstrated by the defender before the State is burdened with having to disprove the defense beyond a reasonable doubt.
Marsy’s Law would grant so-called “victims” of a lawful defender’s use of force special rights, which will make the defenders task of proving self-defense much more difficult. In other words, if you shoot a bad guy and are criminally charged, the bad guy would then be the “victim” and get special treatment under Marsy’s law.
Marsy’s law will give the bad guy/victim the following rights:
1) The right to be treated with fairness and respect for the bad guy/victim's safety, dignity, and privacy; 2) Timely notice of, and to be present at all court proceedings, including post-conviction proceedings, on the same basis as the accused; 3) Proceedings free from unreasonable delay and a prompt conclusion of the case; 4) Reasonable protection from the accused throughout the criminal justice process; 5) The right to refuse an unnecessary interview or deposition request made by the accused; 6) The right to confer with the attorney for the State about the disposition of the case; 7) The right to be heard at any proceedings involving the release, plea, sentencing, or parole of the accused; 8) The right to reasonable notice of the release or escape of the accused; 9) The right to full and timely restitution; and to be informed of all rights under this article.
Note further that:
1) The term "victim" does not include the accused; 2) The bad guy/victim, the bad guy/victim's attorney or other lawful representative, or the attorney for the government may assert in any trial or appellate court, or before any other authority, with jurisdiction over the case, and have these rights enforced.
This proposed Constitutional Amendment interferes with the defender’s right to discovery of evidence by denying depositions. It interferes with the defender’s right to be released on bail pending the trial. It declares the bad guy to be a victim, before the defender is even convicted. It will slow and complicate the legal proceedings by continuously requiring the right to be heard, notice to, conference with, and the presence of, the bad guy/victim. The accused (the defender) is barred under Marsy’s Law from being declared a “victim”, so none of these rights will ever flow to the good guy/defender.
The right to self-defense was utilized in the landmark Second Amendment decision of District of Columbia v. Heller as a basis for the right to keep and bear arms. The majority opinion stated, “The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. Marsy’s Law undercuts the Second Amendment and our fundamental right to self-defense.
Making self-defense cases more difficult for honest defenders to win in court is pro-criminal. The true victims of Marsy’s law will be law-abiding defenders who get caught up in the legal system for merely defending themselves or their loved ones, and then having the bad guy aggressor being declared the “victim” and given special rights. The road to hell does not need any more pavement.