The Legal Fight To Bash Back

We Will Shoot Back pic

Alfred “Skip” Robinson was part of the United League in Mississippi, one of the organizations of armed Black resistance to white supremacy detailed vividly in the book We Will Shoot Back. Others have already made important connections between the anti-fascist (antifa) struggle against Donald Trump and a newly mobilized far right with the historic struggles against white supremacy. I leave that agitation to the organizers who are doing a fantastic job at it.

One of United League’s important partners in their struggles against racism in Mississippi was the Northern Mississippi Rural Legal Services (NMRLS). Lawyers from NMRLS were known for both defending United League members from the sort of criminal proceedings that can arise from armed clashes with white supremacists as well as injunctions against government attempts to shut down their marches and rallies. As we approach the Republican National Convention starting July 18th, the National Lawyers Guild is mobilizing to provide those same kinds of services for the inevitable clashes between the white supremacists, protesters, and the police. You can find out how to get involved here.

When Leftists talk about antifa actions, especially in arguments with liberals, we often talk about self-defense. But what we assert as self-defense is really more of a principle of community defense, and differs greatly from the legal conception of self-defense. While the choice of words of course does not matter greatly, it is important to properly frame why we engage in or support these actions to properly distinguish them from the Batman-style vigilantes. As Attorney Myers of NMRLS would often say, community defense is necessary in a world where a white supremacist government does not protect us from that violence and more often than not engages in it.

Self-defense is governed by state law, but basic principles are fairly similar across the United States. So I’ll be using the recent fights in Sacramento as an example, and thus applying California law. The most recent incarnation of self-defense in California is outlined in a case called People v. Humphrey. Those elements are (1)  the defendant must actually and reasonably believe in the need to defend (2) the fear must be of imminent harm. Reasonable belief falls into two sub-categories: “imperfect self-defense,” where the defendant subjectively believed there was an imminent risk of harm, and “perfect self-defense,” where there was an “objective” fear of imminent risk of harm. Readers of the blog have probably already guessed that “objective” is covered by the reasonably prudent person in the same or similar circumstances standard. Of particular note is that the “defense of others” doctrine is also governed by these elements and is based on the fear of the assailant rather than the fear of the person they are trying to defend. People v. Randle.

I want to focus in on the “imminence” requirement, as it plays an important role in the state disallowing community defense like antifa. A lot of Leftists, including myself, will argue that armed defense is reasonable when a group of white men show up to your neighborhood preaching genocide and actively recruiting people to their cause. But, as bad as the recent mobilizing by fascists has been, even I would not argue that there is an “imminent” risk of genocide. But what about the more immediate risks? Neo-nazis in Sacramento brought weapons with them, and video footage shows that they would lunge at members of the antifa group By Any Means Necessary to intimidate them without actually physically attacking.

People v. Aris provides the following definition for imminence: “defendant at least actually, if not reasonably, perceives in the victim’s behavior at the moment of the killing an indication that the victim is about to attempt, or is attempting, to fulfill the threat. In making that evaluation, the defendant is entitled to consider prior threats, assaults, and other circumstances relevant to interpreting the attacker’s behavior.” In that case, the Court was denying self-defense to a woman for shooting her husband. They had been married for ten years, ten years in which Aris had been beaten savagely over and over. On the night in question, she had been beaten and when her husband had finished, he said to her “I don’t think I am going to let you live till the morning.” Aris waited until about ten minutes after he had fallen asleep and shot him.

The imminence element is based in the notion of taking an alternative action to violence. In some situations this test does seem to promote justice. For example, if I met one of the skinheads who beat me up about ten years ago and I shot him, even the most radical “Queers Bash Back” person might find that action to be unreasonable. He may have stopped being a threat to me. He may have stopped being a threat to trans people in general. The vast majority of the time one should not engage, even when it is hateful people who have committed violence in the past, with violence. But what if, after beating me up, he had said to me “I’m going to come back in thirty minutes to finish you off.” Would I be justified in shooting him as he walked away?

But I would argue that imminence should be just one factor in determining whether the use of violence is justified. One bizarre consequence of self-defense laws that my criminal law professor once gave was that a woman like Aris is not entitled to self-defense but, had her husband woken up while she was standing over him with the gun and he had grabbed his own gun and shot her that he would be entitled to self-defense. Though I know they exist, it is hard to believe there are people who can justify such an outcome based on adherence to the rigid sense of formal equality in US law.

While defense of others exist, it is still rooted in the individual perceptions of the defendant. And that is the root of the injustice: US self-defense law atomizes people as individuals who face or perceive individual threats. There is no room for the threat that can be befall an entire people. There is no room for the threat of police aggressively conducting stops in my neighborhood when all of us know the potential of violence it brings in this community to its young Black people. And not just the potential of violence. There is no room for defense against the fascists who always aim to make public spaces their own for the express purpose of building a movement to kill us. Often Rosa Luxemburg will be trotted out to defend the fascists, giving this quote:

Without general elections, without unrestricted freedom of press and assembly, without a free struggle of opinion, life dies out in every public institution, becomes a mere semblance of life, in which only the bureaucracy remains as the active element.

They may be surprised that earlier in the same piece, The Russian Revolution, Rosa wrote this:

Moreover, the Bolsheviks immediately set as the aim of this seizure of power a complete, far-reaching revolutionary program; not the safeguarding of bourgeois democracy, but a dictatorship of the proletariat for the purpose of realizing socialism. Thereby they won for themselves the imperishable historic distinction of having for the first time proclaimed the final aim of socialism as the direct program of practical politics.

Whatever a party could offer of courage, revolutionary far-sightedness and consistency in an historic hour, Lenin, Trotsky and all the other comrades have given in good measure. All the revolutionary honor and capacity which western Social-Democracy lacked was represented by the Bolsheviks. Their October uprising was not only the actual salvation of the Russian Revolution; it was also the salvation of the honor of international socialism.

What Rosa Luxemburg was challenging was not the suppression of fascists but rather the suppression of Leftists and the working class. She supported a dictatorship of the proletariat, but thought that without allowing and embracing the critique of other Leftists that the Bolsheviks were doomed to become a bureaucratic nightmare which was exactly what happened.

I am not advocating for the support of the State in stamping out the constitutional freedoms allotted (and fervently protected) to fascists. Nor am I advocating for Leftists to start bloc’ing up and conducting raids of white supremacists in their homes. But when fascists attempt to occupy public spaces to proliferate their violence, it becomes a matter of community defense. It is blatant hypocrisy that the liberals who pine over the neo-nazis’ freedom of assembly are the same ones who turn away when peaceful protesters in public spaces are attacked by the police over and over.

The self-defense laws of the United States protect individuals, and only certain individuals, not communities. While brave organizers fight the fascists in the streets, it is up to advocates and lawyers to push the boundaries of the current laws of self-defense and challenge the unethical notion that self-defense should be applied in the same way for a neo-nazi aggressor as for the undocumented queer youth who came to shut him out. We have to be creative, like NMRLS was, and combine criminal defense with civil actions that bankrupt fascist groups and impede the government from going after the organizers’ constitutional rights.

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