“If you want to protect yourself, get a double barrel shotgun. Have the shells for a 12 gauge shotgun, and I promise you as I told my wife, we live in an area that’s wooded and somewhat secluded. I said, Jill if there’s ever problem, just walk out on the balcony here, walk out, put that double barreled shotgun and fire two blasts outside the house. I promise you whoever’s coming in is not going, you don’t need an AR15. It’s harder to aim, it’s harder to use. And in fact, you don’t need 30 rounds to protect yourself. Buy a shotgun. Buy a shotgun.”
— Vice President Biden, remarks on a Facebook Town Hall, Feb. 19, 2013
“Great advice, Joe. Not only would that be illegal, but then a woman would face an attacker with an empty shotgun. For tips on safe and responsible gun ownership, ask the NRA, not Joe Biden.”
— Voiceover of a new National Rifle Association video mocking Biden’s remarks
The vice president’s comments on Facebook, intended to rebut the notion that assault weapons are necessary, have been widely mocked — see this Conan O’Brien spoof suggesting he also encouraged people to buy cocaine — but we wondered about the NRA’s assertion that his advice would actually be illegal.
The Facts
We assume Biden is not talking about the vice president’s residence at the Naval Observatory — where of course he also has Secret Service protection — but his home in Wilmington, Delaware. As it happens, there are a number of Delaware codes that would suggest Biden’s advice could land someone in legal trouble.
Here are some of the examples provided by NRA spokesman Andrew Arulanandam, drawing on quotes from attorneys in an article in U.S. News —“ Joe Biden’s Shotgun Advice Could Land Jill Biden in Jail” — and also the NRA’s own legal analysis.
n Aggravated menacing, which occurs “when by displaying what appears to be a deadly weapon that person intentionally places another person in fear of imminent physical injury.” (11 Del. Code 602)
n Reckless endangering in the first degree, which occurs “when the person recklessly engages in conduct which creates a substantial risk of death to another person.” (11 Del. Code 604)
n Reckless endangering in the second degree, which occurs when a “person recklessly engages in conduct which creates a substantial risk of physical injury to another person.” (11 Del. Code 603)
n Violation of the hunting “safety zone” law. One provision of that law prohibits discharging a firearm “so that a shot, slug or bullet lands upon any occupied dwelling, house, or residence, or any barn, stable or other building used in connection therewith.” (7 Del. Code 723, which unlike other provisions in that section, this isn’t limited to conduct while hunting.)
A person might claim self-defense (although the NRA says there don’t seem to be any reported cases of that under these provisions), but Arulanandam said Delaware follows the common rule that force must be proportional: “In repelling or resisting an assault no more force may be used than is necessary for the purpose, and if the person attacked does use in his defense more force than is necessary he, himself, becomes the aggressor.” [State v. Robinson, 36 A.2d 27, 28 (Del. 1944)].
Arulanandam said Delaware is even more restrictive on force in defense of property. The use of deadly force for the protection of property is justifiable only if the defendant believes that:
“The person against whom the deadly force is used is attempting to commit arson, burglary, robbery or felonious theft or property destruction and either:
a. Had employed or threatened deadly force against or in the presence of the defendant; or
b. Under the circumstances existing at the time, the defendant believed the use of force other than deadly force would expose the defendant, or another person in the defendant’s presence, to the reasonable likelihood of serious physical injury. (11 Del. Code 466)
One part of the NRA’s argument is not quite right, however. Arulanandam also cited a Wilmington City code that prohibits discharging a firearm “in any nonpublic place, if such discharge results in a projectile entering into, over or upon a public place.” (Wilmington City Code 36-162, page 29.) But though the Bidens’ home has a Wilmington zip code (19807), it lies just outside the city limits so that particular law would not apply.
Still, on the face of it, the NRA’s case seems fairly strong. However, State Prosecutor Kathleen Jennings, who heads the Delaware Department of Justice’s Criminal Division, disagreed. “In Delaware, a person can legally fire a weapon to protect themselves and others from someone intruding onto her dwelling,” she said in an interview.
Jennings pointed to several parts of the Delaware criminal code relating to defending the use of the force (including the 11 Del. Code 466 cited by the NRA) to back up her statement. In particular, she mentioned:
■“The use of force upon or toward another person is justifiable when the defendant believes that such force is immediately necessary for the purpose of protecting the defendant against the use of unlawful force by the other person on the present occasion….The use of deadly force is justifiable under this section if the defendant believes that such force is necessary to protect the defendant against death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat.” (11 Del. Code 464)
■The use of force is justified against an intruder unlawfully in your dwelling (home), even if it results in death or injury if “the encounter between the occupant and intruder was sudden and unexpected, compelling the occupant to act instantly; or the occupant reasonably believed that the intruder would inflict personal injury upon the occupant or others in the dwelling; or the occupant demanded that the intruder disarm or surrender, and the intruder refused to do so.” (11 Del. Code 469)
Jennings said that Delaware laws allows for a fairly “subjective test” of self-defense, particularly in the case of a woman alone at night who believes she faces imminent danger in her dwelling. “A person is justified in using force if she believes it is necessary for self-protection,” she said, but she added that “clearly you can’t just fire a gun if you are not in a self-protection scenario.”
Jennings would have the final decision on whether to bring a case, so her interpretation of the law has some authority.
One caveat, of course. Who does Jennings work for? Beau Biden, the vice president’s son. He appointed her to her current job in 2011, though she notes that she was a prosecutor for 16 years and a criminal defense lawyer for 16 years.
Indeed, Arulanandam disputed Jennings’ citations. He said 11 Del. Code 464 concerns situations not similar to what Biden “vaguely described, which sounded more like a potential burglary at most,” whereas 11 Del. Code 469 involved a much more dangerous showdown.
“Vice President Biden described a situation that hadn’t gotten nearly to that point yet — no killing or injury, and no sudden encounter, circumstances leading to apprehension of injury, or verbal challenge to the intruder that would justify killing or injuring the intruder in any event,” he said.
An aide to the vice president offered this explanation for his remarks:
“The Vice President’s comments were made in the response to a question about whether a ban on assault weapons and high capacity magazines will prevent law-abiding citizens from using a firearm in self-defense. Consistent with the premise of that question, the Vice President’s comments presupposed a situation in which self-defense was at stake. The point of his example was that access to assault weapons is not necessary for self-defense.”
The Pinocchio Test
We find ourself in a maze of conflicting interpretations here. The NRA certainly can point to provisions in Delaware law that suggest Biden’s advice crosses a legal line.
But would such a case ever be brought? That appears unlikely, given Jennings’ interpretation of the law. One would suspect the NRA also would not be keen for Delaware officials to begin prosecuting people who used a firearm to ward off an intruder, especially if no one was harmed by stray bullets.
We don’t give Pinocchios for foolhardy ideas, so Biden’s off the hook, but the NRA does not quite earn either a Pinocchio or a Geppetto Checkmark; we do not award half-Pinocchios. In any case, Biden’s ill-considered remarks certainly provided an opening for the pro-gun lobby to stake out the higher ground on gun safety.
No Ruling
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