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 Post subject: Criminal code being rewritten
PostPosted: Wed Mar 22, 2017 11:17 am 
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There have been a couple of news items recently about an ongoing effort to rewrite the Delaware criminal code, led by Chief Justice Strine and a law professor from U. Penn. You can read the preliminary report to the Delaware General Assembly's Criminal Justice Improvement Committee here:

http://legis.delaware.gov/docs/default- ... f?sfvrsn=0

Whatever you may think of the rest of the effort, this is something the RKBA community needs to be watching, in my view. The provisions for CCDW licensing, the use of deadly force in self-defense or defense of others, the castle doctrine, etc. are in the criminal code, so a rewrite can sneak in significant changes without being noticed, or even intended. The bright lawyers at NRA-ILA need to look at this.

The proposed re-draft takes the CCDW licensing and reciprocity provisions out, apparently with the intent that the licensing scheme goes to a different part of the code. (If those provisions don't get reinserted somewhere else, then the rewrite is a complete ban on concealed carry, which is obviously a problem.)

A couple more items of specific concern:

1. The biggest one is the change in justification for the use of deadly force. I'll copy and paste the relevant code sections below, but under current law, you are justified in using deadly force if you believe it's necessary to prevent death or certain serious crimes to you, unless you know you can retreat in complete safety (subject to the castle doctrine). Under the new one, you're only justified if deadly force is necessary -- not if you believe it is -- and you have a duty to retreat if retreat can secure complete safety -- not if you know retreat can secure complete safety. The change to the requirements of mental state is potentially huge.

Current statute: 11 Del. C. sec. 464(c): "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." There's an exception in 464(e)(2): Deadly force isn't justified if "the defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform except that: a. The defendant is not obliged to retreat in or from the defendant's dwelling; and b. The defendant is not obliged to retreat in or from the defendant's place of work, unless the defendant was the initial aggressor."

Under the rewrite (new proposed section 306(c)):

(c) Use of Deadly Force.

(1) Justified in Limited Circumstances. The use of deadly force is justified under this Section only if it is necessary to protect the person or another person against death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat of force.

(2) Retreat, Surrendering Possession, or Complying with Aggressor’s Demands.
(A) Generally. The use of deadly force is not justified if the necessity of using deadly force can be avoided, thereby securing the complete safety of any person in danger, by:
(i) retreating; or
(ii) surrendering possession of a thing to a person asserting a claim of right to the thing; or
(iii) complying with a demand that the defendant abstain from performing an act that the defendant is not legally obligated to perform.
(B) Exceptions.
(i) A person is not obligated to retreat in or from his or her dwelling or, if the person acts to protect another person, that person’s dwelling.
(ii) A person is not obligated to retreat in or from his or her place of work or, if the person acts to protect another person, that person’s place of work, unless the person was the initial aggressor.

2. The current law has specific provisions around justification of deadly force in your own dwelling. (11 Del. C. sec. 469). Those are eliminated in favor of a general provision about "mistake as to justification" (new proposed section 409). This is also a partial give-back on point 1 above. Under the proposed new standard, a person is "excused" for an "offense" if "under the circumstances as the person believes them to be, his or her conduct satisfies the requirements of a justification defense defined in Chapter 300, and (2) the person’s mistake is: (A) reasonable, or (B) less culpable than the culpability required by: (i) the result element of the offense charged; or (ii) if no result element exists, the circumstance element most central to the offense charged." One big difference between a "justification" and an "excuse" is that the prosecution has to disprove a "justification" beyond reasonable doubt, but the defendant has to prove "excuse" by a preponderance of the evidence. I don't do criminal practice, but maybe wiser heads will tell me this is a net positive change. I sure don't like the shift of terminology from "justified" to "excused," though, and it sounds like more hydraulic pressure against decent people defending themselves.

3. New proposed section 5103 ("Carrying a Concealed Deadly Weapon or Dangerous Instrument") is also a significant change. Current section 1442 criminalizes carrying a concealed deadly weapon "upon or about the person without a license to do so as provided by section 1441," and expressly provides that possession of an expired license is a defense for a limited period of time. The new proposed section 5103 removes the reference to a license in favor of "Except as authorized by law." That is potentially a very big deal -- "it's not prohibited and I have a license means I can" turns into "if I'm not authorized by law, then I'm committing a crime if I do."

4. New section 5103 also shifts the offense from carrying concealed "upon or about the person" to carrying concealed and "available and accessible for the person's immediate use." Not sure which way that winds up cutting, ultimately. Does the requirement of "immediate use" take us in the direction of some western states, where you can carry a concealed pistol without a license if it's "unloaded," but "unloaded" means no round in the chamber and two mechanical steps to fire (e.g., rack slide and pull trigger), so that Israeli carry is fine?

5. New section 5109(e) also defines a "firearm" to mean "any weapon from which a bullet, projectile or other object may be discharged by force of combustion, explosive, gas and/or mechanical means, regardless of whether the weapon is loaded or stored in multiple pieces. The term does not include a B.B. gun." There is a footnote pointing out that this definition means a bow is a "firearm," and includes arguments for and against doing that. The note doesn't point out that if a bow is a "firearm," then we're now going to be requiring background checks for the sale or transfer of bows.

6. And of course, the new draft keeps (at Section 5102(b)(4)) the current prohibition (in 11 Del. C. sec. 1445) on selling, buying or possessing ("except as authorized by law," whatever that means, again), "a weapon that, by compressed air or spring, projects a pellet, slug or bullet larger than a B.B. shot, or their pellets, slugs or bullets." Right. So electric AirSofts are OK? "Larger" than a B.B. shot in diameter by a few thousandths of an inch, like .177 air rifle pellets? Heavier than B.B. shot (made of what)?

All this serves to tell me that all change is bad, but your mileage may vary.


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 Post subject: Re: Criminal code being rewritten
PostPosted: Wed Mar 22, 2017 12:13 pm 
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One additional change that I neglected to mention, the re-draft changes the definition of what knives are "deadly weapons," by shifting the measurement from blade length to overall length in the closed position.

Under current law, "an ordinary pocketknife carried in a closed position" is not a deadly weapon, and an "ordinary pocketknife" is defined as "a folding knife having a blade not more than 3 inches in length." That's 11 Del. C. sec. 222(5).

The re-draft, section 5109(b), defines "deadly weapon" to include "firearms, [whether operable or inoperable,] and: (1) a bomb, switchblade knife, any other knife (other than a folding knife, 3 inches or less in length, in its closed position), billy, blackjack, bludgeon, metal knuckles, slingshot, or razor."

No longer a blade of 3 inches or less, new language appears to refer to overall length in the closed position. My every-day carry knife goes from not a deadly weapon to a deadly weapon under the re-draft, yours might too.

And an interesting side point: My earlier point about bows being treated as firearms is technically already in the criminal code, though obviously nobody is requiring background checks for bows. Current definition is in 11 Del. C. sec. 222(12), for those interested.


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 Post subject: Re: Criminal code being rewritten
PostPosted: Wed Mar 22, 2017 12:32 pm 
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Since when did a Judicial branch member and a professor get to legislate? All of this is not legal unless it goes through the legislature as a bill and is then signed into law by the governor.

I like the removal of DE's CCDW scheme and replacing it with "except as authorized by law". That effectively makes DE constitutional carry. The only remaining mention of bearing arms is the right guarantee in the DE constitution, the highest law in the state. e.g. DE constitution authorizes us. :D

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 Post subject: Re: Criminal code being rewritten
PostPosted: Wed Mar 22, 2017 9:41 pm 
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How do you think the sausage is normally made?


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 Post subject: Re: Criminal code being rewritten
PostPosted: Thu Mar 23, 2017 12:58 pm 
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GatorDude wrote:
How do you think the sausage is normally made?

My first reaction would be "badly".

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 Post subject: Re: Criminal code being rewritten
PostPosted: Tue Apr 04, 2017 2:55 pm 
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I am now pretty much convinced that this is our Democratic establishment trying to sneak things past us in the name of "social justice." I won't be shocked if they try to ram this through before the legislative session ends in June.

http://www.delawareonline.com/story/new ... /99989824/

I've also given some more thought to the proposed shift from deadly force in self-defense being justifiable if the shooter believes he or she is being threatened with death, serious physical injury, kidnapping or rape, to being justifiable only if it is actually necessary to prevent one of those crimes, subject to the carve-out that it's still excusable homicide if the shooter makes a reasonable mistake about the circumstances. There's a process-is-the-punishment aspect to that change -- lots of self-defense shootings become easier to prosecute, because maybe the jury won't agree with the shooter's assessment of the circumstances.

There's also a historical piece. Justifiable homicide traditionally (going back at least to Blackstone) meant "perfectly OK and even commendable." One less felon running around committing crimes punishable by death at common law (which included things like robbery, rape, kidnapping, etc.), and good riddance. Excusable homicide traditionally referred to homicides that wouldn't be punished (at least not severely), but were still looked upon with disfavor. Blackstone's example is getting into a mutual fight, and accidentally punching your opponent so hard that he died. The "duty to retreat" that the gun-grabbers like to yammer about applied to excusable homicide -- if you want to not be guilty of manslaughter for your bar-fight-turned-deadly, better try to back out of it. (No duty to retreat if you kill a felon to prevent a capital crime, in Blackstone's world.) That's the old rule, and that's not wild-eyed libertarianism, either; that's English law per the high Tory judge Blackstone, in expressed disagreement with Locke's proto-libertarian view on the subject.

The subjective-belief-equals-justification component is a move away from Blackstone, but it's a necessary move. It is way too easy for a prosecutor (or the media mob) to second-guess self-defense cases. Is the question for the jury supposed to be "did the shooter actually believe he was about to be murdered, robbed, raped, kidnapped, etc." (current law), or "did the shooter have a reasonable belief he was about to be murdered etc., even if he was objectively wrong" (proposed new excusable homicide standard), or "was the shooter actually right that he was about to be murdered etc." (proposed new justifiable homicide standard)?

Put the change through, and the focus for justification shifts from "were you really in fear for your life?" to "did the dead bad guy really mean to kill, kidnap, rape, or inflict serious injury on you, and if not, how reasonable could it have been for you to think he did"? Cue bad guy's relatives explaining how he was on his way to choir practice and wouldn't harm a fly, never mind those Facebook posts with pics of him holding a gun and flashing gang signs and his six-page rap sheet.

Maybe it's still "excusable," but again, "excusable homicide" traditionally means "you jackass, you got in a bar fight and punched a guy so hard he died, you probably shouldn't be looked upon as a decent, upstanding citizen any more, and maybe the cops ought to keep close tabs on you from now on."


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 Post subject: Re: Criminal code being rewritten
PostPosted: Wed Apr 05, 2017 11:58 am 
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This is just chock full of DE is the new NJ stuff. Air soft is now illegal because the projectile is bigger than a BB. No knife longer 3" closed may have an out with the pocket knife/sporting knife exception but who knows. Surpressors are now destructive devices? WTH?

Quote:
Section 5109. Definitions
(a) “Dangerous instrument” means any instrument, article, or substance that, under
the circumstances in which it is used or threatened to be used, is readily capable of
causing death or serious physical injury. The term includes disabling sprays, such as
“pepper spray,” and electronic devices designed to incapacitate a person, such as
“Tasers.”
(b) “Deadly weapon” includes firearms, [whether operable or inoperable,] and:
(1) a bomb, switchblade knife, any other knife (other than a folding knife, 3
inches or less in length, in its closed position), billy, blackjack, bludgeon, metal
knuckles, slingshot, or razor; or
(2) any dangerous instrument, when it is used with intent to cause death or
serious physical injury.
(c) “Deadly weapon designed for the defense of one’s person” includes a pistol,
revolver, stiletto, and steel or brass knuckles. The term does not include toy pistols,
pocketknives, knives used for sporting purposes or in domestic households, or surgical
instruments.
(d) “Destructive weapon” means:
(1) a bomb or bomb shell; or
(2) a firearm silencer; or
(3) a shotgun:
(A) with 1 or more barrels less than 18 inches in length; or
(B) modified to have an overall length of less than 26 inches; or
(4) a machine gun, or any other weapon that is adaptable for use as a
machine gun.
Proposed Code Text 2/24/2017
184
(e) “Firearm” means any weapon from which a bullet, projectile, or other object
may be discharged by force of combustion, explosive, gas, and/or mechanical means,20
regardless of whether the weapon is loaded [or stored in multiple pieces].
21
The term
does not include a B.B. gun.
(f) “Handgun” means a pistol, revolver, or other firearm designed to be fired when
held in 1 hand.

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 Post subject: Re: Criminal code being rewritten
PostPosted: Wed Apr 05, 2017 11:12 pm 
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Posts: 1559
Location: Newark, DE
Owen wrote:
This is just chock full of DE is the new NJ stuff. Air soft is now illegal because the projectile is bigger than a BB. No knife longer 3" closed may have an out with the pocket knife/sporting knife exception but who knows. Surpressors are now destructive devices? WTH?

Quote:
Section 5109. Definitions
(a) “Dangerous instrument” means any instrument, article, or substance that, under
the circumstances in which it is used or threatened to be used, is readily capable of
causing death or serious physical injury. The term includes disabling sprays, such as
“pepper spray,” and electronic devices designed to incapacitate a person, such as
“Tasers.”
(b) “Deadly weapon” includes firearms, [whether operable or inoperable,] and:
(1) a bomb, switchblade knife, any other knife (other than a folding knife, 3
inches or less in length, in its closed position), billy, blackjack, bludgeon, metal
knuckles, slingshot, or razor; or
(2) any dangerous instrument, when it is used with intent to cause death or
serious physical injury.
(c) “Deadly weapon designed for the defense of one’s person” includes a pistol,
revolver, stiletto, and steel or brass knuckles. The term does not include toy pistols,
pocketknives, knives used for sporting purposes or in domestic households, or surgical
instruments.
(d) “Destructive weapon” means:
(1) a bomb or bomb shell; or
(2) a firearm silencer; or
(3) a shotgun:
(A) with 1 or more barrels less than 18 inches in length; or
(B) modified to have an overall length of less than 26 inches; or
(4) a machine gun, or any other weapon that is adaptable for use as a
machine gun.
Proposed Code Text 2/24/2017
184
(e) “Firearm” means any weapon from which a bullet, projectile, or other object
may be discharged by force of combustion, explosive, gas, and/or mechanical means,20
regardless of whether the weapon is loaded [or stored in multiple pieces].
21
The term
does not include a B.B. gun.
(f) “Handgun” means a pistol, revolver, or other firearm designed to be fired when
held in 1 hand.

While those have been re-worded from the current code, they are nearly identical in function. Some of the current code for comparison:
11 Del. C. § 222
(4) "Dangerous instrument" means any instrument, article or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury, or any disabling chemical spray, as defined in paragraph (7) of this section or any electronic control devices including but not limited to a neuromuscular incapacitation device designed to incapacitate a person.

(5) "Deadly weapon" includes a "firearm", as defined in paragraph (12) of this section, a bomb, a knife of any sort (other than an ordinary pocketknife carried in a closed position), switchblade knife, billy, blackjack, bludgeon, metal knuckles, slingshot, razor, bicycle chain or ice pick or any "dangerous instrument", as defined in paragraph (4) of this section, which is used, or attempted to be used, to cause death or serious physical injury. For the purpose of this definition, an ordinary pocketknife shall be a folding knife having a blade not more than 3 inches in length.

(7) "Disabling chemical spray" includes mace, tear gas, pepper spray or any other mixture containing quantities thereof, or any other aerosol spray or any liquid, gaseous or solid substance capable of producing temporary physical discomfort, disability or injury through being vaporized or otherwise dispersed in the air, or any canister, container or device designed or intended to carry, store or disperse such aerosol spray or such gas or solid.

(10) "Electronic control device" is a device designed to incapacitate a person, including but not limited to a neuromuscular incapacitation device.

(12) "Firearm" includes any weapon from which a shot, projectile or other object may be discharged by force of combustion, explosive, gas and/or mechanical means, whether operable or inoperable, loaded or unloaded. It does not include a BB gun.

Current code regarding silencers being "destructive weapons":

11 Del. C. § 1444 (a) A person is guilty of possessing a destructive weapon when the person sells, transfers, buys, receives or has possession of a bomb, bombshell, firearm silencer, sawed-off shotgun, machine gun or any other firearm or weapon which is adaptable for use as a machine gun.

That said I personally feel knife, suppressor, and weapon prohibitions in general to be downright retarded. I haven't had time to go through the proposed recodification and see how these definitions are applied but I suspect their will be devils in the details. I also generally do not trust our legislature any further than I can throw them.

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 Post subject: Re: Criminal code being rewritten
PostPosted: Thu Apr 06, 2017 12:39 pm 
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Posts: 117
The proposed revision would change the definition of a knife as a "deadly weapon" from having a 3" or longer blade to being 3" or longer when closed. The folding knife I have in my pocket right now has a blade that's just shy of 3" long, but its overall length when closed is around 4". Right now, it's an "ordinary pocket knife" and not a "deadly weapon," but the drafters want to change that.

And totally agree that neither the legislators nor the committee that came up with this draft should be trusted. This rewrite is not simpler or easier to understand than the existing code. It introduces subtle changes that leave a lot of room for enforcement, prosecutorial and judicial mischief. And it moves a lot of material -- such as the whole CCDW licensing system -- out of the criminal code altogether; where is it going, and with what changes? Nobody knows, which means it's also an opportunity for legislative mischief.


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 Post subject: Re: Criminal code being rewritten
PostPosted: Thu Apr 06, 2017 2:13 pm 
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