NationStates

Denathor wrote:

The New Nordic Union wrote:OOC: I am not sure this is intentional, but as per this provision, any self-defense that results in killing the aggressor might be criminalised, even if the killing is 'necessary to ensure removal of the threat'? I agree that it might be reasonable to subject those cases to the higher eveidentiary burdens mentioned; however, allowing to criminalise all cases in which an aggressor is killed (not even intentionally) goes against the spirit of proportionality expressed by other provisions in this draft, and the Believing clause of the preamble.

OOC: The gist of the Clause 2 exceptions is that the total immunity provided by the defence of "self-defence" might not extend to those cases if a jury decides that the force used was unreasonable according to the laws standards that Clause 3 compels nations to create. It doesn’t necessarily mean that those cases must be prosecuted, it’s just a safeguard so you can’t kill someone, claim self-defence and walk away without charges. The case can be examined first to determine if the killing was justified. This is what is meant by

In either of the previous cases, additional charges may still be laid at the discretion of the judiciary of a nation

OOC: I thought that was the intention, yes, but, however, I feel this is not the way it is worded at the moment.
The provision reads: Mandates that the act of reasonable self-defence shall not be criminalized [...] except in cases where the aggressor is killed. This leaves it possible for nations to completely criminalise any acts of self-defense where the aggressor is killed, without having to determine whether the use of force in general and the killing in particular were justified.

Requires that before self-defense is used, a person must make all possible attempts to avoid conflict, such as through alerting a security officer or retreating from the aggressor,

Oh I just love how this discussion is making all the points that have historically been made in jurisprudence. The 'avoid conflict or retreat bit' actually led to such wonderful tenements, which still hold true today in th RL legal system in which I am educated, that 'Lawfullsness need not yield to unlawfulness' and 'A person cannot be expected to flee disresputably'. While I agree with those, I acknowlegde that others might be of another opinion.

Kenmoria wrote:“I think you should have ‘reasonable attempts’ rather than ‘possible attempts’ in clause 2. Giving all of your earthly possessions to an attacker is a possible way to avoid conflict, but it’s not the sort of thing the WA should be mandating.”

"Agreed. I have changed the clause to reflect this."

The New Nordic Union wrote:OOC: I thought that was the intention, yes, but, however, I feel this is not the way it is worded at the moment.
The provision reads: Mandates that the act of reasonable self-defence shall not be criminalized [...] except in cases where the aggressor is killed. This leaves it possible for nations to completely criminalise any acts of self-defense where the aggressor is killed, without having to determine whether the use of force in general and the killing in particular were justified.

OOC: I see your point. I redid the wording to make it clear that an investigation must show reason to prosecute the exceptions. I just assume that it would be clear that the nation would be doing the investigation and not some WA committee, but if I have to specify that I will.

Denathor wrote:[list=1][*]Defines:
[list=i][*]an "aggressor" as a person who attempts to do harm to another person,

I have only one minor quibble, which is that "harm" can be a very broad concept. A bully make seek to do harm with words, a business rival may seek to do harm by undercutting prices, things of that nature. As this resolution is focused on matters of physical violence and physical defense, it is my suggestion that this definition specify "physical harm" (or something similarly specific) in order to avoid the potential for abuse and clogging up of court systems with spurious self-defense claims which must be adjudicated and addressed.

Verdant Haven wrote:I have only one minor quibble, which is that "harm" can be a very broad concept. A bully make seek to do harm with words, a business rival may seek to do harm by undercutting prices, things of that nature. As this resolution is focused on matters of physical violence and physical defense, it is my suggestion that this definition specify "physical harm" (or something similarly specific) in order to avoid the potential for abuse and clogging up of court systems with spurious self-defense claims which must be adjudicated and addressed.

Fixed. Thank you.

OOC: To be fair, my experience of non-violent (school) bullies is that they won't stop until you do physical violence to them... and then they do stop.

OOC: Fair point, but this legislation isn’t trying to regulate schoolyard quarrels.

Denathor wrote:

The Yellow Monkey wrote:While an interesting Tort reform idea, I don't think this belongs in a civil rights proposal.

"I respectfully disagree. If we were to remove this clause, it would mean that in order to have this legal protection, that clause would have to stand as an independent piece of legislation to be added later. I am not convinced that it would be able to stand independently, nor do I think we could afford to have a gap between this legislation and the confirmation of those rights that the clause allows."

Tort reform principles are distinct from the protection of civil rights. There are instances of self-defense where a person should be legally authorized to use force and exempt from prosecution by a government but nonetheless liable for the damages to other involved persons.

I can give you many examples, most of them have to do with when a person acts reasonably but mistakenly. For instance, a police officer might reasonably believe that a person is in need of defense from an act of violence and break down a door, only to find a family watching a scary movie together. The officer's conduct would meet your definition of reasonable self defense (actually defense of others but you've conflated the two concepts in your definition), so certainly the officer shouldn't be subject to prosecution by the state. But less clear is that the family should be legally prohibited from at least pursuing damages for their door.

Another classic example is the man who shoots several people in togas because they appeared to be stabbing another man to death, only to later learn that they were actors in a Shakespeare in the Park production of Julius Ceasar. Again, probably not a situation where criminal penalties are at stake but shouldn't the families of the slain actors have a private civil action to at least try to get some redress?

And as a side point, OOC, I generally believe that were we have categories for legislation like Tort reform we should be using it to pass tort reform ideas, not shoehorning tort reform ideas into related (but distinct) civil rights proposals.

Requires that no damages shall be awarded to an aggressor in compensation for harm suffered as a result of reasonable self-defence, unless a case meets the exceptions defined in Clause 3.

OOC: The clause doesn’t fully prohibit people from seeking damages in those cases you outlined, so long as the judiciary of a nation agrees that the use of force was unnecessary. For example, if the officer broke the door down instead of knocking first, the judiciary would likely agree that he’s liable for damages. If the man just started firing at the actors, not only would he be liable for damages, but per the exceptions he might also not qualify for the immunity this legislation would offer.

I do agree that perhaps the clause might not belong in the civil rights category, but as there’s nothing better at the moment I feel obligated to leave it in.

The Yellow Monkey wrote:

Denathor wrote:"I respectfully disagree. If we were to remove this clause, it would mean that in order to have this legal protection, that clause would have to stand as an independent piece of legislation to be added later. I am not convinced that it would be able to stand independently, nor do I think we could afford to have a gap between this legislation and the confirmation of those rights that the clause allows."

Tort reform principles are distinct from the protection of civil rights. There are instances of self-defense where a person should be legally authorized to use force and exempt from prosecution by a government but nonetheless liable for the damages to other involved persons.

I can give you many examples, most of them have to do with when a person acts reasonably but mistakenly. For instance, a police officer might reasonably believe that a person is in need of defense from an act of violence and break down a door, only to find a family watching a scary movie together. The officer's conduct would meet your definition of reasonable self defense (actually defense of others but you've conflated the two concepts in your definition), so certainly the officer shouldn't be subject to prosecution by the state. But less clear is that the family should be legally prohibited from at least pursuing damages for their door.

Another classic example is the man who shoots several people in togas because they appeared to be stabbing another man to death, only to later learn that they were actors in a Shakespeare in the Park production of Julius Ceasar. Again, probably not a situation where criminal penalties are at stake but shouldn't the families of the slain actors have a private civil action to at least try to get some redress?

And as a side point, OOC, I generally believe that were we have categories for legislation like Tort reform we should be using it to pass tort reform ideas, not shoehorning tort reform ideas into related (but distinct) civil rights proposals.

Ooc: very broadly, tort reform is a civil concept where a law protecting the right to self defense would be a criminal matter more appropriately in Civil Rights. Reading Tort Reform more narrowly, it encompasses laws that make it harder for a claimant to sue a business. In either case, this draft as written is not Tort Reform.

Ooc: I will reiterate to the author that this really should be split into separate criminal and civil concepts, since they are often distinct in practice.

Separatist Peoples wrote:Ooc: I will reiterate to the author that this really should be split into separate criminal and civil concepts, since they are often distinct in practice.

OOC: I am unsure of how exactly to do this. Are you suggesting there are parts that should be removed? I need some guidance here.

Denathor wrote:

Separatist Peoples wrote:Ooc: I will reiterate to the author that this really should be split into separate criminal and civil concepts, since they are often distinct in practice.

OOC: I am unsure of how exactly to do this. Are you suggesting there are parts that should be removed? I need some guidance here.

Ooc: yes. draft one proposal that solely addresses the criminal defense, and draft a separate proposal that addresses solely the civil implications.

OOC: I removed the offending clause. The draft should now just focus on criminal defence.

Ooc: that should make drafting much easier for you.

IC: "The C.D.S.P. cannot accept any version that includes a variance on Clause 2. There is no duty to retreat or call for help in C.D.S.P. jurisprudence, and we are unwilling to see that change. Self-defense is an act of expedience, and it is not expedient to require individuals take additional action to defend themselves. Nor either is it reasonable to require victims flee rather than protect themselves, especially when they have a right to be present in that locale. To enforce such a requirement and deny the defense punishes a victim for refusing to be a victim."

"I disagree with this point. The wording of the clause in question says that '...a person must make a reasonable attempt to avoid conflict....' As the criteria of 'reasonable attempt' is not defined within the document, I hold that is up for the judiciary of a nation to determine. Therefore, where our definition might be attempting to notify a security officer of the threat, your definition might be pulling out a grenade launcher and giving the aggressor five seconds to flee. In either case, the 'reasonable attempt' criteria is met."

Denathor wrote:"I disagree with this point. The wording of the clause in question says that '...a person must make a reasonable attempt to avoid conflict....' As the criteria of 'reasonable attempt' is not defined within the document, I hold that is up for the judiciary of a nation to determine. Therefore, where our definition might be attempting to notify a security officer of the threat, your definition might be pulling out a grenade launcher and giving the aggressor five seconds to flee. In either case, the 'reasonable attempt' criteria is met."

"Ambassador, I wouldnt give an assailant five entire seconds to do much of anything. It takes less than two for an average person to draw and fire. By obligating a reasonable attempt to do anything in an exigent situation, you delay the decision-making process irreparably and invite people to make themselves vulnerable for no valid reason. A duty to retreat or take alternative action is not only insulting, it is downright dangerous for the victims of violent attack. The C.D.S.P. will spare little expense fighting this so long as Clause 2 remains substantively similar."

"If there was middle ground on this topic, I would be glad to try to meet in it. Sadly, it appears we are miles apart.

It seems to me as if your argument against the clause is that it does not give a defender enough time to react to a threat if the threat is sudden and immediate, like a hit job as opposed to an attempted robbery. Does this happen often in your nation, Ambassador? I personally believe that situations like this happen significantly less often than situations where a defender has time to attempt to avoid a confrontation. I certainly don’t intend on sending a proposal to the World Assembly that promotes unnecessary use of violence.

Removing this clause entirely is not an option. I would lose more support if I took it out than if I left it in, and more importantly it would provide an incentive for a defender to do harm to an aggressor, which should be avoided if possible.

As mentioned before, I am unsure if there is any way that I can rewrite the clause in a way that both of us would approve of. However, I may be able to add an exception to the clause that may be able to cover your point, though I feel it may just be adding more unnecessary bureaucracy to the draft."

Obligates that before self-defense is used, a person must a reasonable attempt to avoid conflict, such as through alerting a security officer and/or retreating from the aggressor, except in situations where said person

1. would not have time to due to a sudden and immediate threat, or
2. has reason to believe they would put themselves in danger by not immediately defending themselves

Denathor wrote:"If there was middle ground on this topic, I would be glad to try to meet in it. Sadly, it appears we are miles apart.

It seems to me as if your argument against the clause is that it does not give a defender enough time to react to a threat if the threat is sudden and immediate, like a hit job as opposed to an attempted robbery. Does this happen often in your nation, Ambassador? I personally believe that situations like this happen significantly less often than situations where a defender has time to attempt to avoid a confrontation. I certainly don’t intend on sending a proposal to the World Assembly that promotes unnecessary use of violence.

Removing this clause entirely is not an option. I would lose more support if I took it out than if I left it in, and more importantly it would provide an incentive for a defender to do harm to an aggressor, which should be avoided if possible.

As mentioned before, I am unsure if there is any way that I can rewrite the clause in a way that both of us would approve of. However, I may be able to add an exception to the clause that may be able to cover your point, though I feel it may just be adding more unnecessary bureaucracy to the draft."

Obligates that before self-defense is used, a person must a reasonable attempt to avoid conflict, such as through alerting a security officer and/or retreating from the aggressor, except in situations where said person

1. would not have time to due to a sudden and immediate threat, or
2. has reason to believe they would put themselves in danger by not immediately defending themselves

Bell shrugs.
"I don't reckon I have to negotiate on this. If you are unwilling to remove the clause in its entirety, please expect voluminous lobbying against this upon submission, ambassador. Any duty to retreat, no matter how watered down, is intolerable.

"Bear in mind that this is the Assembly that will not ban nuclear weapons and had to try several times to pass a milquetoast limit on chemical weapons, ambassador. Anything that limits the individual or collective ability to defend oneself is scrutinized harshly."

Separatist Peoples wrote:"I don't reckon I have to negotiate on this. If you are unwilling to remove the clause in its entirety, please expect voluminous lobbying against this upon submission, ambassador. Any duty to retreat, no matter how watered down, is intolerable.

"Bear in mind that this is the Assembly that will not ban nuclear weapons and had to try several times to pass a milquetoast limit on chemical weapons, ambassador. Anything that limits the individual or collective ability to defend oneself is scrutinized harshly."

IC: "Yet limitations on nuclear weapon use have managed to pass before, many weapons classes and tactics are entirely banned, and there is also some kind of landmine ban or restriction of use in effect as well. If the clause you object to because you want to shoot strangers in the face when they tap your shoulder to ask you the time - two seconds does not leave you enough time to assess any kind of threat level - is removed, the author should expect vehement opposition and active counter-campaigning against their proposal as well."

OOC: And this is why we have no self defence resolution yet.

Maybe you could change it so that nations can set extra limitations to what they consider reasonable, such as duty to retreat or call for help? It would water down the proposal a bit, but would bypass this quagmire.

Separatist Peoples wrote:Bell shrugs.
"I don't reckon I have to negotiate on this. If you are unwilling to remove the clause in its entirety, please expect voluminous lobbying against this upon submission, ambassador. Any duty to retreat, no matter how watered down, is intolerable.

"Bear in mind that this is the Assembly that will not ban nuclear weapons and had to try several times to pass a milquetoast limit on chemical weapons, ambassador. Anything that limits the individual or collective ability to defend oneself is scrutinized harshly."

"Ambassador, the concessions that I just proposed to the clause are more than enough to put to rest any reasonable fears of limiting a person's ability to defend themselves. Forgive me, but it seems your only argument at this point is, as the ambassador from Araraukar suggested, that you essentially want to legalized murder if committed where there is the barest suggestion of a possible threat. As I said before, I will not put forth legislation that excuses or incentivizes unnecessary murder."

OOC: I was wondering about changing the verb from "obligates" to "urges," thus making the clause non-binding. But I think this violates the optionality rule, even though the rest of the clause is binding. Am I correct?

Araraukar wrote:

Separatist Peoples wrote:"I don't reckon I have to negotiate on this. If you are unwilling to remove the clause in its entirety, please expect voluminous lobbying against this upon submission, ambassador. Any duty to retreat, no matter how watered down, is intolerable.

"Bear in mind that this is the Assembly that will not ban nuclear weapons and had to try several times to pass a milquetoast limit on chemical weapons, ambassador. Anything that limits the individual or collective ability to defend oneself is scrutinized harshly."

IC: "Yet limitations on nuclear weapon use have managed to pass before, many weapons classes and tactics are entirely banned, and there is also some kind of landmine ban or restriction of use in effect as well. If the clause you object to because you want to shoot strangers in the face when they tap your shoulder to ask you the time - two seconds does not leave you enough time to assess any kind of threat level - is removed, the author should expect vehement opposition and active counter-campaigning against their proposal as well."

OOC: And this is why we have no self defence resolution yet.

Maybe you could change it so that nations can set extra limitations to what they consider reasonable, such as duty to retreat or call for help? It would water down the proposal a bit, but would bypass this quagmire.

"Ambassador, your charactarization of my position is fabricated entirely from wholecloth and offered in bad faith. I see no reason to engage with such blatantly manipulative mischaracterizations from a diplomatic corps with sufficient mental acuity and experience to make a real argument."

Ooc: yes, agreed. An optional clause permitting a duty to retreat would be a lot more effective.

Denathor wrote:

Separatist Peoples wrote:Bell shrugs.
"I don't reckon I have to negotiate on this. If you are unwilling to remove the clause in its entirety, please expect voluminous lobbying against this upon submission, ambassador. Any duty to retreat, no matter how watered down, is intolerable.

"Bear in mind that this is the Assembly that will not ban nuclear weapons and had to try several times to pass a milquetoast limit on chemical weapons, ambassador. Anything that limits the individual or collective ability to defend oneself is scrutinized harshly."

"Ambassador, the concessions that I just proposed to the clause are more than enough to put to rest any reasonable fears of limiting a person's ability to defend themselves. Forgive me, but it seems your only argument at this point is, as the ambassador from Araraukar suggested, that you essentially want to legalized murder if committed where there is the barest suggestion of a possible threat. As I said before, I will not put forth legislation that excuses or incentivizes unnecessary murder."

"Ambassador, murder is an unlawful killing. Lawful self defense under national law cannot be murder. Moreover, as I'm sure you picked up, the Araraukaran delegation has proferred an example inconsistent with the claim of self defense even under expansive defense laws. Many, and I might argue most, laws governing domestic self- defense require an objective test for reasonable belief of risk and a subjective test for belief of risk. These laws operate effectively without any duty to retreat.

"Your suggestion that nations that have no duty to retreat are permitting murder is far-fetched in the extreme, since those regulations still require a showing of objective and subjective exigency without requiring the victim leave somewhere they are lawfully permitted to be. That you wish to punish the victim for victimhood is no reason to require the rest of the world engage in such unreasonableness."

Callahan finishes scribbling something on a spare piece of paper and holds it up to the assembled ambassadors.
"Here, how does this wording suit you all?"

Obligates that before self-defense is used, a person must a reasonable attempt (as defined by an individual nation) to avoid conflict, except in situations where said person has reason to believe they would put themselves in danger by not immediately defending themselves,

Denathor wrote:Callahan finishes scribbling something on a spare piece of paper and holds it up to the assembled ambassadors.
"Here, how does this wording suit you all?"

Obligates that before self-defense is used, a person must a reasonable attempt (as defined by an individual nation) to avoid conflict, except in situations where said person has reason to believe they would put themselves in danger by not immediately defending themselves,

OOC: No. That'd still trigger SP's opposition. Make it a separate clause, at the end of the proposal, that reads something like "Allows nations to have additional conditions on what counts as reasonable self defence, such as needing to attempt to escape before resorting to violence". That way nations can have some leeway with reasonableness, but it'll remain the individual's call as to whether it's doable.

Separatist Peoples wrote:"Ambassador, your charactarization of my position is fabricated entirely from wholecloth and offered in bad faith. I see no reason to engage with such blatantly manipulative mischaracterizations from a diplomatic corps with sufficient mental acuity and experience to make a real argument."

IC: "Given that based on the dossier on your nation, ambassador Bell, you are from a militaristic gun-loving society, I am not surprised that you would have the views you have and not see them to be the perversion of common sense that they are. As such I will simply say that I pity you; having to live in a society so unsafe and brutal that lethal weaponry is your best and first line of defence, cannot be a very pleasant - or long - life."

Araraukar wrote:

Denathor wrote:Callahan finishes scribbling something on a spare piece of paper and holds it up to the assembled ambassadors.
"Here, how does this wording suit you all?"

Obligates that before self-defense is used, a person must a reasonable attempt (as defined by an individual nation) to avoid conflict, except in situations where said person has reason to believe they would put themselves in danger by not immediately defending themselves,

OOC: No. That'd still trigger SP's opposition. Make it a separate clause, at the end of the proposal, that reads something like "Allows nations to have additional conditions on what counts as reasonable self defence, such as needing to attempt to escape before resorting to violence". That way nations can have some leeway with reasonableness, but it'll remain the individual's call as to whether it's doable.

Separatist Peoples wrote:"Ambassador, your charactarization of my position is fabricated entirely from wholecloth and offered in bad faith. I see no reason to engage with such blatantly manipulative mischaracterizations from a diplomatic corps with sufficient mental acuity and experience to make a real argument."

IC: "Given that based on the dossier on your nation, ambassador Bell, you are from a militaristic gun-loving society, I am not surprised that you would have the views you have and not see them to be the perversion of common sense that they are. As such I will simply say that I pity you; having to live in a society so unsafe and brutal that lethal weaponry is your best and first line of defence, cannot be a very pleasant - or long - life."

OOC disclaimer: The above comment is all IC, based on how Linda was raised (and the society she grew up in) and her not having the insights into Mr. Bell's life and motives that Janis would have.

Ic: Bell flips through a dossier on Araraukar briefly and then looks back up at Linda.

"We'll take the trade-off, thanks."

Ooc: dont worry Ara, you good

OOC: Working on corrections now. They’ll be up a a few hours-ish.